Empirical Legal Studies

Data on K-12 School Suspension Reform Efforts

Incident to the federal Gun Free School Act (1994), all fifty states adopted an array of "zero-tolerance" policies, which include out-of-school suspensions ("OSS"), for various forms of student misconduct. As evidence of adverse consequences mounted, some states, including Rhode Island, limited school districts' use of out-of-school suspensions. In 2012, Rhode Island began prohibiting out-of-school suspensions for "low-level" student infractions and, in 2016, began requiring school district-level reviews of whether out-of-school suspensions raise any long-standing EPC concerns.

In a recent paper, Do School Suspension Reforms Work? Evidence from Rhode Island, Terry-Ann Craigie (Smith College--econ) "exploits student-level administrative data from the Rhode Island Department of Education (AY 2009–2010 to AY 2017–2018), along with a triple-difference (DDD) framework, to measure the impact of each suspension reform on OSS [out-of-school suspension] outcomes for treatment infractions in treatment schools (i.e., schools and within-school grades that used OSS to penalize treatment infractions, ex ante). The study also employs a quadruple-difference (DDDD) model to measure the extent to which racial-ethnic disparities in OSS changed for the treatment groups under each reform."

Results from the study imply that Rhode Island's initial (2012) reform "substantially lowers OSS for attendance-specific infractions in treatment schools." Results on Rhode Island's 2016 reform designed to address distributional concerns, however, are "mixed." The paper's abstract follows.

“In Rhode Island, out-of-school suspensions were excessively and disproportionately used to penalize low-level infractions. To address this problem, the Rhode Island General Assembly passed legislation, effective May 2012, prohibiting out-of-school suspensions for attendance-specific infractions. Four years later, they passed additional legislation to curb out-of-school suspensions for disruption-specific infractions. This study examines the impact of these suspension reforms on out-of-school suspension outcomes for treatment infractions and corresponding racial-ethnic disparities. To execute the analyses, the study uses student-level administrative data (AY 2009–2010 to AY 2017–2018) from the Rhode Island Department of Education, along with quasi-experimental estimation. The study finds that only the first reform lowers out-of-school suspension outcomes for attendance-specific infractions and corresponding racial-ethnic disparities.”

Algos and Parole Decisions

Many--if not most--parole decisions remain fraught with peril. As parole boards are tasked with, to some degree, "guessing into the future," some form of risk assessment has been used to inform parole decisions since the 1920s. Despite this legacy, a recent and growing "decarceration" push has heightened public and scholarly attention to criminal risk prediction instruments. Recently, New York state amended its parole law to "center [parole board] decisions on individual’s rehabilitation in prison and future risk if released." Despite this shift in law, critics continue to argue that parole boards, such as New York's, "continue to incarcerate individuals well beyond their minimum sentence, not out of concern for public safety, but because of the nature and severity of the offense that had sent them to prison."

While concerns grow, few empirical estimates of the issue exist. In a recent paper, An Algorithmic Assessment of Parole Decisions, the authors, Hannah Laqueur (UC Davis--medicine) and Ryan Copus (Univ. Mizzou--KC), endeavor to do just that and test a risk-prediction algorithm. To do so, the paper paper exploits New York parole hearings’ data from 2012-2018. The data include individual sex, race/ethnicity, commitment crime, housing facility, parole board interview type, and the interview decision. The authors also obtained criminal history records for all individuals who had a recorded parole hearing from 2012 through 2018. The authors' risk prediction algorithm trained on the 4,168 individuals who were released on parole between 2012 and 2015 (a total of 19,713 individuals had parole hearings during this period). The primary outcome variables include "any recorded arrest within three years post-release and any violent felony arrest within three years post-release."

The authors find that the New York parole board "could have granted parole more than twice as often without increasing either the overall or violent arrest rate, or it could have released the same number of people while approximately halving both overall and violent arrest rates. Further, we find that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.” The authors take care to note that they "cannot determine whether the Board is simply not as good at determining risk as our risk prediction algorithm, or is simply prioritizing non-risk related factors such as the commitment offense." The paper's abstract follows.

