Juris doctors
Do Private Prisons Affect Criminal Sentencing?
Christian Dippel & Michael Poyker
NBER Working Paper, March 2019
Abstract:
This paper provides causal evidence of the effect of private prisons on court sentencing, using novel data on private prisons and state trial courts. Our identification strategy uses state-level changes in private-prison capacity and compares changes in sentencing only across court pairs that straddle state borders. We find that the opening of a private prison increases the length of sentences relative to what the crime's and defendant's characteristics predict. Effects are concentrated at the margin of sentence length, not of being sent to prison. The effect does not appear to be driven by 'judicial capture'; instead the evidence is most consistent with the cost savings from private prisons leading judges to pass longer sentences. Private prisons do not appear to accentuate existing racial biases in sentencing decisions.
Executive Influence on State Supreme Court Justices: Strategic Deference in Reappointment States
Thomas Gray
Journal of Law, Economics, and Organization, forthcoming
Abstract:
State supreme court justices are often the final arbiters of cases in their jurisdictions. Yet, in states that grant governors the power to selectively reappoint supreme court justices, justices' independence is limited. These governors are able to monitor justices' decisions and are empowered to remove justices whose jurisprudence conflicts with the governor's preferences. This power gives governors substantial influence over judicial decision-making by justices eligible for another term on the bench. I test this proposition on an exhaustive set of state supreme court criminal appeals from 1995 to 2010, and show that votes by justices who need to be reappointed covary with executive preferences, and more than votes by justices ineligible for reappointment. These effects are stable across time within a justice's term so long as the serving governor may one day be their reappointer. I also show that these shifting individual votes lead to changes in outcomes for defendants.
Judicial Institutions and the Political Economy of Retirements
David Hughes
Political Behavior, forthcoming
Abstract:
I examine judicial retirements among elected and unelected state supreme court justices. I present new data relating to justices' economic incentives to retire. I develop theoretical expectations for the rationality of judicial departures based upon political, economic, and institutional factors. Results demonstrate that both elected and unelected justices time their retirements upon their pension eligibility. Nevertheless, the electoral connection may constrain justices from securing some of these benefits. I find only limited evidence that justices retire in order to influence the politics of their successors and virtually no evidence that elected justices retire out of fear of losing reelection.
Exonerees in Black and White: The Influence of Race on Perceptions of Those Who Falsely Confessed To a Crime
Simon Howard
Psychology, Crime & Law, forthcoming
Abstract:
Black Americans account for 61% of those who have been released from prison through DNA exoneration. In the present study we explored the influence of race on perceptions of wrongfully convicted individuals who have been exonerated. Participants (N = 121) were randomly assigned to read a fictional newspaper article about a Black or White individual who was wrongfully convicted due to a false confession and then report their perceptions of the exoneree's guilt, warmth, competence and aggression, how deserving the exoneree was of government assistance and the likelihood that once released, the exoneree would commit a crime resulting in his reimprisonment. Results indicated that a Black exoneree was perceived as more aggressive (but not less competent or warm), less deserving of assistance, and more likely to commit a crime post exoneration resulting in his reimprisonment than a White exoneree. We also explored whether there were differences in terms of race on perceptions of mental illness for those wrongfully convicted due to falsely confessing to a crime and found that participants perceived a White exoneree as more mentally ill than a Black exoneree. The implications for the post-incarceration experiences and challenges faced by Black exonerees relative to White exonerees are discussed.
Videos Don't Lie: African Americans' Support for Body-Worn Cameras
Amanda Graham et al.
Criminal Justice Review, forthcoming
Abstract:
In light of growing concern regarding the policing of inner-city communities-including questionable incidents of use of force-equipping officers with body-worn cameras (BWCs) has emerged as a salient proposal for reform. Based on a national-level survey of African Americans (n = 1,000), this project shows that wide consensus exists among Black citizens in favor of BWCs. Since ostensibly "videos don't lie," implementing camera technology thus may be a means to increase police legitimacy. Importantly, the analysis also reveals that African Americans support a broad range of reforms to improve inner-city policing, of which BWCs are only one. Finally, the survey included a subset of 45 Black police officers. These officers also supported BWCs and most other proposed reforms but at a level that was lower and less intense than African American members of the public.
