The people's court
Judges and Friends: The Influence of Amici Curiae on U.S. Court of Appeals Judges
Paul Collins & Wendy Martinek
American Politics Research, forthcoming
Abstract:
We contribute to the literature on political psychology, interest groups, and judicial decision making by examining whether ideology mediates the effect of amicus curiae briefs on decision making in the U.S. courts of appeals. Using an original data set, we find evidence that moderate and conservative judges are influenced by amicus briefs, but that liberal judges do not respond to these persuasion attempts. We conclude that this form of interest group lobbying influences judicial decision making by at least some judges and that understanding the efficacy of this interest group strategy requires an appreciation of how political actors process persuasive information.
----------------------
Scott Boddery & Jeff Yates
Political Research Quarterly, forthcoming
Abstract:
Does the identity of a majority opinion writer affect the level of agreement a Supreme Court decision receives from the public? Using a survey experiment, we manipulate majority opinion authors to investigate whether individuals are willing to agree with Supreme Court opinions authored by ideologically similar justices even though the decisions cut against their self-identified ideological policy preferences. Our study provides insight into the extent to which policy cues - represented by a political institution's policy messenger - affect agreement with a given policy. We find that a messenger effect indeed augments the level of agreement a given Supreme Court case receives.
----------------------
Public Opinion and Judicial Behavior in Direct Democracy Systems: Gay Rights in the American States
Daniel Lewis, Frederick Wood & Matthew Jacobsmeier
State Politics & Policy Quarterly, forthcoming
Abstract:
Although the U.S. judiciary is designed to be an independent and counter-majoritarian arbiter of the law, many states feature electoral institutions that may expose judges to public pressure. Scholars have demonstrated that judicial elections provide a clear link between public opinion and judicial decision making that may undermine the ability of courts to act in counter-majoritarian ways to protect minority rights. We extend this line of inquiry by examining whether direct democracy institutions have a similar effect of enhancing the impact of public opinion on judicial behavior and reducing the likelihood of judges voting in favor of minority rights. Empirical results from an analysis of gay rights cases in the American states from 1981 to 2004 provide evidence that direct democracy, in conjunction with electoral retention methods, significantly increases the effect of public opinion on judicial decisions.
----------------------
Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts
Michael Light, Michael Massoglia & Ryan King
American Sociological Review, October 2014, Pages 825-847
Abstract:
When compared to research on the association between immigration and crime, far less attention has been given to the relationship between immigration, citizenship, and criminal punishment. As such, several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered. Are citizens treated differently than noncitizens - both legal and undocumented - in U.S. federal criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by citizenship status? Has the association between citizenship and sentencing remained stable over time? And are punishment disparities contingent on the demographic context of the court? Analysis of several years of data from U.S. federal courts indicates that citizenship status is a salient predictor of sentencing outcomes-more powerful than race or ethnicity. Other notable findings include the following: accounting for citizenship substantially attenuates disparities between whites and Hispanics; the citizenship effect on sentencing has grown stronger over time; and the effect is most pronounced in districts with growing noncitizen populations. These findings suggest that as international migration increases, citizenship may be an emerging and powerful axis of sociolegal inequality.
----------------------
Jeffery Ulmer, Noah Painter-Davis & Leigh Tinik
Justice Quarterly, forthcoming
Abstract:
Disproportional incarceration of black and Hispanic men has been the subject of much critical commentary and empirical inquiry. Such disproportionality may be due to greater involvement of minority men in serious crime, to discretionary decisions by local justice officials, or to the differential impact of sentencing policies, such as mandatory minimums or sentencing guidelines, that differentially impact minority men. This study investigated the extent to which the disproportional punishment of black and Hispanic men, and local variation in such disproportionality, can be attributed to unexplained disparities in local sentencing decisions, as opposed to the extent to which such differences are mediated by sentencing policies, or case-processing and extralegal factors. We use 2005-2009 federal court and Pennsylvania state court data. Our findings suggest, particularly in Federal courts, that most disproportionality is determined by processes prior to sentencing, especially sentencing policies that differentially impact minority males.
----------------------
The Sentencing Consequences of Federal Pretrial Supervision
James Oleson et al.
