Legal Questions

Kevin Lewis

June 11, 2020

Measuring Racial Discrimination in Bail Decisions
David Arnold, Will Dobbie & Peter Hull
NBER Working Paper, April 2020

We develop new quasi-experimental tools to measure racial discrimination in the context of bail decisions. Observational comparisons of white and black pretrial release rates suffer from omitted variables bias when there are unobserved racial differences in pretrial misconduct potential. We show that the bias in these observational comparisons is a function of average white and black misconduct risk, which can be estimated from the quasi-random assignment of bail judges. Estimates from New York City show that less than one-third of the release rate disparity between white and black defendants is explained by unobserved differences in misconduct potential, with more than two-thirds explained by racial discrimination. We then develop a hierarchical marginal treatment effects model that imposes additional structure on the quasi-experimental variation to investigate the drivers of this discrimination. Model estimates show that discrimination in bail decisions is driven by both racial bias and statistical discrimination, with the latter coming from a higher level of average risk and less precise risk signals for black defendants.

Younger Federal District Court Judges Favor Presidential Power
Tom Campbell & Nathaniel Wilcox
Journal of Law and Economics, February 2020, Pages 181-202


From 1960 to 2015, opinions of US federal district court judges (trial judges) in cases involving challenges to executive branch authority show that these judges favor executive authority less as they age. We suggest that district judges know that elevation to the federal circuit court of appeals becomes increasingly improbable, and hence have less reason to cooperate with the executive, with advancing age. Political variables, seniority of judges, and other variables introduced as extra regressors do not reverse this main result, nor does it appear to be the product of cohort effects or selection off the district court. When there are contemporaneous vacancies on their circuit courts, district judges in the 11 state circuits (but not the District of Columbia Circuit) are also more likely to favor the executive.

Gender, Ideology, and Dominance in Supreme Court Oral Arguments
Dana Patton & Joseph Smith
Journal of Women, Politics & Policy, forthcoming

Gender bias in political discourse has been demonstrated in many settings, including the US Supreme Court. We investigate the effects of ideology and gender in verbal interactions during Supreme Court oral arguments. We theorize that all justices possess unconscious gender schemas that lead them to speak more during presentations by women but that liberal and female justices likely have conscious egalitarian values that diminish the manifestation of gender schemas. We find that conservative justices speak more when female lawyers are arguing but that liberal justices show no such effect, suggesting that consciously held attitudes can mitigate the expression of unconscious gender schemas.

Exploring Alternatives to Cash Bail: An Evaluation of Orange County's Pretrial Assessment and Release Supervision (PARS) Program
Matt Barno, Deyanira Nevárez Martínez & Kirk Williams
American Journal of Criminal Justice, June 2020, Pages 363-378


This evaluation examines the impact of a pretrial risk assessment and supervised release program on pretrial release rates, judicial bail determinations, and failure to appear (FTA) rates among non-violent felony defendants in Orange County, CA. The results indicate that program implementation was not associated with a significant increase in pretrial release rates. However, defendants who received supervised release under the program were significantly less likely to FTA than similarly situated defendants who were released on cash bail. The results therefore suggest that pending bail reform measures in California and elsewhere, which replace cash bail with risk assessment screening and non-monetary supervised release, can be implemented without sacrificing appearances in court.

False admissions of guilt associated with wrongful convictions undermine people's perceptions of exonerees
Kyle Scherr et al.
Psychology, Public Policy, and Law, forthcoming


Exonerees are stigmatized, especially those who have falsely confessed. False confessions prompt a series of negative perceptions that ultimately undermine people's willingness to support reintegration aids. We extended the nascent body of literature on exoneree stigma by exploring first whether false guilty pleas can precipitate a similar series of perceptions and judgments and, second, the role of exoneree responsibility as an underlying mechanism. Participants (N = 290) were randomly assigned to read 1 of 4 news stories in which the exoneree falsely confessed, falsely pleaded guilty, both, or neither and then offered their perceptions and judgments of the exoneree. Unique main effects, but not an interaction, among exonerees who falsely confessed or falsely pleaded guilty were observed. These exonerees were seen as less intelligent, which was associated with beliefs that the exoneree suffered mental health issues, was more responsible for the wrongful conviction, and not entirely innocent. The series of appraisals culminated in judgments that exonerees who falsely admitted guilt were less deserving of reintegration support than exonerees who did not falsely admit guilt. We end with discussions of how the results advance our understanding of the basic stigma against exonerees and practical implications for innocents in the legal system.

