Sixty-six percent of the total U.S. jailed population (over 400,000 people) are being held in pretrial detention, not convicted of any crime. Most remain in jail simply because neither they nor their families can afford the bail that a judge has assigned to them. Previous research shows that the assignment of bail is both biased and that being detained in jail negatively impacts later justice outcomes. Women, in general, have been more adversely affected in this area due to their overall fewer social and economic resources compared to men. A sample of 150 women and 150 men was used to compare how gender impacted the length of time it took defendants to bail out of a rural county jail in the southeastern U.S. Using previous literature, pathways theory, and the theoretical lens of an architecture of gendered violence, the authors tested for gendered differences in how quickly women and men posted bail once in pretrial detention. A combination of a Kaplan-Meier survival analysis and Cox proportional multiple-regression analysis indicated that women took significantly longer than men to post bail, while controlling for bail amount, age, and race. Implications for policy and research are discussed.
This manuscript examines how federal appeals courts respond to precedent, in this case, Central Hudson Gas & Electric Corporation v. Public Service Commission. This account includes a comprehensive theory that examines attitudinal factors that relate to Central Hudson, specific relevant legal factors that relate to the case, as well as strategic considerations. We additionally argue that federal appeals courts may reasonably ignore Central Hudson in certain specific instances (most notably when other highly relevant cases are available for lower federal court judges to use). Our results show partial support for several portions of our theory, including a lower propensity for federal appeals courts to positively treat precedent when ideological distance is high. We also find support for one of our factual-based hypotheses (regarding cases that involve drugs and attorney advertising, where other U.S. Supreme Court precedents are readily available for appeals court judges to use).
Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants' financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first appearance in court. We find that judges strongly favor counsel's presence in order to maintain courtroom efficiency, and sometimes depart from strict interpretation of financial eligibility guidelines to ensure representation. We introduce the concept of the "procedurally precautious judge" to describe the way these respondents carefully preserve the appearance of integrity in court operations even while availability of counsel for defendants is limited.
Recognizing the negative impacts of collateral consequences, policy-makers and scholars have sought to implement formal and informal standards aimed at increasing defendant notice of such consequences before pleading guilty. However, very few studies have sought to explore the actual practices of court room actors regarding collateral consequence notice. The current study filled this gap in knowledge using a survey of South Carolina defense lawyers. Specifically, South Carolina defense attorneys were surveyed about their practices regarding collateral consequence notice as well as their observations of judicial practices regarding collateral consequences. Results indicate that while a large majority of defense attorneys felt that it was their responsibility to inform their clients of collateral consequences, only 36% of respondents agreed that attorneys do a good job informing clients about collateral consequences. In fact, few respondents noted that they always inform their clients about collateral consequences that ex-offenders, probation and parole officers, and social workers consistently identify as particularly impactful to a successful reentry (those related to employment, housing, civic rights, and public benefits) and many never or rarely do so. However, 94.3% of respondents noted that they commonly discuss other collateral consequences with clients. Further, respondents noted that few judges always or often discuss collateral consequences. These results suggest that some collateral consequences are being discussed with some defendants, but also that these practices are inconsistent. Informed by these findings, recommendations for increasing defendant notice of collateral consequences are discussed.
Court curbing, proposed policy that attempts to "restrict, remove or otherwise limit" the power of the judiciary, occurs regularly and with considerable variation throughout the US states. I deviate from past studies, which consider court curbing as an ex post control mechanism, by focusing on ex ante controls of state courts - judicial selection rules and processes. I argue that levels of political party influence over judicial selection (before a judge is seated) alter the motivation to engage in court curbing after a judge is seated. I test this novel ex ante explanation with an original data set of court curbing and judicial selection from 2015 to 2018. Mixed results offer some support for my theory while opening new opportunities for study, particularly among partisan election systems.
