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Volume 117 - Issue 5


The Architecture of Discretion: Implications of the Structure of Sanctions for Racial Disparities, Severity, and Net Widening

Sakoda, Ryan T | March 12, 2023

About four million people are serving a term of probation, parole, or post-release supervision in the United States. Due to the extensive use of incarceration as a punishment for conditions violations, these community supervision programs are a major factor contributing to mass incarceration and, as this Article shows, can play a significant role in exacerbating racial disparities in the criminal legal system.

In recent years, jurisdictions throughout the United States have made reforms to their community supervision programs. A major trend in community supervision reform is the integration of new sanctioning structures, such as “swift and certain” sanctions, for conditions violations. These changes not only introduce new types of sanctions but also redesign the architecture of the sanctioning process and provide a valuable opportunity to study how the contours of discretion affect bias, severity, and frequency in the imposition of sanctions.

In this Article, I study a statewide probation reform that implemented swift and certain sanctions. I present new empirical evidence on the impact of two key elements of the structure of discretion: the disaggregation of discretion into multiple decision points and the allocation of discretion among various actors in the decision-making process. In addition, this Article includes the first in-depth empirical analysis of swift and certain sanctions on racial disparities.

Using a detailed administrative dataset covering nearly 90,000 probation cases, I find that the introduction of swift and certain sanctioning reforms is associated with a statistically significant increase in the overall rate of incarceration among probationers and a statistically significant decrease in racial disparities in incarceration.

The overall increase in incarceration is driven by the imposition of new jail and prison sanctions introduced by the swift and certain reforms. The decrease in racial disparities appears to be driven by the narrowing of racial disparities associated with probation revocations. These results suggest that disaggregating and reallocating points of discretion may reduce racial disparities but can come at the expense of widening the carceral net.

The Failure of Judicial Recusal and Disclosure Rules: Evidence from a Field Experiment

Thorley, Dane | March 12, 2023

U.S. courts rely predominately on judicial self-recusal and in-court disclosure to address judicial conflicts of interest and maintain a critical perception of impartiality. But these approaches fail to account for the legal, institutional, and social dynamics that surround the relationship between judges, attorneys, and the adjudicative process. In reality, judges rarely use their discretion to disclose conflicts or recuse themselves, and attorneys do not ask them to do so. If we understand both the legal and extralegal incentives at play in these decisions, none of these outcomes should be surprising. The shortcomings of recusal and disclosure rules are particularly salient in the context of judicial campaign finance, where elected judges face the acute dilemma of being assigned to a case in which one of the parties or attorneys has made financial contributions to the judge’s election campaign.

To support these substantive claims, this Article features the results of a novel randomized field experiment—the first-ever blinded experiment conducted on judges in active cases. In the experiment, Wisconsin and Texas civil cases that feature donor attorneys are identified and a portion of the judges presiding over these cases are randomly assigned to receive a letter identifying the potential conflict and requesting recusal. Judicial and attorney behavior is then tracked over the life of the case to observe how often judges recuse, whether they disclose the conflict, how attorneys respond to those disclosures, and whether the intervention of a third party has any effect on these decisions. The experimental results provide much-needed empirical confirmation of growing skepticism surrounding judicial recusal and raise serious doubts that the most popular solution to the recusal problem—increased judicial disclosure—will do much to help at all. Building on these findings, I explore procedural and institutional alternatives that better account for the realities of judicial conflicts of interest and the incentives of court actors.

Why Criminal Defendants Cooperate: The Defense Attorney’s Perspective

Roth, Jessica A,Vaynman, Anna D,Penrod, Steven D | March 12, 2023

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District of Virginia, and the Eastern District of Pennsylvania. Our study provides an entirely new and enriching perspective on the cooperation decision, building on prior theories from the cooperation and plea-bargaining literature, and providing for a more nuanced understanding of cooperation and its motivations. In several closed- and open-ended responses, attorneys shared their opinions—at times remarkably consistent, at times strikingly and informatively different—about cooperation practices in their respective districts. The results of this study can be used to further explore the theoretical foundations of cooperation and plea bargaining and can be used to build experimental studies to test causal relationships that are otherwise nearly impossible to determine.

Notes and Comments

Obey or Abey: An Empirical Examination of Abeyance Agreements in Public School Discipline

Cox, Rachael K | March 12, 2023

“Exclusionary discipline” is widely understood to mean the typical responses to student misbehavior in public schools: suspension and expulsion. But sometimes their lesser-known counterpart, the abeyance agreement, swoops in before the suspension or expulsion is effectuated and gives the student a “second chance” to avoid such exclusionary discipline—provided the student complies with the terms of the agreement. It sounds simple, but the reality is far more complicated. Without a clearly defined, regulated, and tracked practice, abeyance agreements are an off-record discipline device used at the sole discretion of public school district administrators. Joining a landscape of urgent concerns over the disproportionate use of exclusionary discipline against Black students, male students, and students with disabilities, the use of abeyance agreements by public schools as an alternative to traditional exclusionary discipline raises concerns as to whether their use may similarly—and detrimentally—reflect these trends.

But we simply don’t know. Presently, little to no quantitative research or qualitative discussion exists on the use of abeyance agreements in public school discipline. This Note is an exploration of that unknown: it introduces abeyance practices and the legal and policy concerns they raise, and identifies potential next steps in addressing their use. Most notably, this Note presents original datasets that illustrate the current landscape of abeyance practices in two large U.S. school districts and, in doing so, provides a baseline for comprehensive empirical research on the issue.