Judge and Jury
Racial Disparities in the Allocation of Wiretap Applications across Federal Judges
Thomas Miles
University of Chicago Working Paper, October 2009
Abstract:
The degree to which discrimination causes the large racial disparities in the criminal justice system is a long-standing and difficult empirical question. This paper studies a decision in which the influence of race on prosecutors is directly observed: the process of obtaining judicial approval to conduct wiretap surveillance. The Department of Justice requires that federal prosecutors obtain its authorization before seeking judicial approval for a wiretap warrant, and the Department's strict internal review of these applications implies that federal judges approve all wiretap applications that reach them. After the Department gives its authorization, prosecutors in most judicial districts have discretion to choose the judge who will review the application for a wiretap warrant. In this setting, a judge's personal characteristics, including a judge's race, should not influence the number of wiretap applications she receives. The paper tests this prediction using all wiretaps in federal criminal investigations during the years 1997-2007. The results show that African-American judges receive substantially fewer wiretap applications than other judges, even after controlling for numerous judicial and district characteristics. Consistent with the absence of an incentive to "shop" for favorable judges, other judicial characteristics such as ideology and prior professional experience do not influence the number of wiretap applications received. Nor do prosecutors appear to match the stringency of the reviewing judge with the quality of application; the wiretaps approved by African-American and other judges do not differ in the rates at which they produce incriminating evidence, arrests, or motions to suppress evidence. The results suggest that race may influence even sophisticated and closely monitored actors in the criminal justice system, such as federal prosecutors.
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Sensationalism and Sobriety Differential Media Exposure and Attitudes Toward American Courts
Christopher Johnston & Brandon Bartels
Public Opinion Quarterly, forthcoming
Abstract:
While a great deal of research has focused on understanding the foundations of public support for American courts, scant attention has been paid to the role of the media for such attitudes. Given the media's demonstrated ability to influence public opinion, this remains a substantial gap in the literature. In the present paper we examine how different types of media-sensationalist (i.e., political radio and cable news) or sober (i.e., newspapers and network news) -influence individuals' attitudes toward both the U.S. Supreme Court and courts at the state level. In line with our predictions, we find that sensationalist media exposure depresses both diffuse and specific support for American courts. Additionally, our results call into question the unconditional nature of the ubiquitous sophistication-approval relationship. We find that sophistication's positive effect on court attitudes is conditional on an individual's particular source of political information.
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Why (and When) Judges Dissent: A Theoretical and Empirical Analysis
Lee Epstein, William Landes & Richard Posner
University of Chicago Working Paper, January 2010
Abstract:
This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call "dissent aversion," which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.
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A Right to Silence for Civil Defendants?
Abraham Wickelgren
Journal of Law, Economics, and Organization, April 2010, Pages 92-114
Abstract:
The Fifth Amendment guarantees criminal defendants the right to silence, blocking the court from drawing adverse inferences from the defendant's silence. This article investigates the conditions under which extending such protection to civil defendants might increase (or decrease) social welfare. If discovery is imperfect, then defendants who acquire information about the dangerousness of their actions may hide this evidence at trial if it is bad. This tends to make the private benefit from acquiring such information exceed the social benefit. Furthermore, the private benefit from acquiring this information is greater when the court will infer the information is bad if the defendant does not present it. Thus, there are situations in which a right to silence may be necessary to prevent a defendant from acquiring information for which the social costs exceed the social benefit. On the other hand, if it is hard to hide damaging information and the release of damaging information tends to induce lawsuits, then a right to silence may dampen already insufficient incentives to acquire information.
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What Do Federal District Judges Want? An Analysis of Publications, Citations, and Reversals
Stephen Choi, Mitu Gulati & Eric Posner
University of Chicago Working Paper, January 2010
Abstract:
We report evidence from a dataset of federal district judges from 2001 to 2002 that district judges adjust their opinion-writing practices to minimize their workload while maximizing their reputation and chance for elevation to a higher court. District judges in circuits with politically uniform circuit judges are better able to predict what opinions will get affirmed by the circuit court, leading to higher publication rates and a higher affirmance rate. In contrast, district judges in circuits with politically diverse circuit judges are less able to predict the preferences of the reviewing circuit court panel, leading district judges to publish fewer but higher quality opinions in an effort to maximize their affirmance rate.
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Brandon Rottinghaus & Chris Nicholson
American Politics Research, forthcoming
Abstract:
The power to nominate and confirm federal judges is shared by Congress and the president, yet few works explicitly address the role that Congress plays in shaping the preselection pool for judicial nominees. In this article, we illuminate this debate by exploring judicial nomination requests from Members of Congress to the Eisenhower and Ford Administrations. In explaining who is nominated, the characteristics of the nominee matter more than the characteristics of the nominator, with the party affiliation of a nominee being the strongest predictive factor. Institutional characteristics are more prevalent at the confirmation stage, where the Senate relied more heavily on its members and the judicial experience of nominees than did presidents innominating them. Given our results, partisanship appears to have mattered earlier than presumed in judicial nominations, with even ostensibly nonpartisan presidents such as Eisenhower understanding the importance of appointing like-minded individuals to lifetime positions on the bench.
