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, aleipold@law.uiuc.edu. The full paper can be accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606.
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This could lead to a selection bias, where juries are overall more likely to convict because they are given the cases that most obviously favor conviction. This would hold true even if in each individual case, judges are less likely to acquit than juries.
In other words, if conviction rates for judges and juries are roughly equal in all cases but those with the most damning evidence (where judges are more likely to convict), however at the same time all cases with the most damning evidence go to juries, you'd see a situation where juries were less likely to convict and still had a higher overall conviction rate.
I'm not an attorney so I'm not sure how plausible this is. Also I have no idea how one would determine this from hard data.
One interesting test would be to look at speedy trial claims, which result in the conviction being vacated without a chance for retrial. Assuming identical procedural facts, most practioners probably believe that it's much, much harder to win a claim for a confessed serial rapist/murderer than for a first-time check forger. Does reality show that we are right or wrong?
Although judges can take things too far, I think it's generally good for the fairness of the system for judges to consider results when making discretionary close calls.
My hunches as to why defense attorneys prefer jury trials:
1. The obvious one: lack of knowledge of this research.
2. The less-obvious one: risk avoidance. It is ingrained in defense attorneys that "a jury of one's peers" provides the ultimate test of guilt or innocence. To stipulate to a bench trial is to forego the one big thing defense counsel are told they've got in their favor. And the risk of an ineffective assistance of counsel claim is, no doubt, higher when a defense attorney "gives away" this important constitutional right.
3. The cynical one: jury trials introduce uncertainty. Uncertainty creates appealable issues -- jurors stricken for improper reasons; juror misconduct; the biggies: erroneous jury instructions and evidence that is more prejudicial than probative. Sign away the right to a jury trial and you're putting all you eggs in one basket by giving away the best issues you've got for appeal.
I don't know whether the statistics bear this out, but from a legal standpoint, a bench trial conviction has the same level of deference as a jury trial conviction. There are certain differences that make bench trial convictions easier to overturn on the merits (Judges who comment on the evidence in explaining the basis for the conviction are at risk if those assumptions are legally impossible), but jury trials have other, inherent, reversal possibilities (the jury instructions comes to mind). But the way that the appellate process works, the trier of fact is not supposed to make much of a difference.
Why, then, if judges are allowed to consider the "rightness" of the punishment when considering the verdict, are jurors routinely admonished (and incorrectly, at that) that they are not allowed to do that?
As you can probably guess, I am a supporter of Fully Informed Juries and nullification of bad or inappropriately applied laws.
Much of the defense lawyer's leverage in plea bargaining comes from the threat to take a jury trial unless the offer is good enough: "Improve the deal, or we will be trying this case in front of a jury, which will take lots of time and may involve an unpredictable result."
Of course, that's just an empty bluff unless the defense lawyers actually do (sometimes) proceed to juries when the plea bargaining fails.
The payoff, however, is for future defendants, whose offers will be better once the defense lawyer has established his or her seriousness about juries. Of course, that raises some ethics questions, though they are seldom addressed.
A very interesting thought. I don't think we have to worry about ethics questions, since I'll assume that defense attorneys have their clients' interests at heart when making these decisions.
However, you do point to an institutional/structural reason why defense attorneys (particularly public defenders) may press for jury trials: they view themselves as having two roles, which may created some internal tension: (1) protector of their clients' individual interest, while (2) preserving the overall integrity of the criminal justice system by ensuring that prosecutors know that weak cases will be put to the test.
1. Evidence of guilt isn't the issue. Judges would rather let loose on the public someone they know to be a criminal rather that give a ten-year sentence when they think a five-year one is more appropriate. If that's so, if judges are really doing that, essentially lying when they find a defendant "Not Guilty," then there are serious problems with how we're training and selecting judges. All too many judges lack integrity, saying "innocent" when they know "guilty" is the truth. Not so long ago we condemned white Mississippi juries for doing exactly that.
2. For roughly a decade and a half judges have been in a 'snit' about having what they consider their right to determine sentences taken away and are punishing the public by releasing people they know to be guilty. Needless to say an 'snit' that goes on that long doesn't indicate much maturity. Over a decade ago, they should have gotten over that anger and began to work systematically and rationally to change those laws they disagree with.
Personally, I suspect this has more to do with the growing clash in our society between a 'blue' elite and 'red' ordinary people. The former thinks that everyone but themselves are a product of hereditary and environmnent, though the former isn't as explictly stated today as it was by Oliver Wendel Holmes Jr. in the 1927 Buck v. Bell. For them, criminals are not responsible for their deeds and should be given less punishment and more reconditioning. The former leads more naturally to fixed sentences, the latter to an expert (judge or social worker) accessing how long someone should serve and when they should be released.
Incidentally, this also explains why those who're regarded as "soft" on crime are the most likely to welcome the recent claim that legalized abortion serves as a sort of "prenatal death sentence" for future criminals. It's not that they feel any real empathy for criminals from impoverished or minority backgrounds and think their punishment is unfair. It's that they have so much contempt for people from those backgrounds that distinctions between innocent (the baby) and guilty (a criminal let go) are no longer significant. The result is an ideologically inspired dogma that if long prison sentences aren't going to work (because behavior is already fixed), we should rid ourselves of socially troublesome behavior by aborting such people before they're born. The first paragraph of Roe v. Wade, which mentions both eugenics and "racial overtones," hints at this mentality.
