Legal jeopardy

Kevin Lewis

January 04, 2019

The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings
Christina Boyd, Paul Collins & Lori Ringhand
Law & Society Review, December 2018, Pages 871-901


We investigate an unexplored aspect of the U.S. Supreme Court confirmation process: whether questioning senators treat female and minority nominees differently from male and white nominees. Applying out‐group theory, we argue that senators will ask female and minority nominees more questions about their “judicial philosophies” in an effort to determine their competence to serve on the Court. This out‐group bias is likely to be exacerbated for nominees not sharing the senator's political party. Our results do not support racial differences, but they do provide strong evidence that female nominees receive more judicial philosophy‐related questions from male senators. This effect is enhanced when the female nominee does not share the partisan affiliation of the questioning senator. Together, these findings indicate that female nominees undergo a substantively different confirmation process than male nominees. We further find that this effect may be most intense with nominees like Justice Sotomayor, whose identities align with more than one out‐group.

Packing the Courts: Ideological Proximity and Expansions to the Federal Judiciary from 1937 to 2012
Elli Menounou et al.
Journal of Law and Courts, forthcoming


What explains expansions to the federal judiciary? Whereas existing research focuses on unified government as an explanation, we argue ideological proximity between institutions involved in the expansion process more accurately predicts judicial expansions. We examine whether Congress chose to add seats to each federal district or circuit court annually from 1937 to 2012 and find expansions are more likely when (1) the ideological distance between chambers of Congress is smaller and (2) the ideological distance between Congress and individual district or circuit courts is greater. These findings suggest the administration of federal courts is influenced by the political concerns in another branch of government, raising important questions about judicial independence.

Article II and Antidiscrimination Norms
Aziz Huq
Michigan Law Review, forthcoming


The Supreme Court’s judgment in Trump v. Hawai’i validated a prohibition on entry to the United States from several largely Muslim-majority countries, and at the same time repudiated a longstanding precedent associated with the Japanese-American internment of World War II. This Article closely analyzes the relationship of these twin holdings. It uses their dichotomous valances as a lens onto the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a generative tension between the two holdings. Contrary to the Court’s apparent assumption, the internment cannot easily be rejected if the 2017 travel ban is embraced: There is no analytically defensible and practicably tractable boundary between the two. Recognizing this disjunction and explaining why the Court’s effort to separate past from present practice cannot prevail, I argue, reveals what might be called an “Article II discretion to discriminate.” By identifying and mapping this species of executive discretion, the Article offers a novel critique of the Court’s recent construction of executive power in light of historical precedent and consequentialist justifications. It further illuminates the downstream distributive and regulatory consequences of executive power in the context of ongoing judicial constriction of Article II discretion over regulatory choices.

The Effects of Holistic Defense on Criminal Justice Outcomes
James Anderson, Maya Buenaventura & Paul Heaton
Harvard Law Review, forthcoming


Debates over mass incarceration emphasize policing, bail, and sentencing reform, but give little attention to indigent defense. This omission seems surprising, given that interactions with government-provided counsel critically shape the experience of the vast majority of criminal defendants. This neglect in part reflects our lack of evidence-based knowledge regarding indigent defense, making it difficult to identify effective reforms. One newer model gaining support is the holistic defense model, in which public defenders work in interdisciplinary teams to address both the immediate case and the underlying life circumstances--such as drug addiction, mental illness, or family or housing instability--that contribute to client contact with the criminal justice system. This holistic model contrasts with the traditional public defense model which emphasizes criminal representation and courtroom advocacy. Proponents contend holistic defense improves case outcomes and reduces recidivism by better addressing clients’ underlying needs, while critics argue that diverting resources and attention from criminal advocacy weakens results. Although widely embraced, there is no systematic evidence demonstrating the relative merits of the holistic approach. This Article offers the first large-scale, rigorous evaluation of the impact of holistic representation on criminal justice outcomes. In the Bronx, a holistic defense provider (the Bronx Defenders) and a traditional defender (the Legal Aid Society) operate side-by-side within the same court system, with case assignment determined quasi-randomly based on court shift timing. Using administrative data covering over half a million cases and a quasi-experimental research design, we estimate the causal effect of holistic representation on case outcomes and future offending. Holistic representation does not affect conviction rates, but it reduces the likelihood of a custodial sentence by 16% and expected sentence length by 24%. Over the ten-year study period, holistic representation in the Bronx resulted in nearly 1.1 million fewer days of custodial punishment. As of one year post-arraignment and beyond, holistic representation has neither a positive or adverse effect on criminal justice contacts. While holistic representation does not dramatically reduce recidivism, as some proponents have claimed, strengthening indigent defense apparently offers considerable potential to reduce incarceration without harming public safety. Indigent defense thus deserves a more prominent place in conversations about how to address mass incarceration, and future research should examine the effects of this promising model beyond the criminal justice system and in other jurisdictions.