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The Lucretian swerve: The biological basis of human behavior and the criminal justice system
Anthony Cashmore
Proceedings of the National Academy of Sciences, forthcoming
Abstract:
It is widely believed, at least in scientific circles, that living systems, including mankind, obey the natural physical laws. However, it is also commonly accepted that man has the capacity to make "free" conscious decisions that do not simply reflect the chemical makeup of the individual at the time of decision - this chemical makeup reflecting both the genetic and environmental history and a degree of stochasticism. Whereas philosophers have discussed for centuries the apparent lack of a causal component for free will, many biologists still seem to be remarkably at ease with this notion of free will; and furthermore, our judicial system is based on such a belief. It is the author's contention that a belief in free will is nothing other than a continuing belief in vitalism-something biologists proudly believe they discarded well over 100 years ago.
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High-Risk Interrogation: Using the "Mr. Big Technique" to Elicit Confessions
Steven Smith, Veronica Stinson & Marc Patry
Law and Human Behavior, February 2010, Pages 39-40
Abstract:
Kassin et al. (Police-Induced Confessions: Risk Factors and Recommendation, 2009) provide a detailed and thoughtful analysis of how police interrogation practices might elicit false confessions from innocent suspects. The purpose of this commentary is to provide a brief review of a relatively recent development in Canadian police investigation practice and discuss how this procedure may increase the likelihood of police-induced false confessions. The so-called "Mr. Big Technique" is a non-custodial interrogation tactic wherein suspects are drawn into a supposed criminal organization (actually an elaborate police sting) and subsequently told that to move up in the organization, they must confess to a crime. In this article, we describe this remarkable interrogation technique and discuss issues relevant to the potential induction of false confessions.
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Chilling, Settlement, and the Accuracy of the Legal Process
Ezra Friedman & Abraham Wickelgren
Journal of Law, Economics, and Organization, April 2010, Pages 144-157
Abstract:
In this article, we ask the basic question: Is it necessarily the case that allowing or promoting settlement of lawsuits enhances social welfare? Our answer is not necessarily; there are circumstances where actually prohibiting settlement generates more social welfare than allowing it. Settlement can lower social welfare because it reduces the accuracy of legal outcomes. Reducing this accuracy reduces the ability of the law to deter harmful activity without chilling legitimate activity that might be mistaken for harmful activity. In some circumstances, the welfare loss from the chilling of legitimate activity can outweigh the gains from litigation cost savings, even if there are no restrictions on the damage rule.
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Stefanie Lindquist & Pamela Corley
University of Texas Working Paper, November 2009
Abstract:
The Supreme Court's decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices' choices to invalidate a state or federal enactment on its face or as applied using a Heckman probit technique, and find that the justices are responsive to both Congressional preferences over the substance of the challenged enactment, as well as the Court's ideological position relative to the two chambers of Congress. These findings suggest that the Court's exercise of judicial review is significantly influenced by Congress, both as to the choice to strike as well as to the method of constitutional enforcement.
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Margaret Stevenson, Bette Bottoms & Shari Diamond
Psychology, Public Policy, and Law, February 2010, Pages 1-38
Abstract:
We tested a novel theoretical model explaining the psychological processes underlying jurors' discussions about a defendant's history of child abuse and alcohol abuse in a capital case. We coded the extent to which jurors used child abuse and alcohol abuse as mitigating factors, as aggravating factors, or argued that they should be ignored. Relying on attribution theory, we coded the extent to which jurors rendered controllable or uncontrollable and stable or unstable attributions regarding the defendant's history of child abuse and alcohol abuse. Jurors were more likely to argue that child abuse and alcohol abuse should not be used as mitigators or to even use them against the defendant as aggravators than they were to use them as mitigators. Jurors made more controllable than uncontrollable attributions regarding child abuse and more stable than unstable attributions regarding both child abuse and alcohol abuse. The more jurors supported the death penalty, the more they argued to discount child abuse and alcohol abuse as mitigators or use them as aggravators and the more controllable and stable attributions they made. Political orientation predicted discussions and attributions about alcohol abuse, but not child abuse.
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Effects of Offenders' Age and Health on Sentencing Decisions
Katrin Mueller-Johnson & Mandeep Dhami
Journal of Social Psychology, January-February 2010, Pages 77-97
Abstract:
Two experiments investigated the effects of age and health on mock judges' sentencing decisions. The effects of these variables on length of prison sentence were examined in the context of offense severity and prior convictions. Experiment 1 involved a violent crime. Main effects were observed for age, health, offense severity and prior convictions. There was also an age by offense severity interaction. Experiment 2 involved a child sexual abuse case. Main effects were observed for health, offense severity, and prior convictions. In addition, an age by offense severity by prior convictions interaction effect was found. Thus, across both experiments, the age leniency effect was moderated by legal factors, suggesting that extra-legal factors affect sentencing in the context of legal factors. Further, for both offenses, offenders in poor health received shorter sentences than offenders in good health, suggesting that health deserves further research attention as an extra-legal variable.
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Snitching, Lies and Computer Crashes: An Experimental Investigation of Secondary Confessions
Jessica Swanner, Denise Beike & Alexander Cole
Law and Human Behavior, February 2010, Pages 53-65
Abstract:
Two laboratory studies with 332 student participants investigated secondary confessions (provided by an informant instead of the suspect). Participants allegedly caused or witnessed a simulated computer crash, then were asked to give primary or secondary confessions during interrogation. Study 1 replicated the false evidence effect for primary confessions. Secondary confessions were obtained at a high rate, which was increased by false evidence in combination with incentive to confess. In Study 2 a confederate either confessed to or denied crashing the computer. Incentive increased the rate of secondary confession only in the presence of a denial; that is, incentive increased the number of false secondary confessions only. Implications for the use of incentives during informant interrogation are discussed.