The verdict is in
Reconsidering Judicial Preferences
Lee Epstein & Jack Knight
Annual Review of Political Science, 2013, Pages 11-31
Abstract:
Among political scientists, not only is it uncontroversial to say that judges seek to etch their political values into law; it would be near heresy to suggest otherwise. And yet this article does just that because research conducted by scholars (mostly outside of political science) has demonstrated that the policy goal is not the only motivation; it may not even be dominant for many judges. The evidence is now so strong that it poses a serious challenge to the extremely (un)realist(ic) conception of judicial behavior that has dominated the study of law and legal institutions for generations. In addition to reviewing this evidence, we offer a more realistic conception of judicial motivations and suggest how different approaches to the study of courts can contribute to this new avenue of research.
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Detecting and Punishing Unconscious Bias
Philip Tetlock, Gregory Mitchell & Jason Anastasopoulos
Journal of Legal Studies, January 2013, Pages 83-110
Abstract:
We present experimental results demonstrating how ideology shapes evaluations of technology aimed at detecting unconscious biases: (1) liberals supported use of the technology to detect unconscious racism but not unconscious anti-Americanism, whereas conservatives showed the reverse pattern, (2) liberals and conservatives opposed punishing individuals for unconscious bias but supported punishing organizations failing to use the technology to root out, respectively, racism or anti-Americanism, (3) concerns about researcher bias and false accusations mediated the effects of ideology on support for the technology, and (4) participants taking strong initial stands were likelier than moderates to reconsider their positions. Our findings demonstrate that there is substantial concern about penalizing unconscious bias at the individual level and that it will be difficult to generate broad support for regulation of unconscious bias at even the organizational level unless the technology is a reliable detector of unconscious biases that lead to frequent or serious antisocial behaviors.
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After innocence: Perceptions of individuals who have been wrongfully convicted
Kimberley Clow & Amy-May Leach
Legal and Criminological Psychology, forthcoming
Purpose: Although it is easy to assume that individuals who have been wrongfully convicted are stigmatized, research has not systematically examined this issue. This research compares perceptions of individuals who have been wrongfully convicted to perceptions of offenders to investigate the stigma that wrongfully convicted persons report.
Method: Participants were randomly assigned to complete surveys regarding their attitudes, stereotypes, and discrimination tendencies towards one of three different groups: individuals who were wrongfully convicted of a crime, actual offenders, or people in general (control).
Results: Results suggested contemptuous prejudice towards offenders and wrongfully convicted persons. In comparison to the control group, individuals who had been wrongfully convicted were stereotyped more negatively, elicited more negative emotions, and were held at a greater social distance. Although participants did report greater pity for wrongfully convicted persons than others, this pity did not translate into greater assistance or support.
Conclusions: Perceptions of wrongfully convicted persons appear similar to negative, stigmatized views of offenders. Individuals faced stigma and discrimination even after exoneration.
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Jason Morin
American Politics Research, forthcoming
Abstract:
The diversification of the federal courts has led to a number of studies focusing on the voting behavior of African American and, to a lesser extent, Latino judges. Despite expectations that minority judges will vote differently from their White colleagues, extant research demonstrates mixed results. Perhaps one reason for this outcome is that they fail to account for the conditional role that coracial and coethnic claimants might have on behavior. This study examines the voting behavior of minority judges in the U.S. Courts of Appeals. Focusing on employment discrimination claims between 2001 and 2009, this analysis demonstrates that minority judges are not monolithic in their voting behavior. While African American judges are more likely to vote in favor of Black claimants, Latino judges are less likely to vote in favor of the claimant more generally. In all, the findings have important implications for substantive policy outcomes.
