Blind Justice
Misdemeanor Prosecution
Amanda Agan, Jennifer Doleac & Anna Harvey
NBER Working Paper, March 2021
Abstract:
Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.
Unequal Jury Representation and Its Consequences
Shamena Anwar, Patrick Bayer & Randi Hjalmarsson
NBER Working Paper, March 2021
Abstract:
We analyze the extent and consequences of unequal representation on juries in Harris County, Texas. We first document that residents from predominantly white and high-income neighborhoods are substantially over-represented on juries. Using quasi-random variation in those called for jury duty each day, we next establish that Black defendants are more likely to be convicted and receive longer sentences from juries with more residents from these over-represented neighborhoods. We estimate that equal representation would reduce Black defendants’ median sentence length by 50 percent and the probability of receiving a life sentence by 67 percent. Straightforward remedies could mitigate this severe bias.
The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts
Michael Light
Social Forces, forthcoming
Abstract:
Racial inequality in sentencing has decreased substantially over the last decade. In 2009, the average sentencing difference between black and white defendants in federal court was nearly 3 yrs. By 2018, this difference was less than 6 mos. Among drug offenders over this same period, the black–white gap went from 47 mos. down to zero. Yet, despite the fact that racial inequality in the legal system remains at the fore of sociological discourse, these developments remain conspicuously under-evaluated and the underlying processes driving these changes remain unknown. This article fills this gap by applying longitudinal decomposition methods to US District Court data between 2009 and 2018. Three notable findings emerge. First, the declining racial gap was driven, in equal parts, by decreasing black sentences and increasing white sentences. Second, black and white sentences became more equal almost entirely due to changes in observable case characteristics and not due to changes in the treatment of offenders. Third, shifts in the prosecutorial use of mandatory minimums played a critical role in decreasing black–white sentencing inequality.
Pleading for Justice: Bullpen Therapy, Pre-Trial Detention, and Plea Bargains in American Courts
Amy Lerman, Ariel Lewis Green & Patricio Dominguez
Crime & Delinquency, forthcoming
Abstract:
What role do extra-legal factors play in whether defendants plead guilty to a criminal offense? In this study, we provide qualitative evidence that pretrial detention is a contributing factor in adjudication outcomes. Many of our subjects reported that the prospect of being held in unsanitary and unsafe jails was sufficient to induce their acceptance of a plea, even when they maintained their innocence. Others worried that being held pre-trial would have a negative impact on employment and family responsibilities, and so chose to plead. Our quantitative analyses bolster these self-reports: in a national sample, defendants held in custody pre-trial are significantly more likely to enter a guilty plea, all else equal. These findings have important implications for individual outcomes, but also for the accountability of the criminal justice system as a whole.
“Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism
Calvin Terbeek
American Political Science Review, forthcoming
Abstract:
The Republican Party has adopted constitutional “originalism” as its touchstone. Existing accounts of this development tell either a teleological story, with legal academics as the progenitors, or deracialized accounts of conservatives arguing first principles. Exploiting untapped archival data, this paper argues otherwise. Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s. Building on this updated empirical understanding, the theoretical claim is that ideologically charged elite legal academics and attorneys in Departments of Justice serve more of a legitimating rather than an originating role for American constitutional politics upon a long coalition’s electoral success. Finally, by showing the importance of race to constitutional conservatism’s development, this article posits that the received understanding of a “three-corner stool” of social, economic, and foreign policy conservatism needs revision.
Out of the Picture: Latinx and White Male Youths’ Facial Features Predict Their Juvenile Justice System Processing Outcomes
Jacqueline Chen et al.
Crime & Delinquency, forthcoming
Abstract:
Adults’ facial characteristics predict whether and how severely they are sentenced in the adult criminal justice system. We investigate whether characteristics of White and Latinx male youths’ faces predict the severity of their processing in the juvenile justice system. Among a sample of first-time offenders, despite no differences in the severity of their offenses, youth who were perceived by naïve observers as more dominant, less trustworthy, less healthy, and having darker skin were more likely to receive harsher sanctions. Thus, extralegal factors like appearance may bias legal decisions that place some youth at increased risk for more restrictive sanctioning. Our findings highlight the need for structured approaches to juvenile processing decisions that take youths’ appearance out of the picture.
A Separation-of-Powers Approach to the Supreme Court's Shrinking Caseload
Elizabeth Lane
Journal of Law and Courts, forthcoming
Abstract:
Since the end of the 1980s the Supreme Court has cut its caseload nearly in half. While this decrease has not gone unnoticed, researchers have largely focused their explanations to institutional factors, such as changes in personnel, creation of the certiorari pool, or an increase in the amount of discretion justices have to set their agenda. Most existing work fails to consider how the preferences of members of Congress and the president also contribute to this staggering decrease. I provide the first systematic examination of how extra-institutional influences, across multiple models of constraint created by the Constitution’s separation of powers, influence the size of the Court’s caseload. I examine the 1951 to 2016 terms of the Court to reveal that a constraining political environment significantly reduces the number of cases the justices agree to hear each term. These results suggest that the justices consider the preferences of actors in the other branches of government much earlier than their decisions on the merits.
Courting Innovation: The Effects of Litigation Risk on Corporate Innovation
M. Kabir Hassan, Reza Houston & Md. Sydul Karim
University of New Orleans Working Paper, December 2020
Abstract:
In this study, we examine the impact of class action litigation shocks on corporate innovation. Our experimental design is based on an unanticipated Court ruling that reduces the risk of shareholder class action lawsuits for firms located in the U.S. Ninth Circuit. Innovation output of firms headquartered in the Ninth Circuit increases significantly following this ruling, relative to firms outside of the Ninth Circuit. This result is consistent with the threat of litigation restricting innovation. Our results are more pronounced for firms with good corporate governance, greater institutional ownership, and higher CEO ownership. We also find that headquartering states’ characteristics (e.g., local political corruption and unified state control) significantly impact post-ruling innovation output. We conclude that a reduction in the threat of class action litigation leads firms to increase innovation.
Goldilocks Deference?
Daniel Cole, Elizabeth Baldwin & Katie Meehan
Journal of Empirical Legal Studies, forthcoming
Abstract:
Over the years, courts reviewing rules and decisions of federal administrative agencies have given those agencies greater or narrower latitude in interpreting enabling legislation, ranging from the “hard look” doctrine to various levels of deference under case names such as Chevron, Auer, and Skidmore. This article examines a distinct type of judicial deference that might arise only in a special subset of cases where an agency is sued by two different interested parties arguing diametrically opposed positions. For example, the EPA may be sued on a major, substantive rule by the regulated industry arguing that the rule is too restrictive and by environmental groups arguing that it is too lax. In such cases, we hypothesize that reviewing courts might exercise “Goldilocks deference,” based on the assumption that if environmental groups and regulated industries are dissatisfied, then the agency's rule must be just about right. Using an empirical dataset of 160 cases, we show that the EPA is more likely to prevail when it is sued by both sides, suggesting that the hypothesis of Goldilocks deference is at least plausible.
The Influence of the President in the Adoption and Enforcement of Private Rights of Action
Paul Gardner
Presidential Studies Quarterly, March 2021, Pages 187-213
Abstract:
Litigation by private parties is authorized by dozens of federal statutes, resulting in thousands of lawsuits every year. Recent scholarship has suggested that Congress authorizes litigation by private parties to enforce federal law in order to limit the ability of the president to influence enforcement. I argue, however, that the apparent influence of presidential partisanship on adoption of private enforcement regimes is spurious, resulting from the increased use of this enforcement mechanism beginning in the 1960s. Further, I show that presidents meaningfully influence the rate of private litigation. Specifically, for statutes with liberal policy goals, litigation rates are substantially higher when a Democratic president is in office and when agencies are more politicized. Therefore, if Congress desires to insulate policy from the president, private enforcement regimes are unlikely to be a useful policy tool.
Split Sentencing in Florida: Race/Ethnicity, Gender, Age, and the Mitigation of Prison Sentence Length
Peter Lehmann & Anna Gomez
American Journal of Criminal Justice, April 2021, Pages 345–376
Abstract:
Corresponding with the theoretical expectations of the causal attributions and focal concerns perspectives, a vast body of sentencing literature has shown that Black and Hispanic defendants, and specifically young minority males, are more likely than other offenders to receive incarceration sentences, longer prison terms, and punitive departures from sentencing guideline recommendations. To date, however, minimal research has examined racial/ethnic, gender, and age disparities in split sentencing, that is, the discretionary assignment of a sentence to both prison and post-release community supervision in lieu of a full prison term. Using data on felony offenders sentenced to prison in Florida circuit courts (N = 193,513), these analyses show that Blacks and Hispanics, and particularly minority males, are less likely than Whites to receive a split sentence relative to a traditional prison sentence. Further, among female offenders only, racial/ethnic disparities are found to be weaker among young adults ages 18–20.
