Witch trials

Kevin Lewis

December 18, 2019

Race and Class: A Randomized Experiment with Prosecutors
Christopher Robertson, Shima Baradaran Baughman & Megan Wright
Journal of Empirical Legal Studies, December 2019, Pages 807-847


Disparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors’ decisions about how to charge and resolve cases. Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity. Disparities may also be driven by socioeconomic class differences, which are highly correlated with race. This article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors’ charging decisions. Case vignettes are manipulated between subjects in five conditions to test effects of defendants’ race and class status. In the control condition, race and class are omitted, which allows baseline measures for bias and pilot testing of a blinding reform. Primary outcome variables included whether the prosecutor charged a felony, whether the prosecutor would pursue a fine or imprisonment, and the amounts thereof. With 467 actual prosecutors participating nationwide, we found that race and class did not have detectable prejudicial effects on prosecutorial decisions. This finding, contrary to the majority of observational studies, suggests that other causes drive known disparities in criminal justice outcomes.

There’s (Rarely) a New Sheriff in Town: The Incumbency Advantage for County Sheriffs
Michael Zoorob
Harvard Working Paper, November 2019


County sheriffs are prominent elected officials in almost all states, with typical duties including jail operation, responding to 911 calls, and making arrests. Unlike other law enforcement agencies, sheriffs enjoy considerable discretion in employment and policy decisions and do not report to a mayor or other higher official. Instead, the voters serve as the chief mechanism for accountability, and Sheriff associations often argue that their democratic selection makes them uniquely answerable, impartial, and authorized to restrain other parts of government. Using an original dataset of more than 5,500 Sheriff elections from across the US, I produce the first estimates of the levels and variation of the incumbency advantage for Sheriffs. In so doing, I show that the average tenure of elected Sheriffs far exceeds the average tenure of appointed police chiefs. In light of widespread reports of misconduct by elected sheriffs and their employees, these results suggest that elections may not be sufficient to produce responsible local government.

Federal Expansion and the Decay of State Courts
Diego Zambrano
University of Chicago Law Review, December 2019, Pages 2101-2192


At the turn of the twenty-first century, the country entered its third era of judicial federalism. That era is defined by federal judicial expansion into areas of state-court power and federal monopolization of large and complex litigation. These changes, in turn, have coincided with the decay of state courts. Whether measured by funding, delays, or docket loads, state courts — the true workhorses of the American legal system — have declined relative to federal courts. Indeed, over the last decade, state chief justices have complained that state courts are “financially bankrupt,” “at ‘the tipping point of dysfunction,’” and “on the edge of an abyss.” This state-court decay could not come at a worse time — due to federal efforts to circumscribe access to court, there have been growing calls for a turn to state courts. But that turn cannot work without vibrant and well-funded state judiciaries. Thus, federal expansion and state-court decay represent the most fundamental developments in judicial federalism. This Article explores the rise of federal courts and apparent fall of state courts and analyzes the relationship between these two developments. At its core, the Article makes the original claim that federal expansion may be contributing to the decay of state courts and has reinforced a plaintiff-defendant divergence between the two systems. In laying the groundwork for that argument, the Article offers three contributions. First, it provides the first historical periodization of judicial federalism, oriented around three broad eras with distinctive philosophies toward the federal-state allocation of cases. The Article presents significant evidence that in the 1980s and 1990s the country entered a new era of judicial federalism when, for the first time in the nation’s history, the federal government began to aggressively appropriate state-court litigation. Second, the bulk of the Article draws on a wealth of political economy literature and empirical data to step back and evaluate the potentially positive and negative effects of federal-court expansion. The third era has allowed institutional litigants to opt out of state courts, leading to negative distributional consequences for small-stakes litigants. For example, when federal courts siphon large litigants from state court, state legislatures lose existing political pressure to fund those courts, potentially leading to deteriorating judiciaries that ultimately affect family courts, employees, and consumers. This state-to-federal emigration of institutional litigants may also explain one of the most puzzling recent developments in civil procedure: while federal courts have embraced prodefendant procedural rules in the class action, personal jurisdiction, and pleading contexts, state courts remain relatively proplaintiff, leading to a clear divergence between the two systems and a host of normative concerns. Finally, after laying out these consequences, the Article briefly sketches a few potential remedies to improve state courts, including federal funding for state judiciaries and a push for more state complex litigation courts.

