Ronald F. Wright

Systematic Content Analysis of Judicial Opinions

Despite the interdisciplinary bent of legal scholars, the academy has yet to identify an empirical methodology that is uniquely its own. We propose that one standard social science technique - content analysis - could form the basis for an empirical methodology that is uniquely legal. It holds the potential for bringing social science rigor to our empirical understanding of caselaw, and therefore for creating what is distinctively a legal form of empiricism. To explore this potential, we collected all 122 examples we could find that use content analysis to study judicial opinions, and coded them for pertinent features. Legal scholars began to code and count cases decades ago, but use of this method did not accelerate until about 15 years ago. Most applications are home-grown, with no effort to draw on established social science techniques. To provide methodological guidance, we survey the questions that legal scholars have tried to answer through content analysis, and use that experience to generalize about the strengths and weaknesses of the technique compared with conventional interpretive legal methods. The epistemological roots of content analysis lie in legal realism. Any question that a lawyer might ask about what courts say or do can be studied more objectively using one of the four distinct components of content analysis: 1) replicable selection of cases; 2) objective coding of cases; 3) counting case contents for descriptive purposes; or 4) statistical analysis of case coding. Each of these components contributes something of unique epistemological value to legal research, yet at each of these four stages, some legal scholars have objected to the technique. The most effective response is to recognize that content analysis does not occupy the same epistemological ground as conventional legal scholarship. Instead, each method renders different kinds of insights that complement each other, so that, together, the two approaches to understanding caselaw are more powerful that either alone. Content analysis is best used when each decision should receive equal weight, that is, when it is appropriate to regard the content of opinions as generic data. Scholars have found that it is especially useful in studies that question or debunk conventional legal wisdom. Content analysis also holds promise in the study of the connections between judicial opinions and other parts of the social, political, or economic landscape. The strongest application is when the subject of study is simply the behavior of judges in writing opinions or deciding cases. Then, content analysis combines the analytical skills of the lawyer with the power of science that comes from articulated and replicable methods. However, analyzing the cause-and-effect relationship between the outcome of cases and the legally relevant factors presented by judges to justify their decisions raises a serious circularity problem. Therefore, content analysis is not an especially good tool for helping lawyers to predict the outcome of cases based on real-world facts. This article also provides guidance on the best practices for using this research method. We identify techniques that meet standards of social science rigor and account for the practical needs of legal researchers. These techniques include methods for case sampling, coder training, reliability testing, and statistical analysis. It is not necessary to practice this method profitably only at its highest level. Instead, we show that valuable uses can be made even by those who are largely innumerate.

Trial Distortion and the End of Innocence in Federal Criminal Justice

INTRODUCTION 80 I. GUILTY PLEAS THAT RESOLVE CASES BUT NOT QUESTIONS 87 A. Federal Guilty Plea Growth Spurts 88 B. Plea Bargain Theories, Looking High and Low 91 1. Micro-Level Intentions 92 2. Macro-Level Social Purposes 97 II. ACQUITTALS AS A WARNING 100 A. Federal Acquittal Rates and the Guilty Plea Connection 101 B. Acquittals and the Other Displaced Outcomes 103 C. The Mid-Level Trial Distortion Theory 106 1. Trial Distortion and Trial Penalties 107 2. Are Lost Acquittals and Dismissals Trial Distortions? 112 3. The Accuracy Hypothesis 114 III. WHAT MADE FEDERAL ACQUITTALS DISAPPEAR? 116 A. Case Volume 117 B. Legal Complexity and Defense Counsel in the 1950s and 1960s ........122 C. Crime of the Decade 125 D. Sentence Severity and Trial Penalties in the 1990s 129 E. Prosecutor Power as the Leading Acquittal Culprit 134 IV. LEGAL ENVIRONMENTS HOSTILE TO INNOCENCE 137 A. Environmental Audits 139 B. Trials and Tribulations by the Numbers 146 C. The Sentencing Law Nexus 150 CONCLUSION 154 APPENDIX 156

Getting beyond Superheroes versus Trojan Horses: Career Motivations of State Court Prosecutors

