Adversarial
The Supreme Court’s (Surprising?) Indifference to Public Opinion
Ben Johnson & Logan Strother
Political Research Quarterly, forthcoming
Abstract:
Does the Supreme Court care what the public thinks? For decades, published articles have consistently reported a significant, positive relationship between public opinion and Supreme Court output. However, these studies posit mutually contradictory theories and report irreconcilable results. We advance this literature in two ways. First, we show that the empirical “fact” driving the search for a workable theory is actually illusory. Second, we defend a theory of judicial independence. To be clear, we do not attempt to prove the Court does not respond to the public’s opinions on policy. We argue that there is little reason the Court should respond and demonstrate that, contrary to twenty-five years of scholarship, there is no good empirical evidence suggesting it does.
Norms and Political Payoffs in Supreme Court Recusals
Udi Sommer, Quan Li & Jonathan Parent
Political Behavior, forthcoming
Abstract:
In times when the public and scholarly debates around the effects of norms on political decision making are at their height — and in light of the argument that government decisionmakers are now likelier than ever to put political payoffs above norms — we examine this question in an institutional setting where norms are expected to reign supreme: The Supreme Court. If politics fail to trump norms, we posit, the Court should be the institutional setting where this happens. We juxtapose randomly distributed health recusals with discretionary recusals on the Supreme Court of the United States, to test the predictions of a concise formal model predicting a central tendency where political payoffs would surpass norms even in courts. Findings from multivariate regression models strongly suggest that even justices on the high court are not immune to the tendency to abandon norms when institutional settings are conducive and with political payoffs sufficiently high. Political payoffs are brought to bear much earlier in the decision-making process than previously thought, and way ahead of the decision on the merits. This has been the case since the middle of the twentieth century. We conclude with lessons about the effects of norms in democratic institutions.
National opinions on death penalty punishment for the Boston Marathon bomber before versus after sentencing
Rebecca Thompson et al.
Psychology, Public Policy, and Law, forthcoming
Abstract:
Humans seek consistency between their internal thoughts and the outside world. Thus, when legal authorities make decisions, people are likely to accept and obey these decisions to remain consistent with the societies in which they live. Few studies have explored these biases in an applied context. We examined the relationship between the sentencing of Dzhokhar Tsarnaev (the Boston Marathon bomber) and Americans’ opinions about his punishment in a natural quasi-experiment. We expected that Tsarnaev’s sentencing would be associated with increased support for his death penalty sentence, in a manner consistent with the legitimization literature. A survey of a representative U.S. national sample (N = 3,341; 78.13% total participation rate) was conducted between April 29 and June 26, 2015. We assessed views about Tsarnaev’s sentencing (i.e., whether he should receive the death penalty), political party, demographics, and psychological indicators; 81.77% of our sample completed the survey prior to Tsarnaev’s sentencing and 18.23% completed the survey afterward. Multiple logistic regression analyses indicated that those who completed the survey after Tsarnaev was sentenced to death were more likely to support a death penalty sentence than were those who took the survey prior to the sentencing (odds ratio = 1.48, p =.007; 95% confidence [1.11, 1.96]). These results remained significant after adjusting for significant covariates, including male gender; White race; Protestant-Christian religious affiliation; Boston, Massachusetts residency; beliefs in a just world; and Republican political party identification. Results of this quasi-experiment suggest that people adjust their opinions to be consistent with the fait accompli, particularly once the outcome is widely known.
Do Privately-Owned Prisons Increase Incarceration Rates?
Gregmar Galinato & Ryne Rohla
Labour Economics, forthcoming
Abstract:
This article measures the effect of establishing private prisons on incarceration-related outcomes in the United States. We develop a model to show that enforcement authorities faced with capacity constraints or are more susceptible to bribes set non-optimal sanction levels which may increase total number of incarcerated individuals and each individual's sentence length. Using instrumental variables regressions at the state and individual levels, we find evidence showing that a rise in private prison beds per capita increases the number of incarcerated individuals per capita and average sentencing lengths. The effect is more likely for crime types where there is more sentencing leeway such as fraud, regulatory, drug or weapons crimes. There is evidence showing that the effect of private prisons is more pronounced in states where prison capacity constraints are met or exceeded and if the state is more corrupt.
The automatic influence of advocacy on lawyers and novices
David Melnikoff & Nina Strohminger
Nature Human Behaviour, forthcoming
Abstract:
It has long been known that advocating for a cause can alter the advocate’s beliefs. Yet a guiding assumption of many advocates is that the biasing effect of advocacy is controllable. Lawyers, for instance, are taught that they can retain unbiased beliefs while advocating for their clients and that they must do so to secure just outcomes. Across ten experiments (six preregistered; N = 3,104) we show that the biasing effect of advocacy is not controllable but automatic. Merely incentivizing people to advocate altered a range of beliefs about character, guilt and punishment. This bias appeared even in beliefs that are highly stable, when people were financially incentivized to form true beliefs and among professional lawyers, who are trained to prevent advocacy from biasing their judgements.
Evaluating the Evaluator: Has the ABA Rated President Trump's Judicial Nominees Fairly?
