Baseline framing in sentencing

Yale Law Journal

Volumn 121, Issue 2, 2011, Pages 426-458

  Isaacs, Daniel M ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 80355131620     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (224)

1. Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (''[N]othing in [common law] history suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute.'' (emphasis omitted));
2. United States v. Booker, 543 U.S. 220, 245-46 (2005) (modifying the Sentencing Reform Act of 1984 to make the Federal Sentencing Guidelines ''effectively advisory'' and explaining that the Act ''permits the court to tailor the sentence in light of other statutory concerns'').
3. 28 U.S.C. § 991(b)(1)(B) (2006) (establishing that one of the goals of the United States Sentencing Commission is to ''provide certainty and fairness in meeting the purposes of sentencing'');
4. Gall v. United States, 552 U.S. 38, 51 (2007) (explaining that it is impermissible for federal judges to improperly calculate the Federal Sentencing Guideline range, treat the Guideline range as mandatory, fail to consider the goals of sentencing, basethe sentence on clearly erroneous facts, or fail to explain the reasoning behind the sentence).
5. See discussion infra Section I.C for a description of typical crime baselines.
6. See discussion infra Section I.B for a description of Tennessee's baseline.
7. The concept of baselines is adapted from Seth Kreimer's 1984 article, Allocational Sanctions: The Problem of Negative Rights in a Positive State, in which Kreimer argues that the baselines for governmental allocations determine the constitutionality of allocational sanctions.
8. Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1352 (1984).
9. Kreimer explains, ''[T]he distinction between liberty-expanding offers and liberty-reducing threats turns on the establishment of an acceptable baseline against which to measure a person's position after imposition of an allocation.''
10. Kreimer disavowed his baseline analysis for criminal sanctions because ''[a] criminal sanction is in most cases an unambiguous threat, for the normal course of events in the absence of such a sanction is not incarceration or payment of a fine.''
11. Id. at 1355.
12. Although the normal course of events in the absence of a conviction is the absence of a sanction, this observation merely identifies the binary nature of conviction. Kreimer does not consider the postconviction stage of criminal proceedings when the judge selects a sentence from within a statutory range. Once guilt is established, a sentence at the ceiling of the statutory range may be viewed as the default and a reduction in the sentence as a benefit (similar to the provision of a governmental allocation). Alternatively, a sentence at the floor of the statutory range may be viewed as the default and an increase in the sentence as a heightened sanction. These differing perspectives reflect different baselines.
13. U.S. SENTENCING COMM'N, U.S. SENTENCING GUIDELINES MANUAL § 1B1.1(a)(2) (2010).
14. § 1B1.1(a)(2)-(8).
15. U.S.C. § 3553(a) (2006);
16. United States v. Booker, 543 U.S. 220, 245-46 (2005) (holding that mandatory sentencing guidelines would be unconstitutional);
17. U.S. SENTENCING COMM'N, supra note 6, § 1B1.1(b) (requiring judges to consider identified offender characteristics, policy statements and commentary, and other factors when imposing sentences);
18. § 1B1.1(c) (requiring federal judges to consider the purposes of sentencing codified in 18 U.S.C. § 3553(a)). The purposes set forth in 18 U.S.C. § 3553 include the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2).
19. U.S. SENTENCING COMM'N, supra note 6, § 3C1.2.
20. OR. REV. STAT. § 137.719(1) (2009).
21. § 137.719(2).
22. Mitigating factors justifying departure include, inter alia, diminished mental capacity, duress, or compulsion; a finding that the offender's role was minor or passive; cooperation with the State; and a finding that the harm of the crime is significantly less than typical. OR. ADMIN. R. 213-008-0002 (2011).
23. OR. REV. STAT. § 163.150.
24. TENN. CODE ANN. § 40-35-210(c)(1) (2011).
25. § 40-35-210(c)(2).
26. Aggravating factors include prior criminal history, possession of a firearm, and damage sustained by the victim.
27. §§ 40-35-113 to -114.
28. § 40-35-109(b).
29. ''The court may find the defendant is an especially mitigated offender, if: (1) The defendant has no prior felony convictions; and (2) The court finds mitigating, but no enhancement factors.''
30. § 40-35-109(a).
