Tag Archives: judges

Li on judicial decisionmaking

Jimmy Li over at the worthwhile Traiberman-Li blog has this discussion on decisionmaking, from which I excerpt this section:

In one of their studies, K&E looked at the bail decisions of five San Diego judges (each of whom did not know they participating in a study when they made their decisions). As K&E mention, most states have explicit guidelines that judges are supposed to follow in making their bail decisions (a “bail decision” is a decision on whether to grant bail, and at what price). At the time of the study, for example, California’s guidelines emphasized factors like “dangerousness,” “risk of non-appearance,” and “community ties of the defendant.” To what extent did factors like these actually influence judges’ decisions?

To answer this question, K&E developed and tested many decision models, each of which took into account different factors, and to varying degrees. A simple model, for example, might make a decision based purely on the defendant’s criminal history (e.g. “If any criminal history, no bail”), while a more complex model might include four or more differentially-weighted factors.

When K&E compared their models’ predictions to the judges’ actual decisions, they found that judges’ behavior was “characterized by a remarkable (almost offensive?) simplicity.” In setting bail, for example, judges’ decisions could be fully predicted by just two factors: the recommendation of the prosecuting attorney and the recommendation of the defense attorney (with much more weight granted to the former). The two attorneys, in turn, based their recommendations off of just one factor: the severity of the crime.

This means that when it comes to setting bail, many of the factors that the California guidelines enumerated and all of the factors that the judges (when interviewed) claimed to consider didn’t make into judges’ actual decision functions. Instead, they took into account just one factor, and they did so indirectly, through their reliance on the prosecution and defense.
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Sandra Day O’Connor on merit selection of judges

Her op-ed in the NYT is here. I think it is worth reading:

In our system, the judiciary, unlike the legislative and the executive branches, is supposed to answer only to the law and the Constitution. Courts are supposed to be the one safe place where every citizen can receive a fair hearing.

In a merit selection system, a nonpartisan nominating commission interviews and investigates applicants for judicial vacancies, and ultimately recommends a few candidates to the governor. The governor appoints one from the list. Regular “retention” elections are held to allow voters to decide whether to keep the judge in office.

There are those who assert that this system benefits legal insiders, because lawyers will inevitably dominate the nominating commissions, which would hold their meetings in secret. But to the extent that this could be a real problem, Arizona has already demonstrated how to avoid it. In that state, nominating commissions are dominated by non-lawyers, and their meetings are open. Candidates’ applications are available online, and the public is invited to comment.

Another argument against this system is that it deprives voters of the chance to choose their judges. But the truth is, in those states that elect judges, candidates often run unopposed, so voters are left with no options, and little information about the people who are on the ballot. In a system where judges are evaluated before they are put on the ballot, voters can make their decisions more knowledgeably — with relevant information about the judges’ performance on the bench.

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