The Accused Shall Enjoy

Kevin Lewis

January 31, 2020

Impact of risk assessment on judges’ fairness in sentencing relatively poor defendants
Jennifer Skeem, Nicholas Scurich & John Monahan
Law and Human Behavior, forthcoming

Method: Judges (N = 340) with sentencing experience were randomly assigned to review 1 of 4 case vignettes and sentence the defendant to probation, jail, or prison. Information in the vignettes was held constant, except the defendant’s socioeconomic status and whether risk assessment information was provided.

Results: Risk assessment information reduced the likelihood of incarceration for relatively affluent defendants, but the same information increased the likelihood of incarceration for relatively poor defendants. This finding held after controlling for the sex, race, political orientation, and jurisdiction of the judge.

The Immediate Consequences of Federal Pretrial Detention
Stephanie Holmes Didwania
American Law and Economics Review, forthcoming


Unlike the cash-bail regimes that are prevalent in state courts, federal courts rarely use money bail as a condition of pretrial release. Nonetheless, this article presents evidence that pretrial release influences case outcomes for federal defendants. Using case data spanning 71 federal district courts, the article suggests that pretrial release reduces a defendant’s sentence and increases the probability that they will receive a sentence below the recommended sentencing range. Pretrial release also appears to lessen the probability that a defendant will receive a mandatory minimum sentence when one is charged. The analysis exploits variation in magistrate judges’ propensities to release defendants pending trial, which allows magistrate judge leniency to serve as an instrumental variable for pretrial release. The article also provides suggestive evidence that pretrial release affects case outcomes through two channels: first, by giving defendants the opportunity to present mitigating evidence at sentencing and second, by making it easier for defendants to earn a sentencing reduction by providing assistance to the government.

Bureaucratic Responsiveness to LGBT Americans
Kenneth Lowande & Andrew Proctor
American Journal of Political Science, forthcoming


Marriage rights were extended to same‐sex couples in the United States in 2015. However, anecdotes of bureaucratic noncompliance (in the form of bias or denial of license issuance) raise the possibility that de jure marriage equality has not led to equality in practice. We investigate this by conducting a nationwide audit experiment of local‐level marriage license-granting officials in the United States. These officials vary in the constituencies they serve, as well as how they are selected, allowing us to evaluate long‐standing hypotheses about bureaucratic responsiveness. Overall, we find no evidence of systematic discrimination against same‐sex couples - regardless of responsiveness measure, institutions, ideology, or prior state legal history. We find, however, that among same‐sex couples, officials tended to be more responsive to lesbian couples. In contrast to evidence in other areas of service provision, such as policing and federal assistance programs, we find bureaucrats tasked with provision of marriage services show little evidence of discrimination.

The Conservative Bias of Tightly Split Opinions
Nicholas Georgakopoulos
Indiana University Working Paper, January 2020


This paper documents a paradoxical phenomenon in tightly split opinions of the United States Supreme Court. They exhibit a conservative bias. This bias of 5-4 opinions from 1946 to 2018 has remained mostly steady at about 58% conservative. Other splits of the United States Supreme Court do not exhibit similar consistency, except 9-0 splits. Those have a liberal bias, but only until the 1975 term. Forces consistent with the data are offered as avenues for further research: (a) pliant conservatism to 1975 and firm conservatism from 1976 in the justices; (b) nation-shaping liberal decisions that attracted unanimity and repelled tight splits to 1975; (c) liberal justices not voting for certiorari in some disputes after 1976; liberal litigants (d) switching from firm to conciliatory attitudes in 1976; and (e) reducing their test case litigation in 1972.

Public perceptions of felon-juror exclusion: An exploratory study
James Binnall & Nick Petersen
Criminology & Criminal Justice, forthcoming


Not only do the 19 million Americans with a felony conviction lose their right to vote, but many also lose the right to serve as jurors. Despite the pervasiveness of felon-juror exclusion, this is the first study to systematically explore public opinions about the exclusion of convicted felons from voting and jury service. While results from 815 Californians revealed greater support for felon-voters than for felon-jurors, a majority opposed felon-juror exclusion and rejected the rationales for doing so. Findings also revealed stark ideological divides, as conservatives were less likely to support felon-voters or felon-jurors, and were more likely to endorse the justifications for felon-juror exclusion. As states debate legislation permitting felon-juror inclusion, our findings indicate that support for such policies is likely greater than courts and policymakers had previously thought, suggesting that officials might benefit from re-considering whether this form of civic marginalization actually represents the will of the people.

