final paper - michael cumming

8/6/2019 Final Paper - Michael Cumming

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Do Judicial Selection Methods Really Matter?

I. Introduction

Scholarsh ip regard ing ju dicial inde pendence reflects a ubiqui tous belief that how we

choose judges matters. Though importa nt, this belief is relat ively acade mic as a pp lied to the

United States federal judiciary, given the const itutional requirements for a ppointments and

conf ir mat ion of federal judges. Domest ically, more interest ing i s the realm of the states, given

that they have imp lemented many differe nt methods of judicial select ion. De bates on this to pic

exte nd beyo nd ivory towers to the cor ner bar ber sho p. Es pecially allow ing for the great, perha ps

sur pr ising ly so, popular interest in ju dicial select ion, it makes perfect sense that scholars have

s pi lled much ink and have sla in forests in the ir evaluat ion of the impact of state select ion

methods. It may str ike one as a bit iconoclast ic, then, to even askdoes how we choose judges

really matter? In a reckless embrace of navet, this pa per atte mpts to evaluate the assump tions

underly ing the belief that how we choose judges matters, provide a sugg ested def inition of what

it means to really matter, and test if state high-co urt data sugg ests that select ion m ethods make a

differe nce in this way.

a. Wh at Does it Mean to Really Matter?

States choose judges thro ugh many ty pes of select ion methods: part isan and nonpart isan

elect ion, legislat ive elect ion, a ppointment, the Misso ur i Plan, etc. Surely then, at least those

craft ing these syste ms believe theyre not all the samethat they really matter. Could they be

wro ng?

Clearly, having effect ive courts matters. It matters, at least, in ensur ing state solvency,

encouraging g rowth and develo pm ent, sustaining democrat ic order, and protect ing human


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r ights. 1 And, in reach ing the goal of an effect ive co urt syste m, the des ign of judicial inst itutions

matters. To quote one scholar, the select ion of the for mal elements that craft judicial inst itutions

mig ht be ex pected to prod uce courts that range fro m the highly consequential to the eminently

ignora ble. 2 Many may the n assume or ex pect that each component part of the des ign, including

the method for select ing ju dges, must matter as well. And there are good reaso ns to believe that

how judges are selected will matter.

On a theoret ical level, how judges are selected may matter in balancing ju dicial

inde pendence with judicial acco unta bi lity. In a democrat ic soc iety, there is a concer n that judges

should be acco unta ble. At the same time, many believe that judges sho uld mainta in some

inde pendence from po pu lar will and from the other, more political, branches of gover nment. In

general, many have ex pressed a belief that the po pu lar elect ion of judges may make the m more

acco unta ble, that is, more res ponsive to the po pular will. Howe ver, say some, judges sho uld be

a ppointed, because it is importa nt that they be insulated from the lowest common denominator of

po pu lar will and be free to imp lement unpo pu lar policies, part icularly in the defe nse and

protect ion of minor ity r ights. Others advocate hy br id syste ms which they believe do a better jo b

of balancing this tension betwee n in de pendence and acco unta bility.

More pract ically, select ion syste ms may influence the beha vioral character istics of the

judges chose n. In fact, pr ior research in this area has likely proven ju st that. At the very least, not

every potential judge is sk illed in electoral politics, and the character ist ics of judges sho uld vary

1 Gretche n Helmke & Jeffrey K . Stato n, T h e Puzzling Judicial Politics of Latin America: AT h eory of Litigation, Judicial Decisions, and Interbranc h Conflict , in COURT S IN LATIN AMERICA 306 , 307 (G retche n Helmke & Ju lio Rios-F igueroa eds., 2011) . 2 Daniel Br inks & Abb y Blass, T h e Institutional Roots of Judicial Power: Latin America from1975 to 2009 , at 3 (p relimin ary draft 2011) .


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for this reaso n de pending up on select ion m ethod. 3 Likely, method of select ion in fluences many

character ist ics of the judges it renders: back ground, education, political mindset, race, gender,

etc.

Additional dimensions are availa ble for considerat ion, but are not necessary herethere

are good theoret ical and pract ical reaso ns to believe that select ion methods matter, both in the

degree to which judges are inde pendent and acco unta ble, as well as the ty pes of beha vioral

character ist ics they have. But tho ugh these things are importa nt, they are not ends unto

the mselves. No one pursues judicial inde pendence, or a highly educated judge, as an in tr insic

good. The most that can be sa id a bout these ty pes of factors is that we think they sh ould matter

for someth ing elsethey are inter mediate goals tho ught to be instr umental in ach ieving some

end goal. This end goal is what really matters. Logically, this end goal is the outco me of cases. If

judicial select ion m ethod really matters, it must be that how we choose judges results in

differe ntial case outco mes. And if this is tr ue, we should be a ble to see it. Scholars sho uld test

this empir ically, as o pposed to simp ly pred ict ing that theoret ical or pract ical factors should

matter.

b. Wh y It Mig h t Not Really Matter

My hy pothes is is that judicial select ion method does not really matter to case outco mes.

R estated, I believe that the method of judicial select ion is not a signi f icant deter minant of

differe ntial outco mes in cases. Wi th all of the good reaso ning sugg est ing that how we choose judges sh ould matter, though, it seems incumb ent upon me to prese nt at least one reaso n that it

may not matter. I sugg est two.

3 Richard A. Posner, Judicial Be h avior and Performance: An Economic Approac h , 32 FLA. ST. U. L. R EV . 1259 , 1268 (2005) .


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First, regardless of select ion method, directly har ness ing the po pu lar will in choos ing

judges is diff icult, yet the reach of part isan politics is not easily evaded. Voter a pathy a bounds in

judicial elect ions. And this a pathy is pro ba bly rat ional, even more so perha ps than in exec utive

or legislat ive elect ions. Also, part isan politics influences wh ich judges are selected, both in

syste ms emp loy ing a ppointments and in those with judicial elect ions. This co mbin at ion of voter

a pathy and part isan political influence may make it unlikely that the method of judicial select ion

ultimately cha nges case outcomes.

