Passing judgment
Intrinsic Motivation in Public Service: Theory and Evidence from State Supreme Courts
Elliott Ash & Bentley MacLeod
NBER Working Paper, November 2014
Abstract:
This paper provides a theoretical and empirical analysis of the intrinsic preferences of state appellate court judges. We construct a panel data set using published decisions from state supreme court cases merged with institutional and biographical information on all (1,700) state supreme court judges for the 50 states of the United States from 1947 to 1994. We exploit variation in the employment conditions of judges over this period of time to measure the effect of these changes on a number of measures of judicial performance. The results are consistent with the hypothesis that judges are intrinsically motivated to provide high-quality decisions, and that at the margin they prefer quality over quantity. When judges face less time pressure, they write more well-researched opinions that are cited more often by later judges. When judges are up for election then performance falls, consistent with the hypothesis that election politics is time-consuming. These effects are strongest when judges have more discretion to select their case portfolio, consistent with psychological theories that posit a negative effect of contingency on motivation (e.g. Deci, 1971). Finally, the intrinsic preference for quality appears to be higher among judges selected by non-partisan elections than among those selected by partisan elections.
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Race and the Construction of Evidence in Homicide Cases
Glenn Pierce et al.
American Journal of Criminal Justice, December 2014, Pages 771-786
Abstract:
Research that attempts to document racial or gender disparities in the criminal justice system inevitably paints a distorted picture if only one point in the criminal justice process is examined. For example, studies that look at who is sentenced to death among a group convicted of first-degree murder will miss exposure of biases that occur at earlier stages of the criminal justice process. In this paper, we looked at prosecutorial files on over 400 homicide cases from Caddo Parish, Louisiana (the Shreveport area). Results indicate that even after controlling for aggravating factors, cases with White female victims result in thicker files than other homicides, indicating more prosecutorial effort in attempting to secure convictions in such cases. This, in turn, was related to more severe sentencing of offenders convicted of killing whites and women. On the other hand, cases with black victims resulted in the thinnest case files and the least severe sentences.
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Losing, but Accepting: Legitimacy, Positivity Theory, and the Symbols of Judicial Authority
James Gibson, Milton Lodge & Benjamin Woodson
Law & Society Review, December 2014, Pages 837–866
Abstract:
How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy — the robe, the gavel, the cathedral-like court building — in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court, (2) has differing effects depending upon levels of preexisting institutional support, and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.
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Kim-Sau Chung & Lance Fortnow
Economic Journal, forthcoming
Abstract:
We formalize the argument of those American founding fathers who opposed the inclusion of the Bill of Rights into the Constitution. For some parameter values, the legislator, who is not sure whether or not there are any rights that he is unaware of, optimally chooses not to enumerate even those rights that he is aware of. We also show that, even if the legislator adds the sentence “this Bill should not be interpreted as suggesting that any unlisted rights can be impaired by the government” to the Bill, the equilibrium outcome will stay the same.
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William Kinder
Georgetown Law Journal, Fall 2014, Pages 227-258
"Since her appointment in 2010, Justice Elena Kagan has remarked on multiple occasions that although the overall quality of advocacy before the U.S. Supreme Court today is high, the same cannot be said of the advocacy for criminal defendants...I argue that the criminal defense advocacy gap observed by Justice Kagan does exist; that the advocacy gap places criminal defendants at a distinct disadvantage before the Court; and that to close this advocacy gap, more criminal defense attorneys should accept assistance from Supreme Court specialists once a case reaches the merits stage of Supreme Court litigation."
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Legal Institutions and Social Values: Theory and Evidence from Plea Bargaining Regimes
Yehonatan Givati
Journal of Empirical Legal Studies, December 2014, Pages 867–893
Abstract:
How do social values shape legal institutions across countries? To address this question I focus on one important legal institution — the use of plea bargaining in criminal cases. I develop a model in which the optimal scope of plea bargaining depends on social values. Specifically, a lower social emphasis on ensuring that innocent individuals are not punished, and a greater social emphasis on ensuring that guilty individuals are punished, lead to a greater use of plea bargaining. Using unique cross-country data on social preferences for punishing the innocent versus letting the guilty go free, as well as an original coding of plea bargaining regimes across countries, I obtain results that are consistent with the model.
