Academic journal article The Yale Law Journal

Baseline Framing in Sentencing

Academic journal article The Yale Law Journal

Baseline Framing in Sentencing

Article excerpt



     A. Ceiling Baselines
     B. Floor Baselines
     C. Typical Crime Baselines
     D. Hybrid Baselines

     A. Anchoring
     B. Omission Bias
     C. Status Quo Bias
     D. Summary of Baseline Framing Effects

     A. Reasoned Sentencing and Procedural Justice
     B. Choosing a Baseline
     C. Ratcheting Up and the Quasi-Floor Baseline



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.


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. …

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