You Be the Judge
Matthew Hall
American Journal of Political Science, April 2014, Pages 352–366
Abstract:
Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in “vertical” cases (those involving criminal and civil liability) than in “lateral” cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases — those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context.
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Christine Gockel, Peter Kolb & Lioba Werth
PLoS ONE, April 2014
Abstract:
Temperature-related words such as cold-blooded and hot-headed can be used to describe criminal behavior. Words associated with coldness describe premeditated behavior and words associated with heat describe impulsive behavior. Building on recent research about the close interplay between physical and interpersonal coldness and warmth, we examined in a lab experiment how ambient temperature within a comfort zone influences judgments of criminals. Participants in rooms with low temperature regarded criminals to be more cold-blooded than participants in rooms with high temperature. Specifically, they were more likely to attribute premeditated crimes, ascribed crimes resulting in higher degrees of penalty, and attributed more murders to criminals. Likewise, participants in rooms with high temperature regarded criminals to be more hot-headed than participants in rooms with low temperature: They were more likely to attribute impulsive crimes. Results imply that cognitive representations of temperature are closely related to representations of criminal behavior and attributions of intent.
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Explaining the (Non)Occurrence of Equal Divisions on the U.S. Supreme Court
Ryan Black & Amanda Bryan
American Politics Research, forthcoming
Abstract:
When the U.S. Supreme Court sits with an even number of justices participating, there is a risk that the Court will be deadlocked in a tied vote. While this outcome awards the individual respondent with a victory, it also preserves circuit splits and other ambiguities in the law. In this article, we examine the conditions under which an even-membered Supreme Court actually results in a tie vote. We argue that the Court recognizes the potentially damaging consequences of 4-4 rulings and seeks to avoid them when those consequences would be most severe. Consistent with that conjecture, we find that ties are less likely when a decision is necessary to resolve a dispute in the lower courts and when cases are important to the executive branch.
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Unwarranted Disparity in Federal Sentencing: Noncitizen Crime as a Social/Group Threat
Jawjeong Wu & Jill D’Angelo
Criminal Justice Review, March 2014, Pages 58-80
Abstract:
Research has recently shown a renewed interest in the effect of citizenship status on sentencing outcomes. This line of investigation, however, is limited to the individual-level analysis. In addition, research on the threat hypothesis has overwhelmingly focused on racial and ethnic threat. This study extends prior research by testing the social/group threat hypothesis in terms of citizenship and examines two primary variables of interest — the size of the noncitizen population and offender citizenship status. This study seeks to find how the size of the noncitizen population as a macro-level factor and offender citizenship status as a micro-level factor independently and jointly affect federal sentencing. The independent effects of other macro-level factors in the context of courts and areas on sentencing decisions, as well as their interactions with offender citizenship status, are also examined. With all offenses considered together, the cross-level finding provides support for social threat posed by noncitizen offenders, revealing that judges in districts with a large noncitizen population impose longer sentences on noncitizen offenders than those in districts with a small noncitizen population.
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Testing the Packer Theorem: The Efficiency of Florida’s Criminal Circuit Courts
Joseph Ferrandino
American Journal of Criminal Justice, June 2014, Pages 375-393
Abstract:
Herbert Packer’s models of the criminal process are criminal justice theorems, often the foundation of student introduction to the field in introductory textbooks. To date, there is little empirical analysis of the conceptual foundations of the process-based models, namely that courts are more efficient through the utilization of plea bargains, while an increase in trials necessarily decreases efficiency. The present results reveal wide variability in Florida circuit criminal court efficiency within and between circuits from 2004/05 to 2010/11. Regression analysis revealed that the year over year difference in both plea bargain (β = .14) and trial percentage (β = .13) significantly predicted (p < .05) year over year changes in efficiency, but explained a small amount of the variance (R 2 = .026) controlling for other factors (total model R 2 = .58–.62). These results show there is more capacity for trials within the Florida courts, and an increase in trials does not negatively impact court efficiency as expected but that other factors are far more relevant in explaining changes in efficiency outcomes. Furthermore, the Packer “assembly line” analogy, a basic tenet of the criminal process, is not found: plea bargains do not strongly predict or explain court efficiency, with structures playing a greater role in court outcomes than the processes conceptualized by Packer. The application to courts and impact on criminal justice education are discussed.