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The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto
James Gibson & Michael Nelson
Annual Review of Law and Social Science, 2014, Pages 201-219
Abstract:
Research on the legitimacy of the US Supreme Court has blossomed of late, with scholars investigating many different hypotheses derived from legitimacy theory. As the theory has been pushed, a number of new controversies have emerged. Here, we identify four such debates: (a) whether the Court's legitimacy rests on satisfaction with its performance, (b) whether support for the Supreme Court reflects the polarization of politics in the contemporary United States, (c) whether the Court's legitimacy requires belief in the “myth of legality”, and (d) whether judicial decisions can change public opinion. Our analysis of these issues generally concludes that the Supreme Court's legitimacy is reasonably secure, in part because individual rulings have little impact on support for the institution, in part because the Court has access to powerful and influential symbols of judicial authority, and in part because the current Supreme Court issues roughly equal numbers of conservative and liberal decisions.
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Simon Zschirnt & Blake Randol
International Criminal Justice Review, December 2014, Pages 319-344
Abstract:
The turn away from “penal welfarism” and toward a more punitive approach to crime control policy that began in the late 1960s has been the product of a deeply rooted social and political transformation, one giving rise to what Garland (2001) has termed a “culture of control.” Perhaps the most emblematic manifestation of this culture has been the reemergence of the death penalty as a crime control tool, a reemergence facilitated by a Supreme Court that has generally acted to limit or remove constitutional and legal obstacles to carrying out death sentences. This article analyzes the Court’s role in deregulating the death penalty from a “political regimes” perspective. Using a data set of all of the votes cast in every death penalty case decided by the Court since 1969, it demonstrates the importance of regime cohort in understanding death penalty jurisprudence. Specifically, it demonstrates that the construction of the “New Right” political regime, which spearheaded the punitive trend in crime control policy, represents the critical turning point in terms of justices’ attitudes toward the death penalty. Justices appointed after 1968, even when controlling for background, ideology, partisanship, public opinion, and a variety of legal factors, were significantly more likely to vote to affirm death sentences than justices appointed prior to 1968. Moreover, this turning point also marked a reversal in the relationship between partisanship and death penalty jurisprudence. While post-1968 Republican appointees were more supportive of the death penalty than post-1968 Democratic appointees, this pattern was notably reversed among pre-1968 appointees.
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The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions
Alicia Uribe, James Spriggs & Thomas Hansford
Law & Society Review, December 2014, Pages 921–945
Abstract:
Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation-of-powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.
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A Field Evaluation of the Eye-Closure Interview With Witnesses of Serious Crimes
Annelies Vredeveldt et al.
Law and Human Behavior, forthcoming
Abstract:
Laboratory research shows that eye-closure during memory retrieval improves both the amount and the factual accuracy of memory reports about witnessed events. Based on these findings, we developed the Eye-Closure Interview, and examined its feasibility (in terms of compliance with the instructions) and effectiveness (in terms of the quantity and quality of reported information) in eyewitness interviews conducted by the South African Police Service. Police interviewers from the Facial Identification Unit were randomly assigned to receive Eye-Closure Interview training or no training. We analyzed 95 interviews with witnesses of serious crimes (including robbery, rape, and murder), some of whom were instructed to close their eyes during salient parts of the interview. Witnesses in the control condition rarely spontaneously closed their eyes, but witnesses in the Eye-Closure Interview condition kept their eyes closed during 97% of their descriptions, suggesting that the Eye-Closure Interview would be easy to implement in a field setting. Although witnesses who closed their eyes did not remember more information overall, the information they provided was considered to be of significantly greater forensic relevance (as reflected in 2 independent blind assessments, 1 by a senior police expert and 1 by a senior researcher). Thus, based on the findings from this field study and from previous laboratory research, we conclude that implementation of the Eye-Closure Interview in witness interviews would help police interviewers to elicit more valuable information from witnesses, which could be relevant to the police investigation and/or in court.