"Objectives: Parole is an important mechanism for alleviating the extraordinary social and financial costs of mass incarceration. Yet parole boards can also present a major obstacle, denying parole to low-risk inmates who could safely be released from prison. We evaluate a major parole institution, the New York State Parole Board, quantifying the costs of suboptimal decision-making.

Methods: Using ensemble Machine Learning, we predict any arrest and any violent felony arrest within three years to generate criminal risk predictions for individuals released on parole in New York from 2012–2015. We quantify the social welfare loss of the Board’s sub-optimal decisions by rank ordering inmates by their predicted risk and estimating the crime rates that could be observed with counterfactual risk-based release decisions. We also estimate the release rates that could be achieved holding arrest rates constant. We attend to the “selective labels” problem in several ways, including by testing the validity of the algorithm for individuals who were denied parole but later released after the expiration of their sentence.

Results: We conservatively estimate that the Board could have more than doubled the release rate without increasing the total or violent felony arrest rate, and that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.

Conclusions: This study demonstrates the use of algorithms for evaluating criminal justice decision-making. Our analyses suggest that many low risk individuals are being unnecessarily incarcerated, highlighting the need for major parole reform."

The Fourth Amendment Post-Carpenter

The long-anticipated collision between Fourth Amendment rights and technology has largely arrived. On the one hand, traditional legal doctrine implies that "information shared with a third party like a bank or telephone company was not protected by the Fourth Amendment." On the other hand, the volume of information now exposed to third parties has "exploded in the internet age, encompassing virtually every kind of digital data generated by internet and cell phone users." In 2018, the Court weighed in and its Carpenter decision was deemed "revolutionary" by holding, in part, that "individuals can retain Fourth Amendment rights in information they disclose to third parties." Specifically, the Court ruled that government agents had to "obtain a warrant before collecting cell phone location data that showed virtually everywhere a suspect had travelled over a seven-day period."

How lower courts understand and have operationalized the Carpenter decision is the focus of The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021, by Matthew Tokson (Utah). The paper examines all 857 federal and state court decisions that cite to Carpenter from the decision's 2018 publication through March 2021. Among the salient factors driving lower court outcomes include: "the revealing nature of the data at issue, the amount of data collected, and the automatic nature of data disclosure, and clearly do not include the number of persons affected." An excerpted abstract follows.

"[The paper] examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It explores how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the “good faith exception” to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article suggests alternative factors and paradigms that courts can adopt to more effectively address Fourth Amendment questions going forward. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive study to date of the jurisprudential impact of a Supreme Court case in the years following its publication."

Pro Se Civil Litigation in Federal Courts

Public and scholarly attention to pro se litigation is growing. In Mapping the Civil Justice Gap in Federal Court, Roger Michalski (Oklahoma) and Andrew Hammond (Oklahoma) provide a helpful empirical perspective.

Careful attention to pro se litigation is warranted. The sheer volume of pro se litigants will surprise many, if not most. According to the authors' calculations, last year 12 percent of the non-prisoner civil cases filed in federal district courts (more than 25,000 cases) were pro se. Aside from the scope of this issue, "pro se litigants raise unique practical, doctrinal, and normative concerns for the legal academy, the bar, and the federal bench.”

Not surprisingly, methodological challenges limit empirical assessments of pro se litigation. While the paper is appropriately mindful of these limitations, it nonetheless does not "let the perfect be the enemy of the good." As such, the paper analytically confines itself to describing "where pro se litigants live and identify the communities they inhabit." To be sure, while a modest contribution it nonetheless  adds to the knowledge base. That said, analytic limitations endure. "None of our claims speak to the characteristics of pro se litigants directly, only indirectly. This is an important limitation of this study and raises bias concerns. Bias might creep in because it is possible that pro se litigants are systematically atypical of the neighborhoods in which they live."