Assessing the Empirical Upside of Personalized Criminal Procedure
Matthew Kugler & Lior Jacob Strahilevitz
University of Chicago Law Review, April 2019, Pages 489-526
Abstract:
Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect's age is necessarily part of the judicial calculus when determining whether the police's questioning of her is a custodial interrogation; and some state courts consider a person's demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual differences in privacy expectations, personality, and cognitive abilities? In this Essay, we adopt an empirical approach, assessing the extent to which the state could meaningfully personalize criminal procedure. Saved for a later day is the normative question of whether it should. We conducted a survey on a nationally representative sample of adult Americans to determine the extent to which factors relevant to criminal procedure law can be predicted by demographic and personality differences. The data revealed that a number of factors predict people's relevant expectations, behaviors, and knowledge. Women consistently perceive less freedom to refuse consent to a law enforcement search, whereas those who have been arrested or have a close friend who has been arrested perceive more freedom to say no. African Americans are more likely to suspect that an officer would draw a weapon or plant evidence in a vehicle during an encounter with the police. Younger and more educated Americans have stronger expectations of privacy against surveillance than older and less educated people. Older and more educated Americans, as well as those who have greater exposure to the criminal justice system, have a better understanding of their Miranda rights than their younger, less educated, and less experienced counterparts. Various ideological and personality factors also correlate with divergent responses. That said, in no instances are demographic and personality considerations hugely predictive. Models incorporating a wide range of predictors typically explained less than 10 percent of the observed variation in individual behavior, expectations, and attitudes. Although we have not tested all approaches to criminal procedure personalization, our empirical investigation of traditional techniques suggests data-driven efforts to personalize criminal procedure may not be worth the trouble. This data-driven approach does shed light on another issue in criminal procedure, however. In a long line of cases, courts have had to decide whether deviations from the standard script for Miranda warnings warranted the exclusion of confessions. We tested several versions of the Miranda warning, including one deemed inadequate in a recent case. We found no differences in comprehension either overall or among respondents at increased risk of misunderstanding their rights (younger respondents and the less well educated). We believe that this experimental approach provides a valuable method of evaluating the appropriateness of nonstandard Miranda warnings.
Racial bias in legal language
Douglas Rice, Jesse Rhodes & Tatishe Nteta
Research & Politics, May 2019
Abstract:
Although racial bias in the law is widely recognized, it remains unclear how these biases are in entrenched in the language of the law, judicial opinions. In this article, we build on recent research introducing an approach to measuring the presence of implicit racial bias in large-scale corpora. Utilizing an original dataset of more than one million appellate court opinions from US state and federal courts, we estimate word embeddings for the more than 400,000 most common words found in legal opinions. In a series of analyses, we find strong and consistent evidence of implicit racial bias, as African-American names are more frequently associated with unpleasant or negative concepts, whereas European-American names are more frequently associated with pleasant or positive concepts. The results have stark implications for work on the neutrality of the legal system as well as for our understanding of the entrenchment of bias through the law.
Strategic Anticipation and En Banc Oversight Procedures in the U.S. Courts of Appeals
Joshua Strayhorn
American Politics Research, forthcoming
Abstract:
The U.S. Courts of Appeals must ordinarily convene en banc to overturn circuit law. However, roughly half of the circuit courts have adopted an alternative, less costly procedure, the informal en banc, where three-judge panels may overturn precedent with approval of the full circuit. This article leverages variation in adoption and implementation of this institution to analyze the implications of ex post oversight mechanisms for ex ante panel decision making. The evidence suggests that the informal en banc substantially reduces the impact of ideology on panel decision making, providing new evidence that lower court judges strategically alter their behavior in anticipation of potential override by circuit colleagues.
How Common are Electoral Cycles in Criminal Sentencing?
Christian Dippel & Michael Poyker
NBER Working Paper, March 2019
Abstract:
Existing empirical evidence suggests a pervasive pattern of electoral cycles in criminal sentencing in the U.S.: judges appear to pass more punitive sentences when they are up for re-election, consistent with models of signaling where voters have more punitive preferences than judges. However, this pervasive evidence comes from only three states. Combining the existing evidence with data we collected from eight additional states, we are able to reproduce previous results, but find electoral cycles in only one of the eight additional states. Sentencing cycles appear to be the exception rather than the norm. We find that their existence hinges on the level of competition in judicial elections, which varies considerably across states.