Picking Prosecutors
Carissa Byrne Hessick & Michael Morse
Iowa Law Review, forthcoming


The conventional academic wisdom is that elections for local prosecutor are little more than empty exercises. Using the results of a new, national survey of local prosecutor elections -- the first of its kind -- this Article offers a more complete account of the legal and empirical landscape. It confirms that incumbent prosecutors rarely face challengers and almost always win. But it moves beyond extant work to consider the nature of local political conflict, including how often local prosecutors face a contested election or any degree of competition. It also demonstrates a significant difference in the degree of incumbent entrenchment based on time in office. Most importantly, it reveals a stark divide between rural and urban prosecution. Urban areas are more likely to hold a contested election than rural areas. Rural areas, in which very few lawyers live, rarely hold contested elections and sometimes are not able to field even a single candidate for a prosecutor election. The results suggest that the nascent movement to use prosecutor elections as a source of criminal justice reform may have success, at least in the short term. But elections are, as of now, not a likely source of reform in rural areas ― the very areas where incarceration rates continue to rise.

Humor and Persuasion: The Effects of Laughter during US Supreme Court's Oral Arguments
Siyu Li & Tom Pryor
Law & Policy, April 2020, Pages 162-185


Is the decision-making of Supreme Court justices influenced by extraneous factors beyond law and policy? We explore this question by examining attorney-induced laughter during oral arguments in cases heard by the Court. Drawing on theories of political psychology and social cognition, we posit that laughter serves as a positive affective cue that might favorably dispose justices (albeit subconsciously) to the side causing the laughter. Analyzing oral argument transcripts during the 1986-93 terms, we find that the side causing more instances of laughter is more likely to win the votes of individual justices, even while controlling for other legally and politically relevant factors. We further find that the effect of laughter is conditional ― it exerts a heightened persuasive power on ideologically congruent justices, in noncomplex cases, and when the legal argumentation is of higher quality. Our research thus contributes to the growing literature on personal and emotional aspects of judicial decision-making and, specifically, the emerging scholarly interest in the role of humor during Supreme Court oral arguments.

Misinformation encountered during a simulated jury deliberation can distort jurors' memory of a trial and bias their verdicts
Craig Thorley et al.
Legal and Criminological Psychology, forthcoming

Methods: One hundred and twenty-four participant jurors watched a murder trial. Half were allowed to take notes. They then read a transcript of a deliberation that either contained or did not contain six pieces of pro-prosecution misinformation. Afterwards, they reached a verdict. Finally, they completed a source monitoring test that required indicating whether the misinformation, and actual trial information, appeared during the trial.

Results: Jurors exposed to misinformation misremembered it as appearing during the trial. Those who misattributed the most misinformation to the trial were most likely to reach a guilty verdict. Note taking, and note access, did not stop these effects.

Eyewitness confidence malleability: Misinformation as post-identification feedback
Rachel Leigh Greenspan & Elizabeth Loftus
Law and Human Behavior, June 2020

Objective: Feedback from lineup administrators about identification accuracy significantly impacts witness confidence. In the current studies, we investigated the effect of post-identification feedback given 1-week after an initial, pristine lineup. We tested 2 kinds of feedback: typical feedback (i.e., about identification accuracy) and misinformation feedback. Misinformation feedback came in the form of suggestive questioning that falsely suggested the participant was either more or less confident in their initial identification than they actually reported.

