Empirical Legal Studies

CELS (Toronto)--Some Very Good News and Some Sub-Optimal News

I begin with the good news: CELS (Toronto), scheduled for March 18-19, 2022, will go forward. The sub-optimal wrinkle, however, is that organizers were forced to move the event to an on-line (remote) platform and format. As the organizers note: "Unfortunately, the surge in Omicron has led to travel restrictions into Canada, as well as restrictions on gatherings in the province of Ontario. Events at the University of Toronto are not permitted. It is likely that many of these restrictions will still be in force in March."

For more information about the conference click here.

Writing Up Results From a Logit Model Using the Odds Ratio Option

A fairly innocuous question -- how best to interpret odds ratio results from a xtlogit model estimation -- unleashed a torrent of commentary on the StataList (click here). As this is a not uncommon model used in many ELS papers, I thought others may benefit from the (extended) discussion.

One of the (many) points that garners attention includes the numeric range for odds ratios: "There is no reason an odds ratio can't be greater than 2. On the other hand, an odds ratio can never be less than 0. The possible values for an odds ratio range from 0 to + infinity. And the interpretation does not depend on the size of the odds ratio. In your case, assuming the predictor is dichotomous, it means that the odds of a positive outcome when the predictor is 1 is 2.46 times the odds of a positive outcome when the predictor is 0. If the predictor is continuous, it means that a unit difference in the value of the predictor is associated with the odds of a positive outcome increasing by a factor of 2.46."

The Empirics of Post-Conviction Plea Bargains

As a prosecutorial tool, the plea bargain exists in uncomfortable space. Any discomfort aside, however, the criminal justice system, as currently constituted, necessarily relies on it. As research on how prosecutors exercise their discretion--including how they deploy plea bargains--continues to develop, greater empirical clarity surrounding plea bargains will hopefully emerge.

While virtually all (of the small number of) plea bargaining studies typically focus on how prosecutors wield plea bargains after a defendants has been charged and prior to the defendant entering a formal plea, a recent paper explores plea bargaining at an entirely different moment in time. Specifically, in Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence, Keith Findley (Wisc.) et al. set out to re-focus plea bargaining research by exploring what it looks like in the post-conviction appeals stage. And by exploiting only those post-conviction appeals brought by U.S.-based innocence organizations from 2010 through 2020, the authors try to focus on plea bargains for those defendants who have not-implausible claims of actual innocence.

To be sure, a dataset filtered by innocence organizations' case selections does not by any means insure that all of the (convicted) defendants are actually (or legally) innocent. Indeed, the authors admit as much when they note that "it is a virtual certainty that not all of the defendants in these cases are actually innocent." Over-inclusiveness aside, the authors feel that their dataset is "about as good as one can get for studying plea bargaining with innocent defendants."

Even after adjusting for an imprecise dataset, what the authors find intrigues. "In post-conviction litigation involving defendants with a high likelihood of being actually innocent and wrongly convicted, prosecutors offered plea bargains in 23 percent of the cases. Moreover, when prosecutors made plea offers, the plea concessions they offered were uniformly steep." If nothing else, this paper helps point the way for future research. An excerpted abstract follows.

"Critics of plea bargaining have long contended that it has an innocence problem—that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty. While laboratory studies confirm that innocent individuals can indeed be induced to plead guilty, little real-world empirical evidence exists about the nature and extent of plea bargaining’s innocence problem.

Utilizing original empirical data, this article begins to fill that void. Looking at cases in a post-conviction context, we study the extent to which prosecutors in real cases utilize their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high. We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals. To address these questions, we collected a wide-range of data from U.S.-based member organizations of the Innocence Network about the cases they litigated from 2010-2020."

Data on Prosecutorial Discretion By Gender

While a robust judicial outcomes research literature continues to mature and evolve, a critical pre-judicial outcome stage--the exercise of prosecutorial discretion--remains relatively understudied. Understanding the prosecutor's role is crucial as they "exercise unfettered decision-making authority throughout criminal cases by selecting whom to charge, which charges to bring, and what plea bargains to accept." While prosecturial discretion increasingly garners critical public attention, scholarly attention remains hamstrung by a paucity of helpful, systematic data.

In a recent paper, Gender Favoritism Among Criminal Prosecutors, Stephanie Holmes Didwania (Wisconsin) makes some intriguing headway by exploring individualized evidence about prosecutorial decision-making with the benefit of data from more than 130,000 federal criminal defendants sentenced from 2002 through 2016.

The paper's individualized line prosecutor-level data are, of course, key, and the data set is the product of two separate data sources: U.S. Sentencing Commission data (for the defendants) and the Executive Office for United States Attorneys (EOUSA) that regularly publishes case-level data from the 93 USAOs located throughout the United States. These data originate from the Legal Information Office Network System (LIONS), which is the computer program that the EOUSA uses to track and manage case loads. After employing various filters, what emerged includes data on "131,207 defendants sentenced in 63 of the 94 federal district courts in the United States, comprising 172 unique courthouses, 1,498 unique prosecutors, and 1,589 unique courthouse-prosecutor combinations."

Despite the granular data, the paper's empirical execution is not without important limitations. One limiting factor is that line prosecutors are not randomly assigned to cases. Another is that the defendant's underlying criminal conduct is not observable to the researcher. As this paper explores gender-based in-group favoritism, the non-random case assignment is important as "cases in which prosecutors and defendants match on gender are systematically different from those in which prosecutor and defendant mismatch."

Limitations aside, the paper's key findings include some intriguing gender-based differences. While the paper finds that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall, evidence of relative leniency towards defendants of their own gender exists. And for the defendants, such gender-based in-group favoritism is not inconsequential. "The leniency associated with gender-matching ultimately translates into significantly lower sentences: a defendant can expect to earn a roughly five-month shorter sentence when their prosecutor is their own gender compared to when their prosecutor is the opposite gender, which represents a roughly eight percent reduction in sentence length at the mean." The paper's abstract follows.

"Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors."