Contempt of court
Judicial Independence: Evidence from a Natural Experiment
Scott Graves, Robert Howard & Pamela Corley
Law & Policy, forthcoming
Abstract:
In this article, we directly test the presence of judicial independence by examining judicial recess appointees who have later been confirmed by the Senate to full-time Article III judicial positions. Specifically, we compare the votes of recess-appointed courts of appeals judges during their temporary appointment tenure with a similar period following Senate confirmation. We find substantial differences in pre- and postconfirmation voting, suggesting that the structural protections of the Constitution provide judges a certain amount of independence.
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The Effect of Legal Expert Commentary on Lay Judgments of Judicial Decision Making
Dan Simon & Nicholas Scurich
Journal of Empirical Legal Studies, December 2013, Pages 797-814
Abstract:
The public's view of the judiciary is a key factor in the legitimacy of any legal system. Ideally, popular judgments of the adjudicative branch would be independent of the outcomes of the decisions it furnishes. In a previous study (Simon & Scurich 2011), we found that lay people's evaluations of the judicial decision-making process were highly contingent on the decision outcomes. Participants gave favorable evaluations of the judges and their decisions when they agreed with the judges' outcomes, but reported negative evaluations when they disagreed with them. These results held true across four different types of judicial reasoning, and despite the fact that all decisions were described as having followed proper procedures and been argued by competent lawyers. That study left open the possibility that the public's judgments might be moderated by professional elites, namely, legal experts. Indeed, in real life, much of the public's information about judicial decisions is derived from legal experts who communicate and comment on them in the media. This study examined the effect of professional commentators on lay people's judgments of judicial decision making. We found that the experts' commentaries do not alter participants' evaluations of the courts' decisions, as the evaluations continue to be influenced strongly by the participants' agreement with the outcomes of the judges' decisions. Moreover, lay people's reactions to the experts follow a similar pattern: the experts are deemed competent and their commentaries are deemed reliable when the participants agree with the outcomes propounded by the experts, but the opposite is true when the participants' preferred outcomes are incongruent with the outcomes endorsed by the experts. These findings suggest that the outcome-dominated judgments of courts cannot easily be tempered by professional elites. This conclusion could also provide some insight into the dynamic process that enables political polarization.
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Brea Perry, Matthew Neltner & Timothy Allen
Race and Social Problems, December 2013, Pages 239-249
Abstract:
Although there is substantial evidence that African Americans receive unequal treatment in both the healthcare and criminal justice systems, less research has investigated the role of race when these two systems converge. Here, we examine the influence of race on patterns of forensic psychiatric diagnosis and determinations of criminal responsibility in pre-trial correctional facilities (e.g., forensic psychiatric hospitals). Data are from a medical chart review of 129 randomly selected competency evaluations that occurred in a pre-trial correctional psychiatric facility. Consistent with previous research, findings indicate that African Americans are disproportionately diagnosed with highly stigmatized psychotic spectrum disorders relative to whites. In addition, they unexpectedly indicate that African Americans are significantly more likely than whites to be found not criminally responsible by the court-appointed evaluating mental health professional, controlling for sociodemographic characteristics, number of violent and non-violent charges, and other potential confounding variables. Mediation analysis reveals the important and previously undocumented finding that the effect of race on criminal responsibility determinations is fully mediated by differential diagnosis. This suggests that patterns of racial inequality and potential bias in the diagnostic process may confer medical resources and other benefits for African Americans in the context of the criminal justice system.
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Social Organization, Collective Sentiment, and Legal Sanctions in Murder Cases
Eric Baumer & Kimberly Martin
American Journal of Sociology, July 2013, Pages 131-182
Abstract:
The traditional "jurisprudential model" of law views the application of legal sanctions primarily as a function of the facts of the case and the rules that govern the proceedings. Sociology of law scholars have challenged this model on theoretical grounds, arguing persuasively that law is variable and often yields patterns that parallel broader considerations of community social organization and collective sentiment. The authors' analysis yields evidence that the certainty and severity of sanctions for murder cases are heightened where social capital is more plentiful, religious fundamentalist values more prevalent, and support for punitive sanctions is greater. They also find that sentences given to murder defendants are longer in areas in which the public expresses higher levels of fear. Overall, the findings provide provocative evidence that legal outcomes in murder cases are influenced by several features of the social environments in which they are processed.
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Evidence-Based Sentencing and the Scientific Rationalization of Discrimination
Sonja Starr
Stanford Law Review, forthcoming
Abstract:
This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges' informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations.