31. U.S. SENTENCING COMM'N, supra note 6, at ch. 1, pt. A.1.4(b) (''carving out a 'heartland''' of typical cases);
32. ARK. SENTENCING COMM'N, SENTENCING STANDARDS GRID, OFFENSE SERIOUSNESS RANKINGS AND RELATED MATERIALS 6 (2009), available at http://www.arkansas.gov/asc/pdfs/2009benchbook.pdf (''Determining the presumptive sentence for a particular offense is a starting point for the process. The presumptive sentenceis not intended to be the sentence in a particular case unless... the offense represents a typical case....'' (emphasis omitted));
33. CHENEY C. JOSEPH, JR. et al., LOUISIANA SENTENCING GUIDELINES MANUAL 7 (1994) (''The [Louisiana Sentencing] Commission members combined their experience to determine designated sentence ranges based on what they believed to be a 'typical case' arising under the offense of conviction.'').
34. Clark v. State, 8 P.3d 1149, 1150 (Alaska Ct. App. 2000) (emphasis added);
35. ALASKA STAT. § 12.55.125 (2010).
36. U.S. SENTENCING COMM'N, supra note 6, at ch. 1, pt. A.1.4(b).
37. Ryan W. Scott, Inter-Judge Sentencing Disparity After Booker: A First Look, 63 STAN. L. REV. 1, 17 (2010).
38. The District of Massachusetts is the only federal court that makes the sentencing documents needed for empirical research publicly available.
39. Id. at 1.
40. The Code of Virginia explains how the initial ranges were calculated: The initial recommended sentencing range for each felony offense shall be determined first, by computing the actual time-served distribution for similarly situated offenders, in terms of their conviction offense and prior criminal history, released from incarceration during the base period of calendar years 1988 through 1992, increased by 13.4 percent, and second, by eliminating from this range the upper and lower quartiles. The midpoint of each initial recommended sentencing range shall be the median time served for the middle two quartiles.... VA. CODE ANN. § 17.1-805(A) (2010). The Code required the VCSC to increase the midpoint of the initial recommended sentence for certain crimes.
41. § 17.1-805(A)(1)-(4).
42. BRIAN J. OSTROM et al., NAT'L CTR. FOR STATE COURTS, ASSESSING CONSISTENCY AND FAIRNESS IN SENTENCING: A COMPARATIVE STUDY IN THREE STATES 8 (2008), available at http://www.ncsconline.org/images/ PEWExecutiveSummaryv10.pdf.
43. VA. CODE ANN. § 17.1-803(5)-(6);
44. BRIAN J. OSTROM et al., OFFENDER RISK ASSESSMENT IN VIRGINIA 1, 26 (2002) (''The VCSC designed the risk assessment instrument to identify from among eligible larceny, fraud, and drug offenders who would otherwise be recommended for incarceration by state sentencing guidelines, offenders with the lowest probability of being reconvicted of a felony crime, and divert them to some form of alternative punishment.'').
45. VA. CRIMINAL SENTENCING COMM'N, ASSESSING RISK AMONG SEX OFFENDERS IN VIRGINIA 9 (2001) [hereinafter VCSC, ASSESSING RISK], available at http://www.vcsc.virginia.gov/sex_off_report.pdf;
46. VA. CRIMINAL SENTENCING COMM'N, ANNUAL REPORT (2010) (illustrating guidelines and compliance).
47. VCSC, ASSESSING RISK, supra note 25, at 10. The recommended increases are: (1) 300% for offenders who score forty-four or more, (2) 100% for offenders who score between thirtyfour and forty-three points; and (3) 50% for offenders who score between twenty-eight and thirty-three points.
48. Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCI. 1124, 1124 (1974);
49. JONATHAN BARON, THINKING AND DECIDING 56-57 (4th ed. 2008) (listing fifty-three biases that humans exhibit when making decisions).
