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.
Judge Raggi’s experience, she says, is to the contrary. To her, it would be virtually inconceivable that a prosecutor would arbitrarily up the ante in order to–perhaps, unethically, although she doesn’t say so–“anchor” the sentencing judge to a higher sentence–“unethically,” because it would presumably be unethical to ask a judge to do something for which the lawyer knows she has no legal–and only a purely subjective– basis to propose to a judge.
There’s probably merit to both sides of the Raggi/Calabresi debate. Even though Judge Raggi believes that the phenomenon does not exist in federal sentencing positions advanced by prosecutors, she would be hard pressed to deny that many state and federal prosecutors around the country do threaten or actually bring–call it, “over-indict” with–more severe charges to gain guilty pleas to less-imposing charges that are satisfactory to the prosecution, even if they pretend otherwise. Similarly, defense lawyers routinely lowball their adversaries to obtain better plea offers, fully understanding that to not do so would invariably harm their clients’ negotiating posture and ultimate results, or, in the poetic phrasing of the once-popular Streisand/Gibb recording (ironically titled, “Guilty”), “Little by little we meet in the middle.” If anyone disputes the indisputable–that every lawyer worth his or her salt has at some point, or even virtually always, “anchored” to obtain a better result for the client–he or she is simply not living in the real world.
But setting aside the Calabresi/Raggi debate over the use of “anchoring” in sentencing hearings, let’s consider whether there is something inherently offensive about a lawyer on either side of a fray negotiating from an arguably in terroram and random position in order to create enough spatial area within which to negotiate (be the client the criminal defendant or the government itself). Probably not on the defense side, except to the extent that cavalier lowballing by a defense attorney, especially if she earns a reputation for typically engaging in such strategizing, will cause prosecutors to easily reject her proposals as amounting to nothing more than opening salvos, or starting points. So, for a defense lawyer to say, “My client will accept nothing more than a guilty plea to a misdemeanor charge, period,” when a misdemeanor disposition for the offense might be ludicrous in the extreme in the particular case, is not unethical, and may actually be an efficacious negotiating style. On the other hand, it may shut down the negotiation and push the prosecutor to an “I’ll see you in court” declaration that may lead, when all is said and done, to a bad verdict day and a far worse sentence experience for the defendant.
When a prosecutor, however, engages in such conduct, especially routinely, using as an inordinately bold example the putting of the death penalty on the table as a means to scare a defendant into pleading guilty with a life sentence, he is not true to the overarching duty of professionalism on his side of the caption. There is undeniably a disequilibrium at play in the respective roles of the opposing gladiators in a criminal litigation. Prosecutors have a greater duty than simply getting the best bang for their buck at all costs. Threatening more to get something acceptably less must be done within the boundaries of ethical imperatives.
Put it this way: It is perfectly acceptable for a prosecutor to put a higher count on the table as a negotiation floor if she believes that if she had to proceed to trial, she would have a reasonable chance of convicting on that aggressive count. For federal prosecutors, the articulated standard of Justice Department acceptability is that a charge should only be filed if the prosecutor “believes that the person’s conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction…” (U.S. Attorney’s Manual, Principles of Federal Prosecution. 9-27.200). Putting a borderline draconian count on the table, however (even if less extreme than a death penalty threat), merely because the count might gain a grand jury’s willingness to vote a true bill on the count is hardly what we want in those charged with prosecuting on behalf of the citizenry.
In sum, the “anchor” that secures lawyers best on both sides of the divide, particularly when they negotiate a suspect’s liberty interests, is one that ensures that, as lawyers, we don’t come loose from the ever-secure moorings of our professionalism. It might be seductive in the individual case for a lawyer representing the state to take liberties in hard bargaining for what he perceives as a one-time needed result in a particularly troubling case. The use of highball/lowball tactics that employ the tactician’s theory – that the extreme offer will cause the other party to reevaluate his own opening offer and move closer to the resistance point – makes sense when negotiating an automobile price, or even a prom date curfew. But we’re talking, here, about a man’s liberty interest. Must any more be said?
Joel Cohen practices white-collar criminal defense law in the New York office of Stroock & Stroock & Lavan. He also teaches Professional Responsibility at Fordham Law School. The author is a regular columnist for Law.com. The views expressed are his personal opinions.