As part of a broader effort to reshape criminal justice, voters in some U.S. cities recently have elected more progressive prosecutors. While these campaigns promised a change in prosecution priorities, real transformation requires commitment not just from elected chief prosecutors but also from line prosecutors, the attorneys who handle the daily caseloads of the office. But their motivations, amenability to reform goals, and sense of professional identity may be at odds with the leadership and hard to gauge from the outside. To better understand this group of criminal justice professionals and their power to influence system reforms, we set out to learn what motivates state prosecutors to do their work. Using original interview data from more than 260 prosecutors in nine different offices, we identify four principal career motivations for working state prosecutors: reinforcing one’s core absolutist identity, gaining trial skills, performing a valuable public service, and sustaining a work-life balance. However, only two of these motivations – fulfilling one’s core identity and serving the public – are acceptable for applicants to voice in the hiring context, even in offices that employ a significant number of former defense attorneys. From this finding we offer a cautionary tale to job applicants as well as to office leaders, particularly in offices hoping to adopt a new vision of the prosecutor’s job.

Reinventing American Prosecution Systems

American prosecutors operate within legal and practical limits, just like any other public officials within a democratic form of government. Those limits are more anemic for prosecutors than for other criminal justice officials; they have also become less effective over time. The prosecutorial function can be reimagined with more effective legal, institutional, and internal cultural constraints that would produce responsive prosecutorial services: that is, prosecutors who respond to legal standards, to public safety local priorities, to input from other criminal justice actors, and to the lessons of experience. This effort to make prosecutors more responsive to other institutions and public sentiment runs counter to ideals in most other Western countries where the objective is a professionalized and insulated prosecutorial service. A more responsive prosecutor, however, is necessary in the United States because of the strong tradition of broad criminal codes and the ingrained expectations that prosecutors must serve justice and not just evaluate the legal sufficiency of individual cases. The prosecutor’s sense of justice—an essential supplement to the rule of law in the American context—must take shape within institutional checks and balances, guided by democratic priorities, and not just by the prosecutor’s individual morality.

Evidence Laundering in a Post-Herring World

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who receives the evidence, develops it further, and delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash. In the years since Herring was decided, courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. Courts typically zero in on individual officer behavior, or limit their review to a single incident rather than considering the entire course of conduct. In so doing, they have taken the concept of good faith to unprecedented heights. The expanded good faith doctrine that Herring embodies makes visible the individualistic view of police work that is implicit in much of Fourth Amendment doctrine. This atomistic perspective, however, fails to appreciate the realities of modern policing, which depends heavily on teamwork and delegation. Moreover, the increased emphasis on police intentions and on balancing the costs and benefits of exclusion brings our courts into closer alignment with courts elsewhere in the world. As the exclusionary rule doctrine in the U.S. converges with its counterparts abroad, comparative work offers useful insights about future doctrinal developments and the likely effects of the transformed exclusionary rule.

Persistent Localism in the Prosecutor Services of North Carolina

The distinct flavor of each local prosecutor’s office persists in North Carolina despite unusually strong efforts to centralize and unify the prosecution function across the entire state. The 44 offices share a common legal framework, including structured sentencing rules that channel the available punishments in predictable directions. Almost all their operating funds derive from the state rather than from the local level of government. The ties that bind the offices together do not, however, create a single organizational identity. Each office pursues a unique mix of criminal charges, responsive to the priorities of local voters. Local offices also differ from one another in the sentencing results they obtain. Thus, the North Carolina experience demonstrates the relatively weak influence of substantive criminal law, sentencing law, and other formal legal structures in the face of demographic differences, local political constraints, office size, and organizational culture. In a democratic society, residents expect prosecutors to make choices consistent with their own values and priorities. Yet in North Carolina, voters also recognize that the state is not culturally homogeneous: Charlotte is not like Shallotte. Localism is a natural consequence of tight popular control over criminal justice in a pluralistic democracy.

The Law of Federal Sentencing in the Supreme Court's 1991-92 Term

In its 1991-92 Term, the Supreme Court decided a small group of federal sentencing cases that had little in common with one another. In Williams v. United States1 the Court decided that remand rather than affirmance is normally the proper disposition on appeal of a departure sentence based on both proper and improper grounds. The opinion in Wade v. United States,2 confirmed but limited the power of the sentencing court to review the governments refusal to move for a reduced sentence based on the substantial assistance of a defendant. In United States v. R.L.C.,3 the Court held that the maximum sentence to be imposed on a juvenile in the federal system is limited to the analogous guideline sen tence, while in United States v. Wilson* it decided that the Bureau of Prisons, not the court, should compute credit for time spent in official detention before a sentence begins.5 The issues presented in this odd collection were only marginally important to a federal sentencing system still trying to establish a regular rhythm. None of the cases dealt with a fundamental constitu