Austin Nelson
Texas Law Review, forthcoming
Abstract:
Since 1953, the American Bar Association's Standing Committee on the Federal Judiciary has evaluated presidential nominees for federal judgeship, rating them as Well Qualified, Qualified, or Not Qualified. The ABA insists that these ratings are "independent" and "nonpartisan," but high-ranking Republicans, dating back to President George W. Bush and Attorney General Alberto Gonzales, have challenged this assertion. To date, research published in journals of law, political science, and economics has largely supported Republican suspicions, finding a pro-Democratic and anti-Republican bias in the ABA's judicial ratings. Senators from both major parties have recently questioned the credibility of the ABA and have called for a federal investigation into the ABA's judicial evaluation process. In the words of Democratic Senator Richard Blumenthal, "the ABA has to assess whether its ratings are going to continue to have the kind of credibility they had merited and deserved in the past." This Note takes up the question of the ABA judicial committee's non-partisanship. It evaluates the ABA ratings assigned to nominees for the U.S. courts of appeals, made during the administrations of George W. Bush, Barack Obama, and Donald Trump. This Note employs an ordered logistic regression model, it controls for relevant non-political qualifications, and it finds no statistically significant difference in the way the ABA treated the appellate nominees of Presidents Bush, Obama, and Trump. Whatever was true in the past, today's ABA ratings do not exhibit a clear partisan bias in either direction. The ABA's judicial ratings favor appellate nominees who are legally experienced, regardless of the nominating president.
Make-or-Buy? The Provision of Indigent Defense Services in the U.S.
Yotam Shem-Tov
Review of Economics and Statistics, forthcoming
Abstract:
Most criminal defendants cannot afford to hire an attorney. To provide constitutionally mandated legal services, states commonly use either private court-appointed attorneys or a public defender organization. This paper investigates the relative efficacy of these two modes of indigent defense by comparing outcomes of co-defendants assigned to different types of attorneys within the same case. Using data from San Francisco, I show that in multiple defendant cases public defender assignment is plausibly as good as random. I find that public defenders reduce the probability of any prison sentence by 22% and the length of prison sentences by 10%.
Pretrial justice reform and property crime: Evidence from New Jersey
Jung Kim & Yumi Koh
Applied Economics, forthcoming
Abstract:
Several states and localities have begun to implement various forms of pretrial justice reforms aimed at reducing the size of pretrial detainee population. However, empirical investigation of the effect of such reforms on crimes more broadly (other than recidivism) is limited. We analyse the effect of the 2017 New Jersey Criminal Justice Reform on property crimes. We find that property crime per 100,000 population increased by 22.5% within the first two years. Our findings suggest that reducing the likelihood of pretrial detention for less violent crimes can have substantial impact on behavioural incentives for offenders of such crimes.
The Role of Prisoner Voice in Criminal Justice Reform
Kaitlyn Woltz
George Mason University Working Paper, August 2020
Abstract:
This paper examines the role of prisoner voice in criminal justice reform in the US. Previous research has attributed reform of criminal justice institutions to either political elites or the public. This research has failed to account for the role of prisoner voice in influencing the mental models and payoffs faced by these groups. This paper fills that gap. I argue that prisoner voice — through the avenues of prison journalism, prisoner litigation, and prison riots — serves as an information channel in state criminal justice bureaucracies, holding bureaucrats at all levels accountable to their superiors and voters. I leverage Tullock’s (1965) theory of political bureaucracies and apply it to state criminal justice bureaucracies. I also examine the effectiveness of avenues for prisoner voice — prison journalism, prisoner litigation, and prison riots — for influencing criminal justice reform. I conclude that prison journalism and prisoner litigation serve as internal information channels in criminal justice bureaucracies. Prison riots, in contrast, serve as external information channels to criminal justice bureaucracies, relying on attention by the media to communicate information about the prison. Prison journalism is the only mechanism that influences effective reform (i.e. reform in the interest of prisoners). Reforms influenced by prisoner litigation and prison riots are plagued by unintended and undesirable consequences.
The psychology of confessions: A comparison of expert and lay opinions
Fabiana Alceste et al.
Applied Cognitive Psychology, forthcoming
Abstract:
Despite a body of confessions research that is generally accepted in the scientific community, courts often exclude experts on the ground that such testimony would not assist the jury, which can use its common sense. To examine whether laypeople know the contents of expert testimony on confessions, we asked 151 lay participants to indicate their beliefs about 30 confession‐related statements used in a recent survey of 87 confession experts (Kassin et al., American Psychologist, 2018, 73, 63–80). Participants agreed with experts on only 10 of the 30 propositions, suggesting that much of the psychology of confessions is not common knowledge and that expert testimony can assist the trier of fact.
