Yesterday there were more very helpful posts and emails in response to the puzzle of why federal judges are much more likely to acquit than juries, and why the gap grew between 1989 and 2002. Today I will offer some tentative conclusions on what the data reveal, and respond to a couple of comments.
I mentioned earlier that the conviction gap between judge and jury was large, growing, and could not be explained by those variables I studied. Judges are more acquittal-prone in felony cases, misdemeanors, across all categories of crime, in virtually every judicial district, and with all types of defense lawyers. This led me to consider two other possibilities – that juries are becoming increasing prone to convict regardless of the evidence, and/or that judges are seeing something in the cases that makes them increasingly likely to acquit.
[A] As to juries. Maybe the fear of crime and a law-and-order attitude are increasingly seeping into the jury box, making jurors willing to convict on lower and lower degrees of proof. Jurors know from watching Law & Order (and its 17 spin-offs, most of which are pretty good) that prosecutors are really good people who only really go after the guilty, and perhaps this mind set is making jurors more trusting of government evidence, which in turn encourages prosecutors to bring weaker cases to trial.
The problem with this theory is I couldn’t find any supporting evidence. If prosecutors really were getting the same conviction rate on weaker evidence, we would expect to see some impact on the dismissal and reversal rates, even though these are admittedly very rough proxies. But the percentage of federal defendants who had their cases dismissed at some point in the process decreased over the period studied, and the reversal rate (for reasons other than faulty sentences) remained constant, with the exception of a small blip in 1996-97. People’s fear of crime – something that might lead to a more pro-prosecution attitude among jurors – was variable, and did not track the conviction rates, which for juries was steady as a rock. And so while I can’t say that juries are *not* prone to “over-convicting,” I don’t see, and have not read, any evidence that they are.
[B] Judges. The core problem is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries. With a tip of the hat to the many people who suggested this in their posts, I think the Sentencing Guidelines best fits this description. The Guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh – maybe too-harsh – sentence. We don’t have to say that judges were acting “lawlessly” to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving.
Evidence of this is obviously hard to come by, and does not uniformly support the thesis. But consider: (1) the timing is nearly perfect, with the Guidelines really hitting stride just as the judicial conviction rate started to slide; (2) many, many judges were harshly critical of the how the Guidelines made it harder for them to do justice in individual cases; (3) there is social science literature to support the view that the greater the punishment the slower people are to impose it, but who needs social science? This phenomenon occurs in the law all the time. Few people doubt that the exclusionary rule’s application is influenced by the seriousness of the crime and the importance of the evidence. The Supreme Court has recognized that concerns about the death penalty can influence jurors at the guilt stage. Frank Bowman and Michael Heise, in their terrific studies on drug sentences, suggest that harsh sentences influence prosecutorial and judicial decisions that are formally unrelated to punishment. It would hardly be surprising to learn that judges might require more and better proof of guilt when they cannot control the sentence. This would help explain why judges, but not juries, have changed their behavior since the late 1980s.
What conclusion to draw from this? The glib answer is that I need to do a follow up study in a few years, after the Booker dust has settled. The more serious answer may be that we think carefully about how we should strike the balance between consistent treatment of defendants and individual justice.
[C] Comments. Jim Lindgren and others raised a point that is really elemental. (I’ll paraphrase) If judges are so stinkin’ great for defendants, how come they all pick jury trials? More specifically, since Rule 23 says prosecutors or the court can veto a defense request for a bench trial, could it be that prosecutors know that they will do better in front of juries, and therefore routinely frustrate the defense efforts to choose the better factfinder?
Actually that was my first thought when I saw the statistics. But after interviewing lots of lawyers and reading lots of “how-to” trial manuals, I became convinced that prosecutors are not influencing the defense choice of factfinder in any meaningful way. None of the defense lawyers I talked to said that prosecutors frustrated their choices – they put their clients in front of the jury because they want to. All of the prosecutors said they were rarely asked to agree to a bench trial, and when asked, they almost always agreed (unless the judge is “crazy”). The reasons are precisely those identified by Public_Defender in his or her post yesterday: prosecutors don’t want to offend the judge. Also, none of the manuals I saw even hinted that bench trials might be a better choice, except in narrow groups of cases (child porn is the example that many use).
This still doesn’t answer the question why defendants flock to jury trials. Are they just unaware of the conviction rates? (maybe) Do institutional inertia and agency problems make it easier for defendants to choose a jury trial? (Probably; if you go against the norm and lose, it’s hard to explain to boss and client what you were thinking.) Is it really the case that factually guilty defendant overwhelmingly choose juries, because even if they don’t have a great chance, it’s better than before a judge? (The selection bias issue discussed earlier – probably true.)
As always, I welcome thoughts on these or other issues, firstname.lastname@example.org. The full paper can be accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606.
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