David R. Henderson  

Fewer Judges, More Justice

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Ten percent of federal judgeships are currently vacant, yet little is known on the impact of these vacancies on criminal justice outcomes. Using judge deaths and pension eligibility as instruments for judicial vacancies, I find that prosecutors decline more cases during vacancies. Prosecuted defendants are more likely to plead guilty and less likely to be incarcerated, suggesting more favorable plea deals. The incarceration effects are larger among defendants represented by private counsel. These estimates imply that the current rate of vacancies has resulted in 1000 fewer prison inmates annually compared to a fully staffed court system, a 1.6 percent decrease.
This is from Crystal S. Yang, "Resource Constraints and the Criminal Justice System: Evidence from Judicial Vacancies," March 2015. Yang is an assistant professor of law at Harvard Law School.

HT2 Scott Alexander.

How does this justify my title? What if fewer murderers and rapists are being put away? Put aside the fact that most murders and rapes are not federal crimes and go to the content of the paper. Here's why my title. Yang writes:

Whether the impact of judicial vacancies on criminal justice outcomes is desirable depends on the social costs and benefits of increased dismissals and more favorable plea offers. If prosecutors are unable to devote resources to investigating cases or forced to dismiss viable cases in the face of resource constraints, the deterrent and incapacitative effects of criminal sanctions may be reduced. However, the presence of resource constraints may also force prosecutors to more effectively screen out cases of innocent defendants and people who are not deserving of conviction and incarceration. Specifically, I find that case declinations and more favorable plea offers stem largely from drug offenses.


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CATEGORIES: Economics of Crime




COMMENTS (5 to date)
Jon Murphy writes:

A bit of anecdotal evidence:

Here in New Hampshire, we have a huge shortage of judges and, as such, it takes a long time to prosecute anything. My neighbors, who are civil (family court) lawyers mentioned that, because of this lag, families are more likely to resolve their issues either thru marriage counseling or out-of-court. My neighbor said her practice has turned from a lot of simple custody disputes to more complex cases that really require judicial review.

Thomas Lee writes:

A couple of comments. In an increasing number of communities volunteers mediate cases involving juvenile offenses (say graffiti or breaking a window). Victim and offender are brought together near where both live and the parties themselves figure out how to resolve the case. Restitution is not ordered (as by a judge) but agreed to in a very informal setting. This practice is often called "restorative justice" and saves money and anxiety for those involved. The agreement takes the place of what the court would have decided. I have been mediating these cases for years.

Second, the same kind of effect mentioned by David shows up in medicine. Often when, for example, doctors go on strike, the death rate goes down. This explanation is controversial, but the effect appears to be real, documented in diverse parts of the world. Here is an example:

http://www.huffingtonpost.co.uk/dr-raj-persaud/when-doctors-go-on-strike_b_1513689.html

Phil writes:

I occasionally volunteer as a mediator in small claims court and the unlawful detainer court (landlord-tenant disputes). In most courtrooms, the mediation service is available, but not compulsory. The smart judges assign a case to mediation and will hear it only if the mediation fails. In my experience, about 75% of the time it succeeds.

The mediation not only ends the dispute, it does so in manner favorable to both parties. They have a higher rate of ultimate resolution because the result was mutually determined. (Just because a judge declares someone owes you money does not mean you will get paid; step two is enforcing that judgment). Two winners, no loser. And no party has a legal judgment on their record that affects their credit rating or employment prospects.

Fewer judges, better outcomes.

David R. Henderson writes:

Thanks all for these constructive comments.

Question for Phil: You’ve got me curious. As part of the mediation, is the payment made on the spot? If not, how is it enforced?

Phil writes:

@ David -

The mediation agreement is a contract that is brought before the judge and entered into the record. If the parties perform satisfactorily, the case is dismissed. If they do not, the plaintiff retains the right to obtain a court order to enforce the agreement (or void the agreement and try the original case).

Sometimes a defendant does arrive ready to pay (e.g., a car accident and the insurance carrier accompanies the defendant). Usually, the mediation agreement (contract) spells out the payment terms.

And the nice thing about mediation is that the parties can agree to anything where the judge's available remedies are typically limited to money damages. I have hammered out agreements where one party agrees to perform some service for the other instead of making a payment.

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