33 Pages Posted: 4 Mar 2012
Date Written: November 1, 2011
When judges sentence criminal offenders, they begin their analysis with a baseline sentence established by statutes or guidelines. Cognitive biases will likely cause this initial baseline to frame judges’ thought processes, such that judges will impose different sentences in identical cases depending on the baseline sentence from which the judge’s analysis begins. This Note shows that baseline framing will lead to disproportionately low sentences in a floor baseline regime, disproportionately high sentences in a ceiling baseline regime, and sentences disproportionately clustered around the typical sentence in a typical crime baseline regime.
In order to design the most just sentencing procedures, policymakers must consider baseline framing effects. This Note suggests that policymakers who want to minimize the number of sentences skewed by cognitive error should implement a typical crime baseline. In contrast, policymakers who want to err against inflicting unreasoned punishment should implement Tennessee’s quasi-floor baseline.
Keywords: sentencing, criminal law, crime, behavioral economics, framing effects, anchoring, sentencing guidelines
JEL Classification: K14
Suggested Citation: Suggested Citation
Isaacs, Daniel M., Baseline Framing in Sentencing (November 1, 2011). Yale Law Journal, Vol. 121, p. 426, 2011. Available at SSRN: https://ssrn.com/abstract=2015461