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James Piazza
Political Psychology, forthcoming
Abstract:
Does the U.S. public's support for the use of harsh interrogation and detention practices against terrorism suspects depend upon the religious identity of the alleged perpetrators? Some scholarly research indicates greater public acceptance for abridging the rights of Muslims after 9/11. This is consistent with literature suggesting that heightened perception of threat decreases popular tolerance for racial, ethnic, and religious outgroups. This study executes a survey experiment and finds respondents to be more permissive of the use of extraordinary detention practices, such as indefinite detention and denying suspects access to legal counsel and civilian criminal courts, against terror suspects identified as Muslims. Furthermore, the study reveals that respondents are significantly less likely to treat domestic, right-wing terrorist suspects with extraordinary detention, suggesting ingroup leniency.
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Out of Place: Racial Stereotypes and the Ecology of Frisks and Searches Following Traffic Stops
Leo Carroll & Lilliana Gonzalez
Journal of Research in Crime and Delinquency, forthcoming
Objectives: Test hypotheses drawn from Smith and Alpert’s social conditioning theory that explains biased policing as the result of implicit racial stereotypes. Distinguishing between frisks and searches, we hypothesize that (1) Black drivers are more likely than White drivers to be frisked and searched; (2) racial disparity is greater in frisks than searches; (3) racial disparity in frisks, but not searches, is conditional upon the racial composition of the community; and (4) that drivers’ race is not related to the productivity of searches.
Methods: Data are all traffic stops made by the Rhode Island State Police in 2006, exclusive of those in which a search was mandatory. Multinomial and binary logistic regressions are employed to estimate models of frisks, searches, search productivity, and to test the conditional effect of community context.
Results: Each of the four hypotheses is supported.
Conclusion: Biased policing is largely the product of implicit stereotypes that are activated in contexts in which Black drivers appear out of place and in police actions that require quick decisions providing little time to monitor cognitions. This insight has important implications for police training. Because of limitations in this study, additional research that distinguishes frisks and searches is needed.
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Innocent until Primed: Mock Jurors' Racially Biased Response to the Presumption of Innocence
Danielle Young, Justin Levinson & Scott Sinnett
PLoS ONE, March 2014
Background: Research has shown that crime concepts can activate attentional bias to Black faces. This study investigates the possibility that some legal concepts hold similar implicit racial cues. Presumption of innocence instructions, a core legal principle specifically designed to eliminate bias, may instead serve as an implicit racial cue resulting in attentional bias.
Methodology/Principal findings: The experiment was conducted in a courtroom with participants seated in the jury box. Participants first watched a video of a federal judge reading jury instructions that contained presumption of innocence instructions, or matched length alternative instructions. Immediately following this video a dot-probe task was administered to assess the priming effect of the jury instructions. Presumption of innocence instructions, but not the alternative instructions, led to significantly faster response times to Black faces when compared with White faces.
Conclusions/Significance: These findings suggest that the core principle designed to ensure fairness in the legal system actually primes attention for Black faces, indicating that this supposedly fundamental protection could trigger racial stereotypes.
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Jeryl Mumpower & Gary McClelland
Judgment and Decision Making, March 2014, Pages 114–128
Abstract:
Signal detection theory (SDT) was developed to analyze the behavior of a single judge but also can be used to analyze decisions made by organizations or other social systems. SDT quantifies the ability to distinguish between signal and noise by separating accuracy of the detection system from response bias — the propensity to over-warn (too many false positives) or under-warn (too many misses). We apply SDT techniques to national and state-level data sets to analyze the ability of the child welfare services systems to detect instances of child maltreatment. Blacks have higher rates of referral and the system is less accurate for them than for Whites or Hispanics. The incidence of false positives — referrals leading to unsubstantiated findings — is higher for Blacks than for other groups, as is the incidence of false negatives — children for whom no referral was made but who are in fact neglected or abused. The rate of true positives — children for whom a referral was made and for whom the allegation was substantiated — is higher for Blacks. Values of d′ (signal strength) are roughly the same for Whites, Blacks, and Hispanics but there are pronounced group differences in C (a measure of the location of the decision threshold). Analyses show that the child welfare services system treats Blacks differently from Hispanics and Whites in ways that cannot be justified readily in terms of objective measures of group differences. This study illustrates the potential for JDM techniques such as SDT to contribute to understanding of system-level decision making processes.