Crime & Delinquency, forthcoming
Abstract:
Legal variables, such as offense severity and criminal history, principally shape sentencing decisions, but extralegal factors such as race, gender, and age also influence sentencing outcomes. Studies focusing on the effect of pretrial detention on sentencing outcomes usually associate pretrial detention with negative sentencing outcomes. The current study followed 90,037 federal defendants from indictment through sentencing, and measured the effects of pretrial detention on sentencing decisions. Detention (and, to a lesser degree, revocation of pretrial release) was associated with increased likelihood of receiving a prison sentence and greater sentence length, even when controlling for offense severity and criminal history scores.
----------------------
Judicial error by groups and individuals
Frans van Dijk, Joep Sonnemans & Eddy Bauw
Journal of Economic Behavior & Organization, forthcoming
Abstract:
In criminal cases judges evaluate and combine probabilistic evidence to reach verdicts. Unavoidably, errors are made, resulting in unwarranted conviction or acquittal of defendants. This paper addresses the questions (1) whether hearing cases by teams of three persons leads to less error than hearing cases alone; (2) whether deliberation leads to better decisions than mechanical aggregation of individual opinions; and (3) whether participating in deliberations improves future individual decisions. We find that having more than one judge consider cases reduces error effectively. This does not mean that it is necessary to deliberate about all cases. In simple cases many errors can be avoided by mechanical aggregation of independent opinions, and deliberation has no added value. In difficult cases discussion leads to less error. The advantage of deliberation goes beyond the case at hand: although we provide no feedback about the quality of verdicts, it improves individual decisions in subsequent cases.
----------------------
Estimating Gender Disparities in Federal Criminal Cases
Sonja Starr
American Law and Economics Review, forthcoming
Abstract:
This paper assesses and decomposes gender disparities in federal criminal cases. It finds large unexplained gaps favoring women throughout the sentence length distribution, conditional on arrest offense, criminal history, and other pre-charge observables. Decompositions show that most of the unexplained disparity appears to emerge during charging, plea-bargaining, and sentencing fact-finding. The approach provides an important complement to prior disparity studies, which have focused on sentencing and have not incorporated disparities arising from those earlier stages. I also consider various plausible causal theories that could explain the estimated gender gap, using the rich dataset to test their implications.
----------------------
Examining the prevalence and correlates of a 'senior citizen discount' in US federal courts
Weston Morrow, Samuel Vickovic & Henry Fradella
Criminal Justice Studies, forthcoming
Abstract:
Few studies focus on age as a factor influencing judicial decision-making, in spite of the widespread use of age as a control variable. Although the limited research to have done so is inconsistent, most scholars agree that age may be race- and/or gender-graded in a manner that produces more severe sentences for certain race-gender-age combinations, especially for young males who are Black or Latino. Less consensus exists with regard to whether older defendants are granted more leniency in the sentencing process and, if so, if the effects of older age are also race- and/or gender-graded. The present study examines this question by examining data from the United States Sentencing Commission. The data presented reveal three noteworthy findings. First, a 'senior citizen discount' exists insofar as judges afford more leniency in sentencing to older offenders than their younger counterparts. Second, compared to older males, older females were treated with greater leniency by judges. Finally, whereas Latinos 60 and over were treated with greater severity at the stage of incarceration compared to similarly situated Whites, Blacks received shorter sentence lengths on average. These results are analyzed within the framework of the focal concerns perspective.
----------------------
Edie Greene & Andrew Evelo
Psychology, Crime & Law, forthcoming
Abstract:
The purpose of this study was to determine how American and Canadian robbery detectives collect identification evidence and whether their practices are consistent with published guidelines. Via a survey, we asked about the use of various lineup practices (e.g., single-blind vs. double-blind administration, sequential vs. simultaneous presentation, and videotaping). Canadian detectives are more likely to use research-based reforms such as double-blind sequential lineups and videotaping. We also assessed how robbery detectives interact with eyewitnesses at four points during a lineup: prior to the lineup, immediately after an identification, and after 12 seconds and 3 minutes have elapsed without an identification. Results showed that at the latter two junctures, officers from both the countries question eyewitnesses in subtle ways that could influence the likelihood of choosing and confidence in the selection. Canadian detectives are less likely than American detectives to do so, however. This finding can be explained by the absence of written guidelines in most US jurisdictions on how officials should interact with eyewitnesses during lineups.
