Academic journal article Law & Society Review

Judicial Behavior after a Change of Regime: The Effects of Judge and Defendant Characteristics

Academic journal article Law & Society Review

Judicial Behavior after a Change of Regime: The Effects of Judge and Defendant Characteristics

Article excerpt

This article examines the determinants of judicial behavior in the context of transition. It tests two assumptions: first, that the judges with experience from the pretransition criminal justice system behave differently from the judges with no such experience; second, that minorities are discriminated against due to their dominant position in society before the transition and stereotypical attitudes after the transition. Using evidence from trial-level courts in Estonia, we find no statistically significant effects between case outcomes, the experience of the judge, and the ethnicity of the suspect.

In a Consolidated democracy, an independent, impartial, and efficient judiciary is an inevitable player for securing human rights, the rule of law, and democracy. After the fall of Communism, countries in Central and Eastern Europe have all faced the task of reorganizing their judiciaries to correspond to these values. In many countries, however, this process takes place in the context of increasing conflict between different ethnic groups. In the former Soviet Union, the democratic transition and the restoration of independence of small nation-states also brought about the transformation of the minority status: the formerly dominant ethnic group-the Russians-became a minority. Can newly democratic courts be fair to people of the very ethnic group that used to oppress them? To what extent do ethnic tensions enter the arena of judicial decisionmaking? In order to answer these questions, we need to understand the empirical regularities of judicial behavior in ethnically divided transitional societies. The fact that judges decide cases not only based on the relevant legal provisions, but also influenced by their individual attitudes, beliefs, and values, is well-known in the political science literature. In the United States, for example, this has been observed on the level of both the Supreme Court (Baum 1997; Segal & Spaeth 2002) and trial courts (Ashenfelter, Eisenberg, & Schwab 1995; Hagan & Bumiller 1983; Steffensmeier & Britt 2001).

In this article, we examine two potential sources of bias in the transitional judiciary. First, we examine the assumption that service under the old regime taints judges in their later decisionmaking. The replacement of unqualified or unacceptable personnel from the pretransition period with newly trained judges is an important aspect of judicial reform in many transitional countries. Such replacement also assumes that judges from the previous regime behave differently than the newly appointed ones, who have arguably not been "corrupted" by the old system. Testing the empirical validity of this assumption both advances our understanding of the judiciary in transition and has explicit policy relevance to decisions about court personnel reform in new democracies.

Second, we analyze whether judges in the newly democratic courts can be fair to people of the very ethnic group that used to oppress them. The integration of different cultures in a single society is a prominent challenge facing former Communist countries (and other countries as well). In Eastern Europe, ethnic discrimination is a well-known problem addressed by different international organizations. Knowing that the courts can, in fact, be impartial and protect minorities from discrimination assures that strengthening the judiciary is a valuable measure to protect minorities from discrimination.

The first section of the article gives some background information about the transitional country under study: Estonia. Next, we present the theoretical framework, methods, and results of our empirical analysis on trial-level courts. We have created for the analysis an original dataset of a sample of decisions by trial-level judges in Estonia. The findings indicate that a judge's experience under the previous regime does not seem to be an important factor in judicial decisionmaking. We also find that the Russian ethnic minority does not fare differently in the courts from the current ethnic majority. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.