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Stephen Jessee & Neil Malhotra
Public Opinion Quarterly, forthcoming
Abstract:
Do people accurately perceive the Supreme Court's ideology in relation to their own positions? Which types of people are most likely to misperceive? Answering these questions is important for understanding the basis of public support for the Supreme Court. To do so requires placing the public and the Supreme Court on a common ideological scale. This study represents the first attempt to do so. We ask respondents how they would have voted on a set of cases recently decided by the Court, meaning that we can generate a comparable set of ideal points for both masses and elites in a common space. We find that the Court is generally representative of mass opinion and that most citizens have accurate perceptions of the Court. However, we also find that people are substantially more likely to misperceive the Court as being too liberal than too conservative.
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The Law and Policy of Judicial Retirement: An Empirical Study
Stephen Choi, Mitu Gulati & Eric Posner
Journal of Legal Studies, January 2013, Pages 111-150
Abstract:
Lifetime tenure maximizes judicial independence by shielding judges from political pressures but creates problems of its own. Judges with independence may implement their political preferences. Judges may remain in office after their abilities degrade with age. The U.S. federal system addresses these problems in an indirect way. When judges' pensions vest, they receive full pay regardless of whether they work. This limits some of the harmful effects of judicial independence by encouraging judges to vacate their offices when they become old and by causing judges who find their work burdensome to leave office. We test the benefits and costs of this system for federal district judges. We find that the vesting system causes judges to retire as expected, that higher quality and wealthier judges are less sensitive to the financial incentives of the system, and that some judges appear to time retirement so that the president will appoint like-minded judges.
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Third Strikers under Three Strikes and You're Out: Politics and Prosecutions
Pamela Fiber-Ostrow & Justin Tucker
California Journal of Politics and Policy, April 2013, Pages 168-205
Abstract:
Between 1994 and 2012, California's Three Strikes Law mandated that first and second strikes must be either violent or serious, but allowed any felony to qualify as a third strike. Moreover, defendants could have been struck out on a "wobbler" offense, which granted discretion to the District Attorney to determine whether the offense should be charged as a misdemeanor or a felony. Starting in 1994, hotly contested elections for California's District Attorneys often featured position taking on third strike cases with some candidates promising to strike out on any and all felonies while others positioned themselves away from felonies that were not serious or violent. As several legal scholars noted, some repeat offenders convicted of minor crimes for their third strike were sent away for life, while others received much lighter sentences. Disparities in the application of the law appeared to depend on geography among the 58 California jurisdictions. Using California Department of Corrections data and other county data we find a relationship between county ideology, county finances, and the number of third strike convicts incarcerated on a third strike from non-serious, non-violent offense and "wobbler" offenses.
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Structural Bias in the Sentencing of Felony Defendants
John Sutton
Social Science Research, forthcoming
Abstract:
As incarceration rates have risen in the U.S., so has the overrepresentation of African Americans and Latinos among prison inmates. Whether and to what degree these disparities are due to bias in the criminal courts remains a contentious issue. This article pursues two lines of argument toward a structural account of bias in the criminal law, focusing on (1) cumulative disadvantages that may accrue over successive stages of the criminal justice process, and (2) the contexts of racial disadvantage in which courts are embedded. These arguments are tested using case-level data on male defendants charged with felony crimes in urban U.S. counties in 2000. Multilevel binary and ordinal logit models are used to estimate contextual effects on pretrial detention, guilty pleas, and sentence severity, and cumulative effects are estimated as conditional probabilities that are allowed to vary by race across all three outcomes. Results yield strong, but qualified, evidence of cumulative disadvantage accruing to black and Latino defendants, but do not support the contextual hypotheses. When the cumulative effects of bias are taken into account, the estimated probability of the average African American or Latino felon going to prison is 26 percent higher than that of the average Anglo.
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Malingering in the correctional system: Does incentive affect prevalence?