Behavioral nudges reduce failure to appear for court
Alissa Fishbane, Aurelie Ouss & Anuj Shah
Science, forthcoming
Abstract:
Each year, millions of Americans fail to appear in court for low-level offenses, and warrants are then issued for their arrest. In two field studies in New York City, we make critical information salient by redesigning the summons form and providing text message reminders. These interventions reduce failures to appear by 13-21% and lead to 30,000 fewer arrest warrants over a 3-year period. In lab experiments, we find that while criminal justice professionals see failures to appear as relatively unintentional, laypeople believe they are more intentional. These lay beliefs reduce support for policies that make court information salient and increase support for punishment. Our findings suggest that criminal justice policies can be made more effective and humane by anticipating human error in unintentional offenses.
The Department of Justice as a Gatekeeper in Whistleblower-Initiated Corporate Fraud Enforcement: Drivers and Consequences
Jonas Heese, Ranjani Krishnan & Hari Ramasubramanian
Journal of Accounting and Economics, forthcoming
Abstract:
We examine drivers and consequences of U.S. Department of Justice (DOJ) oversight of whistleblower cases of corporate fraud against the government. We find that the DOJ is more likely to intervene in and conduct longer investigations of cases that have a higher chance of victory and yield greater monetary proceeds, indicating that DOJ enforcement is influenced by its performance measures. DOJ intervention also affects the firm- and aggregate-level fraud environment. Firms subject to DOJ intervention improve their employee relations, internal controls, and board independence, and experience lower future whistleblowing risk. Whistleblowers avoid courts and agencies with low DOJ intervention rates. In contrast, we do not find that cases pursued by whistleblowers alone affect firms’ or whistleblowers’ behavior, suggesting that public enforcement through DOJ intervention has a greater deterrent effect on fraud than private enforcement by whistleblowers acting alone.
Sentencing scorecards: Reducing racial disparities in prison sentences at their source
Greg Ridgeway, Ruth Moyer & Shawn Bushway
Criminology & Public Policy, forthcoming
Abstract:
Scorecards have become an increasingly common tool for public policy decision making about important issues in education, finance, and health care. Few scorecards have been applied in criminal justice and none has been developed to highlight racial disparities in incarceration. We constructed county‐level scorecards for racial disparities in incarceration rates for the New York State Permanent Commission on Sentencing. Using detailed data on felony cases in New York State between 2000 and 2014, including the specific penal law criminal offense, features of the underlying charges, and criminal history, we assembled a set of White defendants within each county that collectively resembled Black and Hispanic defendants in that county. Statewide, Black defendants were more likely to receive prison sentences than similar White defendants (43% vs. 40%). Some individual counties had much greater racial disparities with relative risks of prison as high as 1.36. We found similar results for Hispanic defendants.
The Effects of Race and Criminal History on Landlords’ (Un)willingness to Rent to Exonerees
Lesley Zannella et al.
Law and Human Behavior, August 2020, Pages 300-310
Objective: When wrongfully convicted individuals are released from prison, at first glance, it is a triumph; however, anecdotal evidence from exonerees suggests that obtaining housing postrelease is often challenging. We empirically examined whether race (Study 1) or type of criminal offense (Study 2) influenced landlords’ willingness to rent to exonerees compared to releasees (i.e., rightfully convicted individuals released from prison) and control (i.e., members of the public).
Method: The authors responded to online apartment listings across Canada (Study 1) and in Toronto (Study 2) inquiring about unit availability. All rental inquiries were identical with the exception of criminal status and race (Study 1), and criminal status and criminal offense (Study 2).
Results: Results demonstrated that landlords were significantly less likely to respond (Study 1: OR = 4.32, 95% CI [3.28, 5.69]; Study 2: OR = 7.88, 95% CI [4.97, 12.48]), and indicate availability (Study 1: OR = 6.62, 95% CI [3.54, 12.38]; Study 2: OR = 21.53, 95% CI [7.07, 65.58]), to rental inquiries from exonerees and releasees compared to members of the public. For race, landlords were significantly less likely to respond to inquiries from Indigenous and Black renters compared to White renters (OR = 1.45, 95% CI [1.12, 1.86]), and those convicted of robbery compared to murder (OR = 1.69, 95% CI [.36, .97]).
“No Bodies to Kick or Souls to Damn”: The Political Origins of Corporate Criminal Liability
Anthony Grasso
Studies in American Political Development, forthcoming
Abstract:
Research on corporate criminal law has grown since the Great Recession, but corporate criminal liability, the principle charging corporations for crimes, remains understudied. Literature points to a 1909 Supreme Court decision as its basis, but historical analysis of the doctrine's deeper political roots reveal that its development was contingent on the convergence of several unique factors driving turn of the century American politics. First, corporate criminal liability would not have emerged had it not been for shifts in jurisprudential theory reconceptualizing the corporate form as an independent entity. Second, middle managers of railroads emerged as powerful political players during this period who capitalized on this discursive shift to advocate for corporate criminal liability as an alternative to individual liability rules directed against them. Third, the Supreme Court upheld corporate criminal liability in 1909 because it was constructed by the era's Republican majority to protect the party's economic preferences, and corporate criminal liability was viewed as consistent with their conservative agenda. These factors were each necessary, but alone insufficient, in paving the way for the Court to validate the principle in 1909. How they fit together sequentially illuminates how the doctrine's construction was contingent on specific political and historical circumstances.