Some great (non-capital) holiday reading

As noted in posts here and here, there are plenty of new capital punishment articles to keep one busy this holiday week.  But, if you are interested in avoid death while in a thankful mood, here are two new pieces addressing other sentencing -related issues on SSRN that are also worth downloading:

• Judges on Trial: A Reexamination of Judicial Race and Gender Effects Across Modes of Conviction by Brian Johnson

Abstract: Extant research on the effects of judicial background characteristics suggests minimal influence from the race or gender of the sentencing judge in criminal cases. This raises at least two possibilities: 1) the combined influence of judicial recruitment, indoctrination and socialization into the judgeship results in a homogenous body of criminal court judges, or 2) current approaches to identifying judge effects in criminal sentencing have methodological and conceptual flaws that limit their ability to detect important influences from judicial background characteristics. The current paper argues that the mode of conviction shapes the locus of sentencing discretion in ways that systematically underestimate judge effects for pooled estimates of incarceration and sentence length. The empirical results support this interpretation, especially for incarceration in trial cases, where older, female, and minority judges are substantially less likely to sentence offenders to jail or prison terms.

• American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman III

Abstract: This essay is an invited response to Professor Ronald Wright's impressive study of the fact that the acquittal rate in federal criminal trials is declining even faster than the rate of trials themselves, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). The essay concurs with Professor Wright's conclusion that one significant factor driving down both federal trial and acquittal rates is the government's use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory minimum penalties. It offers some additional evidence in the form of statistical data and personal experience supporting that conclusion.

However, the essay goes on to wonder whether Professor Wright's proposed explanations for the disproportionate decline in federal acquittal rates capture the whole story. It suggests that part of the explanation for both the continuing decline of trials and the disproportionate decline in acquittals may be the gradual extinction of true trial lawyers, particularly in U.S. Attorney's Offices. The essay concludes by expressing concern that the decline of trial lawyers may be having deleterious affects on the justice system as a whole.