Seco nd, the a bi lity to manipu late many differe nt elements of judicial inst itutions to reach

a des ired set of goals may minimiz e the importa nce of any sing le ele ment. One may be a ble to

reach the same inter mediate goal, say judicial acco unta bi lity, thro ugh var ious combin at ions of

inst itutional elements. And it seems reaso na ble to believe that states have considered the

interact ion of the ir vary ing in st itutional elements to reach an overall syste m that falls within a

relat ively narrow range in regard to case outcomes. It may in fact be sur pr ising to see the

conversestates, due solely to the ir vary ing ju dicial select ion m ethods, reach ing wildly differe nt

outcomes in cases. In other words, I pro pose that, even if a part icular select ion m ethod would,

a bsent other inst itutional elements, tend to lead to differe nt case outco mes than would another, it

is likely that states combin e and bala nce the ir select ion method with other institutional elements

to minimiz e or negate this effect. Altho ugh the elements employed by each state are differe nt,

they may add up to an equiv alent, or at least substantially simi lar, whole. Even if the resulting

syste m does prod uce differe nt case outcomes betwee n states, it seems unlikely that this is due to

select ion method. In this way, select ion m ethod may not really matter.


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c. Wh y Does Not Mattering Matter?

Even if judicial select ion m ethods do not really matter, why do we care? In other words,

why does not matter ing m atter? I giv e two reaso ns.

First, a disco very that judicial select ion method does not really matter may st imu late

f urther research regard ing other assump tions concer ning the importa nce of how we choose

judges. If select ion m ethods do not matter to case outcomes, that f inding m ay say someth ing

a bout the likel ihood that those methods could ever influence other pro posed roles for courts:

protectors of minor ity r ights, guard ians of liberty, defe nders of eco nomic and pro perty r ights,

etc. Certa inly, show ing that it does not really matter how we choose our judges will not prove

that select ion m ethod is unimp orta nt in try ing to craft a Foot note 4 world; it would, howe ver,

provide add itional evidence that other factors are more importa nt to that, or similar, endea vors.

Seco nd, a f inding that judicial select ion m ethod is a f ungib le element in in stitutional

des ign wo uld allow for other factors (e.g. cost, eff iciency concer ns) to be considered in

evaluat ing wh ich method to use in choos ing ju dges. Some syste ms of judicial select ion m ay be

outr ight wastef ul in ter ms of reso urces used. This may be justif ied if the method of select ion

really matters and promotes differe nt, more des ira ble case outco mes. Howe ver, this just if icat ion

disa ppears if select ion m ethods do not really matterother factors should tr ump . If we can reach

the same set of case outco mes via differe nt combin ations of inst itutional elements, it may be

des ira ble to de-e mphas ize the impact of judicial select ion m ethod on des ira bi lity of outco mes, instead we ighing m ore heavily those methods effects on cost, economic eff iciency, or other

concer ns.


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II. P inelloImpact of Selection Method on State Supreme Court P olicies

In his book, 4 Daniel R . Pinello atte mpts to test thiswhether judicial select ion methods

influences outco mes, s pecif ically, state supreme court policies. He atte mpts to counter the

conventional wisdo m of the 1980 s among p rofess ional political sc ientists that select ion method

has no meaning f ul impact. 5 Stated for mally, Pinellos main hy pothes is is that [ t]he method of

judicial select ion does signi f icantly affect policy in Am er ican state supreme courts in several

importa nt areas of law. 6

a. Pinellos Met h odology

To test this, Pinello compares judicial pol icies, ar ising from high courts in states with

differ ing ju dicial select ion methods, 7 in three areas of law: business law, cr imin al proced ure law,

and family law. 8 In order to minimiz e the impact of geogra phy and local ized factors, he

compares policies emanat ing from the high courts of six states, grouping the m in to three

matched- pairs, with each pair consist ing of neigh bor states using a differe nt select ion method. 9

In select ing states for the matched pairs, Pinello focuses on states with high trad itional party

or ganizat ion (TPO) scores, 10 re plicat ing, to his sat isfact ion, the most-s imi lar-syste m des ign to

4 DANIEL R . PINELLO , THE IMPACT O F JUDICIAL -SELECTION METHOD ON STATE -SUPREME -COURT -POLICY (1995) . 5 Id. at 130 . 6 Id. at 17. 7 Pinello focuses on formal methods of judicial select ion. T he a pproach ignores infor mal forces hel ping choose judges. Id. at 22. 8 See id. Cha pters 57. 9 Pinellos matched pairs are:

(1) N ew Jersey (gub er nator ial a ppointment) and Pennsylvania (po pular elect ion); (2) C onnect icut (gub er nator ial a ppointment) and R hode Island (legislat ive elect ion); and (3) Vi r gini a (legislat ive elect ion) and West Vi r gini a (po pular elect ion).

10 See also DAVID R . MAYHEW , PLACING PARTIE S IN AMERICAN POLITIC S: ORGANIZATION , ELECTORAL SETTING S, AND GOVERNMENT ACTIVITY IN THE TWENTIETH CENTURY 196 (1986)


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the degree poss ible among Am er ican states. 11 Des pite his ack nowled gment that, broadly, there

are f ive syste ms of judicial select ion,12 Pinello dismisses an analys is across all of these as

clearly unm anagea ble in a matched- pair study, instead colla psing the m in to three ma jor

select ion techniqu es: by gover nors, by legislat ures, and directly by the electorate. 13 To do this, he

combin es part isan elect ions, nonpart isan elect ions, and the Missour i Plan14 into a p o pu lar

elect ion cate gory, leaving gub er nator ial a ppointment and legislat ive elect ion as the other two

cate gor ies. 15 In select ing high-co urt policies for review fro m a pool of pol icies dec ided betwee n

1960 and 1990 , Pinello requires, among other cr iter ia, that the policy have been noteworthy, 16

clearly dichoto mous, and that its develo pm ent involved genuin e judicial initiat ive, as o pposed to policy begun elsewhere. 17 Then, within the matched pairs, Pinello tests on which side of the

policy dichoto my each states high court landed, in order to evaluate the impact of judicial

select ion syste m.18

(ass igning the highest TPO score of 5 to CT, NJ, PA , and RI, a score of 4 to WV, and a score of 2 to VA) . 11 PINELLO , supra note 4, at 20. 12 See, e.g. , Victor E. Flango & C raig R . Ducat, Wh at Difference Does Met h od of Judicial Selection Make?: Selection Procedures in State Courts of Last Resort , 5 JUST. SYS. J. 25, 29(1979) (i dentifying the f ive broad methods states employ to select judges). 13 PINELLO , supra note 4, at 20. 14 Id. Pinellos just if icat ion for including the Misso ur i Plan in the po pular elect ion cate gory is his unsupp orted assump tion that select ion syste m is less importa nt than rete ntion syste m and that mer it-select ion syste ms usually feat ure rete ntion elect ions as an esse ntial ele ment. 15 Id. 16 Def ined as having surfaced in an art icle or note of a ma jor Amer ican legal per iod ical. Id. at 21. 17 Id. 18 Pinello identif ies the dichoto mies for each of the three areas of law reviewed as:

Business-Law Policies : cost- increas ing vs. cost-sta bilizing id. at 46; Criminal-Procedure-Law Policies : p rosec ution-sy mpathet ic vs. defe nse-sy mpathet ic id. at 74;

Family-Law Policies : trad itional vs. n ontrad itional id. at 105 .


