One of the main concerns expressed by lawyers and judges about courtroom cameras is that they will lead to grandstanding and obnoxious courtroom behavior. But the experience in Minnesota state courts suggests that these concerns are overblown. Using a bit of a loophole in the law — sentencing proceedings do not require assent from the parties — more media are gaining camera access to high-profile sentencings. The results have been mostly positive.
There are ample reasons to want to protect the privacy of victims, jurors, and witnesses during trial. But there are also ample reasons to make the open forum of the courtroom truly open to everyone. Video access of court proceedings is assuredly compatible with safety, due process, and substantial justice.
That’s the bottom line of this fascinating study by Daniel Chen and Arnaud Philippe. The authors looked at more than four million sentencing decisions in France, and another 600,000 in the U.S. federal courts. They found that French sentences are 3% shorter, and U.S. federal sentences are 33% shorter in the day component, when the defendant is celebrating a birthday. (Month components were unaffected.) The authors also found that in the U.S. courts, significant birthday leniency exists only where the defendant and the judge share the same race.
I am always cautious about making too much of one study, but there certainly seems to be some basis for the authors’ conclusion that “social norms transmitted through rituals can perversely lead to unfair or incorrect decisions in important situations even when professional norms have been designed to mute them.”
Back in May, I flagged an interesting story about state courts radically revising the cash bail system for criminal defendants. The changes were notable in part because bail is a quintessentially American practice, and a classic example of the court system’s interdependence. In an op-ed today, Walter Olson argues that revisions to the bail system may also have had the unintended effect of causing judges to hold more criminal defendants in jail pending trial:
An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.
Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.
At their core, principles of organizational independence teach that decisions have a wide range of ripple effects on all aspects of the organization. As Olson notes, it is too early to say whether Maryland’s numbers reflect causation, statistical noise, or something in between. But there should be little surprise that the decision to limit bail options, without providing other formal mechanisms to deal with moderate-level offenders, would lead to some noticeable changes in the way the system operates.
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