50. Birte Englich, Thomas Mussweiler & Fritz Strack, The Last Word in Court-A Hidden Disadvantage for the Defense, 29 LAW & HUM. BEHAV. 705, 717-718 (2005) [hereinafter Englich et al., Last Word] (asserting that prosecutors in Germany have an unintended advantage in litigation because their sentencing demand establishes the initial anchor for sentencing decisions);
51. Birte Englich, Thomas Mussweiler & Fritz Strack, Playing Dice with Criminal Sentences: The Influence of Irrelevant Anchors on Experts' Judicial Decisionmaking, 32 PERSONALITY & SOC. PSYCHOL. BULL. 188, 196 (2006) [hereinafter Englich et al., Playing Dice] (finding that legal professionals are influenced by random numerical anchors);
52. Birte Englich & Thomas Mussweiler, Sentencing Under Uncertainty: Anchoring Effects in the Courtroom, 31 J. APPLIED SOC. PSYCHOL. 1535, 1538, 1545-1546 (2001) (showing that German trial judges exhibit anchoring bias);
53. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777, 778 (2001) (concluding that federal magistrate judges' decisions are affected by anchoring, framing, hindsight bias, the representativeness heuristic, and egocentric biases);
54. Robert A. Prentice & Jonathan J. Koehler, A Normality Bias in Legal Decision Making, 88 CORNELL L. REV. 583, 638-639 (2003) (contending that stare decisis is an example of the omission bias);
55. Tversky and Kahneman, supra note 27, at 1128 (presenting influential experiments on cognitive biases);
56. Reid Hastie & W. Kip Viscusi, What Juries Can't Do Well: The Jury's Performance as a Risk Manager, 40 ARIZ. L. REV. 901, 906 (1998) (explaining that judges are susceptible to hindsight bias, though they exhibit this bias far less than do mock jurors);
57. Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Inside the Bankruptcy Judge's Mind, 86 B.U. L. REV. 1227 (2006) (finding that bankruptcy judges succumb to anchoring and framing effects, but not the omission bias);
58. W. Kip Viscusi, How Do Judges Think About Risk?, 1 AM. L. & ECON. REV. 26, 58-60 (1999) (identifying that state judges (1) exhibit the hindsight bias, though less so than mock juries, (2) share the common biases of overestimating small risks and underestimating large risks, but are not noticeably affected when assessing substantial risks, and (3) exhibit risk ambiguity aversion-''favor[ing] wellknown, established risks to smaller but more uncertain risks'').
59. Tversky and Kahneman, supra note 27, at 1124.
60. BARON, supra note 27, at 264-265 (emphasis omitted).
61. M. Allais, Le Comportement de l'Homme Rationnel Devant le Risque: Critique des Postulats et Axiomes de L'École Américaine, 21 ECONOMETRICA 503, 527 (1953) (Fr.) (introducing the Allais Paradox, a classic problem that lays the groundwork for many experiments testing framing effects).
62. For an English description of Allais's paradox, see LEONARD J. SAVAGE, THE FOUNDATIONS OF STATISTICS 101-102 (1954).
63. BARON, supra note 27, at 265.
64. Chris Guthrie et al. use the term ''framing effects'' to describe a narrower category of cognitive error. Their term is limited to violations of the principle of invariance caused by ''categoriz[ing]... decision options as potential gains or losses from a salient reference point such as the status quo.''
65. Guthrie et al., supra note 28, at 794, 796.
66. Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 SCI. 453, 457 (1981).
67. Tversky and Kahneman refer to this type of framing effect as ''psychological accounting.''
68. Guthrie et al. based their experiment on the ''Asian Disease Problem,'' in which Tversky and Kahneman gave subjects the following problem: Imagine that the U.S. is preparing for the outbreak of an unusual Asian disease, which is expected to kill 600 people. Two alternative programs to combat the disease have been proposed. Assume that the exact scientific estimate of the consequences of the programs are as follows: If Program A is adopted, 200 people will be saved.... If Program B is adopted, there is 1/3 probability that 600 people will be saved, and 2/3 probability that no people will be saved.... Which of the two programs would you favor?
69. Id. at 453.
70. Tversky and Kahneman gave a second group of subjects the same problem, with the results of the programs framed differently: ''If Program C is adopted 400 people will die. ... If Program D is adopted there is 1/3 probability that nobody will die, and 2/3 probability that 600 people will die.... Which of the two programs would you favor?''
71. Even though Program A is identical to Program C and Program B is identical to Program D, 72% of the subjects in the first group chose Program A and 28% chose Program B, whereas 78% of the subjects in the second group chose Program D and 22% chose Program C.
72. Guthrie et al., supra note 28, at 787.
73. Id. at 794.
74. Id. at 796.
75. Id. at 796-797 (internal quotation marks omitted).
76. Id. at 797 (internal quotation marks omitted).
77. BARON, supra note 27, at 56-57 (listing fifty-three distinct cognitive biases).
78. For example, it is doubtful that the congruence bias and logical biases, such as syllogistic errors and the four-card problem, play a prominent role in sentencing.
79. Jonathan Baron, Jane Beattie & John C. Hershey, Heuristics and Biases in Diagnostic Reasoning: II. Congruence, Information, and Certainty, 42 ORG. BEHAV. & HUM. DECISION PROCESSES 88, 89 (1988) (defining the congruence bias as the use of mechanisms to test hypotheses that are congruent with presupposed hypotheses);
80. P.C. Wason, Reasoning About a Rule, 20 Q.J. EXPERIMENTAL PSYCHOL. 273, 273-277 (1968) (describing the classic four-card experiment, which demonstrates logical reasoning errors).