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b. Pinellos Conclusions

Pinello concludes that [ o]f all three policy areas ex plored, cr imin al- proced ure law is the

most reveal ing of judicial-select ion-method imp act. 19 In add ition to f inding supp ort for his main

hy pothes is that method of judicial select ion does signi f icantly affect policy, Pinello f inds the

most supp ort, thro ugh his test ing of cr imin al- proced ure law, for two subhy potheses:

(1) Po pularly elected judges prefer the state over the individual . . . whe n those interests clash.

(2) Gub er nator ially a ppointed judges who never face po pu lar conf ir mation prefer . . . the

individual over the state.20

Pinello develo ped these subhy potheses thro ugh the idea that elected benches are react ive to

pub lic o pinion, while a ppointed courts, insulated fro m o pinions lowest common denominator,

are freer to ado pt unpo pular polices . . . . [and to ser ve as] protectors of minor ity r ights. 21 In

tur n, Pinellos supp ort for these subhy potheses comes pr imar ily from the results of his test ing of

one matched pair: New Jersey and Pennsylvania.22 In evaluat ing the cr imin al-law policies

emanat ing from each high court in this pair, he f inds that in f ive of six cases, Pennsylvania

[po pu lar elect ion] ended up in the prosec ution column , wh ile New Jersey [gub er nator ial

19 Id. at 130 . 20 Id. Other hy potheses that Pinello tests include whether legislat ively elected judges are more defere ntial to the legislat ure than are other judges, whether gub er nator ially a ppointed judges

prefer business over individuals to a greater degree tha n do po pularly elected judges, and if guber nator ially a ppointed judges are more inn ovat ive and libertar ian tha n are other judges. 21 Id. at 3. 22 Id. at 7483 . For this matched pair, Pinello tests six shared cr imin al- proced ure policy dec isions, class ifying each courts policy deter mination as either p rosec ution-sympathet ic or defe nse-sy mpathet ic, not ing that cr imin al a pp eals may be red uced to whether the ir results favor the prosec ution or defe nse. Id. at 74. The policy dichoto mies tested are: (1) the burden of

proving self-defe nse; (2) p lea bar gaining in mu rder prosec utions; (3) juv eniles r ight to counsel; (4) disclos ure of prese ntence re ports; (5) in ter pret ing Brady v. Maryland (concer ning the circumstances under which prosec utor ial supp ress ion of evidence favora ble to the accused constitutes a Due Process violat ion); and (6) mu ltiple re prese ntat ion of defe nda nts.


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a ppointment] was in the defe nse camp f ive out of six times. 23 He f urther concludes that at no

time did the elected bench make a defe nse-sy mpathet ic dec ision whe n the a ppointed bench made

one sympathet ic to the prosec ution. 24

c. Problems wit h Pinello

It is diff icult to take issue with Pinellos conclusion (descr ibed by one reviewer as

annoying ly broad )25 that judicial select ion m ethod does affect judicial pol icies, in at least some

areas of law, in at least some states. In fact, Pinello should be a pp lauded for pursuing his

r igoro us work des pite the widely held not ion that select ion syste m is not very rele vant to policy

outcomes. 26 In at least two areas he makes contr ibutions to the f ield thro ugh his uniqu e

a pproach. First, he a bandons stra ight case counting in favor of an evaluat ion of policy- mak ing,

mak ing stro ng ar gum ents against the for mer method. 27 Seco nd, his matched- pair strate gy is new

in this area and one that should contr ibute to the des ign of f uture research pro jects. 28 Howe ver,

there are at least three areas where f urther work could improve upon Pin ellos bold beginning s.

First, Pinello focuses on only three judicial select ion methods, 29 which together, are used

by only twe nty-three of f ifty states. 30 This author ponders why Pin ello feels the need to

23 Id. at 83. 24 Id. 25 Bradley C. Canon, Book R eview, LAW & POL. BOOK R EV ., Fe br uary 1996 , 31, 32. 26 Id. at 33. 27 See PINELLO , supra note 4, at 2326 ( highlight ing the diff iculties inhere nt in case counting:

biased sampling, incomplete court records, and the influence of federal and state controll ing precede nt). 28 See Canon, supra note 25, at 31 (p raising Pin ello as cleverly employ ing a matched pair strate gy ). 29 High-co urt judges in Pennsylvania and West Vi r gini a, the two states re prese nted in Pin ellos p o pu lar elect ion category, are both initially selected by part isan elect ion. Other matched pairs test syste ms of gub er nator ial a ppointment and legislat ive elect ion. Untested are syste ms utilizingeither the Misso ur i Plan or nonpart isan elect ions.


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colla pse these select ion methods, fro m f ive into three, only to ultimately cla im supp ort for a

conclusion so broad as to not require the greater general ity provided by this act ion. This is not a

fatal flaw in his methodolo gy, howe ver; conclusions flow ing from his test ing of the p o pu lar

elect ion cate gory remain v alid, if only tr uly a pp lica ble to the syste ms that were testedthose of

part isan-elect ion states.

Seco nd, his most supported hy potheses der ive the ir pr imary back ing from a compar ison

of only two states: New Jersey and Pennsylvania. This author concedes that Pinellos data

supp orts that judicial select ion affects policies in these two states. This is eas ily conceded,

perha ps, because even if tr ue, this conclusion falls far short of being revelatory. Pinello asserts

that, by reviewing only six states, he ach ieves a r icher discussion of the data than poss ible in a

study of num ero us courts. 31 While he is pro ba bly correct, this narrow of a review severely

constra ins the general a pp lica bility of his conclusions.

