Wow. Some very thoughtful and perceptive comments were posted yesterday on the basic question of why federal judges are more likely to acquit than federal juries. This is fun.
Let me pick up on a few of the points that people raised in their posts, to show what the data revealed. These figures are based on a study of about 77,000 federal criminal trials completed between 1989 and 2002. Those who read yesterday’s post will recall that I am trying to figure out both why judges are more likely to acquit than juries, and why the judicial conviction rate dropped sharply between the late 1980s and the early 2000s.
Several folks hypothesized that the type of crime involved -- violent, property, drug, etc. -- might explain the disparity. Perhaps certain types of crimes are both steered toward a particular factfinder and are particularly likely to end with an acquittal. For example (I speculated), financial and regulatory crimes might be directed toward judges because both sides worry that jurors will misunderstand the evidence, and perhaps it is also the complexity of these cases that make them hard for the government to win. Or perhaps defense counsel avoid juries in violent crime cases, and so on.
There may be something to this, but the figures don’t show much of an effect by case type. I looked at six crime categories: violent, property, drug, immigration, regulatory (crimes involving customs, social security, the mail, etc.) and public order offenses (a group that includes primarily traffic offenses – really – and guns). Two things became clear: (1) juries always convict more than judges, no matter what category of crime, usually by 15 to 30 percentage points, and (2) defense counsel prefer juries to judges in all types of cases. In only one category did the percentage of bench trials come close to half: 45% of public order trials are tried by the court. Interestingly, judges convict in only 47% of the public order cases, compared to an 83% conviction rate by juries.
Another line of posts offered the insight that the “conviction gap” might be explained by the strength of the evidence. To paraphrase Judge Posner, perhaps innocent defendants want judges because they worry about a mistake being made, while guilty defendants want a jury trial, hoping a mistake will be made. I think this explanation has great intuitive appeal.
But two brief points on this. First, it is darn hard to measure the strength of the evidence, at least on a large scale. The best indicator we have of the case strength is the outcome, but that leaves us chasing our tail if we are trying to evaluate the outcomes. This doesn’t make this explanation wrong, it is just hard to know if it is right.
Second, if strength of the evidence explains a big piece of the conviction gap, we still need an explanation for why the jury conviction rate has remained steady while the bench rate fell significantly over the period studied. So while I like this explanation very much, I worry it is still speculative and incomplete.
I have left out a lot of detail, much of which I hope is provided in the article (on SSRN, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606 and perhaps in other posts later this week As always, questions and comments welcome at aleipold@law.uiuc.edu.
Related Posts (on one page):
Given fixed sentencing, which many judges do not like, is it much of a stretch to hypothesize that in a close case, a judge might acquit, rather than impose a draconian sentence? Even if the bias were unconscious, it seems plausible that this could have an effect.
Even if we reject this idea, it is likley that the very existence of the guidelines skews which defendants plead, which choose jury trials, and which choose bench trials.
Over the period studied, I am guessing that mandatory sentence lengths have generally increased. Judges always know when their conviction for stealing the loaf of bread will require a 20 year conviction.
Juries, not so much.
Yes on both counts.
Yes, the guidelines definitely influenced defendants' calculus, as sentencing outcomes became (somewhat) more predictable. Going to trial was still a bet, but at least you're permitted to see the denomination of the currency.
Yes, a judge's verdict may be influenced by his/her distaste for the likely sentencing outcome. I have no idea if the number of cases is statistically significant, but I know for certain of one case of mine in which it occurred (based on a later conversation with the judge).
If so, is it possible that they will opt for bench trials if the judge is thought to lean pro-defense? If that's the case then we would expect to see a relatively high rate of acquittals, but also bench trials unevenly distributed across judges.
It wouldn't be the case that judges are more likely to acquit across the board, but that some judges are more likely to acquit, and they get a disproportionate share of bench trials.
People who are innocent and who think that a judge can see this are more likely to choose to be tried by a judge. People who are guilty and who think that they can confuse a gullible jury are more likely to choose a jury trial.
Hence, the discrepancy between judge and jury conviction
rates may well have nothing to to do with the judges
and the juries, and everything to do with the defendants
selecting themselves to be tried by judges or juries.
I gave a quick scan to the paper, and I did not see that
it considered the sample selection bias possibility.
