In open court
Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing
Crystal Yang
Journal of Legal Studies, January 2015, Pages 75-111
Abstract:
The federal sentencing guidelines were created to reduce unwarranted sentencing disparities among similar defendants. This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the guidelines were struck down in United States v. Booker (543 U.S. 220 [2005]). Using data on the universe of federal defendants, I find that black defendants received 2 months more in prison compared with their white counterparts after Booker, a 4 percent increase in average sentence length. To identify the sources of racial disparities, I construct a data set linking judges to defendants. Exploiting the random assignment of cases to judges, I find that racial disparities after Booker were greater among judges appointed after Booker, which suggests acculturation to the guidelines by judges with experience sentencing under a mandatory-guidelines regime. Prosecutors also responded to increased judicial discretion after Booker by charging black defendants with binding mandatory minimum sentences.
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Race, Context and Judging on the Courts of Appeals: Race-Based Panel Effects in Death Penalty Cases
Jonathan Kastellec
Princeton Working Paper, March 2015
Abstract:
I examine how the identities of judges on multimember courts interact with case context to influence judicial decision making. Specifically, I leverage the variation in both panel composition and defendant race to examine race-based panel effects in death penalty cases on the Courts of Appeals. Using a dataset that accounts for several characteristics of a defendant and his crime, I find that the random assignment of a black judge to an otherwise all-non-black panel substantially increases the probability that the panel will grant relief to a defendant on death row - but only in cases where the defendant is black. The size of the increase is substantially large: conditional on the defendant being black, a panel composed of a single African-American judge is 15 percentage points more likely to grant relief than an all-non-black panel. These results have important implications for assessing the role of minority judges in generating substantive representation on the federal courts and contribute to the empirical literature on the application of the death penalty in the United States.
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The Economic Origins of Entrenched Judicial Review
Anna Harvey
Studies in American Political Development, April 2015, Pages 1-22
Abstract:
This article proposes a new explanation for the origins of entrenched judicial review, or judicial review supported by supermajority constitutional amendment requirements. The explanation is based on ex ante levels of economic inequality: Where economic inequality is higher, economic elites have more to lose from the advent of majority rule. These elites will have both greater incentives and greater ability to resist or check institutions responsive to popular majorities. We may then be more likely to see the adoption of less democratically responsive institutions, like entrenched judicial review, where more unequal wealth and income distributions are threatened by majority rule. The theory is consistent with the qualitative historical record from several former British colonies, including that of the United States. It also finds considerable support in an econometric analysis of the presence of entrenched judicial review in the first year of continuous democracy for those former European colonies that had become democracies by 2008, where pre-independence European mortality rates are used as a proxy for pre-independence economic inequality. These findings suggest that the adoption of entrenched judicial review in democracies may have been motivated at least in part because of its anticipated protection for higher levels of economic inequality.
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Trial and Error: Decision Reversal and Panel Size in State Courts
Yosh Halberstam
Journal of Law, Economics, and Organization, forthcoming
Abstract:
Using cross-state and within-court variation, I show that lower court decisions are reversed more frequently by larger, rather than smaller, panels of high court judges. Overall, conditional on being reviewed, the probability that a case is reversed by a high court judicial panel is less than one half. To understand these findings, I develop a simple framework that connects reversals and panel size with the extent to which judicial decision-making is congruent with the law. Assuming the high court rules correctly more often than not, my empirical results suggest that increasing judicial panel size erodes the quality of decision-making in high courts. These results are consistent with a large literature investigating small group size effects on productivity and output.
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Descriptive Representation and Judicial Outcomes in Multiethnic Societies
Guy Grossman et al.
American Journal of Political Science, forthcoming
Abstract:
The extent to which judicial outcomes depend on judges' identities is a central question in multiethnic societies. Past work on the impact of the racial composition of appellate courts has narrowly focused on civil rights cases in the United States. We expand this literature by testing for ethnicity-based panel effects in criminal appeals in Israel. Using randomness in the assignment of cases to panels, we find that appeal outcomes for Jewish defendants are independent of panels' ethnic composition. By contrast, panel composition is highly consequential for Arab defendants, who receive more lenient punishments when their case is heard by a panel that includes at least one Arab judge, compared to all-Jewish panels. The magnitude of these effects is sizable: a 14–20% reduction in incarceration and a 15–26% reduction in prison sentencing. These findings contribute to recent debates on the relationship between descriptive representation and substantive outcomes in judicial bodies.
