Informed Reform: An Empirical Analysis of Pretrial Disparity and the Consequences of Money Bail (with Miguel de Figueiredo)
This Article provides new evidence on America’s pretrial system by analyzing tens of thousands of misdemeanor bail decisions in rural and suburban Pima County, Arizona, where Tucson is located. Compared to the results of similar studies in large metropolitan cities, our findings are striking. Our analyses show that despite having virtually identical caseloads (1) the most “lenient” judges assign money bail in only 20 percent of their cases with average bail amounts of only $175, whereas the “strictest” judges assign money bail in nearly 60 percent of cases at an average of $1,200 per bail assignment (three and ten times higher, respectively); and (2) judges may be as much as 13 percentage points more likely to assign money bail to black defendants in comparison to their white counterparts. Furthermore, (3) defendants assigned money bail are significantly more likely (5.1 percentage points) to appear in court for trial. And contrary to the results of previous studies, we find (4) a minimal impact of money bail on the likelihood of guilty pleas and judgments, and (5) a substantial reduction in recidivism (11.4 percentage points) for those who are assigned bail only in the six months immediately following a defendant’s initial appearance.
Taken together, our findings suggest that bail reformers should both account for and develop interventions in response to high levels of judicial disparity and be wary of “one-size-fits-all” policy prescriptions, since some jurisdictions may have varied outcomes in response to similar bail processes. To reduce judicial disparities, the Article suggests that systematically informing judges of their pretrial behavior relative to their colleagues will likely reduce pretrial disparity generally and along socioeconomic lines. The Article also provides a multi-pronged approach for evaluating the impact of local pretrial reforms that will improve outcomes for defendants and society.
Testing Williams-Yulee: An Experiment on Judicial Elections, Institutional Trust, and Tenuous Empirical Claims in the Supreme Court
In Williams-Yulee v. The Florida Bar (2015), the Supreme Court ruled that a Florida law banning direct campaign solicitation by judicial candidates was not a violation of the First Amendment. In doing so, the majority relied on several untested empirical claims, including the proposition that direct solicitation has a distinctly stronger impact on the public’s confidence in the judiciary than indirect solicitation. This paper tests these empirical claims using a nationally representative survey experiment that presents subjects with a hypothetical vignette in which a state trial-level judge runs for election and utilizes one of various campaign fundraising tactics. The survey then presents subjects with questions relating to the trust and legitimacy that they associate with both the judge featured in the vignette and the broader judicial system. I find that the public does not discern any significant difference between direct and indirect judicial solicitation but does see other campaign features (promises of recusal and the amount of the donations) as salient in regard to trust and legitimacy. These findings are at odds with the empirical assumptions that the majority relied upon in the Williams-Yulee decision.
Why Judges Don’t Recuse and Attorneys Don’t Ask Them To: A Randomized Field Experiment Testing the Efficacy of Recusal and Disclosure
This Article reviews the two most prominent procedural approaches to addressing judicial conflicts of interest—recusal and in-court disclosure—and contends that they fail to account for the legal and institutional dynamics that surround the relationship between judges and attorneys. It argues that judges do not recuse, that attorneys will not ask them to, and that if we understand the incentives at play in these decisions, this should not surprise us. The shortcomings of recusal and disclosure are particularly salient in the context of judicial campaign finance, where judges often face the acute and unique dilemma of being assigned to preside over cases in which one of the attorneys has contributed to their election campaign.
To support these claims, this Article presents the results of a randomized field experiment which identifies active civil cases that feature donor-attorneys and randomly assigns a portion of the judges presiding over these cases to receive a letter from an NGO identifying the potential conflict and requesting recusal. The results support the growing skepticism surrounding judicial recusal and raise doubts that judicial disclosure is efficacious as a remedy for the limitations of recusal.
The Article then explores broad institutional reform and concludes that first-order solutions such as the elimination of judicial elections or bans on judicial campaign fundraising are infeasible in the current political environment, although anonymized donations may be both practical and effective. The article concludes by suggesting that the problem of money in the courtroom is best ameliorated by the combination of no-cause peremptory challenges paired with automatic disclosure by the court system as opposed to the judges themselves.
For the integrity of this ongoing study, I am not publicly releasing a draft. Please contact me if you would like more information on this project ().
The Legal and Ethical Challenges of Running Randomized Field Experiments in the Courtroom (with Jacob Kopas)
Although legal scholars have been utilizing experimental methodologies for over 60 years, they have only recently begun to design and implement field experiments, an empirical method in which subjects are randomly assigned treatments in natural settings. Because field experiments require the researcher to actively intervene in the subjects’ lives, researchers and organizations running experiments must address a number of ethical concerns before and during their study. When field experiments take place in the court context, these ethical concerns become even more salient because researchers must also take into account the legal implications of randomizing interventions in actual court cases. In this article, we explore the legal and ethical issues surrounding the use of court-based field experiments and conclude that when properly designed, this methodological approach can and should be used to study laws, procedure, and behavior.
Testing the Right to Counsel in Parole Hearings: A Randomized Field Experiment (working project; in partnership with the Parole Preparation Project) (with Jacob Kopas)
Unlike in some states—most prominently California—the New York constitution does not extend the right to legal counsel to parole hearings. For over two years, we have been working with the Parole Preparation Project, a New York-based non-profit that connects volunteer attorneys and law students with individuals who are serving life sentences but are up for parole. We have worked with the Parole Preparation Project to randomly assign the volunteers, thereby allowing us to compare the parole hearing outcomes for those who have received assistance against those who have not. The results of this study will deliver the first well-identified data on the role that counsel might play in the parole process and will be important in the active, ongoing debate surrounding parole reform in New York and the right to counsel in the U.S. writ large.