One can never predict how much an intellectual dust-up between two (concurring) Second Circuit judges affects precisely how lawyers go about improving the results they obtain in litigating a criminal case–indeed any case or legal matter. Nonetheless, the separate concurring decisions of Circuit Judges Guido Calabresi, former Dean of the Yale Law School, and Reena Raggi, former United States Attorney and District Judge in United States v. Ingram, 721 F. 3d 35 (2d Cir. 2013) could be instructive in understanding how attorneys may be integrating anchoring in sentencing strategies. In their opinions, the judges address the concept of “anchoring” and make specific contentions about how it may be used in court. Judge Calabresi argues that cognitive literature suggests that “anchoring” is likely an influence on judges in sentencing; Judge Raggi argues that she has no experience of prosecutors using “anchoring” in arguing sentence. In this article, I will discuss the judges’ positions on the use of “anchoring” in sentencing hearings and then explore how “anchoring” might be deployed in plea negotiations.
You don’t need a law degree to understand “anchoring,” once you grasp the jargon. Take, for instance, this scenario: Your teenage daughter, anticipating her first prom date, asks permission to stay out until 2 a.m. You acquiesce to midnight. Had she instead initially just asked for midnight, she might have only gotten 11 p.m. from you. As it were, she “anchored” you. She perceived your instinct to try to accommodate her wishes, by strategically asking for more than she actually expected – or, maybe, even wanted. As Judge Calabresi remarked,“[W]hen people are given an initial numerical reference, even one they know is random, they tend (perhaps unwittingly) to ‘anchor’ their subsequent judgments–as to someone’s age, a house’s worth, how many cans of soup to buy, or even what sentence a defendant deserves–to the initial number given.” To Judge Calabresi’s thinking, at least in the context of a federal prosecutor’s sentencing recommendation to a sentencing judge, a prosecutor might similarly try to “anchor”–and thus influence a sentencing judge to sentence higher than he might otherwise had the prosecutor not advanced on the record the harsher sentencing recommendation.