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Ideology, The Affordable Care Act Ruling, and Supreme Court Legitimacy
Christopher Johnston, Sunshine Hillygus & Brandon Bartels
Public Opinion Quarterly, forthcoming
Abstract:
The received wisdom in the scholarly literature on the US Supreme Court is that the perceived legitimacy of the institution is largely independent of the Court’s policy output. Legitimacy is thought to be rooted in more stable factors, such as support for democratic values, and thus to be immune from ideological discontent with any particular decision. While recent research has demonstrated a general association between political predispositions and legitimacy, questions remain about the extent to which the specific decisions of the Court might shape legitimacy judgments in the mass public. In this paper, we examine the relationship between ideology, political sophistication, and evaluations of Supreme Court legitimacy in the aftermath of the recent decision on the Affordable Care Act. Our findings suggest a substantial role for Court policymaking in shaping perceptions of legitimacy in the mass public, but the nature of the relationship is conditional on political sophistication.
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Dino Christenson & David Glick
American Journal of Political Science, forthcoming
Abstract:
The 2012 challenge to the Affordable Care Act was an unusual opportunity for people to form or reassess opinions about the Supreme Court. We utilize panel data coupled with as-if random assignment to reports that Chief Justice Roberts's decision was politically motivated to investigate the microfoundations of the Court's legitimacy. Specifically, we test the effects of changes in individuals' ideological congruence with the Court and exposure to the nonlegalistic account of the decision. We find that both affect perceptions of the Court's legitimacy. Moreover, we show that these mechanisms interact in important ways and that prior beliefs that the Court is a legalistic institution magnify the effect of updating one's ideological proximity to the Court. While we demonstrate that individuals can and did update their views for multiple reasons, we also highlight constraints that allow for aggregate stability in spite of individual-level change.
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Byungbae Kim et al.
Crime & Delinquency, forthcoming
Abstract:
In the wake of United States v. Booker and Gall/Kimbrough v. United States, sentencing researchers and legal scholars conducted research designed to identify their impact on the federal sentencing process, with a focus on determining whether the decisions increased unwarranted disparity. In this article, we extend this body of research. Using 10 years of data from the U.S. Sentencing Commission and data from other sources, we assess whether and how these decisions influence sentence severity. Results indicate that sentence severity declined following Booker and, especially, Gall/Kimbrough, but that the decisions’ effects on sentence severity varied significantly across U.S. District Courts. Most importantly, the impact of Gall/Kimbrough sentence severity was conditioned by districts’ percent Black population, level of socioeconomic disadvantage, and degree of political conservatism; each of these factors moderated the decisions’ effects on the harshness of the sentences imposed by the districts’ judges.
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Judicial Narratives of Ideal and Deviant Victims in Judges’ Capital Sentencing Decisions
Heather Zaykowski, Ross Kleinstuber & Caitlin McDonough
American Journal of Criminal Justice, December 2014, Pages 716-731
Abstract:
Although the Victim’s Rights Movement has led to advances for victims of crime, the use of victim impact evidence in criminal trials remains controversial due to the suspicion that such evidence enhances punitive attitudes and arbitrariness in capital sentencing outcomes. Despite a growing body of literature in this area, it remains unclear if some victims are viewed more favorably than others, particularly from the perspective of judges. The current study examines the construction of victims by judges in capital cases and how this portrayal impacts sentencing outcomes in Delaware, which vests the final capital sentencing authority in judges rather than juries. In examining this gap in the literature, we consider if judges make distinctions between ideal and deviant victims, if these distinctions are associated with victim and offender characteristics, and if the construction of victims impacts offender sentencing. Findings from this study lend support to the idea that judges describe some victims as more “worthy” than others, that victims described in ideal ways are more likely to be white and female, and that “ideal victims” are more likely to result in death sentences.
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Shila Hawk & Dean Dabney
British Journal of Criminology, November 2014, Pages 1129-1147
Abstract:
Drawing upon ethnographic data from one US metropolitan police department’s homicide unit, this study employs Goffman’s frame analysis to explore two questions: (1) What types of cases are prioritized in homicide investigations? and (2) How are those prioritizations operationalized and justified? Themes within the data suggest that although detectives struggle to ‘work every case the same’, their approach and effort on cases is nonetheless influenced largely by unit culture and perceptions of victim deservedness. Furthermore, we demonstrate that framing techniques enable investigators to compartmentalize and manage the emotional strain of deprioritizing some homicides while rigorously investigating other cases. These findings add to our understanding of the administration of homicide work, theorize the moral complexities of said work and point to frame analysis as a potentially useful framework for crime researchers.