What's in a Name? The Disparate Effects of Identifiability on Offenders and Victims of Sexual Harassment
Netta Barak‐Corren & Daphna Lewinsohn‐Zamir
Journal of Empirical Legal Studies, forthcoming


Sexual harassment is undergoing an identification revolution, as more victims choose to forego their anonymity and divulge their identity to the public. Research in social psychology on the identifiability effect has found that identified victims typically generate more empathy and support than unidentified ones. However, this research has been limited largely to monetary donations or to unambiguous cases with uncontested facts; the scholarship has not examined the effects of varying the identifiability of both parties to a conflict. In three large‐scale experiments with a representative population (total N = 3,988), we found that in the context of sexual harassment, victims do not gain an identifiability “premium” — whereas offenders do. Offenders identified by their first name only are regarded as more credible and moral and less blameworthy and responsible for the event than unidentified offenders, but the same does not apply to identified victims. Furthermore, when the offender is identified, fewer people perceive the case as involving sexual harassment (Experiment 1), and support for taking measures against the offender declines (Experiment 2). Finally, the identified offender premium exists for offenders of both sexes, but the detrimental effect of identification on victims is moderated by the victim's mode of identification. Specifically, identified female victims who stated willingness to disclose their name publicly fared worse than those preferring that their name not be revealed in public, and the difference between active and passive identification reversed for male victims. The effect of identification mode is moderated by sexist beliefs (Experiment 3). Our results have normative implications for the appropriate balance between publicity and anonymity in various contexts, including social networks, the media, and disciplinary and judicial tribunals.

Stare Decisis and the Electoral Connection: Do Retention Systems Affect Judges’ Deference to Precedent?
Michael Miller & Michelle Tuma
State Politics & Policy Quarterly, forthcoming


Using data from nearly 5,000 votes cast by more than 400 judges in courts of last resort from all 50 states, we investigate whether there is a relationship between a state’s judicial retention method and the likelihood that a judge votes to join a precedent-overturning majority. We find that relative to judges retained by institutions such as judicial commissions or state legislatures, those retained via either partisan or retention elections are significantly more likely to join majorities that overturn precedent. Most of this effect is due to behavior in high-profile cases that garner media attention. We find little evidence that an impending election moderates these effects. Finally, we find no evidence that judges retained via nonpartisan elections treat precedent differently than their institutionally retained colleagues.

The Race of Defendants and Victims in Pennsylvania Death Penalty Decisions: 2000–2010
Jeffery Ulmer, John Kramer & Gary Zajac
Justice Quarterly, forthcoming


This study uses propensity score weighting to examine three key death penalty decisions in Pennsylvania from 2000–2010, focusing on the role of defendant and victim race: prosecutors’ decisions to seek the death penalty, prosecutors’ decisions to retract death filings, and decisions to sentence defendants to the death penalty. We collected data on 880 first degree murder convictions in 18 Pennsylvania counties, encompassing 87% of the state’s first-degree murder convictions. We do not find that black defendants, or black defendants who kill white victims specifically, are more likely to have the death penalty sought or imposed. Instead, we find that those who kill white victims, regardless of defendant race, are more likely to receive the death penalty. We further found that black defendants, and blacks who killed black victims, were more likely to have a death filing retracted by prosecutors. Finally, patterns of death penalty race disparity varied greatly depending on the county in which a case was prosecuted and sentenced.