Barbara McDermott, Isah Dualan & Charles Scott
International Journal of Law and Psychiatry, forthcoming
Abstract:
Incentives to malinger vary greatly dependent on the context, as does the prevalence. Malingering in the medico-legal context of the criminal courts is generally for one of two purposes: to present as incompetent to stand trial or to successfully plead not guilty by reason of insanity. Estimates of the prevalence of malingering in these contexts vary between 8 and 21%. The prevalence of malingering increases dramatically in a general offender sample, where the external incentive is likely to be substantially different. Malingering in this context can be as high as 56% and generally occurs to obtain a more desirable housing situation or desired medications. Our study examined data from two distinct samples to evaluate incentives to malinger: patients found incompetent to stand trial (IST) and sent to a state hospital for restoration and jail inmates seeking psychiatric services (JPS). Our results indicate that the rate of malingering in the IST sample was consistent with rates published in comparable samples (17.5%) and the rate for the JPS sample was substantially higher (64.5%). Only in the IST sample was rate of malingering associated with offense severity: patients found IST for murder and robbery evidenced malingering rates more than double the sample as a whole. Offense severity bore no relationship to malingering in the JPS sample.
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The Death Penalty's Dirty Little Secret
Franklin Zimring
California Journal of Politics and Policy, April 2013, Pages 139-745
Abstract:
Why is it that the rate of executions per 100 death sentences is vastly higher in states like Texas than in places like California? This essay argues that part of the answer is that states must provide capital defendants who are indigent (virtually all of them) with a legal defense, but providing less skilled lawyers and inadequate resources creates a fast track to execution while better lawyers and more resources can lead to more delay. This creates a "perverse incentive" to restrict effective defenses which can only be restrained if federal courts aggressively enforce the effectiveness of state-provided defenses. The data suggests that the current system does not provide sufficient protections.
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Bargaining and Legal Development in the United States Courts of Appeals
Ryan Black & Ryan Owens
American Politics Research, forthcoming
Abstract:
Examining the systematic and private records of a former D.C. Circuit Court Judge, we examine the process by which federal circuit court judges craft legal opinions. We discover that private and contextual factors influence legal outcomes. More specifically, we find that workload considerations strongly influence circuit opinions, that some visiting and senior judges effect the process differently than do active circuit court judges, and that panel effects play but a minimal role in the creation of opinions. In short, we move the literature on circuit court decision making forward by employing private archival material that illuminates how private and contextual features influence opinion writing and legal policy.
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Strategic Citations to Precedent on the U.S. Supreme Court
Yonatan Lupu & James Fowler
Journal of Legal Studies, January 2013, Pages 151-186
Abstract:
Common law evolves not only through the outcomes of cases but also through the reasoning and citations to precedent employed in judicial opinions. We focus on citations to precedent by the U.S. Supreme Court. We demonstrate how strategic interaction between justices during the Court's bargaining process affects citations to precedent in the Court's opinion. We find that the majority-opinion writer relies more heavily on precedent when the Court's decision is accompanied by separate opinions. We also show that diversity of opinion on the Court, a factor often overlooked, has a significant relationship with citations to precedent. Finally, our results indicate that the ideology of the median justice influences citation practices more than ideology of the majority-opinion writer.
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Do Jurors Give Appropriate Weight to Forensic Identification Evidence?
William Thompson, Suzanne Kaasa & Tiamoyo Peterson
Journal of Empirical Legal Studies, June 2013, Pages 359-397
Abstract:
Do jurors give appropriate weight to forensic identification evidence? When judging the value of forensic evidence, are they sensitive to the probability of a false match? To answer these questions, we conducted two jury simulation experiments - the first with undergraduate participants, the second with members of a county jury pool. The experiments examined the weight that participants gave to forensic DNA evidence relative to Bayesian norms when evaluating a hypothetical criminal case. We found that aggregate judgments were generally consistent with Bayesian expectations, although people overvalued the DNA evidence when the probability of a false report of a match was high relative to the random match probability. Judgments of the chances the defendant was guilty varied appropriately in response to the variation in the probability of a false report of a match, as did verdicts. Our findings refute claims that jurors are always conservative Bayesians when evaluating forensic evidence and suggest, instead, that they use a variety of judgmental strategies and sometimes engage in fallacious statistical reasoning. In light of these findings, we identify circumstances in which forensic evidence may be overutilized, discuss implications for legal policy, and suggest additional lines of research.