Judicial Reliance on Risk Assessment in Sentencing Drug and Property Offenders: A Test of the Treatment Resource Hypothesis
Brandon Garrett, Alexander Jakubow & John Monahan
Criminal Justice and Behavior, June 2019, Pages 799-810
Abstract:
For almost two decades, Virginia has used risk assessment to justify "alternative" nonprison sentences for eligible drug and property offenders. In Study 1, we examined how frequently alternative sentences actually were imposed. We found that alternative sentences were given to only 42% of low-risk offenders. In Study 2, we tested the hypothesis that a lack of treatment resources explains why many judges fail to offer alternative sentences. We focused on the availability of mental health and substance abuse treatment resources across judicial circuits. Our findings support the "treatment resource hypothesis" as one explanation for variation among courts and judges in the extent to which alternative sentences are offered to low-risk offenders. To the extent that treatment resources available in a jurisdiction lead to increased judicial use of risk assessment to sentence low-risk offenders to nonjail alternatives, providing these resources will be crucial in reducing mass incarceration.
Dialect on trial: Use of African American Vernacular English influences juror appraisals
Courtney Kurinec & Charles Weaver
Psychology, Crime & Law, forthcoming
Abstract:
We investigated the effect of dialect and race on juror decision making. Mock jurors read a summary of an ambiguous criminal case, which included audio of a defense witness (Study 1) or defendant (Study 2). Both speaker dialect [General American English (GAE)/African American Vernacular English (AAVE)] and race (White/Black) were crossed; Study 2 also included three levels of case (Ambiguous/Pro-Prosecution/Pro-Defense) to evaluate any effects of evidentiary context. In both studies, jurors who listened to the AAVE recording found the AAVE-speaking witness to be less professional and less educated than their GAE-speaking counterparts. Interestingly, jurors in Study 2 who heard the defendant use GAE were more likely to find him guilty and found him less credible when the case favored the prosecution, hinting that ingroup biases such as the black sheep effect may also play a role in perceptions of dialect. Secondary analyses found that AAVE predicted more negative overall evaluations of the speaker, and these negative evaluations were associated with an increase in guilty verdicts. Together, these findings suggest that dialect plays an under-investigated role in the courtroom, and that bias against AAVE negatively impacts juror appraisals of its speakers and can potentially influence juror decision making.
Police Profanity and Public Judgments of Guilt and Effectiveness in Officer-Involved Shootings
Matthew Sharps et al.
Journal of Police and Criminal Psychology, March 2019, Pages 87-90
Abstract:
Police shooting decisions have come under increasing scrutiny, and the degree to which potential jurors and witnesses understand those decisions is increasingly important. Officers under the stress of shooting situations may use profanity which may be recorded, but which does not relate to tactical outcomes. This research addressed how such profanity may influence public assessment of police performance. A paragraph was provided to respondents, describing a situation in which a male officer shot an armed adult male perpetrator. The officer was presented as either having used or not used profanity in the situation. Respondents were asked to address the officer's performance under these two different sets of conditions. Profanity resulted in a significantly higher perceived level of officer guilt in these situations, and a diminished perception of his professionalism, but did not result in a lower level of perception as to whether the officer had successfully resolved the situation or had done the "right thing." Results are discussed in terms of current cognitive theory and of practical application in the field and in court.
Quality Review of Mass Adjudication: A Randomized Natural Experiment at the Board of Veterans Appeals, 2003-16
Daniel Ho et al.
Journal of Law, Economics, and Organization, forthcoming
Abstract:
We study a unique natural experiment, during which 5-10% of draft opinions by judges of the Board of Veterans Appeals (BVA) were randomly selected for "quality review (QR)" by a team of full-time staff attorneys. The express goals of this performance program were to measure accuracy and reduce remands on appeal. In cases of legal error, the QR team wrote memoranda to judges for correction of draft opinions. We use rich internal administrative data on nearly 600,000 cases from 2003 to 2016 to conduct the first rigorous evaluation of this program. With precise estimates, we show that QR had no appreciable effects on appeals or remands. Based on internal records, we demonstrate that this inefficacy is likely by design, as meeting the performance measure of "accuracy" conflicted with error correction. These findings inform longstanding questions of law, organization, and bureaucracy, including performance management, standards of review, and institutional design of adjudication.