Third, and most importa nt for the pur poses of this pa per, Pinello focuses only on judicial

policies, witho ut any supp ort for, or even a cla im that, these policies really matterthat they

affect case outco mes. As discussed previously, Pinellos research des ign in tentionally avoids any

ty pe of case counting. In p art, he does so because he believes that court o pinions are not

discrete quanta of data, so [ r]andom samples in ju dicial- beha vior research . . . are unatta ina ble

goals. 32 He f urther states that, even reviewing a complete po pu lation of data points is f utile in

judicial- beha vior research beca use of the diff iculties in class ifying rele vant issues and

30 Canon, supra note 25, at 32. 31 PINELLO , supra note 4, at 20 ( citing H arry Eckste in, Case Study and T h eory in Political Science , in H ANDBOOK O F POLITICAL SCIENCE 83 (Fred I. Greenste in & N elso n W . Pols by, eds., 1975)) . 32 Id. at 23.


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acco unting for whe n a court has m eaning f ul discret ion to act. 33 While these are valid concer ns,

one might imagin e that they sho uld reflect upon the we ight given to the evidence resulting from

case-co unting act ivities, as o pposed to Pinellos ar gum ent for complete exclusion of this

a pproach. It seems doubtf ul, des pite the inhere nt limitat ions of case-co unting, that many scholars

wo uld character ize suff iciently signi f icant results as irrele vant, or the attempt to arr ive at such

results as f utile.

Having n oted these three concer ns with Pinellos work, this pa per addresses each in tur n.

R egard ing the f irst concer n a bout the limited numb er of select ion syste ms reviewed, this study

will incor porate not only Pinellos grouping of three select ion syste ms (h ereinafter , the Pin ello

Grouping ), but also that grouping of f ive select ion syste ms34 used by, among others, Flango and

Ducat (h ereinafter , the Fla ngo-Ducat Grouping ). (See Ta ble 1 for the list ing of states

accord ing to each grouping .) For the seco nd concer n a bout the small numb er of states evaluated,

this study reviews all f ifty states. This a pp roach does lose the benef it of Pinellos matched- pair

strate gy, but this study ho pes to compensate for that loss thro ugh a broader a pp lica bi lity of its

conclusions. For the third concer n regard ing the lack of conclusions a bout the impact of select ion

syste ms on case outcomes, this study undertakes a quantitat ive review of high-co urt reversal

rates. Ho pef ully, this a pp roach is complementary to Pinellos methodolo gy, contr ibuting a

differe nt pers pect ive with the pote ntial for broader a pp lica bi lity.

33 Id. at 24. See also Canon, supra note 25, at 31 (Ev en if [quantitat ive summ ar ies of state supreme court dec isions] were availa ble, they wo uld be of mar ginal utility. Basic stat istical research . . . is not the same thing as deter mining ju dicial policies. ). 34 Partisan elect ion, nonpart isan elect ion, guber nator ial a ppointment, legislat ive elect ion, and the Missour i Plan.


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III. T his Study

a. H ypot h esis

This study tests a mod if ied vers ion of Pinellos hy pothes is. The hy pothes is is:

A states judicial select ion method signi f icantly influences cr imin al-case reversal rates.

This hy pothes is is at once broader and narrower than is Pinellos. It is broader in that, by look ing

at reversal rates, it focuses on u ltimate case outcomes as o pposed to policies that may or may not

influence case outcomes. It is narrower in that it focuses on ju st one of the three areas of law that

Pinello reviews.

The rat ionale for reviewing cr imin al-case reversal rates stands upon three legs: (1) this

area of laws heightened pote ntial for test ing the impact of judicial select ion method on case

outcomes where pub lic o pini on is clear; 35 (2) Pin ellos f inding the most support for his

hy potheses in the cr imin al- proced ure-law arena; and (3) the relat ive ease of calc ulat ing reversal

rates given the a ppro pr iate dataset.

In i ts review, this study assumes that a reversal by a high court in a cr imin al case is a pro-

defe ndant act ion. This is a corollary of Pin ellos cla im that cr imin al a pp eals may be reduced to

whether the ir results favor the prosec ution or defe nse. 36 Altho ugh there are exce ptions,37 the

35 As Pinello states, [ o]ne example of the ill humor Hamilton wrote of [is evident] where Amer ican voters overwhel ming ly are cr itical of courts which they view as coddl ing cr imin al sus pects. Pinello, supra note 4, at 74 ( citing the General Soc ial Sur vey of the National Opini onR esearch Center ). 36 Id. 37 For example, where an acqui ttal is secured by fraud.


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general r ule is that the prosec ution m ay not a ppeal an acqui ttal. 38 So, this study proceeds with the

ex pectat ion that defe nda nts br ing the overwhel ming m a jor ity of cr imin al a ppeals. Consequently,

a high courts reversal of a cr imin al case is assumed to be a pro-defe ndant event.39

b. Data and Met h odology

This study draws upon data collected thro ugh the State Supreme Court Data Pro ject

(h ereinafter SSCDP ).40 The SSCDP coded all (more than 25 ,000) high-co urt dec isions from

each of the f ifty states for a four-year per iod: 1995 to 1998 . This study evaluates only dec isions

in cr imin al cases, a subset of this data collect ion.

This study f irst deter mines high-co urt reversal rates by state for all cr imin al cases in the

dataset. Each state is then grouped accord ing to judicial select ion syste m, using b oth the Flango-

Ducat Grouping and the Pinello Grouping , res pect ively. The mean reversal rate for each

select ion syste m is calc ulated and then co mpared to that of other syste ms in each of the two

grouping s. In this way, the study tests the hy pothes is that cr imin al-case reversal rates are

de pendent upon judicial select ion syste m.