Heckman won the Nobel for his work on this problem,
and it's well known in the literature.
Maybe Slate's economist, having evaluated penalty kicks under game theory, is willing to have a go at this.
BMcCullough: sample selection is of course an underlying flaw. Are judges more likely to acquit? Are acquittals more likely in the kinds of cases where defendants opt for a bench trial? Too many confounding factors to permit a conclusion.
confounding factors to reach some reasonable conclusions.
This is just a special case of the general problem of causal
analysis with observational data. There is a wide variety
of statistical methods available to handle the problem,
beginning with the pioneering work of Holland and Rubin.
What we would really like to know in this situation
is what would have happened to the defendants who
chose a jury, had they instead chosen a judge, and
conversely for those who chose a judge. Only then
can we decide whether judges underconvict, etc.
While we cannot know these counterfactuals, we
nonetheless may be able to place bounds on the
probabilities that judges and juries convict, and
these bounds may be strict enough to answer
the question of whether judges or juries overconvict.
in essence, the judge is only used when he would be your best juror, and you've basically perempted an entire panel.
However, if the defendant is likely guilty beyond a reasonable doubt, but has some very sympathetic facts on his side, in my experience the defendant will usually insist on the jury trial (hoping for jury nullification), unless he or she also thinks the judge strongly favors his side for the same reasons as the jury.
Of course, no defendant in a federal case will waive the jury trial when the judge is viewed as pro-prosecution.
But this explains only why judges are convicting less, not why juries convict more. I would have thought that the guidelines would have produced fewer jury convictions, since it's my anecdotal experience (as a defense lawyer) over the last 20 years that being able to quantify the sentencing difference between going to trial and pleading has made lots of defendants decide to plead, when under pre-1987 law they might have gone to trial. And since the cases where people decided to plead were probably the less triable cases, that should have increased the percentage of acquittals in tried cases. But not so.
Has the percentage of tried cases decreased since 1987? My guess would be yes. How about the number of prosecutors per tried case? Yes? That would do it. More prosecutorial time per trial, caused by more pleas, would in all likelihood raise the conviction rate. (Aside: There is nothing more dangerous, I have always thought, than a prosecutor with time on her hands.)
Has it occurred to you that the guidelines have given people more reason to go to trial and hope for a miracle. I mean, if I'm in my thirties and looking at a max of 35 years, and the prosecutor offers me only 25, I figure I'm an old fart by the time I get out anyway, might as well roll the dice.
And I noticed that you said nothing more dangerous than a prosecutor with time on her hands. Any importance to the gender of the pronoun you chose?
There is certainly some of the "roll the dice" phenomenon when big sentences are in question. The guideline benefit for pleading guilty is not so enticing in those cases. But I think that was always so, even before the guidelines. The guys looking at long sentences in those days knew it. On the other hand, there was parole in the old days, so a 20-year sentence didn't necessarily mean more than 7 or even fewer years.
Such long sentences are not the most common, of course. The BOP website says about 60% of prisoners at any given moment are serving 0-10-year sentences and only 20% or so are serving over 20 years. Of course, over time, the total number of prisoners sentenced to lower sentences is much greater even than this, since the BOP snapshot does not account for the fact that, for example, the 3% of prisoners serving a one-year term or less does a complete turnover in a year, while the 20-year guys turn over only every 20 years or so.
I think the impact of the guideline benefit for pleading is much greater at the lower end of the sentencing scale, where most of the cases are, and it would not have been offset much by the effect of the guidelines (and mandatory minimums) in making long-sentence types decide to roll the dice and go to trial.
Now it could be that the same cause explains both: i.e. the sentencing guidelines (strict mandatory sentences) motivate more guilty pleas and also lead judges (aware of the strict sentences) to acquit more often. But maybe the acquittal trend has to do with the kinds of defendants foregoing trial altogether?
Let's assume that a defendant is more likely to seek a judge trial if he thinks he's got a relatively strong case. As the stakes go up with mandatory minimums, pleas become relatively more attractive even to these folks. so even some of the defendants with strong defenses forego trial and plead guilty instead. this might mean that nowadays, only the defendants with really, really strong defenses decide to go to bench trial rather than plead guilty.
Might analysis of these events' rates and trends allow you to test any hypotheses about strength of prosecution cases or, defense strategies; particularly across different types of crimes?
/AHM