While many are aware that the Supreme Court allocates seats for the public to view oral arguments, substantive analyses that have measured the motivations for attendance are lacking. I analyze who attends oral arguments using a descriptive approach with a novel dataset of public attendance at Supreme Court oral arguments during the 2019 term. A concurrent assessment of interviews conducted on argument days illustrates notable differences among the motivations of prospective attendees. I conclude by noting that although the linkage between latent case salience and the demand for admission to arguments is not neatly discernable, attendance at the Supreme Court offers an interesting divergence from perceptions of attendance in a traditional courtroom setting.
Jury trials are considered a key element of the American criminal justice system, even as many question the continued legitimacy of the jury system and its ability to be fair. Using data from actual jurors collected at both the beginning of jury service and after deliberations, this research examines whether jurors’ views of the fairness of the jury system affect perceptions of evidence presented to them at trial. By surveying jurors at the beginning of jury service, this research uses measurements of jurors’ views which are not affected by the court process itself. We find that jurors who enter jury service with a stronger belief in the fairness of juries are more likely to favor the defense after hearing the evidence. Policy implications are discussed, including using caution with harsher methods to improve juror rate of appearance because of the potential effects on jurors’ views.
It was our honor and pleasure to work with Dr. Amy Steigerwalt to present this special issue of Justice System Journal dedicated to empirical research on indigent defense. We are thankful to all the authors who contributed their work for consideration and are indebted to the reviewers who helped to ensure that this issue represents the diversity and quality of a vibrant research field. We are also mindful that this issue emerges amidst an epistemic crisis in which the concept of shared, verifiable knowledge is subject not only to justifiable critique but also to unwarranted attack. Indeed, as is increasingly true across organizations, institutions, and systems, the practice of indigent defense itself is rife with political battles in which research and data are often deployed as weapons. We view this crisis as an opportunity to celebrate science—the co-production of knowledge through iterative application and improvement of research principles and methods, grounded in commitments to transparency regarding the content, implications, and limitations of resulting data. We do so with this compilation of new research on indigent defense. These volumes have been a focus of our work since 2014, when we co-convened the Indigent Defense Research Association (IDRA) to build new connections among researchers in the field. Since then, IDRA’s conferences, monthly webinars, and listserv have provide a unique space for robust discussion and advancement of research on indigent defense. As was the case with prior volumes, the results of these discussions inform a collection of papers that readers are unlikely to find elsewhere. Some pieces are critical of indigent defense systems and the lawyers that work in them. Other work focuses exclusively on perfecting research methods. Some are animated by goals such as policy improvement, exposure of inequity, or liberation from oppression. But a common thread runs across these pieces: the shared desire to understand indigent defense more deeply and to describe it more accurately. We divide the seven studies in this volume into three groups. We begin with two studies that examine the experiences of people receiving indigent defense services. Each raises questions about what people want and need from indigent defense, and how often they are satisfied. We then move on to three further studies of professionals in indigent defense systems – attorneys and judges – which lead us to wonder about how well their work and goals match what service recipients want. And finally, we present two studies that look at indigent defense services at a jurisdictional level, each asking different questions about the benefits and adequacy of the systems under examination.
We collected data on individuals' support for politically motivated "hardball" tactics for U.S. Supreme Court confirmations from three distinct time periods: in the days leading up to the initial confirmation proceedings for Brett Kavanaugh's elevation to the U.S. Supreme Court, immediately following the second round of hearings held to address the sexual assault allegations brought by Christine Blasey Ford against Kavanaugh, and following the confirmation hearing for Amy Coney Barrett. We investigated whether these high-profile proceedings, following protracted Senate wrangling, affected whether priming respondents to think about past norm violations and partisan gamesmanship affected their support for the use of various confirmation tactics and their assessment of the Supreme Court's institutional legitimacy. Our results show that the Court is not necessarily in control of public perceptions of the institution. Specifically, drawn-out Senate gamesmanship is impacting the Supreme Court's institutional standing and individuals tend to dislike norm violations within the confirmation process. However, such concerns can be overwhelmed by ideological or partisan interests in an environment of greater partisan tension and outright conflict. Taken together, our findings suggest that the traditionally static nature of the Court's base of diffuse support may be on tenuous ground due to its continued politicization at the hands of outside actors.