In add ition to compar ing m ean reversal rates for all cr imin al cases reviewed by the high

court, this study tests whether reversal rates var ied by select ion syste m for dec isions coded as

review ing a cr ime of high pub lic concer n (h ereinafter HPC ). This category includes seven

cr imes (out of the thirty coded in the dataset ).41 The HPC cate gory is of the authors creat ion. As

38 See, e.g. Benton v. Maryla nd, 395 U .S. 784 , 79495 (1969) ( f inding the double- jeo pardy proh ibition a pp lica ble as against the states via incor porat ion un der the Fourtee nth Amendment). 39 The author reco gniz es that this assump tion m ay be pro blemat ic. 40 STATE SUPREME COURT DATA PROJECT , htt p://www.r uf.r ice.ed u/~ pb race/stateco urt/ (last visited Apr il 27, 2011) . 41 HPC cr imes, des pite only co mpr ising seven out of thirty coded cr imes, were reviewed in 3 ,876of 6,304 (61 .5%) dec isions where a coded cr ime was reviewed. The dataset included 2,177


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with any grouping , other cho ices could have been made. (See Ta ble 2 for the f ull list of both

HPC and non-HPC cr imes. ) T he guiding p r inciple used in dec iding which cr imes were of HPC

was whether or not the author believed that the a ppeara nce of a judge being soft on this ty pe of

cr ime wo uld be someth ing likely to be either (1) re ported in the news media, or (2) u sed against

a judge in a heated elect ion campaign. The general idea here is that certa in cr imes mig ht more

read ily impact pub lic o pinion, and that a relat ionship b etwee n select ion syste m and cr imin al

reversal rates might be most a pparent when viewed thro ugh this lens.

There are at least several things that this study does not attempt to acco mplish. First, this

study does not employ Pinellos matched- pair strate gy nor does it attempt in any other way to

compensate for regional var iat ions. R ather, it ho pes to reach conclusions of broader a pplica bi lity

than those poss ible using a limited matched- pair des ign. Seco nd, this study does not attempt to

acco unt for jur isdict ional source: mandatory or discret ionary jur isdict ion. Future research efforts

may wish to include this importa nt var ia ble. 42 Third and last, this study focuses on reversal rates,

and does not review a se parately coded var ia ble in the SSCDP , whether or not a convict ion or

sentence was overt ur ned. This, too, may be a fr uitf ul area for f urther research.

c. Data Issues, Concerns, & Insig h ts

There are four issues, concer ns, and insights that the author has to share regard ing the

data and the analys is as- perfor med. First, there is a data issue that resulted in the loss of 1/16th of

the dec isions availa ble in the SSCDP dataset. Due to the author not having the necessary Stata

cr imin al dec isions (25 .7% of the total) where no coded cr ime was reviewed. So, out of a total of 8,481 cr imin al dec isions evaluated, 3,876 of the m (45 .7%) in cluded HPC cr imes. 42 See Theodore Eisenber g & G eoffrey P. Miller, Reversal, Dissent, and Variability in StateSupreme Courts: T h e Centrality of Jurisdictional Source , 89 B .U. L. R EV. 1461 , 1470 (2009)(R eversal rates signi f icantly differ for mandatory and discret ionary cases. ).


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software, a free tr ial of a data convers ion program, Stat Transfer, was used to convert the data

from the Stata data for mat into one reada ble by a Microsoft Access data base. The only limitat ion

on the free tr ial was that 1 of every 16 records would not be converted. For this reaso n, the

dataset used in this study included only 15/16ths of the or igin al SSCDP dataset. Given the

esse ntially rando m effect of the record delet ion, the author does not believe that this limitat ion is

likely to be rele vant to any f indings. Were this study ex panded for pub licat ion, howe ver, the f ull

dataset should be analyzed and tested.

Seco nd, there is a data concer n surro unding the cod ing of multiple cr imes reviewed in a

single dec ision. Out of a total of 8,481 cr imin al cases in the dataset, 2,177 (25 .7%) were not

coded as having reviewed any of the thirty cr imes. 43 Of the 6,304 cases where a cr ime was

reviewed, 1,747 (27 .7%) were coded as review ing mu ltiple cr imes. 44 Of the 3,876 cases where

one of the cr imes reviewed was of HPC , 1,325 (34 .2%) were coded as reviewing mu ltiple

cr imes. 45 Where multiple cr imes were reviewed and the case was reversed, the dataset did not

ca pture which cr ime the reversal related to (whether to none, one, or all). For this reaso n, in the

case of HPC cr imes, this study tests the data twice: f irst for all dec isions coded for an HPC

cr ime, even if other, non-HPC , cr imes were reviewed as well; seco nd for dec isions coded only

for an HPC cr ime.

Third, there is both a data insight and concer n regard ing the grouping . The insight is that

Pinello only class if ied six states, but this study a pp lies his methodolo gy across all f ifty states. To

43 This is likely due not to errors in cod ing, but due to the cod ing m ethodolo gy, accord ing to which dec isions being reviewed, for example, only for quest ions related to bail and parole, were not coded as having a cr ime reviewed. 44 2 cr imes = 1 ,339 dec isions (21 .2%) ; 3 cr imes = 316 dec isions (5.0%) ; 4 cr imes = 79 dec isions (1.3%) ; 5 cr imes = 12 dec isions (0.2%) ; 6 cr imes = 1 case (0.01%) . 45 2 cr imes = 953 dec isions (24 .6%) ; 3 cr imes = 284 dec isions (7.3%) ; 4 cr imes = 75 dec isions (1.9%) ; 5 cr imes = 12 dec isions (0.3%) ; 6 cr imes = 1 case (0.01%) .


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do this, this study f irst takes the Fla ngo-Ducat Grouping for a given state, and then converts it

into the Pinello Grouping . This is consiste nt with Pinellos treat ment of part isan and nonpart isan

elect ion syste ms as one, and his colla psing of Misso ur i Plan states into the po pu lar elect ion

cate gory. 46 States with syste ms of gub er nator ial a pp ointment or legislat ive elect ion are coded the

same under the Flango-Ducat and Pinello grouping s. The data concer n is that, while the SSCDP

data covers 19951998 , this study does not atte mpt to discer n what select ion syste m was in p lace

in each of the f ifty states dur ing that time per iod. This study uses the Flango-Ducat Grouping for

a state. After a compar ison of Fla ngo and Ducats grouping ( fro m 1979) to a current list ing 47 of

state supreme court select ion syste ms, add itional research seemed unn ecessary as most syste ms had not changed. Howe ver, any ex pansion of this study sho uld include research into the rele vant

state select ion methods circa 19951998 in order to align with the SSCDP data.

Fourth, there is a data concer n in the cod ing of what counts as a reversal. The SSCDP

codes case dis pos ition accord ing to one of nine codes. 48 For this study, the author chose to count

only codes (2 and 3 ) reflect ing a f ull, as o pposed to part ial, reversal. This considerat ion

should be reviewed sho uld this study be ex panded for pub licat ion.