To accomplish its goals, and limitations aside, the paper exploits "a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information with demographic and economic Census data." After various data exclusions (e.g., prisoner suits and cases involving habeas, immigration/deportation cases, naturalization, and bankruptcy claims), what remained included approximately 20,000 federal civil cases per year.

The papers dwells on two core findings. One involves pro se litigants' "profound ordinariness." A second finding involves exceptions to the first. "Even after accounting for population and income, pro se litigants are more likely to reside in communities that are not homogenously white. And numerous rural communities feature fewer pro se litigants than expected.” An excerpted abstract follows.

"Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live."

Data on POTUS Pardons

Discomfort with POTUS pardon activity seems to arise anew as administrations (Dem and Rep) turn over and POTUS power transfers. And this discomfort has likely increased over time. While the Constitution’s language in Article II, section 2 regarding the scope of executive clemency and the limitations upon its exercise is quite brief, it bestows upon the POTUS functionally unchecked pardon authority. Insofar as judicial review of POTUS pardon authority is virtually non-existent, the exact legal contours of POTUS authority in this space remain opaque.

How POTUS pardon activity distributes in this zone of potentially nonrenewable Art. II authority is the subject of a recent (and lengthy) RAND report, Statistical Analysis of Presidential Pardons. Distilling their results to a single point, the authors converge on the following, perhaps unremarkable, finding. “If one had to describe a petitioner in our analysis case files more likely to receive a presidential grant of pardon than others (and to do so without controlling for other petitioner and evaluation process characteristics), Table S.2 suggests it would have been a non-Hispanic white male who was a U.S.-born citizen and was in his late twenties when the underlying offense (a white-collar crime such those involving tax violations, embezzlement, forgeries, or counterfeiting) was committed.” The report's abstract follows.

“This report describes a study of pardon petition evaluations that were performed by the Office of the Pardon Attorney (OPA), a unit in the U.S. Department of Justice that processes thousands of requests for executive clemency each year. A statistical examination was conducted on how OPA screens incoming petitions for technical compliance, investigates the facts underlying each petitioner’s request for clemency, and applies substantive standards for evaluating the merits of such petitions when crafting recommendations to the U.S. President to grant or deny relief. Data were analyzed for any patterns in OPA decisions that indicated statistically significant evidence of racial or ethnic bias.”

How Lower Courts Digest Supreme Court Decisions: Data on the Fourth Amendment After Carpenter (2018)

Technical advances and their implications for civil liberties collided anew in the Supreme Court's 2018 Carpenter v. U.S. decision. In that case, the Court made clear that "individuals can retain Fourth Amendment rights in information they disclose to a third party." The Court specifically ruled that the government needed a warrant before collecting cell phone location data that revealed a suspect's location over a seven-day period. In today's Internet age, Carpenter has the potential to expand privacy protections over a wide and deep swath of sensitive digital information. Insofar as the decision's practical contours and boundaries are, unsurprisingly, vague, "scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward." Equally unsurprising, these guesses about Carpenter's meaning diverge.

In a recent paper, The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021, Matthew Tokson (Utah) subjects various predictions and claims about Carpenter's implications to data. In particular, the paper analyzes "all 857 federal and state judgments citing Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, the Article illuminates both the present and future of Fourth Amendment law.” Among the paper's findings include that: "factors that drive lower court decisions clearly include the revealing nature of the data at issue, the amount of data collected, and the automatic nature of data disclosure, and clearly do not include the number of persons affected." An excerpted abstract follows.

"[The paper] identifies the factors that drive modern Fourth Amendment search decisions—and those that fail to drive them. It examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It assesses how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the 'good faith exception' to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article explores alternative directions that courts may take as they continue to refine Fourth Amendment law and address novel surveillance technologies. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive empirical study to date of the jurisprudential impact of a Supreme Court case in the years following its publication."

US News Law School Rankings and "Scholarly Impact" Metrics: An Update

A loyal Els Blog reader passed along the following and asked that I share it. I am delighted to do so.

A while back the US News and World Report reported that it was contemplating a new metric designed to measure “scholarly impact” incident to its infamous annual law school rankings. Needless to say, given law schools’ focus on annual rankings US News’ contemplated change to its ranking formula generated considerable blow-back (from many different directions). The Law & Society Association, for example, worried that a scholarly impact measure drawing from the Hein database would have deleterious impacts on interdisciplinary scholars.

In the end (and for now, at least), the US News and World Report elected not to proceed with its proposed new scholarly impact metric. A statement from the Law & Society Association (here) nicely describes its concerns and expresses relief at US News’ recent decision.

Pretrial Detention and Release Experiments

As I have an admitted soft-spot for (even quasi-) randomized control trials as a research design, a recent paper by Javier Osorio (Arizona-Govt. & Pub Pol’y) et al., Reducing Pretrial Detention: A Randomized Intervention with Public Defenders in El Salvador, caught my eye. In it, the authors exploit a "randomized intervention in El Salvador designed to improve public defenders’ capacities to secure pretrial release for defendants.”

To note that pretrial detention is a problem is to note merely the obvious. And in countries facing acute security challenges, such as El Salvador, there exists enormous pressure on criminal justice authorities to limit pretrial release. The authors contend that the overreliance on pretrial detention is driven in part by lack of information about defendants’ flight risks and the prospect of their committing further crimes while awaiting trial. And this information deficit is “the consequence of deficiencies in the public defender system, upon which economically disadvantaged citizens rely to ensure legal representation.”

To assess their hypothesis, the authors exploit an unusual (by U.S. standards, anyway) experiment involving a randomly assigned treatment to public defenders in four municipalities in El Salvador. “The treatment included specialized legal training, an improved interview protocol, and enhanced communication channels with the defendants, their relatives, and other institutions. These components sought to improve public defenders’ ability to gather evidence that would support pretrial release.”

The authors found that the treatment “increased public defenders’ requests for pretrial release by nearly 10%. The intervention also helped public defenders to secure pretrial release of their clients by 4.4%, although these results are weaker and sensitive to model specification.” The paper's abstract follows.

"Approximately one third of the global prison population is in pretrial detention, waiting for trial. Overreliance on pretrial detention exposes defendants to harsh conditions, exacerbates jail overcrowding, increases recidivism, and favors criminal governance. What policies can resource strapped countries implement to effectively address excessive pretrial detention? Based on a theoretical model focused on institutional-level efforts, we evaluate an experimental intervention implemented in El Salvador intended to increase pretrial release requests and reduce pretrial detention. The intervention randomly assigned public defenders to receive specialized legal training, an improved interview protocol, material resources, and increased communication channels. We find that this inexpensive, scalable program increased pretrial release requests from public defenders by nearly 10% (0.228 standard deviations) and increased the success in securing pretrial release by 4.4% (0.114 standard deviations). Heterogeneous treatment effect analyses suggest that the program increased strategic litigation among the most experienced public defenders and has distinct effects for those accused of minor and severe crimes. We find no evidence that the mechanism explaining our results involves changes in public defenders’ attitudes or perceptions about their work environments. Criminal justice programs focusing on pretrial detention may help reduce prison overcrowding in high crime countries."

Potential Research Projects

While The De-licensing of Occupations in the United States: A Shifting Trend?, by Robert Thornton (Lehigh—Business) et al., is a brief and purely descriptive paper, it identifies a timely topic and, in so doing, also identifies possible future empirical projects.

While a traditional focus for economists, “occupational licensing has begun to attract a growing and sometimes vocal stream of critics.” The standard set of criticisms are relatively well-rehearsed. “It has been alleged that too many occupations now require a license to practice and that the requirements for attaining a license in terms of costs and length of training are often excessive. Complaints have also been made that higher prices for the services provided by licensed practitioners are too often the result, and that the benefits to consumers in terms of higher quality are either small or nonexistent. Finally, it has been charged that excessive licensing has resulted in adverse effects on employment opportunities, intergenerational mobility, and worker mobility, especially for those with lower levels of education.”

While the state legislatures have been slow to respond to such critiques, since 2011 state legislative responses have accelerated. “The result has been that 35 occupations have become delicensed in a total of seven states over the past five years.” While this paper only sets out to identify where de-licensing efforts have succeeded, the paper’s sourcing also identifies possible avenues of empirical research down the road assessing, e.g., the costs and benefits incident to occupational licensing requirements and delicensing.

Tobacco Products, Taxes, and Substitution Effects

Variation in e-cigarette taxation supplies potentially rich research opportunities for studies of the on-the-ground effects of tax policy. In this spirit, The Effects of E-Cigarette Taxes on E-Cigarette Prices and Tobacco Product Sales: Evidence from Retail Panel Data, by Chad Cotti (Univ. Wisc-Oshkosh--economics) et al., estimates the effects of "e-cigarette taxes enacted in eight states and two large counties on e-cigarette prices, e-cigarette sales, and sales of other tobacco products." (One critical data limitation is the study's reliance on e-cigarette data that excludes sales through specialty vape shops and online sales.) The intersection of two core findings help frame what the authors define as a "detrimental unintended consequence of e-cigarette taxes."

One key finding is that "e-cigarette taxes are over-shifted to consumer prices, which is most likely in a market with high concentration." A second key finding is that "e-cigarettes are elastic goods and their use substantially reduces cigarette sales." However, "a 1% increase in e-cigarette taxes increases cigarette sales by about 0.14%.” (emphasis added) What these two findings imply is that even well-intentioned efforts to dampen e-cigarette use (especially among teens and young adults) through tax policy may well induce for some a migration from e-cigarettes to even more harmful cigarettes.

A Descriptive Glance at Police Clearance Rates

While I have an admitted affinity for asking simple questions, sometimes it's the "simple" question that can help point the way toward more sophisticated empirical work. A recent paper by Andrew Leipold (Ill.), The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice, makes my point.

The paper begins by framing its core research question: "Recent incidents of police violence have led to widespread reform efforts, from modest proposals to change police practices to dramatic attempts to slash funding or abolish the police entirely. But largely ignored in the debate is a simple question – how well is law enforcement currently performing its core functions? In particular, how good are the police at finding the perpetrator, arresting that person, and gathering enough evidence to start the matter through the criminal justice system?"

Exploring police clearance rate data engages the question. And what Leipold finds is that "Clearance rates for violent and property crimes have been both quite low and amazingly steady for the last 40 years. These figures are counterintuitive, because during that same period, crime first rose and then decreased dramatically; law enforcement personnel numbers increased, and then flattened; and the legal enforcement landscape appears to have tilted in the direction of the police and prosecution. Each of these changes should have significantly affected the clearance rates, but even collectively, they did not."

The presentation of basic descriptive trend data amply supports Leipold's point. And what he argues is that "[w]hile there is no single explanation, the diversion of resources from index crimes and a change in focus toward crime prevention seem to have the most explanatory power." While how to interpret--or explain--the counterintuitive trends, of course, remains ripe for future work, part of the power of initial descriptive work is that it helps bring into sharper relief avenues for deeper and more methodologically sophisticated future research.

Life Sentences "With" or "Without"

While significant public and scholarly attention rightly dwells on capital punishment, comparatively under-explored is a steady surge of life sentences without the possibility of parole ("LWOP"). While the Furman Court's "death is different" doctrine retains obvious salience and moral force, it should not obscure LWOPs from much-needed empirical inquiry.