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Representation on the Courts? The Effects of Trial Judges' Sex and Race
Christina Boyd
University of Georgia Working Paper, March 2015
Abstract:
Scholars have long sought to resolve whether and to what degree political actor diversity influences the outputs of political institutions like legislatures, administrative agencies, and courts. When it comes to the judiciary, diverse judges may greatly affect outcomes. Despite this potential, no consensus exists for whether judicial diversity affects behavior in trial courts -- i.e., the stage where the vast majority of litigants interact with the judicial branch. After addressing the research design limitations in previous trial court-diversity studies, the statistical results here indicate that a trial judge's sex and race have very large effects on his or her decision making. These results have important implications for how we view diversity throughout the judiciary and are particularly timely given the Obama Administration's nearly 200 female and minority appointments to the federal trial courts.
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After the Override: An Empirical Analysis of Shadow Precedent
Brian Broughman & Deborah Widiss
Indiana University Working Paper, March 2015
Abstract:
The ability of Congress to override judicial interpretations of statutory language is central to legislative supremacy. Both political science and legal scholarship assume, often implicitly, that enactment of a legislative override will effectively replace the pre-existing precedent, akin to a judicial overruling of a prior decision. Yet, because the superseding language comes from Congress rather than the courts, it is often unclear precisely how an override interacts with the pre-existing precedent. Our study is the first to empirically address this issue. We built an original dataset of annual citations to three different groups of Supreme Court decisions: (i) cases overridden by Congress (ii) cases subsequently overruled by the Court, and (iii) a matched control group of Supreme Court decisions that were neither overridden nor overruled. Using fixed effect regression analysis, we find that, on average, citation levels to cases that have been at least partially superseded — what we call “shadow precedents” — decrease only minimally after an override, while they decrease dramatically after a judicial overruling. Our results suggest that when faced with competing signals from Congress and the courts above them, trial courts look for interpretive guidance from other judicial actors, and that courts often continue to rely extensively on overridden precedents.
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Bias in Open Peer-Review: Evidence from the English Superior Courts
Jordi Blanes i Vidal & Clare Leaver
Journal of Law, Economics, and Organization, forthcoming
Abstract:
This paper explores possible biases in open peer-review using data from the English superior courts. Exploiting the random timing of on-the-job interaction between reviewers and reviewees, we find evidence that reviewers are reluctant to reverse the judgments of reviewees with whom they are about to interact, and that this effect is stronger when reviewer and reviewee share the same rank. The average bias is substantial: the proportion of reviewer affirmances is 30% points higher in the group where reviewers know they will soon work with their reviewee, relative to groups where such interaction is absent. Our results suggest reforms for the judicial listing process, and caution against recent trends in performance appraisal techniques and scientific publishing.
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Understanding the Length of State Supreme Court Opinions
Meghan Leonard & Joseph Ross
American Politics Research, forthcoming
Abstract:
The writing of a majority opinion is the most important task for judges and justices on collegial courts because they must be able to explain and justify the court’s decision in a way that will be understood by other legal and political actors. For state supreme court justices, we argue that the opinion-writing process is driven by the information the opinion author has as well as internal institutional constraints. In this article, we examine the length of opinions produced by state supreme courts to determine whether there are differences in the opinion-writing process between elected and appointed courts. Using an original dataset comprising all education cases decided by state supreme courts from 1995 to 2005, we find, consistent with our expectations, that elected justices appear to be more concerned with audiences external to the court in writing opinions, whereas appointed justices are more likely to respond to internal constraints and conditions.
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#BlackLivesDon'tMatter: Race-of-victim effects in US executions, 1976–2013
Frank Baumgartner, Amanda Grigg & Alisa Mastro
Politics, Groups and Identities, forthcoming
Abstract:
This paper examines the role of racial bias in the implementation of capital punishment. First, our analysis of existing literature confirms higher rates of capital punishment for those who kill Whites, particularly for Blacks who kill Whites. Second, we compare homicide victim data with a newly collected data set including information on the victims of every inmate executed in the USA from 1976 through 2013, some 1369 executions. These data reveal that Black males have been the primary victims of homicides, but their killers are much less likely to be put to death. While previous scholars have emphasized the over-representation of killers of White women, we shed additional light on another aspect of the racial and gender biases of the US death penalty. Capital punishment is very rarely used where the victim is a Black male, despite the fact that this is the category most likely to be the victim of homicide.
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Linda Hamilton Krieger, Rachel Kahn Best & Lauren Edelman
Law & Social Inquiry, forthcoming
Abstract:
This article provides a new account of employers' advantages over employees in federal employment discrimination cases. We analyze the effects of judicial deference, in which judges use institutionalized employment structures to infer nondiscrimination without scrutinizing those structures in any meaningful way. Using logistic regression to analyze a representative sample of judicial opinions in federal EEO cases during the first thirty-five years after the passage of the 1964 Civil Rights Act, we find that when judges uncritically use the presence of organizational structures to reason about whether discrimination occurred, employers are much more likely to prevail. This pattern is especially pronounced in opinions written by liberal judges. In light of these findings, we offer recommendations for judges, lawyers, and policy makers — including legal academics — who seek to improve the accuracy and efficacy of employment discrimination adjudications.