46 See PINELLO , supra note 4, at 20. 47 Available at htt p://www.a js.or g/select ion/sel_state-select- ma p.as p. 48 1) A ff ir med; 2) R eversed (or vacated ); 3) R eversed (or vacated ) and remanded; 4) A ff ir med in

part and reversed in part (or mod if ied, or aff ir med and mod if ied); 5) A ff ir med in part, reversed in part, and remanded; 6) P etition or mot ion granted; 7) P etition or mot ion denied; 55) O ther; and 88) N ot R elevant.


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IV. Data P resentation & Findings

This Sect ion prese nts rele vant data and assoc iated f indings prod uced by the methodolo gy

outlined previously. The null hy pothes is is that there is no signi f icant differe nce betwee n the

means of cr imin al reversal rates across states grouped accord ing to judicial select ion method.

a. An early finding

One f inding b ears disclos ure at the outset: at the 95% conf idence inter val, there is a

stat ist ically signi f icant differe nce betwee n average reversal rates across all states for dec isions

where HPC cr imes were the only ones coded (average reversal rate 23.4%) and for dec isions

where no HPC cr ime was coded (average reversal rate 29.0%) . (See Ta ble 3 for a list ing of

reversal rates by state accord ing to HPC On ly vs. No HPC .) W hile this f inding does not weigh

directly on the evaluation of this studys hy pothes is, it does provide some supp ort for the cho ice

to evaluate reversal rates accord ing to the HPC cr ime methodolo gy. Note that here, and

thro ughout the remainder of this study, the N o HPC reversal rate is calc ulated as follows:

N umerator : # of reversals in cr imin al dec isions where one or more cr imes were reviewed, but none was an HPC cr ime

Denominator : # of cr imin al dec isions where one or more cr imes were reviewed, but

none was an HPC cr ime

In other words, dec isions where no cr ime was reviewed (blanks) are not considered for this

calc ulat ion.

b. Reversal Rate Data for All States Combined

This study calc ulated the average reversal rate for all states using four differe nt cate gor ies

of cr imin al dec isions: all cr imin al dec isions (A ll Cr imin al ), cr imin al dec isions where no HPC


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cr ime was reviewed (N o HPC ), cr imin al dec isions where a HPC cr ime was reviewed, even if

other cr imes were reviewed too ( w/ HPC ), and cr imin al dec isions where a HPC cr ime was the

only cr ime reviewed ( w/ only HPC ). The summ ary reversal rate data is as follows:

Criminal Reversal RatesAll

Criminal N o H P C w/ H P C w/ only H P C All States 27.2% 29 .0% 22 .9% 23 .4%

Supp ort ing data, show ing the reversal rate for each state for the four grouping s a bove, is

included in T a ble 4 (A ll Cr imin al), Ta ble 5 (N o HPC) , Ta ble 6 ( w/ HPC) , and Ta ble 7 ( w/ only HPC) . This data does not directly we igh upon the hy pothes is, but this cate gor izat ion of dec isions

will be used thro ughout this study.

c. Reversal-Rate Data by Pinello Grouping

States were grouped into one of the three Pinello Grouping cate gor ies based on the ir

assoc iated Flango-Ducat grouping of judicial select ion syste m (see Ta ble 1 for the grouping s).

The guber nator ial a ppointment and legislat ive elect ion cate gor ies are the same betwee n the two

grouping m ethodolo gies. Howe ver, where the Flango-Ducat Grouping m ainta ins se parate

cate gor ies for part isan elect ion, nonpart isan elect ion, and Misso ur i Plan states, the Pinello

Grouping combin es these into one cate gory po pular elect ion.

i.

Average Reversal RatesPinello Grouping

Av erage reversal rates were calc ulated for each Pinello Grouping of states for each of the

four cate gor ies discussed in Sect ion IVb a bove. Summ ary data of these calc ulat ions is prese nted

below.


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Reversal Rate Averages-- P inello Grouping

All N o H P C w/ H P C w/ only H P CGubernatorial Appointment 26.6% 20 .2% 23 .5% 27 .6%

Legislative Election 23.5% 20 .9% 15 .3% 23 .7%

Popular Election 27.6% 24 .3% 23 .4% 29 .7%

In three of four cate gor ies, reversal rates for the three-state legislat ive elect ion group

a ppear to be lower than those for either the guber nator ial a ppointment or po pu lar elect ion

groups. The prese nce of a stat ist ically signi f icant differe nce in reversal rates is tested below.

ii. P-values for Levenes test for variance and for ANOVAPinello

Grouping

The Levenes test for var iance was perfor med within each rele vant cate gory, and in each

case there was not suff icient differe nce in the var iance betwee n groups to re ject the null

hy pothes is (altho ugh the w/ only HPC group a pproached this level). Next, single-factor

ANOVA tests were r un to test for differe nt mean reversal rates betwee n the Pinello Grouping s.

In each case, the ANOVA tests, at the 95% conf idence inter val, retur ned p-values too lar ge to

allow for a re ject ion of the null hy pothes is that the mean reversal rates are the same betwee n the

Pinello Grouping s. Summ ary data of these tests is prese nted below.

P -Values for Levene's & for A NO VA-- P inello Grouping

All N o H P C w/ H P C w/ only H P C

Levene's 0.235 0 .402 0 .291 0 .064 ANOVA 0.847 0 .775 0 .655 0 .677


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iii. T -test two-tail p-valuesPinello Grouping

In add ition to the ANOVA test ing for differe nt mean reversal rates, multiple two-sa mple

t-tests (assuming equal var iances) were perfor med to test for a differe nce in m eans betwee n each

of the Pinello Grouping s. In each case, the t-tests, at the 95% conf idence inter val, retur ned two-

tail p-values too lar ge to allow for a re ject ion of the null hy pothes is that the mean reversal rates

are the same betwee n the Pinello Grouping s. Summ ary data of these tests is prese nted below.