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Ebony Butler & Kristine Jacquin
Personality and Mental Health, forthcoming
Abstract:
This study investigated whether a defendant's history of childhood sexual abuse (CSA) and/or personality disorder (PD) diagnosis affected juror decision making in a child sexual abuse trial. The PDs in the study were borderline PD and antisocial PD. Participants were 385 college students, 121 men and 264 women, who read a summary of a mock criminal trial and then made various juror decisions. Trial summaries were prepared by the principal investigator and were all uniform in content, length and detail. For the trial, both the defendant's gender and victim's gender were specified. The defendant was male, and the alleged victim was female. When the verdict was assessed, the results yielded that when the defendant's CSA history was presented, juror guilt ratings were higher than when there was no history of CSA. Similarly, when the defendant had a PD diagnosis, there were higher guilt ratings than when there was no PD diagnosis. CSA history and PD diagnosis were significant predictors of guilt ratings, suggesting that jurors perceive defendants more negatively if they have either been sexually abused as a child or have borderline or antisocial PD.
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Is the U.S. Supreme Court's Legitimacy Grounded in Performance Satisfaction and Ideology?
James Gibson & Michael Nelson
American Journal of Political Science, forthcoming
Abstract:
Bartels and Johnston have recently presented evidence suggesting that the legitimacy of the U.S. Supreme Court is grounded in the ideological preferences and perceptions of the American people. In addition, they offer experimental data purporting to show that dissatisfaction with a single Court decision substantially diminishes the institution's legitimacy. These findings strongly break with earlier research on the Court's institutional support, as the authors recognize. The theoretical implications of their findings are profound. If the authors are correct that legitimacy is strongly dependent upon satisfying the policy preferences and ideological predilections of the American people, the essence of legitimacy is fundamentally transformed. Consequently, we reinvestigate the relationships among ideology, performance satisfaction, and Court legitimacy, unearthing empirical findings that diverge markedly from theirs. We conclude with some thoughts about how the Court's “countermajoritarian dilemma” can be reconceptualized and recalculated, once more drawing conclusions sharply at odds with those of Bartels and Johnston.
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Scott Baker & Gary Biglaiser
Journal of Legal Studies, January 2014, Pages 37-63
Abstract:
This paper is an economic analysis of cause lawyering, in which lawyers seek social change through the courts. The lawyer’s litigation strategy consists of deciding how many steps in the law to ask the court to move at a single moment. We find that more intense advocates prefer to ask for a series of small steps to move the law. We also investigate how the Supreme Court’s doctrine responds to advocacy in lower courts. We find that when facing intense advocates, a Supreme Court is more likely to issue constraining doctrine. We link the findings from the model to the National Association for the Advancement of Colored People’s litigation strategy for eradicating the doctrine of separate but equal.
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Justin Sevier
Psychology, Public Policy, and Law, May 2014, Pages 212-224
Abstract:
Two studies provide empirical support for Thibaut and Walker’s (1978) theory that inquisitorial and adversarial dispute resolution systems are associated with different psychological values: the pursuit of truth and the pursuit of justice. Study 1 suggests that, in civil and criminal disputes, the adversarial system is perceived to produce less truth than it does justice, and less truth than does the inquisitorial system. Conversely, the inquisitorial system is perceived to produce less justice than it does truth, and less justice than does the adversarial system. Study 2 examines how legal outcomes moderate litigants’ perceptions of the truth and justice produced by these dispute resolution systems. Study 2 suggests that perceptions of the truth and justice provided by the adversarial system are highly sensitive to the outcome of the dispute, whereas perceptions of the truth and justice provided by the inquisitorial system are not affected by dispute outcomes. Implications for Thibaut and Walker’s theory are discussed.