81. Such biases include, inter alia: the availability heuristic, Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE PSYCHOL. 207, 208 (1973) (defining the availability heuristic as the estimation of probability or frequency by ''assessing the ease with which the relevant mental operation of retrieval, construction, or association can be carried out'');
82. BARON, supra note 27, at 219 (describing selective exposure as the interaction with information reinforcing one's beliefs and the neglect of information challenging one's beliefs);
83. id. at 188 (defining attentional bias as the ''failure to consider alternative possibilities'');
84. LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE 3 (1957) (presenting the theory of cognitive dissonance, which states that persons will try to avoid psychological discomfort from holding conflicting knowledge, opinions, or beliefs).
85. Michael M. O'Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 475 (2009) (reasoning that cognitive dissonance leads to overreliance on sentencing guidelines).
86. Englich and Mussweiler, supra note 28, at 1538 (exploring the anchoring effects of prosecutorial sentencing demands);
87. Nancy Gertner, What Yogi Berra Teaches About Post-Booker Sentencing, 115 YALE L.J. POCKET PART 137, 138 (2006), http://www.yalelawjournal.org/images/pdfs/50.pdf (describing the Federal Sentencing Guidelines as an anchor);
88. Guthrie et al., supra note 28 (describing the anchoring effects that influence federal magistrate judges);
89. Rachlinski et al., supra note 28 (finding anchoring effects in federal bankruptcy judges). Experiments have also found anchoring in decisions regarding civil damages.
90. Gretchen B. Chapman & Brian H. Bornstein, The More You Ask for, the More You Get: Anchoring in Personal Injury Verdicts, 10 APPLIED COGNITIVE PSYCHOL. 519, 526-527 (1996) (explaining that the amount of damages a plaintiff in a personal injury suit requests ''provides an anchor for estimates of the probability that the defendant caused the plaintiff's injury... [and] also serves as an anchor that affects compensation awards'');
91. Verlin B. Hinsz & Kristin E. Indahl, Assimilation to Anchors for Damage Awards in a Mock Civil Trial, 25 J. APPLIED SOC. PSYCHOL. 991, 1016 (1995) (finding that limits on damage awards serve as anchors to mock jurors and increase damage awards);
92. Jennifer K. Robbennolt & Christina A. Studebaker, Anchoring in the Courtroom: The Effects of Caps on Punitive Damages, 23 LAW & HUM. BEHAV. 353, 367 (1999) (finding that ''caps on punitive damages influenced punitive damages awards'').
93. Englich et al., Playing Dice, supra note 28, at 188;
94. Tversky and Kahneman, supra note 27, at 1128-1129 (discussing anchoring as a form of insufficient adjustment from an initial reference point).
95. Tversky and Kahneman, supra note 27, at 1128. discomfort from holding conflicting knowledge, opinions, or beliefs).
96. Michael M. O'Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 475 (2009) (reasoning that cognitive dissonance leads to overreliance on sentencing guidelines).
97. Englich and Mussweiler, supra note 28, at 1538 (exploring the anchoring effects of prosecutorial sentencing demands);
98. Nancy Gertner, What Yogi Berra Teaches About Post-Booker Sentencing, 115 YALE L.J. POCKET PART 137, 138 (2006), http://www.yalelawjournal.org/images/pdfs/50.pdf (describing the Federal Sentencing Guidelines as an anchor);
99. Guthrie et al., supra note 28 (describing the anchoring effects that influence federal magistrate judges);
100. Rachlinski et al., supra note 28 (finding anchoring effects in federal bankruptcy judges). Experiments have also found anchoring in decisions regarding civil damages.
101. Gretchen B. Chapman & Brian H. Bornstein, The More You Ask for, the More You Get: Anchoring in Personal Injury Verdicts, 10 APPLIED COGNITIVE PSYCHOL. 519, 526-527 (1996) (explaining that the amount of damages a plaintiff in a personal injury suit requests ''provides an anchor for estimates of the probability that the defendant caused the plaintiff's injury... [and] also serves as an anchor that affects compensation awards'');
102. Verlin B. Hinsz & Kristin E. Indahl, Assimilation to Anchors for Damage Awards in a Mock Civil Trial, 25 J. APPLIED SOC. PSYCHOL. 991, 1016 (1995) (finding that limits on damage awards serve as anchors to mock jurors and increase damage awards);
103. Jennifer K. Robbennolt & Christina A. Studebaker, Anchoring in the Courtroom: The Effects of Caps on Punitive Damages, 23 LAW & HUM. BEHAV. 353, 367 (1999) (finding that ''caps on punitive damages influenced punitive damages awards'').
