The Effects of Trial Judge Gender and Public Opinion on Criminal Sentencing Decisions

By Boyd, Christina L.; Nelson, Michael J. | Vanderbilt Law Review, November 2017 | Go to article overview

The Effects of Trial Judge Gender and Public Opinion on Criminal Sentencing Decisions


Boyd, Christina L., Nelson, Michael J., Vanderbilt Law Review


Introduction

"State trial judges have a great deal of authority and discretion over criminal prosecutions."1 What a judge does with that authority and discretion in criminal cases-including plea bargains, bench trials, evidentiary motions, the content of jury instructions, and sentencing- is likely to depend greatly on the judge's background, preferences, and biases.2 Moreover, most state trial judges are selected and/or retained through elections, meaning that there is a direct connection to and constraint from the public as well.3 In other words, the identity of the trial judge and the local culture in which she operates are almost certainly important in determining criminal case outcomes and rulings.

We turn our focus to how one particular judicial characteristic- a judge's sex-might affect judicial behavior in criminal defendant sentencing decisions. In isolation, the fact that female and male judges may sentence criminal defendants differently from one another has critical implications. As George and Yoon report, gender representativeness on state courts is low.4 As a result, a defendant's likelihood of drawing a female judge is greatly affected. This, in turn, can systematically lead to disproportionately lenient or harsh sentencing of defendants. New empirical analysis can help provide insight into the severity of this concern.

We also consider if and how a trial judge's sex intersects with public opinion pressures. Elected judges generally fear being viewed as "soft on crime,"5 particularly when their electorate has directly spoken on the issue through a ballot initiative.6 While it may be that all elected judges-male and female-equally fear the public's wrath, female judges may be particularly likely to seek voter approval and consensus in their criminal sentencing behavior. Once again, we look to empirical analysis to provide the answer.

We examine differences in responsiveness to public opinion among male and female judges through a study of trial court sentencing in marijuana cases in Colorado. In 2006, voters in Colorado rejected a proposed constitutional amendment that would have legalized the possession of small amounts of marijuana, leaving the legal status quo but providing local judges with constituency-specific information about the public's views toward marijuana legalization. With this unique vote, we have access to a constituency-level measure of public opinion on an issue that regularly comes before trial court judges and was publicly available to those judges as part of the normal process of reporting vote totals. This vote, therefore, sidesteps issues with measuring local-level public opinion that have plagued earlier studies, enabling us to assess responsiveness to public opinion with a measure of public opinion that is both valid and of particular relevance to elected judges, since it represents the views of those citizens who actually do turn out on election day.

In what follows, we tackle these questions in order. In Part I, we examine the behavior of female and male judges in sentencing criminal defendants. This includes an exploration of the theory and prior empirical analyses in this area, an overview of the empirical research design, and a presentation of our empirical results. In Part II, we continue with our dual examination of whether public opinion has a differential effect on male and female judges in their sentencing decisions. This begins with a general background on the effects of public opinion on judicial behavior followed by a more specific theoretical exploration of the judge gender-public opinion question. We then turn to a discussion of our data and research design and conclude with our original empirical analysis and findings. Finally, in our Conclusion, we discuss the implications of our findings for criminal defendants, state trial court judging, and future research in this area.

I. Gendered Judging and Criminal Sentencing

We begin our examination of whether male and female judges behave differently when sentencing criminal defendants by first detailing the theoretical arguments and prior empirical efforts on the subject. …

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