The idea isn't particularly new. Victoria Woodhull, the first woman to run for President, was promoting this sort of distinction in the 1870s, and later referred to it as a eugenically inspired "Humanitarian Government" in her 1890 book by that name. In the 1950s, Oxford professor C. S. Lewis would write an article critical of that view, pointing out that it meant that some people could be imprisoned for their entire lives for even small crimes. Today, we might add that it can also lead to no sentence for serious crimes.
--Michael W. Perry, Seattle, Editor of Lady Eugenist: Feminist Eugenics in the Speeches and Writings of Victoria Woodhull.
Anyway, a very interesting thread. Nicely done.
I agree. Most of us practicing lawyers are conservative by disposition, so we can get set in our ways. Academics are helpful when they give us tools we can use to rethink the way we do things.
I'll also bet that Professor Leipold's conclusion that this reflects the judiciary's dislike of the sentencing guidelines more than any any other explanation is probably correct.
If that is correct, then I believe that Inkling is right to complain that we do have justice run amok. Without getting into the rest of Inkling's political diatribe, we have here evidence indicating that judges are deciding guilt, not by whether the state proved its case beyond and to the exclusion of reasonable doubt, but by the consequences of a conviction.
Both the law and the public expect judges to act in a neutral fashion. They are not meant to fix society's ills. Even if the court does not like the sentence that it is required to impose, it must impose that sentence unless there is some constitutional infirmity. Booker is the obvious example of how to work within the judicial system (though I admit that post Booker, the courts are still unsure of how mandatory the guidelines are).
However, where the trial court, during the guilt phase, decides to avoid conviction because its hands are tied in sentencing, then we have a trial court acting like a mini-legislature, rewriting the law to serve its own sense of conscious.
In my opinion, that is a pretty good definition of "lawless".
Also while your argument is suggestive I'm curious if there were any significant changes in the training or practice of defense attorneys at the same time or in the type of crimes charged. This has probably already been hashed out.
As for the person suggesting this sort of judicial behavior was unacceptable do you feel the same way about juries thinking of imposing the death penalty. Does it show that the juries are immature because they demand more rigorous proof when they might be taking someone's life? Yet these juries even have the choice to not apply the death penalty afterwards. It is just human nature to demand more certainty when you might be destroying someone's whole life.
Besides, what would you do if you found yourself as a judge for a day and the law told you that any kid found spray painting a building should go to jail for 20 years? Would you really not be more resistant to convicting them of spray painting? Would if make a difference if the brand of spray paint white kids bought only brought a 2 year sentence but the brand of spray paint black kids bought had a 20 year sentence? Far from making you responsible refusing to aquit more people would show you to be an irresponsible and possibly evil person.
Yet this is exactly the situation judges found themselves in with respect to the sentencing guidelines. Forced to sentence people using the exact same chemical (coke vs. crack) differently and treat the good kid who was caught carrying his friend's backpack home which happened to be filled with drugs the same as the obvious drug dealer for whom intent couldn't be proved this sort of reaction was the only moral choice.
The idea that these considerations should be left to the people or to the prosecutors just doesn't fly. Prosecutors are psychologically set up to push for conviction and punishment not consider mercy or possibility of error. If you think the prosecutor can judge punishment perfectly well why not just let them judge guilt as well? It might be nice to think the people should be the final word in this but they are deciding on something they don't know the first thing about. The judges have much more knowledge about drug offenses and the criminal world while the public, far from making informed deciscions, is reacting to 'tough on drugs' PR not reading policy papers about dealing with the situation. These gaps are the very reason we have a common law system where we trust judges with substantive justice.
You make extremely compelling arguments regarding the need to insure that the sentence fits the crime. The problem with that argument, however, is that you are nevertheless explaining that its ok if the judge engages in "juror nullification" because of the problems in the sentencing structure. For the same reasons that the law takes a dim view on the juror nullification argument, I take a dim view on the trial court effectively doing the same thing. Taking your arguments slightly out of order, no, I don't think that this consideration is left to the prosecutor either. I have my own personal concerns regarding application of prosecutorial discretion, but in the end, the prosecutor's job is essentially to see that justice is done and that a person who violates the law is punished for the violation. I can already see arguments regarding the "seeing justice done" line. While I accept that prosecutorial discretion may require dismissal for that end in some circumstances, I don't believe that we can or should say that justice means that all cases where the punishment is viewed as harsh means that it is therefore the prosecutor's responsibility to ignore the crime.
As to the people, I am not speaking of jurors when I say that the responsibility for sentencing is with the people. At least in theory, we voted for these crazy sentences. I know that this is becoming increasingly unpopular, but we, as the electorate, have the responsibility to fix these "gaps".
For sake of completeness, I do believe that it is wrong for juries to take "guiltiness" into account in sentencing in death penalty cases, regardless of whether they do it anyway. Natural instinct or not, a jury deciding the death penalty is nevertheless acting as an arm of the government, deciding if, based on state or federal statute, the criminal meets the criteria to die. We lawyers love passionate debate and therefore think that jurors should be permitted to go with their hearts. But in the end, application of the law should be a cold heartless application of the law. The electorate demands it, the electorate has earned it, and the electorate deserves it (in both the good and bad connotation).