Traditional Gender Roles and Backlash Against Female Attorneys Expressing Anger in Court
Jessica Salerno & Hannah Phalen
Journal of Empirical Legal Studies, December 2019, Pages 909-932


Trial advocacy education often stresses the importance of attorneys expressing arguments with emotion to signal conviction. Yet, female attorneys must approach this advice with caution given potential backlash for expressing emotions traditionally considered masculine, like anger. Two experiments (Study 1, N = 220; Study 2, N = 273) demonstrated that people most likely to endorse traditional gender roles exhibited bias against female attorneys expressing anger in court. Participants were recruited nationally and randomly assigned to view an attorney delivering a closing statement in court who either (1) was a man or a woman, and (2) used a neutral or angry tone. They reported how hirable and effective they perceived the attorneys to be and completed measures of several individual difference factors that are established predictors of endorsement of traditional gender roles: ambivalent sexism, political conservatism, and age. Participants who were more likely to hold traditional gender values (i.e., more benevolently sexist, more politically conservative, and older) were more likely to favor attorneys who conformed to gender norms (i.e., male attorneys who expressed anger relative to no anger) and less likely to favor attorneys who violated gender norms (i.e., female attorneys who expressed anger relative to no anger). Thus, female attorneys are faced with the challenge of walking the line between exhibiting traditionally masculine behaviors that are valued by the legal system — but not so much so that they suffer backlash for violating gender norms.

Racial/ethnic and gender disparities in anger management therapy as a probation condition
Cassandra Bailey et al.
Law and Human Behavior, forthcoming

Method: Data for this study are administrative and originate from an adult probation department in southern Texas. The sample (N = 4,001; 72.3% male) was 53.4% Caucasian, 28.6% African American, 16.7% Hispanic, 0.9% other, and 0.4% unknown and included individuals who had committed violent (14.2%) and nonviolent (85.8%) offenses.

Results: Data analyses consisted of binary logistic regression, with anger management placement as the dependent variable, and offense, judge, county, race/ethnicity, and gender as the independent variables. The final model emerged as statistically significant, χ²(16) = 552.76, p < .001, Nagelkerke’s R² = .32. Specifically, the odds of receiving anger management were 1.71 times higher for African Americans than Caucasians, and 1.68 times higher for men than women. Exploratory analyses examining a Race/Ethnicity × Gender interaction revealed the odds of receiving anger management was significantly lower for Caucasian women than all other racial/ethnic by gender groups.

Addiction is a brain disease, and it doesn’t matter: Prior choice in drug use blocks leniency in criminal punishment
Nicholas Sinclair-House, John Child & Hans Crombag
Psychology, Public Policy, and Law, forthcoming


Our aim was to explore how (neuro)scientific understanding of addiction as a brain-disease impacts criminal sentencing decisions in courts in England and Wales, where legal rules concerning intoxication, prior-fault and mental disease conflict, and sentencing guidelines lack clarity. We hypothesized that despite significant neuropsychiatric overlap of addiction and other brain-disorders, variables in relation to etiology would moderate magistrates’ sentencing decisions in cases involving addicted offenders. Using a questionnaire-based, quantitative design, and combining frequentist and Bayesian analysis approaches, we probed court magistrates’ sentencing decisions, and underlying rationale, for defendants presenting with brain damage resulting from a (fictional) disease, addiction to heroin, or more complex, mixed etiologies. When identical neuropsychiatric profiles resulted from disease, but not heroin addiction, prison sentences were significantly reduced. Study 1 (N = 109) found the pivotal factor preventing addiction from mitigating sentences was perceived choice in its acquisition; removing choice from addiction increased the odds of sentence reduction (∼20-fold) and attaching choice to disease aggravated or reversed earlier leniency. Study 2 (N = 276) replicated these results and found that when heroin use led to disease or vice versa, magistrates found middle ground. These differences were independent of the age of first drug use. Finally, evidence of addiction was more likely to evoke punishment considerations by magistrates, rather than rehabilitation. Consistent with legal rules relating to intoxication but running counter to norms around mental-illness and choice, our results demonstrate the need for greater clarity in sentencing guidance on addiction specifically, and mental disorders more generally.

The “Distance Traveled”: Investigating the Downstream Consequences of Charge Reductions for Disparities in Incarceration
Brian Johnson & Pilar Larroulet
Justice Quarterly, November 2019, Pages 1229-1257


Relatively little work examines the impact that charging decisions exert on sentencing. We investigate this issue by estimating the “distance traveled” in charge bargaining, or the expected change in the likelihood of incarceration associated with reductions in charges across different stages of prosecution. Using data from New York County, we examine how the probability of incarceration shifts as a result of charging decisions and how this potentially contributes to social inequalities in incarceration. Findings indicate that charge reductions are associated with sizeable decreases in the probability of incarceration, particularly at the plea bargaining stage. On average, the “distance traveled” is substantially greater for female than male defendants and for White compared to Latino and Black defendants, even after accounting for a host of relevant punishment factors. Findings are discussed as they relate to contemporary theoretical perspectives on prosecutorial decision-making and social inequality in punishment.