Is the Process the Only Punishment?: Racial‐Ethnic Disparities in Lower‐Level Courts
Nick Petersen & Marisa Omori
Law & Policy, forthcoming


Although misdemeanors make up the bulk of criminal cases in the United States, the majority of research on court decision‐making examines felony sentencing. In contrast to felony courts, lower‐level courts are characterized by higher case volumes and increased reliance on informal sanctions, which may contribute to greater racial‐ethnic disparities. To assess this possibility, we examine pretrial detention and case processing outcomes for misdemeanants in Miami‐Dade County, Florida. Utilizing temporal (detention time) and monetary (bond amount) measures of pretrial detention, we assess whether and to what extent there are racial‐ethnic disparities in formal and informal sanctions facing misdemeanants. Results indicate that black defendants, especially black Latinx defendants, face greater informal sanctions (longer detention and higher bond amounts), are more likely to be convicted, and experience more severe formal sanctions than do white non‐Latinx defendants. These findings complicate Feeley's (1979) argument about lower‐level cases, revealing that black defendants are punished by both the court process and formal sanctions. In this way, “the process is the punishment” for lower‐level white and non‐white defendants, while the punishment is also the punishment for black defendants.

The Effects of Race and Physical Evidence on the Likelihood of Arrest for Homicide
Maria Arndt, Lisa Stolzenberg & Stewart D’Alessio
Race and Justice, forthcoming


Previous research examining the association between criminal suspect’s race and the likelihood of arrest has produced inconsistent findings. Social scientists remain unsure as to whether Black or White criminal suspects have a higher probability of arrest. Still others find no substantive association between a criminal suspect’s race and the likelihood of arrest. This study contributes to the extant literature by examining the relationship between a criminal suspect’s race and the arrest sanction for the crime of homicide while controlling for the strength of physical evidence linking the criminal suspect to the crime. Although strength of physical evidence against a defendant in a criminal case has been repeatedly shown to be important in determining a variety of criminal justice processing outcomes, it has typically been excluded from research studies examining the arrest decision due to data limitations. Logistic regression results show that Black homicide suspects are not more likely than similarly situated White homicide suspects to be arrested by police. Results also show that Black-on-White homicides are not more apt than other offender-victim racial combinations to culminate in an arrest. Based on these findings, it appears that a homicide suspect’s race does not play a noteworthy role in influencing the likelihood of arrest after accounting for the strength of physical evidence gathered against the criminal suspect in the case.

The Role of Reporting in the Evaluation of Rape Victims
Eyad Naseralla & Ruth Warner
European Journal of Social Psychology, forthcoming


In three experiments, we examined how individuals evaluate a rape victim based on whether she reports or does not report her rapist. Across all three studies, a victim who did not report the perpetrator was evaluated more negatively than a victim who did report the perpetrator (Studies 1 and 2). In Studies 2 and 3, symbolic concerns (the view that the victim’s actions violated shared values and disempowered herself) mediated the effect of reporting on evaluation of the victim. The effects of the victim’s relationship to the perpetrator (Study 1) and the victim’s decision to forgive the perpetrator (Study 2) were also examined. Results indicate that observers evaluate victims that do not report their perpetrators more negatively, and that this evaluation may be the result of perceptions of not reporting rape as a transgression.

Descriptive representation and public support for Supreme Court nominees
Jaclyn Kaslovsky, Jon Rogowski & Andrew Stone
Political Science Research and Methods, forthcoming


Though the demographic characteristics of judicial nominees in the United States have gained increased political attention in recent years, relatively little is known about how they affect public opinion toward judicial nominees and courts. We evaluate these relationships in the context of race and gender using a conjoint experiment conducted during a recent vacancy on the U.S. Supreme Court. We find consistent evidence that Americans are more supportive of coracial nominees, particularly among white Republicans and Black Democrats, but no evidence of a similar effect on the basis of gender. Our results have important implications for theories of descriptive representation and suggest limits to its use as a means for generating political support for judicial nominees.

Strange but true: Corroboration and base rate neglect
Toby Pilditch, Sandra Lagator & David Lagnado
Journal of Experimental Psychology: Learning, Memory, and Cognition, forthcoming


How do we deal with unlikely witness testimonies? Whether in legal or everyday reasoning, corroborative evidence is generally considered a strong marker of support for the reported hypothesis. However, questions remain regarding how the prior probability, or base rate, of that hypothesis interacts with corroboration. Using a Bayesian network model, we illustrate an inverse relationship between the base rate of a hypothesis, and the support provided by corroboration. More precisely, as the base rate of hypothesis becomes more unlikely (and thus there is lower expectation of corroborating testimony), each piece of confirming testimony provides a nonlinear increase in support, relative to a more commonplace hypothesis - assuming independence between witnesses. We show across 3 experiments that lay reasoners consistently fail to account for this impact of (rare) base rates in both diagnostic and intercausal reasoning, resulting in substantial underestimation in belief updating. We consider this a novel demonstration of an inverted form of base rate neglect. We highlight the implications of this work for any scenario in which one cannot assume the confirmation or disconfirmation of a reported hypothesis is uniform.



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