----------------------
Interviewing to Detect Deception: When to Disclose the Evidence?
Marina Sorochinski et al.
Journal of Police and Criminal Psychology, October 2014, Pages 87-94
Abstract:
Research shows that there are few objective cues to deception. However, it may be possible to create such cues by strategic interviewing techniques. Strategic Use of Evidence (SUE) is one such technique. The basic premise of the SUE technique is that liars and truth tellers employ different counter-interrogation strategies, and that the evidence against the suspect can be used to exploit these differences in strategies. This study examined the effect of the timing of evidence disclosure (early vs. late vs. gradual) on verbal cues to deception. We predicted that late disclosure would be most effective in differentiating between liars and truth-tellers, and that cues to deception in the gradual disclosure condition would progressively disappear due to the suspects' realization that evidence against them exists. That is, we expected that liars in the gradual presentation condition would become more consistent with the evidence over time. A sample of 86 undergraduate students went through a mock-terrorism paradigm (half innocent, half guilty), and were subsequently interviewed using one of three disclosure strategies: early, gradual, and late disclosure. We measured statement-evidence inconsistencies as cues to deception . Results supported our predictions in that cues to deception were most pronounced in the late disclosure condition. Contrary to our expectations, the results suggested that presenting the evidence gradually may put innocent suspects at a higher risk of misclassification as they seem to adopt a strategy that is more similar to guilty suspects.
----------------------
Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court
Robert Hume
Law & Society Review, September 2014, Pages 621-655
Abstract:
When are U.S. Supreme Court justices more likely to recuse themselves from cases? This article proposes a strategic model of recusal behavior, hypothesizing that the justices balance statutory guidelines concerning recusals against other policy and institutional goals. Using data from the Supreme Court Database, I find evidence that recusal behavior is influenced by a combination of statutory, policy, and institutional considerations. Consistent with statutory explanations, which emphasize the elimination of bias or its appearance, justices are more likely to recuse themselves from cases when business interests are before the Court, when they have served for shorter terms, and when they have previously acted as Solicitor General. However, I also find that the justices are less likely to recuse themselves when cases are likely to be close or when the justices' policy goals are likely to be advanced by participating. These findings suggest that while the justices do follow statutory recusal guidelines, they also have other institutional and policy incentives that lead them to participate in cases despite their conflicts of interest.
----------------------
An Empirical Study of Political Bias in Legal Scholarship
Adam Chilton & Eric Posner
University of Chicago Working Paper, August 2014
Abstract:
Law professors routinely accuse each other of making politically biased arguments in their scholarship. They have also helped produce a large empirical literature on judicial behavior that has found that judicial opinions sometimes reflect the ideological biases of the judges who join them. Yet no one has used statistical methods to test the parallel hypothesis that legal scholarship reflects the political biases of law professors. This paper provides the results of such a test. We find that, at a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.
----------------------
Deborah Beim & Jonathan Kastellec
Journal of Politics, October 2014, Pages 1074-1088
Abstract:
We use an original dataset of death penalty decisions on the Courts of Appeals to evaluate how the institutions of multimember appellate courts, dissent, and discretionary higher-court review interact to increase legal consistency in the federal judicial hierarchy. First, beginning with three-judge panels, we show the existence of ideological diversity on a panel - and the potential for dissent - plays a significant role in judicial decision making. Second, because of the relationship between panel composition and panel outcomes, considering only the incidence of dissents dramatically underestimates the influence of the institution of dissent - judges dissent much less frequently than they would in the absence of this relationship. Third, this rarity of dissent means they are informative: when judges do dissent, they influence en banc review in a manner consistent with the preferences of full circuits. Taken together, these results have important implications for assessing legal consistency in a vast and diverse judicial hierarchy.
