Legal Inquiry
Gender Favoritism among Criminal Prosecutors
Stephanie Didwania
Journal of Law and Economics, February 2022, Pages 77-104
Abstract:
Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency toward defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly 5 months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly 8 percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.
Pretrial risk assessment instruments in practice: The role of judicial discretion in pretrial reform
Jennifer Copp et al.
Criminology & Public Policy, May 2022, Pages 329-358
Abstract:
We explored the extent to which the implementation of a pretrial risk assessment instrument (PRAI) corresponded to changes in the pretrial processing of defendants using multiple administrative data sources from a large county in the southeastern United States. Our findings revealed little evidence of reductions in detention lengths or increases in the use of nonfinancial forms of release following the tool's adoption. This was largely attributable to the exercise of judicial discretion, as judges frequently departed from the tool's recommendation using alternatives that were more punitive and often included financial conditions - particularly for Black and Latino defendants. Furthermore, the exercise of discretion was linked to increased rates of pretrial failure.
The Surveillance State and the Surveillance Private Sector: Pathways to Undercover Policing in France and the United States
Jacqueline Ross
Law and History Review, forthcoming
Abstract:
As a form of social control, undercover tactics played an important state-building role during the Nineteenth Century, in both the United States and France. Yet undercover policing played this role very differently in France than in the US, which made do with a less developed surveillance capacity at all levels of government. The instability of successive French regimes encouraged French political authorities to expand their use of infiltration and to privilege high policing purposes of undercover tactics over the crime-fighting purposes favored by local elites. And while nineteenth-century France, like the United States, often governed through delegations of authority to local elites, French authorities jealously guarded undercover tactics as their exclusive prerogative. As a result, undercover tactics became a marginal crime-fighting tactic in nineteenth century France, becoming identified primarily with the state's surveillance of its political opponents. In the United States, by contrast, the private sector was able to deploy undercover tactics against suspected criminals, organized labor, political radicals, and purveyors of vice. Though the private sector readily accepted delegations from the public sector, the direction of influence also ran in the opposite direction, from the private sector to the state, as American private sector used undercover tactics to replace, bypass, and harness state institutions in ways that their French counterparts could not. In the United States, the private sector's use of undercover tactics came to shape public policing, as prominent detectives entered government and brought their tactics with them, and as Progressive era reformers took up the undercover tactics pioneered by private detectives, modeled them for the state through public-private partnership, and used them to set the anti-corruption, anti-radical, and anti-vice enforcement agenda of government. If French undercover tactics helped to build the French state from the inside out, by consolidating the state's hold over territory and attempting to control disorder and dissent, American undercover tactics became a vector of private sector influence that helped build the state from the outside in by shaping both investigative means and ends at all levels of government.
Legal Representation in Disability Claims
Hilary Hoynes, Nicole Maestas & Alexander Strand
NBER Working Paper, March 2022
Abstract:
Legal representatives play a prominent role in the Social Security Disability Insurance adjudication process, earning fees totaling $1.2 billion in 2019. Long ubiquitous in appellate hearings, disability representatives - including attorneys and non-attorneys - have begun appearing more frequently at the beginning of cases, during the initial review. This development has raised questions about the motives of disability law firms, who are sometimes perceived to prioritize their own interests in response to incentives in the fee structure set by the Social Security Administration. We provide the first estimates of the causal impact of legal representation on case outcomes when representatives are engaged from the initial stage. To address selection into representation, we instrument for initial representation using geographic and temporal variation in disability law firm market shares in the closely related but distinct appellate market. We find that representation increases the probability of initial awards, reduces the probability of appeals, and induces no detectable change in the ultimate probability of award. This pattern indicates that legal representation in the initial stage leads to earlier disability awards to individuals who would otherwise be awarded benefits only on appeal. Furthermore, by securing earlier awards and discouraging unsupported appeals, representation reduces total case processing time by nearly one year.