T -test two-tail p-values (95% conf. int.)-- P inello Grouping

All N o H P C w/ H P C w/ only H P C

Gub Appt--Leg Elec 0.601 0 .629 0 .219 0 .867Gub Appt--Pop Elec 0.844 0 .732 0 .990 0 .429 Leg Elec--Pop Elec 0.591 0 .524 0 .385 0 .683

d. Reversal-Rate Data By Flango-Ducat Grouping

States were grouped into one of the f ive Flango-Ducat Grouping cate gor ies based on the ir

judicial select ion syste m (see Ta ble 1 for the grouping s).

i. Average Reversal RatesFlango-Ducat Grouping

Av erage reversal rates were calculated for each Fla ngo-Ducat Grouping of states for each

cate gory discussed in Sect ion IVb a bove. Summ ary data of these calc ulat ions is prese nted below.

Reversal Rate Averages--Flango-Ducat GroupingAll N o H P C w/ H P C w/ only H P C

Gubernatorial Appointment 26.6% 27 .6% 23 .5% 20 .2% Legislative Election 23.5% 23 .7% 15 .3% 20 .9%

Missouri Plan 24.7% 24 .3% 23 .4% 23 .3% Non-partisan Election 32.4% 36 .5% 25 .1% 25 .5%

Partisan Election 26.3% 29 .3% 21 .9% 24 .2%


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Once again, in three of four cate gor ies, reversal rates for the three-state legislat ive

elect ion group a ppear to be lower than those for the other groups. Nota bly, in the A ll cate gory,

the average reversal rate for guber nator ial a ppointment syste ms (26 .6%) i s nearly identical to

that of part isan elect ion syste ms (26 .3%) . Additionally, reversal rates for the nonpart isan

elect ion group a ppear to be higher than those for the other groups. In each of the four cate gor ies,

the reversal rate for this twel ve-state group i s the highest out of all f ive Flango-Ducat Grouping s.

The prese nce of a stat ist ically signi f icant differe nce in reversal rates is tested below.

ii. P-values for Levenes test for variance and for ANOVAFlango-

Ducat Grouping

The Levenes test for var iance was perfor med within each rele vant cate gory, and in each

case there was not suff icient differe nce in the var iance betwee n groups to re ject the null

hy pothes is. Next, single-factor ANOVA tests were r un to test for differe nt mean reversal rates

betwee n the Flango-Ducat Grouping s. In each case, the ANOVA tests, at the 95% conf ide nce

inter val, ret ur ned p-values too lar ge to allow for a re ject ion of the null hy pothes is that the mean

reversal rates are the same betwee n the Flango-Ducat Grouping s. Summ ary data of these tests is

prese nted below.

P -Values for Levene's & for A NO VA--Flango-DucatGrouping

All N o H P C w/ H P C w/ only H P C Levene's 0.673 0 .803 0 .305 0 .177

ANOVA 0.517 0 .309 0 .889 0 .918


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iii. T -test two-tail p-valuesFlango-Ducat Grouping

In add ition to the ANOVA test ing for differe nt mean reversal rates, multiple two-sa mple

t-tests (assuming equal var iances) were perfor med to test for differe nce in m eans betwee n each

of the Fla ngo-Ducat Grouping s. In all but one case, the t-tests, at the 95% conf idence inter val,

ret ur ned two-ta il p-values too lar ge to allow for a re ject ion of the null hy pothes is that the mean

reversal rates are the same betwee n the Flango-Ducat Grouping s. Summ ary data of these tests is

prese nted below.

T -test two-tail p-values (95% conf. int.)--Flango-Ducat

Grouping

All N o H P C w/ H P C w/ only H P CGub Appt--Leg Elec 0.601 0 .629 0 .219 0 .867Gub Appt--MO Plan 0.709 0 .562 0 .991 0 .639

Gub Appt--Nonpart Elec 0.298 0 .232 0 .778 0 .283Gub Appt--Part Elec 0.943 0 .813 0 .734 0 .407 Leg Elec--MO Plan 0.887 0 .941 0 .529 0 .820

Leg Elec--Nonpart Elec 0.281 0 .241 0 .265 0 .542 Leg Elec--Part Elec 0.706 0 .580 0 .335 0 .656

MO Plan--Nonpart Elec 0.144 0 .0 50 0.810 0 .720 MO Plan--Part Elec 0.738 0 .386 0 .814 0 .883

Nonpart Elec--Part Elec 0.233 0 .294 0 .517 0 .789

Nota bly, one t-test retur ned a value close to 0.05, that r un test ing the mean reversal rates

in dec isions, where no HPC cr ime was reviewed, betwee n the Misso ur i Plan (14 states ) and

nonpart isan elect ion (12 states ) states. The t-test p-value of 0.050 , while not tech nically suff icient

to re ject the null hy pothes is of differe nt means, may warra nt f urther review. Follow ing this

f inding, the author examined the individual state reversal rates in these grouping s for this

cate gory. Two outliers were prese nt in the nonpart isan grouping reversal rates where no HPC

cr ime was reviewed. The f irst, Oregon, reversed 15 of 21 (71 .4%) cases in this cate gory. The


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seco nd, Michigan, reversed 30 of 49 (61 .2%) cases in this cate gory. The author removed Oregon

from the data and re-ra n the t-test, which then retur ned a two-ta il p-value of 0.107 . Doing the

same after removing b oth outlier states, a value of 0.228 was retur ned.

V. Conclusions

The hy pothes is that cr imin al-case reversal rates are de pendent upon judicial select ion

syste m cannot be conf ir med. Across all cate gor ies and grouping s, there was no stat istically

signi f icant f inding that select ion syste m really matters, at least in regard to reversal rates in

cr imin al cases. This study is not perfect, nor does it directly address Pinellos cla im that select ion

methods impact judicial pol icies for some states, in some areas of law. Howe ver, it does sugg est

that, before Pinellos conclusion can be exte nded to case outcomes on a national level, f urther

work is required.