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Interviewing High Value Detainees: Securing Cooperation and Disclosures
Jane Goodman-Delahunty, Natalie Martschuk & Mandeep Dhami
Applied Cognitive Psychology, forthcoming
Abstract:
Four types of coercive and noncoercive interview strategies (legalistic, physical, cognitive and social) used to facilitate disclosure by high value detainees were examined in an international sample of practitioners and detainees (N = 64). Predictive analyses confirmed that the accusatorial approach was positively correlated with physically coercive strategies (rs = .58) and negatively with forms of social persuasion (rs = −.31). In response to social strategies, detainees were more likely to disclose meaningful information [odds ratio (OR) = 4.2] and earlier in the interview when rapport-building techniques were used (OR = 14.17). They were less likely to cooperate when confronted with evidence (OR = 4.8). Disclosures were more complete in response to noncoercive strategies, especially rapport-building and procedural fairness elements of respect and voice. These findings augmented past theory on interactional processes and the evidence-base of international best practices in suspect interviews.
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Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals
Adam Chilton & Marin Levy
University of Chicago Working Paper, November 2014
Abstract:
A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so. To determine whether the circuit courts utilize random assignment, we have created what we believe to be the largest dataset of panel assignments of those courts constructed to date. Using this dataset, we tested whether panel assignments are, in fact, random by comparing the actual assignments to truly random panels generated by code that we have created to simulate the panel generation process. Our results show evidence of non-randomness in the federal courts of appeals. To be sure, the analysis here is descriptive, not explanatory or normative. We do not ourselves mean to suggest that “perfect randomness” is a desirable goal. We are simply testing an existing assumption and believe these findings will have implications for empirical researchers and court scholars more generally.
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Anthony Peguero, Ann Marie Popp & Zahra Shekarkhar
Journal of Ethnicity in Criminal Justice, forthcoming
Abstract:
The disproportionate punishment of racial and ethnic minority adolescents is a serious problem within schools. Few studies, however, consider factors outside of school misbehavior that may moderate this relationship. This study extends research on this topic by considering whether stereotypes moderate the school punishment of racial and ethnic minorities. This study utilizes multilevel modeling techniques to examine if and how stereotypes based on family socioeconomic status, test scores, and school-based activities moderate racial and ethnic minority adolescents’ odds of being punished. Adolescents who do not conform to racial and ethnic stereotypes are more likely to be punished. The findings that suggest that stereotypes may be linked to increased school punishment for racial and ethnic minorities are discussed.
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Anton Bekkerman & Gregory Gilpin
International Review of Law and Economics, October 2014, Pages 51–61
Abstract:
This study empirically investigates the potentially unintended effects of state laws that seek to improve safety in U.S. public school by mandating standardized student punishment. We estimate the effects of exogenous state-level variation in the quantity and type of such mandates on disciplinary disparities across students who commit serious offenses. Estimation results indicate that more severe punishments are imposed in schools with higher proportions of black or Hispanic students, but such disparities are significantly dampened in states that mandate a higher number of guidelines for serious offenses. However, more guidelines for less severe misconduct tend to increase race-based disciplinary disparities and increase the severity of punishments administered for serious offenses. These outcomes extend the existing sentencing guidelines literature and provide empirical implications for considering marginal deterrence effects when crafting future policies.
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Capital Sentencing In Kentucky, 2000–2010
Gennaro Vito, George Higgins & Anthony Vito
American Journal of Criminal Justice, December 2014, Pages 753-770
Abstract:
The current study attempts to build upon previous analyses of capital sentencing in Kentucky and other states. Using data compiled from official court records compiled by the Kentucky Department of Public Advocacy, we examined death eligible homicide cases for the years 2000–2010 for the state (N = 359). Multivariate analysis determined that the death penalty in Kentucky was sought 3.17 times or 217 % more when the victim is female. It also found that cases featuring a black defendant and a white victim were 56 % less likely to result in a plea than cases featuring other defendant/victim racial combinations. Despite legal requirements, Kentucky fails to collect data to assess the factors that influence the seeking and imposition of the death penalty.