False Confessions: An Experimental Study of the Innocence Problem
Jason Ralston et al.
Baylor University Working Paper, November 2019


The innocence problem, which occurs when an innocent person is falsely accused or convicted of a crime, is impossible to study with empirical data, because “true” innocence and guilt are unobservable in the “real world.” In this study, we replicate the criminal justice system in the laboratory with real salient crimes and subjects acting in the roles of defendants, prosecutors, and jurors in order to study the innocence problem. In a controlled environment, we identify individuals who are falsely or accurately accused of a crime and track them through the plea-bargaining system. This allows us to explore how being falsely accused of a crime affects plea bargaining decisions. We find evidence for a substantial innocence problem, reflected by a high willingness of truly innocent defendants to accept plea bargains. However, they do so at a lower rate than the truly guilty suggesting preferences for truth telling, an irrelevant factor in most economic theory. We also find evidence that individual preferences over uncertainty influence plea decisions, as predicted by economic theory. Overall, we find that loss aversion has a significant positive influence on plea decisions and that the reduced propensity of the truly innocent to accept plea bargains is driven by an interaction between their preferences to avoid lying and their preferences over uncertainty.

The Effect of Opinion Readability on the Impact of U.S. Supreme Court Precedents in State High Courts
Michael Fix & Bailey Fairbanks
Social Science Quarterly, forthcoming

Methods: We use random slope, random intercept multilevel models to analyze 30 years of state high court citations to U.S. Supreme Court majority opinions issued during the 1987–2006 terms.

Results: Our analysis reveals that opinion readability exerts a strong substantive impact on citation rates. This effect holds while accounting for a variety of factors previously shown to influence citation rates.

State Coalitions, Informational Signals, and Success as Amicus Curiae at the U.S. Supreme Court
Kayla Canelo
State Politics & Policy Quarterly, forthcoming


States are uniquely situated as both individual governments in the federal system and entities that represent the interests of their citizens. So, what makes groups of states successful when they lobby the Supreme Court as amicus curiae filers? I argue that it is not just the number of states included in a coalition that matters, but rather which states are included. In this article, I offer a theory that implies certain types of coalitions will be more influential than others, as these coalitions can vary in how representative they are of public preferences. I use a dataset on state amicus curiae filings from 1960 to 2013 to test the implications of my theory. I find that the regional diversity of coalitions increases the odds of state amicus curiae filers obtaining their preferred outcome, but the ideological heterogeneity of the group of states does not. This latter result is interesting given that it is contrary to the theoretical expectations of the existing scholarship on state amicus filings.

Reevaluating the Role of Verbalization of Faces for Composite Production: Descriptions of Offenders Matter!
Charity Brown et al.
Journal of Experimental Psychology: Applied, forthcoming


Standard forensic practice necessitates that a witness describes an offender’s face prior to constructing a visual likeness, a facial composite. However, describing a face can interfere with face recognition, although a delay between description and recognition theoretically should alleviate this issue. In Experiment 1, participants produced a free recall description either 3–4 hr or 2 days after intentionally or incidentally encoding a target face, and then constructed a composite using a modern “feature” system immediately or after 30 min. Unexpectedly, correct naming of composites significantly reduced following the 30-min delay between description and construction for targets encoded 2 days previously. In Experiment 2, participants in these conditions gave descriptions that were better matched to their targets by independent judges, a result which suggests that the 30-min delay actually impairs access to details of recalled descriptions that are valuable for composite effectiveness. Experiment 3 found the detrimental effect of description delay extended to composites constructed from a “holistic” face production system. The results have real-world but counterintuitive implications for witnesses who construct a face 1 or 2 days after a crime: After having recalled the face to a practitioner, an appreciable delay (here, 30 min) should be avoided before starting face construction.


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