Method: Across 2 studies, participants (N = 907), recruited via Amazon Mechanical Turk, watched a mock crime video, made an identification, and reported their confidence under unbiased lineup conditions. One week later, they received either confirming or disconfirming misinformation or typical feedback. They then provided a retrospective confidence judgment.

Results: Misinformation feedback caused significant confidence change. Participants given false feedback that they were more confident in their initial identification than they reported later recalled greater initial confidence. Even when pristine identification conditions were used, typical confirming feedback caused participants to later remember greater confidence than they initially reported at the time of the lineup. Even in the absence of any feedback, control participants showed significant confidence inflation over time.

The Impact of Pretrial Juvenile Detention on 12-Month Recidivism: A Matched Comparison Study
Sarah Cusworth Walker & Jerald Herting
Crime & Delinquency, forthcoming


Pretrial detention, the use of detention to ensure youth attend court hearings, makes up 75% of all juvenile detention admissions. Research investigating the impact of detainment on youth outcomes is limited and, when available, does not distinguish between different uses of detention. Consequently, little is known about the effects of detaining youth for this purpose. The current study examines the impact of pretrial detention on more than 46,000 juvenile cases across 32 jurisdictions. Using propensity score matching, analyses found that pretrial detention was associated with a 33% increase in felony recidivism and 11% increase in misdemeanor recidivism within one year, and a small effect for length of stay (1% increased risk per day). The analyses also revealed an interaction effect with prior criminal history indicating that this relationship shifts once a youth has a number of previous criminal filings.

Effect of scaling back punishment on racial and ethnic disparities in criminal case outcomes
John MacDonald & Steven Raphael
Criminology & Public Policy, forthcoming


In late 2014, California voters passed Proposition 47 that redefined a set of less serious felony drug and property offenses as misdemeanors. We examine how racial and ethnic disparities in criminal court dispositions in San Francisco change in the years before (2010-2014) and after (2015-2016) the passage of Proposition 47. We decompose disparities in court dispositions into components resulting from racial/ethnic differences in offense characteristics, involvement in the criminal justice system at the time of arrest, pretrial detention, criminal history, and the residual unexplained component. Before and after Proposition 47, case characteristics explain nearly all of the observable disparities in court dispositions between racial and ethnic groups. After the passage of Proposition 47, however, there is a narrowing of disparities in convictions and incarceration sentences that is driven by lesser weight placed on criminal history, active criminal justice status, and pretrial detention in effecting court dispositions.

Consolidation of Prosecutor Offices
Bryan McCannon & Claudio Detotto
Journal of Law and Courts, forthcoming


We investigate the impact of the consolidation of local agencies publicly-providing services, focusing on the prosecution of crime. In many states in the U.S., prosecution is a county office with a head prosecutor directing decisions. Other states merge counties into prosecutorial districts. We show that, along with the cost savings that arises, the evidence suggests that prosecutorial services benefit from increasing returns to scale. The efficiency of prosecutorial output is higher in consolidated districts. Further, we show that it is not due to differing outcomes of the criminal justice system, but with fewer inputs used.

Gender Disparity in Pennsylvania Child Abuse and Neglect Sentencing Outcomes
Lily Hanrath & Sarah Font
Crime & Delinquency, forthcoming


Sentencing studies consistently show that male offenders receive more severe sentences than females. However, theory-based explanations for gender disparities in sentencing, which posit lenience is partially based on caregiver status, may be less relevant for crimes against children. This study leverages Pennsylvania Sentencing Commission data to assess sentence type and length among adults convicted of child neglect or physical abuse between 2006 and 2016. Employing bivariate and multivariate statistics, we found that, although female perpetrators make up the majority of child neglect and physical abuse perpetrators in the Child Protective Services system, they are a minority of those convicted. If convicted, women received less harsh sentences than men, consistent with the disparate gender patterns found in general criminal sentencing research.


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