Baseline framing in sentencing.

• Author: Isaacs, Daniel M.

NOTE CONTENTS INTRODUCTION I. BASELINES AND PERSPECTIVES A. Ceiling Baselines B. Floor Baselines C. Typical Crime Baselines D. Hybrid Baselines II. FRAMING EFFECTS AND COGNITIVE BIASES A. Anchoring B. Omission Bias C. Status Quo Bias D. Summary of Baseline Framing Effects III. IMPLICATIONS FOR SENTENCING GUIDELINES A. Reasoned Sentencing and Procedural Justice B. Choosing a Baseline C. Ratcheting Up and the Quasi-Floor Baseline CONCLUSION INTRODUCTION

Under indeterminate sentencing regimes, judges use their discretion to impose sentences that best fulfill the goals of sentencing and are within a given statutory range. (1) Sentencing statutes and guidelines provide a framework to ensure that judges fairly determine an offender's punishment. (2) However, legislatures and sentencing commissions do not account for the effects of cognitive biases when establishing sentencing procedures. This Note shows that the postconviction sentence with which a judge begins her analysis--the sentencing baseline--affects the sentence imposed, even when the law, the facts, and the judge are held constant. The thrust of this Note is that policymakers should account for this baseline framing when designing sentencing guidelines.

Part I introduces the concept of sentencing baselines. Part II surveys psychological research about cognitive biases and explores how sentencing baselines frame judicial analysis. It concludes that, in general, baseline framing causes judges to impose sentences closer to the sentencing baseline than those judges would impose if their decisions were unaffected by cognitive biases. Part III discusses baseline framing's implications for designing a normatively preferable sentencing regime. Every cent of a fine and every minute of incarceration should be the result of conscious, rational decisionmaking, and no component of a crime should go unpunished. But, unreasoned increases and decreases in criminal sanctions caused by cognitive error are inevitable under any sentencing regime. Policymakers must consider baseline framing when designing sentencing guidelines in order to create the most just procedures. Those who want to minimize the number of sentences skewed by cognitive error should implement a typical crime baseline. (3) However, this Note suggests that Tennessee's quasi-floor baseline (4) best reflects the United States' conception of justice because, like the "beyond a reasonable doubt" standard for conviction, it errs against undeserved deprivation of life, liberty, or property.

This Note is not an argument for lenity; in fact, as discussed in Section III.C, implementing a quasi-floor baseline may result in higher sentences, rather than lower sentences, overall. Instead, it is a plea for legislatures and sentencing commissions to consider baseline framing when designing sentencing guidelines.

1. BASELINES AND PERSPECTIVES

   The sentencing baseline is the sentence with which a judge begins her sentencing analysis. (5) In the federal system, the sentencing baseline is a crime's base offense level. (6) Using the base offense level as a starting point, federal judges adjust the offense level based on enumerated sentencing factors, then rely on the adjusted offense level and the offender's criminal history category to calculate the Guideline range. (7) Judges use the advisory Guideline range to assist in determining "a sentence sufficient, but not greater than necessary, to comply with the purposes [of sentencing]." (8)

   Sentencing baselines play a pivotal role in framing which components of a crime are aggravating factors and which components are mitigating factors. For example, under the current Federal Sentencing Guidelines, a defendant who "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer" receives a two-level increase in his offense level. (9) Alternatively, if the offender's base offense level were two levels higher, the Guidelines could call for a decrease of two offense levels if the offender did not recklessly create a substantial risk while fleeing. This hypothetical alternative and the federal Guidelines should, in theory, lead to equivalent sentences when applied to the same set of facts. The only difference between the two is that "flight" is an aggravating factor in the actual guidelines and "not flight" is a mitigating factor in the hypothetical guidelines. The choice between these guidelines would be insignificant if judges imposed the same sentence under both regimes. However, if baseline framing causes judges to impose different sentences for the same offender depending on the guidelines used, then choosing the most just alternative becomes critical.