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Prosecutor Elections, Mistakes, and Appeals
Bryan McCannon
Journal of Empirical Legal Studies, December 2013, Pages 696-714
Abstract:
Prosecutors under common-law tradition exercise a significant amount of discretion in the criminal justice system. In the United States, the dominant form of accountability is that prosecutors must be reelected by the voters. Recent empirical work illustrates that election concerns open up the potential for distortion in the decision making of prosecutors. Specifically, it has been shown that prosecutors take more cases to trial and plea bargain less when running for reelection. Does this hawkish behavior of prosecutors lead to inaccuracies in the criminal justice system? A panel data set of appellate decisions in western New York is analyzed. It is shown that if the initial felony conviction takes place in the six months prior to a reelection and is appealed, the probability that the appellate court upholds the lower court's decision decreases by 5.1-7.1 percentage points. Additional investigation into the types of mistakes made is done. Thus, the popular election of prosecutors results in inaccurate sentences, wrongful convictions, and, consequently, successful appeals.
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Robert Kane, Joseph Gustafson & Christopher Bruell
Justice Quarterly, November/December 2013, Pages 957-982
Abstract:
The study examined the minority group-threat hypothesis across a metropolitan setting to test whether (1) increases in black and Latino representation in communities were associated with increased misdemeanor arrests and (2) if increases in minority groups in historically white communities were associated with increased police arrests. The study argued that threat trigger variables should be measured in terms of difference scores and weighted by initial dominant group representation. The latter argument is informed by the defended neighborhood perspective and assesses the threat hypotheses in historically white communities. Using negative binomial regression modeling that adjusted for spatial autocorrelation, the study found that net of theoretical controls, increases in percent black population were associated with increased black misdemeanor arrests, but only in historically white census tracts. Increases in Latino representation were associated with increased minority misdemeanor arrests both across all tracts generally, as well as in historically majority white tracts.
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Quantifying Bias in Driving-under-the-Influence Enforcement
Brady Horn, Jill McCluskey & Ron Mittelhammer
Economic Inquiry, January 2014, Pages 269-284
Abstract:
As the marginal suspect and propensity to commit crime are unobserved across racial categories, it is difficult to quantify racial bias with law enforcement outcomes data. We test for racial bias in driving-under-the-influence of alcohol enforcement. The assessment outcome variable, blood alcohol content (BAC), provides information about motorist's choices and allows for a more refined test for racial bias compared with other law enforcement outcome data. We find no evidence of racial bias in the relevant range where our model applies. However, we do find differences in find rates at the lowest levels of BAC, where there should be no impairment.
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Race, Prediction, and Pretrial Detention
Frank McIntyre & Shima Baradaran
Journal of Empirical Legal Studies, December 2013, Pages 741-770
Abstract:
This article uses the nationally representative State Court Processing Statistics on felony defendants to analyze how judges decide if defendants should be held pretrial. We find a large (11 percentage points) racial gap in hold rates within a county. Judicial decisions are significantly influenced by the probability that the defendant will be rearrested pretrial for a violent felony. Controlling for this probability causes the racial gap in hold rates to disappear. Bail amounts follow the same pattern. The most plausible sources of bias - mismeasurement of the control probabilities or selection bias - likely either do not matter or cause an upward bias.
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Todd Andrew Sorensen, Surpriya Sarnikar & Ronald Oaxaca
B.E. Journal of Economic Analysis & Policy, forthcoming
Abstract:
Using data obtained from the United States Sentencing Commission's records, we examine the extent to which the Federal Criminal Sentencing Guidelines curbed judicial sentencing preferences based on gender, race, and ethnicity. Our structural utility maximization model of judicial sentencing and a new generalized nonlinear decomposition methodology allow us to conduct a counterfactual exercise examining the impact of the guidelines on sentences during our period of study. Our results indicate that under the guidelines, and after controlling for circumstances such as the severity of the offense and past criminal history, judicial preferences strongly favor women while also disadvantaging Black men. In most of our estimates, we find that in the absence of the guidelines, judicial preferences would have increased the unexplained gap. Our findings stand up to a wide variety of robustness checks.
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Thomas Cohen
Criminal Justice Policy Review, January 2014, Pages 29-58
Abstract:
The role of defense counsel in criminal cases constitutes a topic of substantial importance for judges, prosecutors, defense attorneys, scholars, and policymakers. What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing felony case-processing data from the Bureau of Justice Statistics. Specifically, this article examines whether differences in defense counsel representation matter in terms of the probability of conviction and severity of sentence imposed. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders. This article concludes by discussing the policy implications of these findings and possible avenues for future research.
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Recent Supreme Court of Canada rulings on criminal defendants' right to counsel
Marc Patry, Steven Smith & Nicole Adams
Psychology, Crime & Law, forthcoming
Abstract:
The Supreme Court of Canada recently issued a trilogy of decisions pertaining to suspects' right to legal representation. These rulings further a major difference between the US and Canadian law: Canadian criminal suspects have far less access to legal counsel than suspects in the USA. This paper summarizes these decisions and draws comparisons between Canadian and the US criminal procedure with respect to a suspect's rights to legal representation. We present preliminary data on Canadian citizens' misunderstanding of criminal suspects' right to counsel and also Canadian legal professionals' opinions about the right to counsel. We recommend empirical investigation of the hypothesis that Canadian suspects are more likely than the US suspects to make false confessions.