A social judgment? Extralegal contrast effects in hypothetical legal decision making
Max Butterfield & Alexandra Bitter
Psychology, Public Policy, and Law, forthcoming


Social judgments in ambiguous situations often rely on heuristics and biases, and legal decision makers are often faced with evidence that does not clearly favor one decision over another. Across two studies, we tested whether one extralegal factor, contrast cases, influenced decision making when judicial factors were held constant. In Study 1, participants (n = 100) evaluated whether an imagined prosecutor had sufficient evidence to send the same three target cases to trial. Before deciding these cases, though, the participants first evaluated cases with either relatively stronger or weaker evidence than the targets. Those in the weak-case comparison group were significantly more likely to send target cases to trial, and they believed the prosecutor had a stronger case. In Study 2, all participants (n = 100) evaluated hypothetical parole applications, but the method was otherwise the same as that used in Study 1. The same contrast-oriented pattern emerged. Participants who first viewed weaker parole applications rated the identical targets as significantly more rehabilitated. Taken together, the results of these two studies suggest that contrast effects may be one extralegal factor involved in shaping individual-level social judgments made in legal contexts such as grand juries and parole boards.

Race, Ethnicity, and Trial Avoidance: A Multilevel Analysis
Jacqueline Lee & Rebecca Richardson
Criminal Justice Policy Review, forthcoming


Minority criminal defendants are more likely than White defendants to exercise their right to trial, which is concerning given that research also consistently finds trial sentences to be harsher than those obtained via pleas. However, guilty pleas are not the only disposition available for avoiding a trial; pretrial diversions and case dismissals also serve as mechanisms for trial avoidance. Using hierarchical linear modeling, we find that Black criminal defendants are more likely than Whites to go to trial rather than receive other case disposition. Relationships for Hispanic defendants are less consistent. Fewer county-level effects emerge than expected, providing little to no support for racial threat theory. Results suggest that Black defendants are less often able or willing to avoid a trial, a finding which highlights and perhaps helps to explain racial disparities in final sentencing outcomes.

The Effect of District Attorneys on Local Criminal Justice Outcomes
Sam Krumholz
University of California Working Paper, October 2018


In the United States, elected district attorneys preside over 90% of all felony cases. Using a newly-collected dataset of district attorney elections, I show that the election of a Republican district attorney leads to a 10% increase in total sentenced months/capita, largely driven by extensive margin changes. I also find evidence that black district attorneys lead to reductions in incarceration levels, driven almost entirely by drug offenses. I conclude by showing that the way prosecutorial districts are drawn increases the probability that high-crime cities are represented by Republican and white district attorneys affecting both local and aggregate levels of incarceration.