   Part II focuses on the interaction between cognitive biases and baselines, while the remainder of Part I presents three baselines to help structure our discussion: (1) the ceiling baseline, (2) the floor baseline, and (3) the typical crime baseline. This Part concludes by briefly describing Virginia's hybrid sentencing regime, which contains components of all three baselines at different points in the sentencing analysis.

   1. Ceiling Baselines

      Using a ceiling baseline, a judge begins her sentencing analysis with the maximum sentence permitted by law. The judge may reduce the sentence because of mitigating factors. Oregon's recidivism statute for sex offenders is an example of this approach. It provides that "[t]he presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence." (10) The court may downwardly depart from the presumptive sentence "upon findings of substantial and compelling reasons." (11) The presumptive sentence is a ceiling baseline because life imprisonment without the possibility of release or parole is the maximum sentence available for a felony in Oregon, except for aggravated murder, for which capital punishment is available. (12)

   2. Floor Baselines

      Under a floor baseline regime, the judge begins her sentencing consideration with the sentence appropriate for the least culpable violation of the law and then increases the sentence based on aggravating factors. Tennessee establishes a quasi-floor baseline, which is located near the floor but is not the lowest sentence that could be imposed. In Tennessee, "[t]he minimum sentence within the range of punishment is the sentence that should be imposed, because the general assembly set the minimum length of sentence for each felony class to reflect the relative seriousness of each criminal offense in the felony classifications." (13) The judge adjusts the sentence from the presumptive minimum length after considering relevant factors. (14) If no aggravating factors are present in the offender's case, the Tennessee Code advises that the offender receive the statutory minimum sentence. (15)

      However, Tennessee law only establishes a quasi-floor baseline because the Tennessee Code provides that "[i]f the court finds the defendant an especially mitigated offender, the court shall reduce the defendant's statutory Range I minimum sentence by ten percent ... or reduce the release eligibility date to twenty percent ... of the sentence, or [apply] both reductions." (16) Therefore, the statutory minimum is not the floor. Rather, the floor is 10% below the statutory minimum, with a release eligibility date of 20% of the sentence.

   3. Typical Crime Baselines

      Using the typical crime baseline, the judge begins her sentencing analysis with the customary sentence given to a crime's "typical offender." The judge may adjust the sentence based on aggravating and mitigating factors. Many jurisdictions have instituted typical crime or quasi-typical crime baselines. (17) Alaska, for example, established presumptive sentences for felonies that "represent[] the legislature's judgment as to the appropriate sentence for a typical felony offender (i.e., an offender with the specified number of prior felony convictions, and with a typical background) who commits a typical act within the definition of the offense." (18) In other words, Alaska's presumptive sentences reflect the typical crime level.

      Meanwhile, the Federal Sentencing Guidelines create a quasi-typical crime baseline. Recall that under the federal Guidelines, the base offense level is the sentencing baseline. Judges consider sentencing factors to adjust the base offense level to a final offense level, which determines the Guideline range. (19) According to the Federal Sentencing Commission, the Commission "intends the sentencing courts to treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes." (20) The Guideline range, not the base offense level, is intended to reflect the heartland of cases. If the base offense level were a true typical crime baseline, then it, too, would reflect the heartland of cases. For both the Guideline range and the base offense level to reflect a typical crime level, the mitigating and aggravating sentencing factors would have to balance each other out so that the final and base offense levels would be equal, on average. If, in practice, the final and base offense levels are normally different, then the base offense levels do not reflect the typical crime level, which is instead captured by the final offense level and the Guideline range. As only the final Guideline range is intended to reflect the heartland of cases, this Note identifies the federal baseline as a quasi-typical crime baseline, because the base offense levels are likely only near the typical crime level.

      Moreover, empirical evidence suggests that even the Guideline ranges do not actually reflect the heartland of cases. From 2000 to 2010, fewer than 2% of sentences from the District of Massachusetts were upward...