104. Englich et al., Playing Dice, supra note 28, at 188;
105. Tversky and Kahneman, supra note 27, at 1128-1129 (discussing anchoring as a form of insufficient adjustment from an initial reference point).
106. Tversky and Kahneman, supra note 27, at 1128.
107. Englich and Mussweiler, supra note 28, at 1538-1539.
108. Id. at 1545.
109. Id. at 1547.
110. Guthrie et al., supra note 28, at 790.
111. Id. at 790-791.
112. Id. at 791 (internal quotation marks omitted).
113. Id. at 792.
114. Rachlinski et al., supra note 28, at 1236.
115. Gertner, supra note 49, at 138.
116. U.S. SENTENCING COMM'N, supra note 6, § 1B1.1 (discussing the specific and general Guideline calculation adjustments).
117. Scott, supra note 21, at 45-46;
118. cf. United States v. Booker, 543 U.S. 220, 245-46 (2005) (severing provisions from the Sentencing Reform Act of 1984 to make the Federal Sentencing Guidelines ''effectively advisory'').
119. United States v. Dorvee, 616 F.3d 174, 182 (2d Cir. 2010);
120. Gall v. United States, 552 U.S. 38, 50 (2007) (''[The district court judge] may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented.'' (internal citation omitted)).
121. See supra notes 7-8 and accompanying text.
122. Scott, supra note 21, at 46;
123. Englich and Mussweiler, supra note 28, at 1538-1539, 1545 (finding that German prosecutors' sentencing demands anchored German trial judges).
124. FED. R. CRIM. P. 32(c)(1)(A) (providing that, with few exceptions, ''[t]he probation officer must conduct a pre-sentence investigation and submit a report to the court before it imposes [a] sentence'');
125. IND. CODE § 35-38-1-8(a) (2010) (''[A] defendant convicted of a felony may not be sentenced before a written presentence report is prepared by a probation officer and considered by the sentencing court.'');
126. MONT. CODE ANN. § 46-18-112 (2009) (establishing that, when necessary, probation officers must prepare a presentence report for the court); TENN. CODE ANN. § 40-35-205 (2010) (requiring the court to direct a presentence service officer to prepare a presentence report for felony convictions and giving judges discretion to request such reports for misdemeanors);
127. ARIZ. R. CRIM. P. 26.4 (requiring a presentence report unless the court cannot impose a penalty of more than one year).
128. FED. R. CRIM. P. 32(i)(1)(C) (providing that the court ''must allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence'');
129. N.Y. CRIM. PROC. LAW § 390.40 (McKinney 2005) (stating that attorneys may submit presentence memoranda to the court);
130. N.C. COMM'N ON INDIGENT DEF. SERVS., PERFORMANCE GUIDELINES FOR INDIGENT DEFENSE REPRESENTATION IN NON-CAPITAL CRIMINAL CASES AT THE TRIAL LEVEL, Guideline 8.6 (2004) (detailing the information that attorneys may include in a defense sentencing presentation or memorandum).
131. Englich et al., Last Word, supra note 28, at 712.
132. The terms ''omission bias'' and ''default bias'' are often used interchangeably.
133. BARON, supra note 27, at 300.
134. However, as originally conceived, the omission bias was ''the preference for harm caused by omissions over equal or lesser harm caused by acts.''
135. Jonathan Baron & Ilana Ritov, Omission Bias, Individual Differences, and Normality, 94 ORG. BEHAV. & HUM. DECISION PROCESSES 74, 74 (2004);
136. Ilana Ritov & Jonathan Baron, Reluctance To Vaccinate: Omission Bias and Ambiguity, 3 J. BEHAV. DECISION MAKING 263, 263 (1990) [hereinafter Ritov and Baron, Reluctance To Vaccinate] (defining omission bias as ''the tendency to favor omissions... over otherwise equivalent commissions''). Meanwhile, the default bias was ''used more generally for a bias toward the default.''