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T able 1. State Groupings by Judicial Selection System

State Groupings--Flango & Ducat

GubernatorialAppointment (8)

LegislativeElection (3)

MissouriP lan (14)

N on-partisanElection (12)

P artisanElection (13)

Califor nia R hode Island Alaska Idaho Ala bama Connect icut South Carol ina Ar izona K entucky Arka nsas Delaware Vi r gini a Colorado Michigan G eor gia Hawa ii Flor ida Minn esota Illinois Maine Indiana Montana Louisiana Massach usetts Iowa Nevada Mississippi

New Hampshire K ansas North Dakota New Mexico

New Jersey Maryla nd Ohio New York Missour i Oregon N orth Carol ina Ne braska South Dakota Pennsylvania Oklaho ma Wash ington T ennessee Utah Wi sco nsin T exas Ver mont West Vir ginia Wyoming

State Groupings P inello

GubernatorialAppointment (8)

LegislativeElection (3)

P opular Election (39)

Califor nia R hode Island Ala bama Louisiana Ohio Connect icut South Carol ina Alaska Maryla nd Oklaho ma Delaware Vi r gini a Ar izona Michigan OregonHawa ii A rka nsas Minn esota Pennsylvania Maine Colorado Mississippi South Dakota Massach usetts Flor ida Missour i Tennessee

New Hampshire Geor gia Montana Texas

New Jersey Idaho Ne braska Utah Illinois Nevada Ver mont Indiana New Mexico Wash ingtonIowa New York West Vir ginia K ansas North Carol ina Wi sco nsinK entucky North Dakota Wyoming


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T able 2. Coded Crimes Reviewed

High P ublic Concern (7) All O ther Crimes (23)

Agg ravated assa ult Assault Other Liqu or laws Arson Bu r glary Manslaughter negligent Kidna pping Disorderly conduct Manslaughter nonnegligent

Murder Dr iving un der the influence Motor vehicle theft

Offenses against family &childre n Dr ug a buse violat ions

Prost itution & commerc ialized vice

R a pe / Sexual assa ult Dr ug traff ick ing R o bbery Sex offe nses (exce pt ra pe &

prost itution) Dr unkeness Stole n pro perty bu ying, rece iving ,

possess ingEmb ezzlement Traff ic offe nses (other than DUI)For gery &counterfe iting Vagrancy

Fraud Vandal ism

Gambling Wea pons-carry ing, possess ing, conceal ingLarce ny theft


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T able 3. Criminal Reversal RatesH P C Crime O nly v. N o H P C Crime

H P CO nly N o H P C

H P CO nly N o H P C

Alabama 19.0% 56 .3% Montana 14.8% 26 .4% Alaska 66.7% 25 .0% Nebraska 31.3% 30 .2%

Arizona 20.8% 42 .9% Nevada 24.6% 30 .2% Arkansas 11 .1% 11 .8% New H amps h ire 11 .8% 15 .8%California 26.9% 29 .5% New Jersey 25.0% 48 .1%Colorado 44.4% 47 .9% New Mexico 18.8% 12 .9%

Connecticut 23.3% 37 .6% New York 44.0% 31 .9% Delaware 21.4% 19 .1% Nort h Carolina 7.7% 17 .6%

Florida 21.3% 25 .2% Nort h Dakota 13.6% 17 .7%

Georgia 6.0% 16 .1% Oh

io 20.5% 33 .7% H awaii 27.3% 36 .8% Okla h oma 15.5% 8 .5% Ida h o 21.9% 30 .6% Oregon 35.7% 71 .4%

Illinois 22.5% 23 .7% Pennsylvania 27.7% 20 .6% Indiana 6.0% 26 .5% Rh ode Island 20.0% 17 .1%

Iowa 3.4% 18 .5% Sout h Carolina 23.9% 30 .0% Kansas 9.9% 14 .5% Sout h Dakota 10.0% 11 .1%

Kentucky 31.1% 29 .9% T ennessee 35.6% 25 .6% Louisiana 43.4% 62 .3% T exas 24.0% 48 .2%

Maine 11 .4% 10 .2% Uta h 34.8% 20 .0%

Maryland 35.0% 43 .4% Vermont 14.3% 14 .0% Massac h usetts 14.4% 24 .0% Virginia 18.8% 23 .9%

Mic h igan 52.4% 61 .2% W as h ington 34.4% 50 .0% Minnesota 13.6% 32 .0% W est Virginia 25.5% 22 .6%

Mississippi 28.9% 30 .9% W isconsin 33.3% 44 .0% Missouri 16.3% 15 .7% W yoming 6.5% 7 .5%

Mean Reversal Rate for H P C O nly : 23.4%

Mean Reversal Rate for N o H P C : 29.0%

T wo-tailed t-test p-value (95%) : 0.047


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T able 4. State Reversal RatesAll Criminal Decisions

Reversed AllReversal

Rate Reversed AllReversal

Rate Alabama 40 113 35 .4% Montana 63 298 21 .1%

Alaska 9 19 47 .4% Nebraska 61 211 28 .9% Arizona 75 213 35 .2% Nevada 102 357 28 .6%

Arkansas 51 439 11 .6% New H amps h ire 42 188 22 .3%California 68 267 25 .5% New Jersey 60 143 42 .0%Colorado 74 160 46 .3% New Mexico 20 97 20 .6%

Connecticut 79 227 34 .8% New York 88 261 33 .7% Delaware 28 141 19 .9% Nort h Carolina 61 439 13 .9%

Florida 126 572 22 .0% Nort h Dakota 45 186 24 .2%Georgia 85 650 13 .1% Oh io 51 206 24 .8% H awaii 47 139 33 .8% Okla h oma 25 223 11 .2%

Ida h o 33 122 27 .0% Oregon 35 67 52 .2% Illinois 73 333 21 .9% Pennsylvania 98 450 21 .8%

Indiana 70 409 17 .1% Rh ode Island 56 265 21 .1% Iowa 42 254 16 .5% Sout h Carolina 84 292 28 .8%

Kansas 70 435 16 .1% Sout h Dakota 28 157 17 .8% Kentucky 56 204 27 .5% T ennessee 56 186 30 .1%

Louisiana 69 130 53 .1% T exas 157 400 39 .3% Maine 31 218 14 .2% Uta h 18 80 22 .5%

Maryland 78 191 40 .8% Vermont 31 155 20 .0% Massac h usetts 87 420 20 .7% Virginia 18 87 20 .7%

Mic h igan 61 111 55 .0% W as h ington 89 206 43 .2% Minnesota 41 199 20 .6% W est Virginia 33 171 19 .3%

Mississippi 101 361 28 .0% W isconsin 51 108 47 .2% Missouri 19 141 13 .5% W yoming 17 222 7 .7%

Average Reversal Rate: 27.2%


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T able 5. State Reversal RatesDecisions w/ N o H P C Crime















Average Reversal Rate: 29. 0 %


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T able 6. State Reversal RatesDecisions w/ H P C Crime

















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T able 7. State Reversal RatesWith O nly H P C Crimes
















final paper - michael cumming

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