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Skilled Observation and Change Blindness: A Comparison of Law Enforcement and Student Samples
Shannon Smart, Melissa Berry & Dario Rodriguez
Applied Cognitive Psychology, forthcoming
Abstract:
Some evidence suggests that expertise and observational skills training can reduce attentional errors, such as change blindness. Laypeople typically assume that law enforcement officers possess acute observational skills, but no research to date has compared law enforcement and lay samples on their susceptibility to change blindness. In the present study, student and law enforcement samples completed a change blindness task and attempted to identify the target(s) from four line-ups. Law enforcement officers and students were equally susceptible to change blindness regarding the switch in the target's identity, but students were more likely than officers to detect changes in the target's clothing. Students also performed better on the line-up task, overall, than officers. Additionally, whereas students' confidence was positively correlated with identification accuracy under some circumstances, officers' confidence was either uncorrelated or negatively correlated with accuracy. We discuss the implications of these findings and suggest some factors accounting for law enforcement officers' relatively poor performance on these tasks.
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Judicial Deference and Executive Control Over Administrative Agencies
Gbemende Johnson
State Politics & Policy Quarterly, forthcoming
Abstract:
Do judges defer to executives with increased institutional control over the executive branch? Administrative agencies play a key role in the policy implementation process. Executives could view aggressive judicial review of executive branch activity as a threat to executive power and negatively respond to perceived judicial intrusions. Governors across the country possess varying amounts of institutional authority over the agencies that comprise their states’ executive branches. For example, in many states, executive branch officials are elected by the public or appointed by someone other than the governor. Increased fragmentation increases the difficulty of centralized management and decreases gubernatorial influence over the executive branch. I examine whether state supreme courts defer more to agencies in states where governors have more formal control over the executive branch. I find that state supreme courts are more likely to rule in favor of state administrative agencies in states where the governor has increased appointment power and increased power to review agency rulemaking.
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Prison Inmates’ Right to Hunger Strike: Its Use and Its Limits Under the U.S. Constitution
Naoki Kanaboshi
Criminal Justice Review, June 2014, Pages 121-139
Abstract:
Hunger strikes have long been used as a means of protest, as a last resort, especially by those in prison. Recently, government officials have responded to hunger strikes with force-feeding, an approach that has generated considerable international attention. The purpose of this article is to analyze the nature and the scope of the right to hunger strike in prisons in the United States under both the First Amendment and the Due Process Clause, and to provide a policy recommendation for prison administrators based on a review of case law. This article stresses the nature of hunger strikes as symbolic speech protected by the First Amendment, an analysis that has yet to be extensively discussed by either criminal justice or law scholars. This article argues that retaliatory force-feeding or punishment of hunger strikers generally violates the First Amendment, regardless of the prison officials’ professed justification. This article further argues that, given the inherently peaceful nature of hunger strikes, force-feeding for the supposed purpose of prison safety may lack a reasonable basis and therefore may well violate the inmates’ right to refuse medical treatment. Hunger strike policy recommendations are also provided.
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Monica Miller et al.
Psychology of Religion and Spirituality, forthcoming
Abstract:
Two mock jury studies investigated whether jurors’ religious characteristics relate to verdicts and sentencing decisions. In Study 1, adding religious characteristics to a model with only demographics and authoritarianism increased the model’s explanatory power. Scoring high on devotionalism was significantly related to not guilty verdicts; scoring high on fundamentalism was significantly related to guilty verdicts. In both studies, being on a religious quest was significantly related to prodefendant legal decisions. Lawyers can use this information in jury selection. Further, authoritarianism was a mediator of the relationship between some religious variables and legal decisions, helping explain the underlying reasons for such relationships.
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How Awareness of Possible Evidence Induces Forthcoming Counter-Interrogation Strategies
Timothy Luke et al.
Applied Cognitive Psychology, forthcoming
Abstract:
We propose that suspects' counter-interrogation strategies vary as a function of their perception of the interrogator's knowledge about the events in question. The present study investigates the verbal behavior of guilty and innocent suspects when they are aware that there may be incriminating evidence against them. Participants (N = 143) took part in either a simulated act of terrorism or a benign task. They were then interviewed about their activities. Participants were randomly assigned to receive no additional information or to be informed that an investigative team may have collected evidence from surveillance cameras. Results suggest that when alerted to possible evidence against them, guilty suspects adopt either extremely withholding or extremely forthcoming verbal strategies. Theoretical implications of these results are discussed.