137. BARON, supra note 27, at 300.
138. Ilana Ritov & Jonathan Baron, Status-Quo and Omission Biases, 5 J. RISK & UNCERTAINTY 49, 49 (1992).
139. BARON, supra note 27, at 514.
140. Ritov & Baron, Reluctance To Vaccinate, supra note 77, at 275.
141. Jonathan Baron & Ilana Ritov, Reference Points and Omission Bias, 59 ORG. BEHAV. & HUM. DECISION PROCESSES 475 (1994) (observing the omission bias in experiments about monetary investments and pensions);
142. Brian J. Cohen & Stephen G. Pauker, How Do Physicians Weigh Iatrogenic Complications?, 9 J. GEN. INTERNAL MED. 20 (1994) (discussing the omission bias in the context of medical decisions);
143. Lewis Petrinovich & Patricia O'Neill, Influence of Wording and Framing Effects on Moral Intuitions, 17 ETHOLOGY & SOCIOBIOLOGY 145 (1996) (discussing the omission bias in the context of life-and-death situations);
144. Ilana Ritov & Jonathan Baron, Outcome Knowledge, Regret, and Omission Bias, 64 ORG. BEHAV. & HUM. DECISION PROCESSES 119 (1995) (noting the omission bias in decisions regarding fetal testing).
145. Terry Connolly & Jochen Reb, Omission Bias in Vaccination Decisions: Where's the ''Omission''? Where's the ''Bias''?, 91 ORG. BEHAV. & HUM. DECISION PROCESSES 186 (2003) (calling into question the existence of an omission bias).
146. U.S. SENTENCING COMM'N, supra note 6, § 3C1.2.
147. Rachlinski et al., supra note 28, at 1244.
148. Id. at 1243.
149. Id. at 1244.
150. Id. at 1244-1245.
151. See sources cited supra note 83.
152. See sources cited supra note 83
153. William Samuelson & Richard Zeckhauser, Status Quo Bias in Decisionmaking, 1 J. RISK & UNCERTAINTY 7, 8 (1988).
154. Douglas A. Berman, Rita, Reasoned Sentencing, and Resistance to Change, 85 DENV. U. L. REV. 7, 19-20 (2007) (identifying the status quo bias as a major force in the Federal Sentencing Guidelines' influence after they became advisory in 2005, and asserting that ''the modern history of federal sentencing reforms provides interesting and diverse examples of status quo biases at work'');
155. Jelani Jefferson Exum, The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines To Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review, 58 CATH. U. L. REV. 115, 145 (2008) (''If the only justification for the continued requirement that the Guidelines range be calculated and considered is that the Court, because of its status quo bias, is hesitant to let go of a familiar sentencing instrument, then it hardly seems a reasonable aspect of reasonableness review.'');
156. Marybeth Herald, Deceptive Appearances: Judges, Cognitive Bias, and Dress Codes, 41 U.S.F. L. REV. 299, 306 (2007) (''When courts interpret laws, the judges' status quo bias may undermine the implementation of laws dictating change.... A preference for the comfort of the familiar heavily influences a reading of [Title VII's protection against discrimination on the basis of sex] that is at odds with its language and purpose.'');
157. Goutam U. Jois, Stare Decisis Is Cognitive Error, 75 BROOK. L. REV. 63, 98 (2009) (arguing that the status quo bias contributes to judicial reliance on stare decisis and explaining that ''[w]hen given a pre-existing set of legal rules, judges will be hesitant to move away from the status quo (status quo bias) and will overvalue the intrinsic worth of the existing rules (endowment effect)'');
158. Gregory N. Mandel, Patently Non-Obvious: Empirical Demonstration That the Hindsight Bias Renders Patent Decisions Irrational, 67 OHIO ST. L.J. 1391, 1446 n.244 (2006) (''The primary additional bias that may apply in patent cases is the status quo bias....'');
159. Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 ARIZ. L. REV. 655, 704 (2005) (discussing the implications of the status quo bias on consideration of evidence presented postconviction).
160. BARON, supra note 27, at 299.
161. Guthrie et al., supra note 28, at 819-820 (quoting Amos Tversky & Daniel Kahneman, Rational Choice and the Framing of Decisions, 59 J. BUS. S251, S274 (1986)).
162. NORVAL MORRIS, THE FUTURE OF IMPRISONMENT 59 (1974);
163. 18 U.S.C. § 3553(a) (2006) (''The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of sentencing]....'');
164. TENN. CODE ANN. § 40-35-103(2) (2010) (''The sentence imposed should be no greater than that deserved for the offense committed.'');
165. Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985) (''The defendant's liberty should be restrained only to the minimum extent necessary to achieve the objectives of sentencing.'');
166. JEREMY BENTHAM, THE RATIONALE OF PUNISHMENT 63 (James T. McHugh ed., Prometheus Books 2009) (1830) (''All punishment being in itself evil, upon the principle of utility,... it ought only to be admitted in as far as it promises to exclude some greater evil.''); MORRIS, supra, at 61 (''T[he] [parsimony] principle is utilitarian and humanitarian; its justification is somewhat obvious since any punitive suffering beyond societal need is, in th[e] context [of imprisonment], what defines cruelty.'').
