The “anchoring effect” is a cognitive bias by which people evaluate numbers by focusing on a reference point—an anchor—and adjusting up or down. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than ninety percent of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias. This Article proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecution and defense laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This Article contends that this type of judicial participation would reduce the anchoring effect.
BCLR Moves to # 25 in Law Journal Rankings
The Boston College Law Review has moved from #26 to #25 in the annual Washington and Lee University School of Law Law […]
Alumni-Student Happy Hour, February 19
Dear BCLR Alumni, I am pleased to announce that the Boston College Law Review will be hosting its Alumni-Student Happy […]
2014 E. Supp. Now Available
We have begun posting case comments from recent federal appellate decisions to our 2014 E. Supp., which can be found […]