To this end, in a recent paper, Life 'With' or 'Without'?: An Empirical Study of Homicide Sentencing, forthcoming in JELS, Michael O'Hear (Marquette) and Darren Wheelock (Marquette--Dept. Social and Cultural Sciences) do just that. While the paper's data set is limited to Wisconsin homicides, the authors do a deep data dive into 450 individuals convicted of first-degree intentional homicide between the start of 2001 and about mid-2018. The core findings are mixed. On the one hand, "intentional-homicide defendants who have more serious criminal histories are more likely to receive LWOP." On the other hand, "sentencing outcomes are influenced by the identity of the judge and prosecutor." The paper's abstract follows.

"The number of Americans serving sentences of life without the possibility of parole (“LWOP”) has grown rapidly over the past generation and now exceeds 50,000. Yet, little empirical research has been conducted on the determinants of LWOP sentences. The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences—studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes. The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences.

More specifically, we have assessed the relationship between fifty different variables and LWOP decisions in 450 homicide cases in Wisconsin between 2001 and 2018. In our final model, we find seven variables that are correlated with sentencing outcomes. Of particular note, we find that judge and prosecutor personal characteristics are statistically significant correlates of LWOP decisions. We also find a significantly greater likelihood that LWOP sentences will be imposed in counties that are more Republican. We conclude with a proposal for a new LWOP sentencing process that may help to ensure that this very severe sentence is reserved for the most serious crimes committed by the most dangerous defendants."

"Judging" Autonomous Vehicle Liability

Conventional wisdom implies that, on balance, judges, as a group and in their professional capacity, tend to disfavor new technologies. This judicial lurch towards disfavoring can present important policy implications as, especially in common law systems, judges can play a critical role in the regulation of new technologies. One example that will likely play out soon in real-time involves autonomous cars.

Dominating the experimental judicial decisionmmkaing literature are studies that rely on "mock" judges deciding "experimental" case hypotheticals. All too often, however, these "mock" judges involve either undergraduate students or a non-random collection of MTurk respondents. By contrast, findings from a recent paper, Judging Autonomous Vehicles, by Jeff Rachlinski (Cornell) and Judge Andrew Wistrich (Ca Central Dist. Ct), both valued Cornell colleagues, reflect an important advancement insofar as they derive from actual, real-live sitting judges (N=933).

In their studies, the authors presented hypothetical cases in which judges had to assess fault or determine damages for either an accident caused by an autonomous vehicle or by a human driver. What the paper finds is that "judges will treat automated vehicles with skepticism. In the related experiments we conducted, judges treated an autonomous vehicle that had been involved in a car accident more harshly than a human-driven vehicle involved in an essentially identical accident.” As these results comport with others prior research focusing on other technologies, larger policy implications loom. As the authors note, "at least when an innovation is artificial, non-human, and a dramatic departure from existing practices, judges act as a brake, delaying and hindering its adoption." The paper's abstract follows.

“The introduction of any new technology challenges judges to determine how it into existing liability schemes. If judges choose poorly, they can unleash novel injuries on society without redress or stifle progress by overburdening a technological breakthrough. The emergence of self-driving, or autonomous, vehicles will present an enormous challenge of this sort to judges, as this technology will alter the foundation of the largest source of civil liability in the United States. Although regulatory agencies will determine when and how autonomous cars may be placed into service, judges will likely play a central role in defining the standards for liability for them. How will judges treat this new technology? People commonly exhibit biases against innovations such as a naturalness bias, in which people disfavor injuries arising from artificial sources. In this paper we present data from 933 trial judges showing that judges exhibit bias against selfdriving vehicles. They both assigned more liability to a self-driving vehicle than they would to a human-driven vehicle and treated injuries caused by a self-driving vehicle as more serious than injuries caused by a human-driven vehicle.”