167. Richard S. Frase, Punishment Purposes, 58 STAN. L. REV. 67, 75-76 (2005) (contending that sentencing principles ''often conflict with each other'' and analyzing those conflicts);
168. 18 U.S.C. § 3553(a)(2) (2006) (codifying the purposes of sentencing as ''the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner'');
169. BARON, supra note 27, at 56 (listing ''punishment without deterrence'' as a cognitive bias);
170. BENTHAM, supra note 102, at 63 (arguing that the goal of sentencing should be deterrence);
171. SANDFORD H. KADISH et al., CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 79-105 (8th ed. 2007) (presenting the major arguments for and against retribution, deterrence, rehabilitation, and incapacitation);
172. IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 101 (John Ladd ed., Bobbs-Merrill Co. 1965) (1797) (''Only the Law of retribution (jus talionis) can determine exactly the kind and degree of punishment.... All other standards ... cannot be compatible with the principle of pure and strict legal justice.'');
173. MICHAEL S. MOORE, LAW AND PSYCHIATRY: RETHINKING THE RELATIONSHIP (1984) (examining the rehabilitative justifications for punishment);
174. MORRIS, supra note 102, at 61 (arguing that retribution should be limited by utilitarian principles);
175. FRANKLIN E. ZIMRING & GORDON HAWKINS, INCAPACITATION: PENAL CONFINEMENT AND THE RESTRAINT OF CRIME, at v (1995) (''Of all the justifications for criminal punishment, the desire to incapacitate is ... often the most important.'');
176. Albert W. Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts About the Next, 70 U. CHI. L. REV. 1 (2003) (summarizing the United States' jurisprudential move toward rehabilitation in the 1970s and its subsequent move toward retribution);
177. Richard S. Frase, Sentencing Principles in Theory and Practice, 22 CRIME & JUST. 363 (1997) (contrasting Norval Morris's holistic ''limiting retributivist'' theory with Andrew von Hirsch's greater emphasis on retribution and equality);
178. James Q. Whitman, A Plea Against Retributivism, 7 BUFF. CRIM. L. REV. 85, 107 (2003) (lamenting the state of retributivism in the United States and claiming that ''[t]he choice we face is ... not a choice between patronizing rehabilitation and equalizing retribution'' but ''between patronizing rehabilitation and degrading retribution'');
179. Robert Martinson, What Works?-Questions and Answers About Prison Reform, 35 PUB. INT. 22, 25 (1974) (concluding that rehabilitative efforts in prisons did not have an effect on recidivism).
180. Robert Martinson, New Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 HOFSTRA L. REV. 243, 252 (1979) (questioning his earlier conclusions that rehabilitation failed to prevent recidivism).
181. MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973) (describing unchecked sentencing authority as ''terrifying and intolerable for a society that professes devotion to the rule of law'').
182. 128 CONG. REC. 26,503 (1982) (statement of Sen. Edward Kennedy).
183. FRANKEL, supra note 104, at 41.
184. Henry J. Friendly, ''Some Kind of Hearing,'' 123 U. PA. L. REV. 1267, 1282, 1291 (1975).
185. 18 U.S.C. § 3553(c).
186. 42 PA. CONS. STAT. § 9721(b) (Supp. 2010);
187. 730 ILL. COMP. STAT. 5/5-4-1(c) (2010) (requiring trial judges imposing sentences for particular offenses to ''specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to [their] sentencing determination'');
188. OR. REV. STAT. § 137.120(1) (2009) (''The court shall state on the record the reasons for the sentence imposed.'').
189. Gall v. United States, 552 U.S. 38, 50 (2007).
190. Connecticut, for example, provides judges only with broad statutory sentencing ranges for felonies and no starting point for their sentencing analysis. CONN. GEN. STAT. § 53a-35a (2011).
191. FRANKEL, supra note 104 (igniting the sentencing reform movement in order to reduce sentencing arbitrariness by implementing sentencing guidelines).
192. 18 U.S.C. § 3553(c).
