The career offender guideline, although often ignored, still results in higher sentences than would have been given in its absence. Criminal defense lawyers should make sentencing judges aware of the "anchoring effect" of the career offender guideline and urge them to choose another "anchor."
Guideline sentences for career offenders have consistently fallen out of favor for at least the last decade. "From 2005 to 2014, both the average sentence imposed and average guideline minimum decreased for offenders sentenced under the career offender guideline." United States Sentencing Commission, Report to the Congress: Career Offender Sentencing Enhancements ("USSC, Career Offender") 23 (Aug. 2016), www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/criminal-history/201607_RtC-Career-Offenders.pdf. Even with the decline of the average, career-offender guideline minimum, only about a quarter of career offenders are sentenced within the applicable guideline range. Id. at 22 ("[T]he proportion of career offenders sentenced within the applicable guideline range has decreased from 43.3 percent in fiscal year 2005 to 27.5 percent in fiscal year 2014.").
Career offenders receive sentences below the career offender guideline minimum so often and to such a degree that the bottom of the career offender range may as well be an arbitrary, yet high, number. The rate and degree of below-guidelines sentences imply that sentencing courts are aware of the divide between a just sentence and the career offender guideline range. Nonetheless, even when sentencing courts reject the reasoning behind the sentencing range, the influence of the high number tends to inflate the sentences of career offenders.
This is an instance of a phenomenon known as the anchoring effect. It "is one of the most reliable and robust results of experimental psychology." Daniel Kahneman, Thinking, Fast and Slow 119 (2011). Its effects can even be measured and indexed. Id. at 122-24. The phenomenon can be summarized as follows: "If asked to gauge a number, just being given one invariably influences the process, as the number invites a comparison, as well as a suspicion that it is not entirely arbitrary." Review: Thinking, Fast and Slow 6 n.9, http://www.math.chalmers.se/~ulfp/Review/fastslow.pdf.[1] Kahneman, one of the pioneers in the study of anchoring effects and other prevalent, cognitive biases, wrote:
You are always aware of the anchor and even pay attention to it, but you do not know how it guides and constrains your thinking, because you cannot imagine how you would have thought if the anchor had been different (or absent). However, you should assume that any number that is on the table has had an anchoring effect on you, and if the stakes are high you should mobilize yourself (your System 2) to combat the effect.
Kahneman, Thinking, Fast and Slow at 127.[2]
The Sentencing Commission is particularly aware of this effect in the context of sentencing career offenders. It has observed with approval the slight lessening of the effect over the last decade, noting:
[T]he average [career offender] sentence imposed decreased at a greater rate than the average guideline minimum — the average sentence imposed of 147 months in 2014 was 29.0 percent lower than the average guideline minimum of 207 months. Thus, the anchoring effect of the guidelines for career offenders appears to be diminishing.
USSC, Career Offender 23 & figure 6 (emphasis added).
But the Sentencing Commission did not offer any of the best practices suggested by psychologists and behavioral economists who study the anchoring effect. When a number has no rational relationship to reality, scholars suggest rejecting or ignoring the arbitrarily high number. Cf. Kahneman, Thinking, Fast and Slow at 126 (in the context of negotiations, Kahneman suggested "making it clear—to yourself as well as to the other side—that you will not continue the negotiation with that number on the table"). Indeed, sentencing courts routinely reject unreasonably lenient or harsh suggested sentences as "non-starters." E.g., Brendan Pierson, Ex-New York analyst gets three years and nine months for insider trading, Reuters, Jul. 26, 2017, www.reuters.com/article/us-usa-insidertrading-afriyie-idUSKBN1AB305 (in sentencing the defendant to forty-five months, Judge Engelmayer "called Afriyie’s insider trading 'blatantly and brazenly illegal' and said the one-year sentence requested by his lawyer was 'a complete non-starter'").
[1] Kahneman provides a vivid illustration of the phenomenon at work in the form of an experiment that he and his research partner Amos Twersky conducted:
Amos and I once rigged a wheel of fortune. It was marked from 0 to 100, but we had it built so that it would stop only at 10 or 65. We recruited students of the University of Oregon as participants in our experiment. One of us would stand in front of a small group, spin the wheel, and ask them to write down the number on which the wheel stopped, which of course was either 10 or 65. We then asked them two questions:
Is the percentage of African nations among UN members larger or smaller than the number you just wrote?
What is your best guess of the percentage of African nations in the UN?
The spin of a wheel of fortune—even one that is not rigged—cannot possibly yield useful information about anything, and the participants in our experiment should simply have ignored it. But they did not ignore it. The average estimates of those who saw 10 and 65 were 25% and 45%, respectively.
Kahneman, Thinking, Fast and Slow at 119.
[2] "System 2" refers to deliberate—or slow—thinking. In contrast, "System 1" refers to intuitive—or fast—thinking. E.g., Kahneman, Thinking, Fast and Slow at 17.