Normative and informational influence in group decision making: Effects of majority opinion and anonymity on voting behavior and belief change
Robert Garcia, Emily Shaw & Nicholas Scurich
Group Dynamics, forthcoming
Method: We examined vote-switching behavior in the context of jury deliberation with a novel 2 × 2 experimental paradigm. Two-hundred and forty-one university students (median age = 20, 77% female, 12% South Asian, 15% Caucasian, 4% African American, 5% Middle Eastern, 28% East Asian, and 37% Latino) were recruited for the study. We compared participants’ votes and ratings of evidence convincingness before and after exposure to a research accomplice group’s opinions during a poll. Private polls with anonymous deliberation via an online discussion platform were intended to shield jurors from normative influence, while public polls facilitated both normative and informational influence.
Results: Initial disagreement with majority factions strongly predicted vote switching (OR = 66.63, 95% CI = [14.49, 306.43], p < .001), but no significant differences in conformist vote switching emerged between public and private deliberations. Changes in beliefs about the evidence against the defendant only partially mediated the effect of a disagreeing majority on vote switching (14.9%–21.9% mediation for those who initially voted Guilty and 15.0% mediation for those who initially voted Not Guilty). Gender did not predict vote-switching behavior (p = .45).
Can you trust what you hear? Concurrent misinformation affects recall memory and judgments of guilt
Greg Neil, Philip Higham & Simon
Journal of Experimental Psychology: General, forthcoming
Abstract:
In most misinformation studies, participants are exposed to a to-be-remembered event and then subsequently given misinformation in textual form. This misinformation impacts people’s ability to accurately report the initial event. In this article, we present 2 experiments that explored a different approach to presenting misinformation. In the context of a murder suspect, the to-be-remembered event was audio of a police interview, whereas the misinformation was copresented as subtitles with some words being different to, and more incriminating than, those that were actually said. We refer to this as concurrent misinformation. In Experiment 1, concurrent misinformation was inappropriately reported in a cued-recall test, and inflated participants’ ratings of how incriminating the audio was. Experiment 2 attempted to employ warnings to mitigate the influence of concurrent misinformation. Warnings after the to-be-remembered event had no effect, whereas warnings before the event reduced the effect of concurrent misinformation for a subset of participants. Participants that noticed the discrepancy between the audio and the subtitles were also less likely to judge the audio as incriminating. These results were considered in relation to existing theories underlying the misinformation effect, as well as the implication for the use of audio and text in applied contexts.
A Dynamic Model of Speech for the Social Sciences
Dean Knox & Christopher Lucas
American Political Science Review, forthcoming
Abstract:
Speech and dialogue are the heart of politics: nearly every political institution in the world involves verbal communication. Yet vast literatures on political communication focus almost exclusively on what words were spoken, entirely ignoring how they were delivered — auditory cues that convey emotion, signal positions, and establish reputation. We develop a model that opens this information to principled statistical inquiry: the model of audio and speech structure (MASS). Our approach models political speech as a stochastic process shaped by fixed and time-varying covariates, including the history of the conversation itself. In an application to Supreme Court oral arguments, we demonstrate how vocal tone signals crucial information — skepticism of legal arguments — that is indecipherable to text models. Results show that justices do not use questioning to strategically manipulate their peers but rather engage sincerely with the presented arguments. Our easy-to-use R package, communication, implements the model and many more tools for audio analysis.
A Multisite Evaluation of Prosecutor-Led Pretrial Diversion: Effects on Conviction, Incarceration, and Recidivism
Robert Davis et al.
Criminal Justice Policy Review, forthcoming
Abstract:
Recent years have witnessed a resurgence of interest in prosecutor-led pretrial diversion programs, yet up-to-date research on the effectiveness of these programs is lacking. Participants in four prosecutor-led diversion programs, Cook County, IL (separate analyses for misdemeanor and felony participants), Milwaukee County, WI (two distinct programs varying in participant risk level and treatment intensity), and Chittenden County, VT, were propensity-score matched to comparison defendants (total n = 5,040). All programs yielded a significant decrease in instant case conviction (mean odds ratio = .12) and use of jail sentences (mean odds ratio = .33). There was also a trend toward reduced re-arrest at 2 years (mean odds ratio = .79). Three of four diversion programs significantly delayed onset of first re-arrest. Taken together, results support the effectiveness of a diverse set of prosecutor-led pretrial diversion programs that varied in charge severity, participant risk level, and program duration and intensity.