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Melanie Sauerland et al.
Behavioral Sciences & the Law, March 2013, Pages 239-255
Abstract:
Across two experiments, we studied a phenomenon akin to choice blindness in the context of participants' accounts of their own history of norm-violating behaviors. In Experiment 1, N = 67 participants filled in an 18-item questionnaire about their history of norm-violating behaviors (QHNVB). Subsequently, they were questioned about four of their answers, two of which had covertly been manipulated by the experimenter. Of the 134 manipulations, 20 (14.9%) remained undetected concurrently and 13 were accepted in retrospect (9.7%). In Experiment 2 (N = 37), we inserted a one-week interval between questionnaire and interview. Twenty-seven (36.5%) of the 74 manipulations remained undetected concurrently and three were accepted in retrospect (8.1%). Data obtained in a four-week follow-up indicated that our manipulations may have long-term effects on participants' perception of their own history of norm-violating behaviors. Implications for the occurrence of false confessions during the course of an interrogation are discussed.
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Coral Dando et al.
Legal and Criminological Psychology, forthcoming
Abstract:
Research examining detection of verbal deception reveals that lay observers generally perform at chance. Yet, in the criminal justice system, laypersons that have not undergone specialist investigative training are frequently called upon to make veracity judgements (e.g., solicitors; magistrates; juries). We sought to improve performance by manipulating the timing of information revelation during investigative interviews. A total of 151 participants played an interactive computer game as either a truth-teller or a deceiver, and were interviewed afterwards. Game information known to the interviewer was revealed either early, at the end of the interview, or gradually throughout. Subsequently, 30 laypersons individually viewed a random selection of interviews (five deceivers and five truth-tellers from each condition), and made veracity and confidence judgements. Veracity judgements were most accurate in the gradual condition, p < .001, η2 = .97 (above chance), and observers were more confident in those judgements, p < .001, η2 = .99. Deceptive interviewees reported the gradual interviews to be the most cognitively demanding, p < .001; η2 = .24. Our findings suggest that the detection of verbal deception by non-expert observers can be enhanced by employing interview techniques that maximize deceivers' cognitive load, while allowing truth-tellers the opportunity to respond to evidence incrementally.
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Elizabeth Olson
Journal of Applied Social Psychology, forthcoming
Abstract:
Presumptions of guilt could bias criminal investigators' interviews of suspects, reducing recall of exculpatory alibi information, and the label "alibi" could be enough to create a presumption of guilt. Participants (n = 285) viewed a videotaped narrative account; some participants knew prior to viewing that the account was an alibi whereas others discovered this after viewing. Also, some participants were given an expectation that the alibi provider was guilty or innocent. Results indicated participants with a presumption of guilt before viewing the alibi recalled less alibi-relevant information, found the alibi less believable, and viewed the alibi provider more negatively than did participants without such an expectation, and that a label of "alibi" was not enough to create a presumption of guilt.
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Probability of Criminal Acts of Violence: A Test of Jury Predictive Accuracy
Thomas Reidy, Jon Sorensen & Mark Cunningham
Behavioral Sciences & the Law, March 2013, Pages 286-305
Abstract:
The ability of capital juries to accurately predict future prison violence at the sentencing phase of aggravated murder trials was examined through retrospective review of the disciplinary records of 115 male inmates sentenced to either life (n = 65) or death (n = 50) in Oregon from 1985 through 2008, with a mean post-conviction time at risk of 15.3 years. Violent prison behavior was completely unrelated to predictions made by capital jurors, with bidirectional accuracy simply reflecting the base rate of assaultive misconduct in the group. Rejection of the special issue predicting future violence enjoyed 90% accuracy. Conversely, predictions that future violence was probable had 90% error rates. More than 90% of the assaultive rule violations committed by these offenders resulted in no harm or only minor injuries.