----------------------
State Solicitors General, Appellate Expertise, and State Success Before the U.S. Supreme Court
Ryan Owens & Patrick Wohlfarth
Law & Society Review, September 2014, Pages 657-685
Abstract:
This article examines how institutional design leads state governments to win their cases before the U.S. Supreme Court. We analyze whether states are more likely to prevail on the merits when they create a formal solicitor general office and have an attorney from that office argue their cases before the Court. We employ an analytical matching approach and find that attorneys from state solicitor general offices are significantly more likely to win their cases compared to other kinds of state attorneys. Accordingly, if states prioritize victory before the Court, they should consider creating state solicitor general offices and granting those solicitors general the authority to control their appellate litigation.
----------------------
Racial, Ethnic, and Immigrant Threat: Is There a New Criminal Threat on State Sentencing?
Ben Feldmeyer et al.
Journal of Research in Crime and Delinquency, forthcoming
Objectives: The racial threat perspective argues that racial minorities are subjected to greater punishment in places with large or growing minority populations. However, prior research has focused largely on Black populations while devoting limited attention to potential "Latino threat" or "immigrant threat" effects. To address these gaps, this study explores the effects of racial, ethnic, and immigrant threat on sentence disposition (jail, prison, or community corrections) and sentence length.
Methods: Using 2000 through 2006 data from the Florida Department of Corrections Guideline database, we use multilevel modeling techniques to explore the effects of racial, ethnic, and immigrant threat on state criminal sentencing.
Results: The results provide support for racial/ethnic threat theory among Black but not Latino defendants. Black defendants are more likely to be sentenced to prison and are given longer sentences in counties with growing Black populations. In contrast, Latino sentences are not significantly influenced by Latino population growth. Results provide no support for immigrant threat positions.
Conclusions: Overall, our findings offer a complex picture for racial/ethnic and immigrant threat. However, one pattern remains clear. Within Florida courts, Black defendants continue to be the prime targets for effects of racial threat and resulting disadvantages in criminal sentencing.
----------------------
The Model Minority Myth for Noncitizen Immigration Offenses and Sentencing Outcomes
Jawjeong Wu & Dae-Young Kim
Race and Justice, October 2014, Pages 303-332
Abstract:
Labeled the model minority, Asian Americans have been seen as less discriminated against than other racial/ethnic minorities in the different aspects of American society. Sentencing scholarship also revealed robust evidence that Asian offenders were not treated differently from White offenders in judicial decision making. Some research even found the most favorable sentencing outcomes for Asian offenders. However, it is unclear whether the model minority hypothesis is validated when only the criminal sentencing of noncitizen offenders is at issue. Using the U.S. Sentencing Commission's sentencing data for fiscal years 2006-2007, the present study, with a focus specifically on immigration offenses, seeks to challenge this hypothesis by examining the extent to which an offender's national origin and race/ethnicity affect sentencing outcomes. Findings reveal strong support for our argument that the model minority advantage is offense-specific and that it is not applicable to all types of offenses. Specifically, there is no model minority advantage for non-U.S. citizens' immigration offenses.
----------------------
Russ Espinoza & Cynthia Willis-Esqueda
Cultural Diversity and Ethnic Minority Psychology, forthcoming
Abstract:
The purpose of the research was to determine whether European American and Latino mock jurors would demonstrate bias in death penalty decision making when mitigation evidence and defendant ethnicity and socioeconomic status (SES) were varied. A total of 561 actual venire persons acted as mock jurors and read a trial transcript that varied a defendant's case information (mitigating circumstances: strong/weak, defendant ethnicity: European American/Latino, and defendant SES: low/high). European American jurors recommended the death penalty significantly more often for the low SES Latino defendant when strength of mitigation evidence was weak. In addition, they also assigned this defendant higher culpability ratings and lower ratings on positive personality trait measures compared with all other conditions. Strong mitigation evidence contributed to lower guilt ratings by European American jurors for the high SES European American defendant. Latino jurors did not differ in their death penalty sentencing across defendant mitigation, ethnicity, or SES conditions. Discussion of in-group favoritism and out-group derogation, as well as suggestions for procedures to diminish juror bias in death penalty cases, is provided.
----------------------
Dayna Gomes, Douglas Stenstrom & Dustin Calvillo
Legal and Criminological Psychology, forthcoming
Purpose: The present study tested the judicial decision to deny false confession expert testimony on the basis that jury instructions are sufficient to aid jurors in their determinations of disputed confession evidence.