193. 42 PA. CONS. STAT. § 9721(b) (Supp. 2010); see also 730 ILL. COMP. STAT. 5/5-4-1(c) (2010) (requiring trial judges imposing sentences for particular offenses to ''specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to [their] sentencing determination'');
194. OR. REV. STAT. § 137.120(1) (2009) (''The court shall state on the record the reasons for the sentence imposed.'').
195. Gall v. United States, 552 U.S. 38, 50 (2007).
196. Connecticut, for example, provides judges only with broad statutory sentencing ranges for felonies and no starting point for their sentencing analysis. CONN. GEN. STAT. § 53a-35a (2011).
197. FRANKEL, supra note 104 (igniting the sentencing reform movement in order to reduce sentencing arbitrariness by implementing sentencing guidelines).
198. Coffin v. United States, 156 U.S. 432, 453 (1894).
199. Allen v. United States, 164 U.S. 492, 500 (1896) (''[The presumption of innocence] is driven out of the case when the evidence shows, beyond a reasonable doubt, that the crime as charged has been committed ....'');
200. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (''Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'').
201. 4 WILLIAM BLACKSTONE, COMMENTARIES 352;
202. Alexander Volokh, n Guilty Men, 146 U. PA. L. REV. 173, 174, 210 (1997) (tracing legal and moral thought about the ideal ratio between Type I and Type II errors for guilt and innocence).
203. RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY 366 (2001).
204. Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785), in 2 THE WORKS OF BENJAMIN FRANKLIN; CONTAINING SEVERAL POLITICAL AND HISTORICAL TRACTS NOT INCLUDED IN ANY FORMER EDITION, AND MANY LETTERS OFFICIAL AND PRIVATE NOT HITHERTO PUBLISHED;
205. WITH NOTES AND A LIFE OF THE AUTHOR 478, 480 (Jared Sparks ed., Boston, Hilliard, Gray & Co. 1836). The sources cited here and infra notes 123-128 are compiled in Volokh, supra note 120.
206. People v. Galbo, 112 N.E. 1041, 1044 (N.Y. 1916) (citing 2 MATTHEW HALE, HISTORIA PLACITORUM CORONAE: THE HISTORY OF THE PLEAS OF THE CROWN 289 (Lawbook Exch., Ltd. 2003) (1736)).
207. Volokh, supra note 120, at 175 n.12 (suggesting that Cardozo may have preferred a ten-to-one ratio for imprisonment).
208. Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671, 694 (1968).
209. Volokh, supra note 120, at 187-190 (cataloging dozens of legal theorists who prefer Type I errors).
210. Louis Kaplow, Burden of Proof, 121 YALE L.J. (forthcoming Jan. 2012) (hypothesizing that the ''fixat[ion] on mistaken convictions of the innocent'' is a result of framing effects and cognitive error);
211. Volokh, supra note 120, at 195-197 (noting that Jeremy Bentham, Otto von Bismarck, and others have expressed skepticism about the maxim that it is better to acquit the guilty than convict the innocent).
212. Genesis 18:23-26 (King James).
213. Id. at 18:32.
214. 2 MAIMONIDES, THE COMMANDMENTS: SEFER HA-MITZVOTH OF MAIMONIDES 270 (Charles B. Chavel trans., 1967) (c. 12th century).
215. Volokh, supra note 120, at 174, 210 (describing the prominence of Blackstone's ten-to-one ratio for conviction).
216. TENN. CODE ANN. § 40-35-109(b) (2010);
217. § 40-35-210(c)(1)
218. Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 223 (2007) (quoting William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 509, 547 (2001));
219. Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 STAN. L. REV. 293, 301 (2005) (''[L]egislative adjustments to federal sentencing policy have been a one-way ratchet for twenty years.'');
220. MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA 249 (2006) (describing the risk of ''leveling down'' in the United States by which penalties are raised, not lowered, to correct for disparity).
221. Stuntz, supra note 131, at 509 (''As criminal law expands, both lawmaking and adjudication pass into the hands of police and prosecutors; law enforcers, not the law, determine who goes to prison and for how long.'').
222. United States v. Burr, 25 F. Cas. 30, 35 (C.C. Va. 1807) (No. 14,692(d)) (Marshall, C.J.).
223. See supra Section III.B (explaining why the typical crime baseline best limits unreasoned sentencing);
224. Volokh, supra note 120, 187 n.98, 188 n.104, 189 nn.118 & 124 (citing aminority of scholars who support a one-to-one ratio for execution, conviction, imprisonment, and punishment, respectively).