Those who have been kind enough to follow the posts over the last two days have seen some terrific comments and questions about why federal judges are statistically more likely to acquit in criminal cases than juries are. Here are a few more findings, and then a couple of observations on the comments (The full study is available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606.)
I mentioned yesterday that the category of crime the defendant was accused of committing (drug, immigration, violent, public order, etc.) showed some variation, but at the end of the road, judges always acquit more than juries, regardless of the crime type. That statement holds true across the following variables:
[1] Judges are more likely to acquit whether the crime is a felony or a misdemeanor. This was significant, since 89% of all serious misdemeanors (i.e., those for which defendant *could* have a jury) are tried to the judge, and 74% of bench trials involved misdemeanors.
I do think the high percentage of “bench” misdemeanors explains something, even if it does not explain the change in judicial behavior over time. My guess is that misdemeanor cases get less experienced investigators and prosecutors, less grand jury investigation, and less preparation generally. These shortcomings may not be obvious to a jury, but may be quite obvious to a judge, and thus may explain part of the conviction gap. But the gap remains when we look at felonies only, so this is a partial answer at best.
[2] Judges are more likely to acquit than juries regardless of the type of defense counsel – private, panel, public defender, or pro se. I had wondered whether group norms or workload pressures might explain some of the differences, but they really don’t. Defendants represented by different counsel type do roughly the same (badly) before juries, all being convicted at a 82% - 87% rate, while defendants with all types of defense counsel do much better in front of judges.
[3] Judges are more likely to acquit in all parts of the country. I wondered if differences in case loads, case mix, local rules, circuit law, and jury pools might lead to regional differences. Wrong again. In *every* circuit, the district court juries convict 80% to 89% of the time (the First Circuit has the lowest rate, the Seventh Circuit the highest), and in every circuit, the district court judges convict a lower percentage of the time, with most in the 50 to 70 percent range.
In fact, when I looked at individual districts, it turns out that juries convicted more often in 89 out of the 94 districts in the country. The five districts with slightly higher judicial conviction rates were the D. Colorado, W.D. Arkansas, E.D. Wisconsin, W.D. Wisconsin, and E.D. Missouri.
Tomorrow I’ll talk about the conclusions I drew from these numbers. But here I’ll briefly comment on a couple of the comments in the posts and some of the off-list emails.
1. Some folks asked if the political party, background, or age of the judge, or the identity of the appointing president was considered. It was not. The database I used did not provide this information, and it would have been a logistical nightmare to get it. A lame excuse perhaps, but I have doubts about the value of the information even if I could get it. I’m just not clever enough to put many of these variables to work – when a district judge is appointed, how much of the decision is the President and how much is the State’s Senators? Is a Massachusetts Republican the same as a Utah Democrat? I’m dubious that the results would shed enough light on the topic to make it worth the effort, although I know many people who would disagree.
2. A couple of comments raised the issue of sample election bias, a point I note briefly in the paper although not by that name. As I indicated earlier, this may be exactly right, but I don’t know how to tell if it is right. Perhaps it is a pure strength-of-the-evidence calculation by the defense (strong case judge, weak case jury), but putting aside the difficulty of measuring this, I still wonder. This kind of analysis was sometimes but not routinely mentioned by the defense counsel I interviewed. The flavor of their comments was that juries were presumptively better in all types of cases, regardless of the evidence strength. (And BTW, many of the defense counsel very extremely candid with me about their strategies.) But if I do a follow up on this article someday, I agree that more statistical modeling could offer real insights.
Thanks to all for your continued interest. Comments welcome, aleipold@law.uiuc.edu.
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The smartest thing that I have read on the VC in a while now.
There's no mystery here: judges know what the mandatory sentences are but juries do not. Mandatory sentences have grown more numerous and severe. How could this not make a difference? Rational actors who know about consequences of their determinations will consider the consequences when assessing their judgments.
However, I think the difference is mainly due to selection bias. Public Defender describes one scenario where the prosecutor sends weak cases to the bench, and it seems fairly obvious that a defense lawyer with a good case under the law would rather have a predictable and not too biased judge over an unpredictable jury, while a defense lawyer with a poor case and a client who won't plea will hope to get lucky with a jury.
I understand the logistical difficulties, but think that identifying information on judges (party, wealth, etc.) could add to this research
However, I would be surprised if the US Attorney's office would be as sensitive to such criticisms, because they are not elected. Of course, if a case is sufficiently high profile to garner press coverage, the media attention can influence how the US Attorney handles the case. But, since US Attorneys offices are the prosecutors in the Professor's study, and presumably most cases are not "high profile" cases attracting much media scrutiny, I am not sure that Public Defenders' friends' theory explains the discrepancy in conviction rates that the study uncovered.
But isn't the puzzling decision that of the prosecutors' allowing the case to get to the bench in any but rare cases? What do they say?
I was told that for most federal crimes defendants don't get to choose to avoid a jury unless the prosecutor waives as well (I have no first-hand knowledge of this). If the cases that are tried by judges are really the same as cases tried by juries (after controlling for the variables you have), then defendants should almost always waive a jury and prosecutors should almost always choose to insist on a jury.
If that's true, then bench trials should be very rare, not because of the choices of defendants, but because of the choices of prosecutors. So I'd want to want to know more about why US Attys often waive their insistence on having a jury trial. Could it be that they want to cut costs and time on less important or less winnable cases? If so, then the punishment should be higher when convicted by a jury, which is generally thought to be true.
Very interesting work!
Jim Lindgren
I think you underestimate the political pressures on the US Attorney's offices. It's not just from elected officials and the media. It's also from cops, probation officers, DEA agents, victims' rights groups, etc. A case with a low media profile can still draw intense interest.
I'm not saying that this is the only cause, but I think it's one of the causes.
To be fair, the professor does mention this as one potential cause in his article.
In my experience, prosecutors are less willing to show a lack of confidence in a judge than defense attorneys. So if a defense attorney waives jury, it's almost a personal insult to the judge for the prosecutor to refuse.
Every now and then, I stumble on a case in which the judge and prosecutor are feuding. Those cases are fun for defense attorneys but generally bad for the justice system. That's why prosecutors (and AUSA's, I assume), do what they can to avoid slights on the judge. Refusing to waive a jury would be a slight on the judge.