Thursday, May 27, 2010

Prison, Death, and Anchoring

Posted by Sherry Colb

 In my FindLaw column this week, I discuss the case of Graham v. Florida, in which the Supreme Court held that sentencing juvenile non-homicide offenders to life imprisonment without the possibility of parole ("LWOP") violates the Eighth Amendment prohibition against cruel and unusual punishments, by virtue of gross disproportionality between crime and punishment.  In the column, I explore the possibilities that may open up after this ruling, in which the Court took seriously the extreme deprivation entailed in imprisoning someone for the rest of his life.  I propose, among other things, that some of the cases addressing disproportionality in the capital context might now become usable precedent in challenging prison sentences more generally.

In this post, I want to raise the possibility that the persistence of the death penalty in the U.S. may account for the Court's failure, up until this point, to take seriously the grave deprivation that a prison sentence -- whether for life or for a term of years -- represents.

In several cases, the U.S. Supreme Court has upheld very long prison sentences imposed for non-violent offenses, including drug possession and theft.  It was perhaps difficult for the Court to become very exercised about a criminal spending his life (or some shorter period) in prison when other people in the system were going to be killed by a government executioner.  With the possibility of execution available, in fact, a sensible murder defendant might even see fit to confess his crime, plead guilty and gladly accept a life sentence without the possibility of parole.  Death, by being "different" enough to acquire its own procedural Eighth Amendment jurisprudence, is able to make prison look relatively benign by comparison.

If I am right about the role of capital punishment in defining people's perceptions of prison sentences, this sort of "everything is relative" thinking falls into the category of what is sometimes called the "anchoring and adjustment" heuristic.  Anchoring and adjustment refers to a cognitive bias which leads people to focus excessively on a familiar piece of information that they encounter such that the focus distorts their perceptions and decision-making processes.  For example, if I go into a store to buy a television set, and one of the sets I see costs $5000, I may be inclined to pay more for the television I actually buy than if the most expensive television I encountered in the store cost $1000 instead.  The $5000 price tag makes other television prices seem more like "bargains" to me than they otherwise would, so I may be more willing to spend $500 on a set.  My expectations have been adjusted by the $5000 price-tag anchor.

It seems quite plausible that the presence of the death penalty on the "shelf" of possible sentences that a criminal might receive makes prison seem less severe to onlookers, however lengthy the sentence.  This might be true for juries and judges as well as for the public more generally.  And it might help account for the fact that prison sentences in the United States are so much lengthier than sentences for the same crimes in other comparable Western countries.  Without a potential death sentence to anchor people's thinking, the true weight of life imprisonment (and of other long sentences) is better able to make an impression.

Indeed, anchoring could explain why the Court is, for the first time, convinced that LWOP is categorically unduly harsh punishment for most under-age offenders, only five years after the Court held in Roper v. Simmons that the Eighth Amendment precludes the execution of under-age offenders.  After Roper, LWOP became -- for the first time -- the most severe sentence that a juvenile offender could receive, no matter how serious the offense.  This fact well may have affected the Court's perception of the penalty's harshness.

I am reminded, in thinking about anchoring and adjustment, of a case I learned about when I visited England.  A man there was sentenced to being drawn and quartered for his crime (treason, if I remember correctly), but the King "commuted" his sentence to death by simple hanging and beheading.  When the alternative is drawing and quartering, being beheaded begins to look like an act of great mercy.

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