Racial Bias and In-group Bias in Judicial Decisions: Evidence from Virtual Reality Courtrooms
Samantha Bielen, Wim Marneffe & Naci Mocan
NBER Working Paper, December 2018


We shot videos of criminal trials using 3D Virtual Reality (VR) technology, prosecuted by actual prosecutors and defended by actual defense attorneys in an actual courtroom. This is the first paper that utilizes VR technology in a non-computer animated setting, which allows us to replace white defendants in the courtroom with individuals who have Middle Eastern or North African descent in a real-life environment. We alter only the race of the defendants in these trials, holding all activity in the courtroom constant ( Law students, economics students and practicing lawyers are randomly assigned to watch with VR headsets, from the view point of the judge, the trials that differed only in defendants’ skin color. Background information obtained from the evaluators allowed us to identify their cultural heritage. Evaluators made decisions on guilt/innocence in these burglary and assault cases, as well as prison sentence length and fine in accordance with the guidelines provided by the relevant law. There is suggestive evidence of negative in-group bias in conviction decisions where evaluators are harsher against defendants of their own race. There is, however, significant overall racial bias in conviction decisions against minorities. In the sentencing phase, we find in-group favoritism in prison times and fines, driven by white evaluators. This translates into overall racial bias against minority defendants in prison sentences and fines. We find only scant evidence that the concerns of the evaluators about terrorism, about immigration, or their trust in the judiciary or the police have an impact on their judicial decisions, suggesting that the source of the bias may be deep-rooted. Merging a small sample of judges and prosecutors with the sample of lawyers provides very similar results as those obtained from the analysis of lawyers.

Do masked-face lineups facilitate eyewitness identification of a masked individual?
Krista Manley, Jason Chan & Gary Wells
Journal of Experimental Psychology: Applied, forthcoming


Perpetrators often wear disguises like ski masks to hinder subsequent identification by witnesses or law enforcement officials. In criminal cases involving a masked perpetrator, the decision of whether and how to administer a lineup often rests on the investigating officer. To date, no evidence-based recommendations are available for eyewitness identifications of a masked perpetrator. In 4 experiments, we examined lineup identification performance depending on variations in both encoding (studying a full face vs. a partial/masked face) and retrieval conditions (identifying a target from a full-face lineup vs. a partial/masked-face lineup). In addition, we manipulated whether the target was present or absent in the lineup in Experiments 3 and 4. Across all experiments, when participants had encoded a masked face, the masked-face lineup increased identification accuracy relative to the full-face lineup. These data provide preliminary evidence that matching lineup construction to how witnesses originally encoded the perpetrator may enhance the accuracy of eyewitness identifications.

Caricaturing as a general method to improve poor face recognition: Evidence from low-resolution images, other-race faces, and older adults
Amy Dawel et al.
Journal of Experimental Psychology: Applied, forthcoming


There are multiple well-established situations in which humans’ face recognition performance is poor, including for low-resolution images, other-race faces, and in older adult observers. Here we show that caricaturing faces - that is, exaggerating their appearance away from an average face - can provide a useful applied method for improving face recognition across all these circumstances. We employ a face-name learning task offering a number of methodological advantages (e.g., valid comparison of the size of the caricature improvement across conditions differing in overall accuracy). Across six experiments, we (a) extend previous evidence that caricaturing can improve recognition of low-resolution (blurred) faces; (b) show for the first time that caricaturing improves recognition and perception of other-race faces; and (c) show for the first time that caricaturing improves recognition in observers across the whole adult life span (testing older adults, M age = 71 years). In size, caricature benefits were at least as large where natural face recognition is poor (other-race, low resolution, older adults) as for the naturally best situation (own-race high-resolution faces in young adults). We discuss potential for practical applicability to improving face recognition in low-vision patients (age-related macular degeneration, bionic eye), security settings (police, passport control), eyewitness testimony, and prosopagnosia.

Sentencing Drug Court Failures: Judicial Considerations With Increased Offender Information
Benjamin Gibbs
Criminal Justice Policy Review, forthcoming


This study explores the influential predictors of sentence severity within a sample of drug court failures. This sample is unique, in that, judges possess greater amounts of offender information at the time of sentencing, relative to conventional adjudications. Due to defendants’ participation in a drug court program, judges possessed offender program performance information in addition to traditionally assessed criminogenic and offender indicators. Data were collected from 320 individuals who participated, yet failed, in Midwestern adult felony drug court program. Results suggest that, in these instances, judicial sentencing decisions were influenced by case and program performance characteristics. Moreover, judges who oversaw defendants in the program sentenced participant failures more harshly than judges who had no affiliation with the drug court or offender prior to sentencing.


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