Methods: Three groups of mock jurors (N = 150) were presented with a trial summary that included a videotaped re-enactment of an interrogation in which the interrogator used a maximization ploy. One group received expert testimony in the trial summary, another group received credibility instructions, and a control group received neither. All participants received standard reasonable doubt instructions at the end of the trial summary and then answered questions such as their verdict in the case, the defendant's likelihood of guilt, and the voluntariness of the defendant's confession.
Results: The results showed a high rate of conviction that was only reduced when participants received expert testimony. Across all measures, no significant differences were found between the control and credibility instruction groups.
Conclusions: The results suggest that credibility instructions are not comparable to expert testimony in influencing jurors' judgments of disputed confession evidence. These findings do not support the judicial decision to deny expert testimony on the basis that credibility instructions alone are sufficient to aid potential jurors in their evaluations of confession evidence. Avenues for future research on expert testimony and jury instructions in confession cases are discussed.
----------------------
Stressing the person: Legal and everyday person attributions under stress
Jennifer Kubota et al.
Biological Psychology, December 2014, Pages 117-124
Abstract:
When determining the cause of a person's behavior, perceivers often overweigh dispositional explanations and underweigh situational explanations, an error known as the Fundamental Attribution Error (FAE). The FAE occurs in part because dispositional explanations are relatively automatic, whereas considering the situation requires additional cognitive effort. Stress is known to impair the prefrontal cortex and executive functions important for the attribution process. We investigated if stress increases dispositional attributions in common place and legal situations. Experiencing a physiological stressor increased participants' cortisol, dispositional attributions of common everyday behaviors, and negative evaluations. When determining whether a crime was due to the defendant's disposition or the mitigating situation, self-reported stress correlated with increased dispositional judgments of defendant's behavior. These findings indicate that stress may makes people more likely to commit the FAE and less favorable in their evaluations of others both in daily life and when making socially consequential judicial decisions.
----------------------
Short-Sighted Confession Decisions: The Role of Uncertain and Delayed Consequences
Yueran Yang, Stephanie Madon & Max Guyll
Law and Human Behavior, forthcoming
Abstract:
Suspects have a propensity to focus on short-term contingencies, giving disproportionate weight to the proximal consequences that are delivered by police during an interrogation, and too little consideration to the distal (and often more severe) consequences that may be levied by the judicial system if they are convicted. In this research, the authors examined whether the perceived uncertainty and temporal distance of distal consequences contribute to this propensity. Using the repetitive question paradigm (Madon et al., 2012), participants (N = 209) were interviewed about 20 prior criminal and unethical behaviors and were required to admit or deny each one. Participants' denials and admissions were paired with both a proximal consequence and a distal consequence, respectively. Results indicated that the distal consequence had less impact on participants' admission decisions when it was uncertain and temporally remote. These results provide evidence that the perceived uncertainty and temporal distance of future punishment are key factors that lead suspects to confess to crimes in exchange for short-term gains.
----------------------
'We'll Take It from Here': The Effect of Changing Interviewers in Information Gathering Interviews
Dominic Shaw et al.
Applied Cognitive Psychology, forthcoming
Abstract:
A common strategy in interviewing is to repeatedly focus on the same topics, for example by asking to recall an event first in chronological order and then in reverse order. We examined the effect of changing interviewers between the two questions or keeping the same interviewers throughout on cues to deception. Truth tellers may be most encouraged to recall again what they have witnessed when confronted with new interviewers, as these new interviewers have not heard their story before. Liars may be most encouraged to recall again their story when confronted with the same interviewers, realising that these interviewers will check for consistency in their answers. The impact of changing interviewers should lead to more pronounced differences between truth tellers and liars in terms of detail and repetition in the 'Changed Interviewers' condition compared with the 'Same Interviewers' condition. Participants were interviewed by two interviewers about a mock security meeting they attended. In half the interviews, the same two interviewers remained throughout, and in the other half, two new interviewers took over half-way through. As predicted, differences between truth tellers and liars in terms of detail and repetition were most pronounced in the 'Changed Interviewers' condition. Changing interviewers during an interview effectively differentiates liars and truth tellers with respect to detail and repetition. We discuss this finding and its place within investigative interviewing and deception detection literature.