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Susan Klein et al.
University of Texas Working Paper, February 2014
Abstract:
Academic, judges, lobbyists, special interest groups, and the defense bar all love to complain about the undue discretion held by federal prosecutors. Criticism has intensified over the last few decades, as the federal criminal code has grown to more than 4,500 prohibitions, a fair number of which replicate nearly identical state offenses. Little empirical evidence, however, attempts to discern what, if anything, is distinctive about the cases charged in federal rather than state court, and what might be motivating federal prosecutors to make their charging decisions. Our study aims to shed some light on this subject. In Part II, we describe our efforts to collect data on the characteristics of cases prosecuted under arson and robbery statutes from three sources: (1) the United States Sentencing Commission (“USSC”); (2) the New York State Division of Criminal Justice Services (“DCJS”); and (3) Federal Bureau of Investigation Uniform Crime Reports. In Part III, we explain how we combined the USSC and New York State DCJS data before proceeding to our empirical analysis. First, we conduct a simple, bivariate analysis comparing the frequency with which our independent variables are observed in federal versus state arson and robbery cases. We note where we believe the observed, bivariate relationship is likely explained by confounding variables. Second, we proceed to utilize a more sophisticated logistic regression model to simultaneously examine the effect of our independent variables on the choice between federal versus state prosecution for arson and robbery. We find statistically significant evidence that cases prosecuted under federal arson and robbery statutes are more likely to include circumstances such as a conspiracy, a minor victim, use of a weapon, and serious recidivism. In Part IV, we conclude by discussing the higher plea rates and longer sentences imposed under federal as opposed to state criminal justice systems. We argue that where crimes involve the above-noted more egregious circumstances, federal prosecutors are more likely motived to prosecute the crime in expectation of a likely guilty plea and longer sentence. Our study provides much needed empirical evidence to support this rational view of federal prosecutorial discretion.
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Should Law Keep Pace with Society?
Daria Roithmayr, Alexander Isakov & David Rand
Yale Working Paper, March 2014
Abstract:
Most modern societies have adopted centralized rules of legal punishment to promote collaborative behavior. Among other advantages, a centralized institutional punisher can unilaterally decide the rate at which legal rules evolve relative to the social behavior being regulated. Legal and political theorists disagree over whether or not law should evolve more slowly than social behavior. Some scholars argue that slower evolution promotes the stability of tradition. Others argue that more frequent adaptation permits law to remain relevant to contemporary decision-making. We investigate this question by modeling the co-evolution of law and social norms in a public goods game with centralized punishment. We vary the relative update rate of legal rules -- the rate at which the State updates the legal punishment strategy relative to citizens' updating of their contribution strategy -- to observe the effect of such variance on citizen cooperation. We find that when States have unlimited resources, legal rules that evolve more slowly will maximize citizen cooperation: slower relative updating forces citizens to adapt to the State's legal punishment rules. When States depend on citizens to finance their punishment activities, however, we find a Goldilocks effect. Citizen cooperation is maximized when legal rules evolve at a critical evolutionary rate that is slow enough to allow citizens to adapt, but fast enough to enable States to quickly respond to outbreaks of citizen lawlessness.
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Language style matching and police interrogation outcomes
Beth Richardson et al.
Law and Human Behavior, forthcoming
Abstract:
This research examined the coordination of interrogator and suspects’ verbal behavior in interrogations. Sixty-four police interrogations were examined at the aggregate and utterance level using a measure of verbal mimicry known as Language Style Matching. Analyses revealed an interaction between confession and the direction of language matching. Interrogations containing a confession were characterized by higher rates of the suspect matching the interrogators’ language style than interrogations without a confession. A sequence analysis of utterance-level Language Style Matching revealed a divergence in the type of matching that occurred across outcome. There was a linear increase in interrogator-led matching for interrogations containing a confession and an increase in suspect-led matching for nonconfession interrogations. These findings suggest that police interrogations play out, in part, at the basic level of language coordination.