The Supreme Court’s increased use of the “shadow docket” and the salience of the issues handled on the shadow docket have raised normative concerns over its use. Critics argue that the Supreme Court should not make law without following established procedures of a full briefing, oral arguments, and deliberation. Those seeking to defend the Court point out that decisions made on the shadow docket do not create binding precedent and only resolve the issue before the Court. We examine whether shadow docket decisions are used as precedent by lower courts. We come to two general conclusions. First, shadow docket cases are invoked as precedent much less frequently than merits docket cases. Second, shadow docket cases receive more engagement from the lower courts when the Supreme Court provides a justification for its shadow docket decision and when the Supreme Court grants relief and thereby changes the status quo. Our results help evaluate and provide responses to the normative criticisms of the Court’s reliance on the shadow docket to create law.
Movement lawyering often results in litigation battles. Litigant lawyers in Supreme Court abortion cases, who are typically affiliated with, if not members of the reproductive-rights and antiabortion movements, for many years have engaged in a war of words as they dispute abortion laws and what constitutes an undue burden on abortion access. I use and build on social movement framing theory to examine the legal-framing contest unfolding across the undue-burden abortion cases, toward discerning the anatomy and causal sequence of this discursive legal battle. Using both qualitative and quantitative-computerized text analysis, I show that a broad discursive-opportunity structure shapes the legal-framing contest, and the contest itself is structured by framing innovations and persistence and by dialogic and monologic framing. This theoretical framework can aid our understanding of the sometimes fierce discursive battles in movement litigation, shedding light on how social movements influence legal policy development.
In political systems where political parties are not the sole veto player on judicial nominations, the judicial selection process obfuscates judges' political preferences. However, activists, politicians, pundits, public opinion, and scholars try to assess these preferences because they are crucial for understanding the interaction between judges and political elites. We present a method for inferring judges' political ideology without prior knowledge of their political affiliations. The method we suggest uses the Manifesto Research Group on Political Representation's (MARPOR) coding scheme to assess judges' decisions within their political ideology contexts. We claim that this contextualization accounts for variance in judicial review patterns and associates the judges' reviews with their ideological positions. We apply our method to the Israeli High Court of Justice's judges' decisions and use our data to discuss some public quandaries regarding the court.
Backlogs and long delays in the confirmation of federal judicial nominees have become a common occurrence in Washington, leaving many federal benches understaffed and overworked. While this phenomenon has been well studied at the federal level examining political and institutional factors at play beyond senatorial courtesy, little is known if delay occurs in court systems of the individual American states, or how extensive the obstruction and the delay should it occur. We examine judicial appointments in states having the selection system of gubernatorial nomination and legislative confirmation. We focus on the duration of the judicial vacancies on state intermediate appellate courts and courts of last resort from 2000 to 2016 and explain the variation over time in the length of this process. We show that partisan division and increases in the polarization of state political parties work together to influence timely staffing of these critical institutions in the American states. Ultimately, these findings offer insight into the issues caused by political gridlock over judicial selection and offer practical institutional remedies to this problem.
The Sixth Amendment's guarantee of the right to counsel for individuals accused of a crime is critical to ensuring a fair and just legal system. Despite popular belief, many indigent clients are represented by private attorneys who contract with court systems rather than employees of public defender offices. Understanding the incentives that motivate private attorneys to participate in the public sector by accepting indigent defense court cases is critical to shaping state and local policy related to representation. Prior research on incentives suggests that private sector employees are largely incentivized by income, while public sector employees are driven by a wider range of values. Despite the increasing participation of private-sector contractors in public sector work, the literature has not expanded its examination to include these hybrid workers. This paper examines the intersection of private-sector employees and public services through the lens of indigent defense by examining whether attorneys who participate in indigent defense as contractors do so based on profit-seeking interests. Using data collected from a survey of indigent defense attorneys in the State of Michigan, this paper concludes that private-sector workers who contract with public organizations do so based on income motives. This motive is consistent with traditional motivating factors of private sector employees.