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Is the Impact of Cumulative Disadvantage on Sentencing Greater for Black Defendants?
John Wooldredge et al.
Criminology & Public Policy, forthcoming
Abstract:
We examined race-group differences in the effects of how felony defendants are treated at earlier decision points in case processing on case outcomes. Multilevel analyses of 3,459 defendants nested within 123 prosecutors and 34 judges in a large, northern U.S. jurisdiction revealed significant main and interaction effects of a defendant's race on bond amounts, pretrial detention, and nonsuspended prison sentences, but no significant effects on charge reductions and prison sentence length. Evidence of greater “cumulative disadvantages” for Black defendants in general and young Black men in particular was revealed by significant indirect race effects on the odds of pretrial detention via type of attorney, prior imprisonment, and bond amounts, as well as by indirect race effects on prison sentences via pretrial detention and prior imprisonment.
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Testing for Racial Prejudice in the Parole Board Release Process: Theory and Evidence
Shamena Anwar & Hanming Fang
Journal of Legal Studies, January 2015, Pages 1-37
Abstract:
We develop a model of a parole board contemplating whether to grant parole release to a prisoner who has finished serving his minimum sentence. The model implies a simple outcome test for racial prejudice that is based on the released inmate’s rate of recidivism and is robust to the inframarginality problem. Our model has several testable implications for which we show empirical support. Applying our test to data on all prison releases in Pennsylvania between 1999 and 2003, we find no evidence of racial prejudice.
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Assessing Racial Disparities in Parole Release
Stéphane Mechoulan & Nicolas Sahuguet
Journal of Legal Studies, January 2015, Pages 39-74
Abstract:
In a rational choice model of parole release, a color-blind parole board seeking to minimize violations would release all prisoners below a certain risk threshold. To test this prediction, we extend the outcome-test methodology used in assessing discrimination in police searches. We overcome the inframarginality critique by taking advantage of strategic timing of release: within each racial group, violation rates are equalized for a given sentence length. We use the National Corrections Reporting Program data, which record all parole-release decisions in the United States. We find that violation rates are consistently higher for African American parolees, a result not consistent with a parole board bias against African Americans. This conclusion is robust to a variety of tests, including ruling out postrelease discrimination. Evidence on the timing of release suggests a policy aimed at limiting racial disparities in time served rather than in violation rates, which favors fairness over efficiency.
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The Effect of Race/Ethnicity on Sentencing: Examining Sentence Type, Jail Length, and Prison Length
Kareem Jordan & Tina Freiburger
Journal of Ethnicity in Criminal Justice, Summer 2015, Pages 179-196
Abstract:
The purpose of this research was to examine the impact of race/ethnicity on criminal sentencing outcomes. The findings from prior studies tend to be mixed on this issue. Using 4 years of data from the State Court Processing Statistics (2000, 2002, 2004, and 2006) and propensity score matching, we examined the impact of race/ethnicity on sentencing outcomes among Blacks, Hispanics, and Whites. The findings suggest that racial/ethnic biases occur in the sentence type (community sanction, jail, or prison) and jail length decisions though not in the prison length decision. It is important to separate jail length and prison length when examining incarceration time. Combining the 2 distinct sentences may confound the true impact of factors on these outcomes.
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Deborah Wright, Robert Nash & Kimberley Wade
Psychology, Crime & Law, forthcoming
Abstract:
Building rapport involves developing a harmonious relationship with another person and conveying understanding and acceptance towards that person. Law enforcement officers use rapport-building to help gather information from witnesses. But could rapport-building, in some situations, work to contaminate eyewitness testimony? Research shows that compelling incriminating evidence can lead people to corroborate false accusations made against another person. We investigated whether rapport-building – when combined with either Verbal or Verbal+Visual false evidence – might boost these corroboration rates. Subjects took part in a pseudo-gambling task, in which their counterpart was falsely accused of cheating. Using a 2 (Rapport: Rapport vs. No-rapport) × 2 (Incriminating Evidence: Verbal vs. Verbal+Visual) between-subjects design, we persuaded subjects to corroborate the accusation. We found that both rapport and verbal+visual incriminating evidence increased the compliance rate. Even when the incriminating evidence was only presented verbally, rapport-building subjects were almost three times as likely to corroborate a false accusation compared to subjects who did not undergo rapport-building. Our results suggest that although there is widespread and strong support for using rapport-building in interviews, doing so also has the potential to aggravate the contaminating power of suggestive interview techniques.