An aversive racism explanation for the influence of race, SES, and race-stereotypical crimes on jury decision biases against East Asian American defendants
Diana Phan, Russ Espinoza & Susan Sy
Journal of Ethnicity in Criminal Justice, forthcoming
Abstract:
Aversive racism, a subtle form of contemporary racism for persons who may hold egalitarian values, has been used to explain prejudice by jurors toward Black American and Latinx American defendants, but has yet to examine East Asian American defendants as targets of prejudice. After conducting a pilot study to find race-stereotypical crimes for Asian Americans and White Americans, the purpose of the main study was to examine mock jurors' prejudice toward East Asian American defendants from an aversive racism perspective. A 2 (Race: White American or East Asian American) x 2 (SES: low or high) x 2 (Race-Stereotypical Crime: embezzlement or computer hacking) between-subjects design was conducted. Participants were randomly assigned to read one of eight trial vignettes describing the crime the defendant had allegedly committed. They were then asked to render a verdict, recommend a sentence, and rate the defendant on various culpability and trait measures. Results showed mock jurors sentenced the low SES East Asian American defendant who committed a race-stereotypical crime more punitively than all other conditions. Mock jurors also found this defendant more culpable and rated him more negatively on a number of trait ascriptions. Limitations and future directions are discussed.
Minority Victim Neglect and the Case Processing of Firearm Crimes
Paige Vaughn et al.
Victims & Offenders, forthcoming
Abstract:
Studies find mixed results regarding the effects of race on criminal justice case processing, likely because they rarely account for the race of both the victim and offender, and few consider how prosecutorial case screening may influence later criminal justice stages. This study examines the impact of victim and defendant race on case screening, bail, and sentencing outcomes for 1,131 firearm offenses that occurred between 2015 and 2018 in St. Louis, MO. Regressions modeling the relationships between each outcome and victim and defendant race (estimated separately and as defendant-victim racial dyads) find that cases involving Black victims, alone and in combination with Black defendants, are more likely than others to be dismissed by prosecutors during case screening, whereas legally relevant factors affect bail and sentencing outcomes. The results suggest that disregarding initial gatekeeping stages of criminal justice case processing may lead to the mistaken conclusion that racial disparities do not exist.
Misidentifying an innocent suspect can alter witness recollections of the perpetrator's face
Mitchell Eisen et al.
Psychology, Crime & Law, forthcoming
Abstract:
Two experiments were conducted to examine whether misidentifying an innocent suspect with a unique feature (i.e. facial tattoo) would impact witnesses' recollections of the culprit so that they would mistakenly describe the culprit as having that same feature, when in reality, he did not. In both experiments, participants viewed a video of a simulated carjacking in which the perpetrator's face was visible from a close or far distance, and were then led to misidentify an innocent suspect from a suggestive culprit-absent photo-array. The innocent suspect either had a tattoo photoshopped onto his face, or, like the culprit, had no visible facial markings. After making the identification, half the participants received confirming post-identification feedback. Finally, participant-witnesses were asked to describe the culprit in their own words. In both experiments, over a third of the participant-witnesses in the tattoo condition mistakenly described the culprit as having had a tattoo on his face. In Experiment 2, remember/know judgements indicated that participant/witnesses in the tattoo condition were also more likely to report remembering that the culprit had a face tattoo, rather than simply knowing this to be true. Also, as predicted, in both experiments, confirming feedback significantly boosted erroneous reports of recalling the tattoo.
The Association Between Case Volume and Case Processing Times in New York City
Kevin Wolff et al.
Criminal Justice Policy Review, forthcoming
Abstract:
Past research has highlighted a number of case- and court-level characteristics that may be associated with differences in case processing time, yet other factors remain relatively unexplored. Drawing on an extensive case-level data set of misdemeanor and felony cases resolved in New York City's court system, the current study contributes to our knowledge of case processing time by examining the association between the relative volume of arraignments (at the borough level) and case processing time. The analysis employs standard regression techniques to assess the relationship between case volume and case processing time while controlling for a number of individual- and case-level characteristics. Results suggest the relative volume of cases coming into the court system is positively associated with case processing time, net of several relevant case-level characteristics. These findings contribute to the small and inconsistent findings reported in prior work. Implications of these findings for future research and criminal justice policy are discussed.
A test of the bifurcation hypothesis in prosecutorial diversion
Besiki Luka Kutateladze et al.
Criminology & Public Policy, May 2022, Pages 359-378
Abstract:
This study offers a localized test of the bifurcation hypothesis, which suggests that jurisdictions adopting decarceral policies for lower-level offenses often do so at the expense of increased punitiveness toward more serious offenses. Relying on fresh data from Florida, we examine how adopting a new diversion program targeting low-level traffic offenses affects overall prosecutorial diversion decisions. The new program is associated with an estimated 8% decrease in the odds of diversion to existing programs. Analyses of marginal effects suggest that the new program reduced diversion for more serious offenses by up to 43%. Although having a prior record disadvantaged defendants overall, defendants with more prior arrests experienced less of a diversion penalty after the new program; but defendants with more prior prison sentences were treated even more punitively after program implementation.