Misdemeanor (Non) Prosecution

Hidden in plain sight is a significant amount of criminal misdemeanor activity in state courts. Indeed, "every year approximately 13 million Americans are charged with misdemeanor offenses, and misdemeanor cases make up over 80 percent of the cases processed by the U.S. criminal justice system." Scholars and policymakers increasingly raise concerns with the sheer volume of prosecutions for low-level offenses. As well, "some district attorneys across the country have begun to implement alternatives to misdemeanor prosecution, particularly for nonviolent defendants."

As scholarly attention continues to focus on criminal misdemeanors (see, e.g., here), it is inevitable that larger data sets and more sophisticated analyses emerge. One such example includes a recent paper, Misdemeanor Prosecution. In it, Agan (Rutgers--econ) et al., assess a practice in the Suffolk County (MA) District Attorney's Office that imposes upon prosecutors a "presumption of nonprosecution" for "nonviolent misdemeanor offenses." To do so, the paper exploits "new data [N=67,553] on the prosecution of nonviolent misdemeanor criminal complaints from the Suffolk County District Attorney’s Office (SCDAO) in Massachusetts between 2004 and 2018 to estimate the impact of nonprosecution of nonviolent misdemeanors on future criminal justice system contact." (emphasis added)

Despite some missing ADA-level data concerns, one main result is that: "increasing nonprosecution reduced the likelihood of subsequent criminal complaints within a one-year post-arraignment window. In addition, there does not appear to have been an increase in reported crime due to the policy change." The abstract follows.

"Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates."

Empirical Conjectures About the Effects of Raising the Jurisdictional Amount

As my Civ Pro colleagues periodically remind me, we're likely overdue for an increase to jurisdictional thresholds. Even if they're correct, however, what might be the expected (and unexpected) consequences of various increases to jurisdictional thresholds? A recent paper by Steven Gensler (Oklahoma) and Roger Michalski (Oklahoma), The Million Dollar Diversity Docket, puts these counter-factual questions to data. And what they find should interest more than procedeuralists.

The authors hand-coded data from five (non-randomly selected) federal districts (Minnesota, Georgia Northern, New Jersey, Texas Northern, and Utah). From each of these districts they selected a random draw of diversity jurisdiction cases based on Federal Judicial Center (“FJC”) data on cases completed in 2018, resulting in 2,896 usable cases. The paper's methodological move involves substituting the temporal component in survival analysis with a measure of jurisdictional amount. That is, instead of asking on which day a machine fails, we ask at which jurisdictional amount a case fails. To do so, the authors estimated modified KaplanMeier survival functions and Cox Proportional Hazard Regression models.

The paper's main takeaway is that jurisdictional amounts "are not neutral throttles. They do not modulate all cases evenhandedly. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes in the jurisdictional amount than others." The abstract follows.

"What would happen if Congress raised the jurisdictional amount in the diversity jurisdiction statute? Given that it has been almost 25 years since the last increase, we are probably overdue for another one. But to what amount? And with what effect? What would happen if Congress raised the jurisdictional amount from the current $75,000 to $250,000 or, say, $1 million?

Using modified Kaplan-Meier survival functions and Cox Proportional Hazard Regression models to analyze a novel hand-coded data set of pleadings in 2900 cases, we show that the jurisdictional amount is not a neutral throttle. It does not modulate all cases evenhandedly. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes in the jurisdictional amount than others. As such, setting the amount in controversy at any level entails normative choices about which cases to bless and curse with a federal forum.

Our findings implicate not only policy discussions about diversity jurisdiction in general, but also debates currently underway in Congress to utilize modifications of the jurisdictional amount requirement to channel COVID-19 related litigation into federal courts. We hope our empirical work will inform these debates and enable a new wave of scholarship on the basic functions and functioning of the federal diversity docket. We outline some beginnings of this type of work by exploring radically different avenues of thought that develop and re-imagine the diversity docket anew. They range from incremental inflation-adjustments, to carve-outs, experiments with lotteries, and the radical replacement of an amount in controversy minimum with a maximum."