Judges' legal culture is a factor that has been regarded as an important explanation of judicial behavior. As a concept, however, it has been difficult to operationalize and measure and, therefore, frequently dismissed. In this piece, I bridge three different literatures, tackling the lack of theorization in judicial politics' ideational accounts when dealing with the concept of judges' legal culture. Then, I use an original survey with federal judges in intermediate courts in Mexico and conduct a factor analysis to identify judges' legal culture and determine to what extent judges hold a positivist or a constitutionalist legal culture.
Partisan cues, dynamic representation, and indirect accountability provide theoretical underpinnings for the influence of judicial selection and public opinion in state courts. It is unclear, however, how their effects change across different policy domains. We begin to address this gap by examining state gay and reproductive rights decisions. The effect of national public opinion is conditional on nonpartisan elections for gay rights decisions, whereas judges in retention systems are more responsive to state-level opinion. Partisan elections are the conduit for opinion in reproductive rights cases. This only partially supports the theoretical expectations, suggesting policy domain makes a difference.
What explains media coverage of state supreme court candidates? While the scholarly literature thoroughly examines media coverage of judicial decision-making, little is known about how members of the press cover candidates for the bench. This is an important omission as the campaign trail is one of the few places where voters and candidates directly interact with one another. In this research, I present new data regarding local press coverage of candidates for state supreme courts between 2002 and 2014. I find that, similar to coverage of judicial opinions, members of the press are largely drawn to conflict and spectacle. Specifically, journalists are more likely to cover expensive, churlish, and competitive campaigns for the bench. Nevertheless, I also find that the predicted rate of candidate coverage has fallen dramatically between 2002 and 2014 (approximately 62 percent).
State court systems are being reshaped by the widespread adoption of drug courts. However, there has been limited attention to what drives the decision to create drug courts in the states. I link the establishment of drug courts to local issue environments found in each state that support proactive judicial and legal elites. I propose hypotheses that link the density of drug courts to judicial professionalization, state funding of courts, drug arrest rates, and levels of court consolidation. I test these hypotheses with panel data from 2009 to 2014. I find that states with more professional judiciaries and higher rates of drug arrests are more likely to adopt drug courts, that higher levels of court consolidation show a small negative effect and, finally, that higher levels of state funding for court systems do not have consistent effects. I conclude that there is support for (a) using the issue environments approach to analyze the establishment of drug courts and (b) considering issue environments when analyzing other community oriented changes in state court systems.
The Supreme Court’s decision in Marks v. United States instructs lower courts interpreting plurality judgments to follow the opinion concurring on the narrowest grounds, or the opinion closest to the dissent, creating the possibility that the position of the Court may not be one favored by the median justice. While the Marks doctrine creates a problem theoretically, it is unclear how frequently these problems materialize. In this paper, we explore how frequently the Marks doctrine actually results in non-median outcomes. We conclude with thoughts about the importance of these cases and speculate about the future of the Marks doctrine.
President Trump brought judicial appointments to the pinnacle of political salience while campaigning and in office. He was also the first president to inherit Senate rules making it easier to confirm judicial appointments while past partisan obstruction provided his administration with a backlog of vacancies. How then, did President Trump's ability to gain Senate confirmation for judicial nominees compare to recent presidents? We find that he was indeed able to fill an historic number of vacancies. However, the administration was not universally successful as key nominations had to be prioritized at the expense of others. Our findings assess Trump's legacy on judicial appointments and demonstrate the practical tradeoffs newly emerging in appointment politics.