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Silvio Aldrovandi, Alex Wood & Gordon Brown
Acta Psychologica, November 2013, Pages 538-547
Abstract:
Context effects have been shown to bias lay people's evaluations of the severity of crimes and punishments. To investigate the cognitive mechanisms behind these effects, we develop and apply a rank-based social norms approach to judgments of perceived crime seriousness and sentence appropriateness. In Study 1, we find that (a) people believe on average that 84% of people illegally download software more than they do themselves and (b) their judged severity of, and concern about, their own illegal software downloading is predicted not by its amount but by how this amount is believed (typically inaccurately) to rank within a social comparison distribution. Studies 2 and 3 find that the judged appropriateness of a given sentence length is highly dependent on the length of other sentences available in the decision-making context: The same objective sentence was judged as approximately four times stricter when it was the second longest sentence being considered than when it was the fifth longest. It is concluded that the same mechanisms that are used to judge the magnitude of psychophysical stimuli bias judgments about legal matters.
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Jan-Willem van Prooijen & Jennifer Coffeng
Social Justice Research, December 2013, Pages 383-399
Abstract:
Previous research frequently found that perspective taking may reduce various sorts of racial biases. In the present research, we propose that perspective taking may increase racial bias in the specific context of retributive justice judgments, that is, evaluations of what punishment is considered fair for offenders. In two studies, we manipulated whether or not participants took the perspective of a target offender, who was named either Alex or Ahmed. Results revealed evidence for racial bias under conditions of perspective taking in both studies: Perspective taking increased punishment for Ahmed, but not for Alex, in a theft case (Study 1). Furthermore, perspective taking decreased punishment for Alex, but not for Ahmed, in the case of less severe offense that is less clearly intentional (Study 2). The consequence is similar in both studies: More severe retributive justice judgments for Ahmed than for Alex under conditions of perspective taking.
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Punctuated Equilibrium and the Supreme Court
Rob Robinson
Policy Studies Journal, November 2013, Pages 655-682
Abstract:
In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This article addresses that gap by providing evidence that legal policy change - here conceptualized as changes in what precedents the Supreme Court most often cites - is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.
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Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication
Jeff Yates, Damon Cann & Brent Boyea
Journal of Empirical Legal Studies, December 2013, Pages 847-865
Abstract:
In political science, the well-known "attitudinal model" of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated "selection hypothesis" from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward-thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator - the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.
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The Use of Gendered Narratives in the Courtroom: Constructing an Identity Worthy of Leniency
M.J. Gathings & Kylie Parrotta
Journal of Contemporary Ethnography, December 2013, Pages 668-689
Abstract:
In this article, we investigate interactional processes - the gendered construction and negotiation of creditable identities - that lend themselves to differential sentencing outcomes. Based on observations in two courts in North Carolina, we argue that defense attorneys attempt to construct identities of defendants as worthy of leniency. They do so by developing gendered narratives that cast men as good workers, good providers, and as victims of the actions of others and women as good mothers/caretakers and dependent. These identity talk strategies enable defense attorneys, often with the help of their clients, to negotiate the identity of criminal defendants and mitigate the consequences of being labeled. This creates tangible incentives (i.e., nonactive or lesser sentences) for defendants to cooperate in these gendered performances, but has the unintended consequence of reproducing the hegemonic gender order.
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Interrogations, Confessions, and Guilty Pleas Among Serious Adolescent Offenders
Lindsay Malloy, Elizabeth Shulman & Elizabeth Cauffman
Law and Human Behavior, forthcoming
Abstract:
In the present study, we examined (a) the prevalence and characteristics of youths' true and false admissions (confessions and guilty pleas), (b) youths' interrogation experiences with police and lawyers, and (c) whether youths' interrogation experiences serve as situational risk factors for true and false admissions. We interviewed 193 14- to 17-year-old males (M = 16.4) incarcerated for serious crimes. Over 1/3 of the sample (35.2%) claimed to have made a false admission to legal authorities (17.1% false confession; 18.1% false guilty plea), and 2/3 claimed to have made a true admission (28.5% true confession; 37.3% true guilty plea). The majority of youth said that they had experienced high-pressure interrogations (e.g., threats), especially with police officers. Youth who mentioned experiencing "police refusals" (e.g., of a break to rest) were more likely to report having made both true and false confessions to police, whereas only false confessions were associated with claims of long interrogations (>2 hr) and being questioned in the presence of a friend. The number of self-reported high-pressure lawyer tactics was associated with false, but not true, guilty pleas. Results suggest the importance of conducting specialized trainings for those who interrogate youth, recording interrogations, placing limits on lengthy and manipulative techniques, and exploring alternative procedures for questioning juvenile suspects.
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Cole Taratoot
Law & Policy, forthcoming
Abstract:
Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower-level decision making over appellate court decision making in the area of administrative law.