The Politics Of Criminal Law Reform: A Comparative .

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The author(s) shown below used Federal funds provided by the U.S.Department of Justice and prepared the following final report:Document Title:The Politics of Criminal Law Reform: AComparative Analysis of Lower Court DecisionMakingAuthor:Lydia Brashear TiedeDocument No.:223283Date Received:July 2008Award Number:2007-IJ-CX-0015This report has not been published by the U.S. Department of Justice.To provide better customer service, NCJRS has made this Federallyfunded grant final report available electronically in addition totraditional paper copies.Opinions or points of view expressed are thoseof the author(s) and do not necessarily reflectthe official position or policies of the U.S.Department of Justice.

UNIVERSITY OF CALIFORNIA, SAN DIEGOThe Politics of Criminal Law Reform:A Comparative Analysis of Lower Court Decision-MakingA Dissertation submitted in partial satisfaction of theRequirements for the degree Doctor of PhilosophyinPolitical SciencebyLydia Brashear TiedeCommittee in charge:Professor Mathew McCubbins, ChairProfessor Gary CoxProfessor Stephan HaggardProfessor Daniel RodriguezProfessor Joel Watson2008

CopyrightLydia Brashear Tiede, 2008All rights reserved.

The Dissertation of Lydia Brashear Tiede is approved, and it is acceptable in quality andform for publication on microfilm:ChairUniversity of California, San Diego2008iii

DEDICATIONTo David,For believing in me. Without you, this would not have been possible.To Natalie,For making me stop to smell the roses.iv

EPIGRAPHScience is a very human form of knowledge. We are always at the brink of the known,we always feel forward for what is to be hoped. Every judgment in science stands on theedge of error, and is personal. Science is a tribute to what we can knowalthough we are fallible.Jacob BronowskiFrom The Ascent of Manv

.Law is as I’ve told you before,Law is as you know I suppose,Law is but let me explain it once more,Law is The Law.Yet law-abiding scholars write:Law is neither wrong nor right,Law is only crimesPunished by places and by times,Anytime, anywhere,Law is Good-morning and Good-night.Others say, Law is our Fate;Others say, Law is our State;Others say, others sayLaw is no more,Law has gone away.-WH AudenFrom Law Like Lovevi

TABLE OF CONTENTSSignature Page iiiDedication .ivEpigraph . .vTable of Contents .viiList of Tables .xiList of Figures .xiiiAcknowledgements . .xvVita. .xviiiAbstract . .xixIntroduction: The Politics of Criminal Law Reform .1References for Introduction .9Chapter 1. Towards a Theory of Lower Court Decision-Making .111.1. The Principal-Agent Relationship .131.1.1. Why Delegate?.131.1.2. Problems with Delegation .151.1.3. Methods of Minimizing Problems Inherent in Delegation .161.2. Extending Principal-Agent Models to Courts 211.3. Interactions Involving Lower Courts and Higher Law-Making Bodies 28References for Chapter 1 . 35Chapter 2. Regulating Judicial Discretion in American Federal Courts . 382.1. Lower Court Decision-Making .382.2. The United States Sentencing Guidelines: A Test Case . 42vii

2.3. Changes in the Guideline Scheme 482.3.1. The PROTECT Act/Feeney Amendment: Legislation RestrictingJudicial Discretion 482.3.2. Blakely and Booker: Supreme Court Cases Augmenting JudicialDiscretion . .512.4. Testing the Effects of the Sentencing Guideline Scheme . 552.5. Testing the Effects of Changes in Guideline Laws .602.6. Results: Guideline Scheme Hypotheses .622.7. Results: Changes in Guideline Law Hypotheses .692.8. Discussion and Implications .75Appendix to Chapter 2 .80References for Chapter 2 .84Chapter 3. What Federal District Court Judges Think . 913.1. Overview and Data 923.2. Hypotheses . .973.3. Results .1003.3.1. General Observations .1003.3.2. Duration of Law .1023.3.3. Party of appointing president .1093.3.4. Professional experience on the bench .1133.4.Opinions Regarding Sentencing Guidelines and Reform .1153.5.Implications and Conclusions .118Appendix to Chapter 3 .122References for Chapter 3 .129viii

Chapter 4. Sentencing Reform in England and Wales: Diverging from the UnitedStates?.1304.1. The Institutional Context for Sentencing Reform and Judicial Independence 1324.1.1.England’s Court Structure and Constitutional Reform 2005 .1324.1.2. Parliamentary Sovereignty and the Role of the Judiciary .1394.2. Why Sentencing Reform? Why Now?.1414.2.1. The Criminal Justice Act of 1991 1424.2.2. The Powers of Criminal Courts Act 2000 1444.2.3 Criminal Justice Act 2003 .1454.3. Judges and Sentencing Officials’ Opinions 1534.3.1. Judicial Decision-making .1534.3.2. Current guideline system and judicial discretion .1544.3.3. Inter-branch Relationships 1574.3.4. Unwarranted Sentencing Disparity .1594.4. Is England Destined to Inherit America’s Explosion in Prison Population? .161Appendices to Chapter 4 .168References for Chapter 4 .177Chapter 5. Chile’s Experiment in Criminal Law Reform: Conversion from anInquisitorial to Adversarial System .1805.1. The Debate .1815.2. The Wave of Criminal Law Reforms Across Latin America .1845.3. The Case of Chile 1885.4. Chile’s Pre-Reform Criminal Procedure .1915.5. Criminal Law Reforms in Chile .194ix

5.6. Data and Variables .2005.7. Chile’s Criminal Law Reform as a Quasi-Experiment: Research Design .2025.7.1.Hypotheses and Methodology .2025.7.2. Results .2075.8. Conclusions and Implications .212Appendices to Chapter 5 .215References for Chapter 5 .216Conclusion .220Appendix to Dissertation. .231References to Appendix .238x

LIST OF TABLESTable I.1: Judiciaries and Laws Examined . .8Table 2.1: Partial Depiction of Sentencing Table in Months of Imprisonment 44Table 2.2: Pre-Guideline Case Statistics . 56Table 2.3: Drug Amounts for Two Crimes Analyzed . .57Table 2.4: Description of Groups Tested with Identical Fact Patterns .57Table 2.5: Results of Post-Tests (1999-2005). 63Table 2.6: Percent Sentenced at Minimum by Group (1999-2005) .64Table A2.1: Multiple Regression Analysis of Sentence Length: Isolating theEffect of the PROTECT Act .81Table A2.2: Multiple Regression Analysis of Sentence Length .82Table 3.1: Descriptive Statistics of 1991 and 2008 Survey Responses 94Table 3.2: Professional Experience of Judges .95Table 3.3: Summary of Circuit Affiliation for 2008 Survey . .96Table 3.4: Summary of Party Appointing President for 2008 Survey .97Table 3.5: Responses to Congressional Action Question by Survey Year .107Table 3.6: Responses to Mandatory Minimum Sentences and UnwarrantedDisparity Question 109Table 3.7: Responses to Survey Questions by Years on the Bench 115Table A3.1: Comparison of Judicial Responses 1991 and 2008 Surveys .122Table 4.1: England and Wales Definitive Sentencing Guidelines by Year 150Table 4.2: Advantages and Disadvantages of Current Guideline System .156Table A4.1: England and Wales Key Sentencing Legislation 1974 – 2003 .174Table 5.1: Time Table for Chile’s Criminal Law Reforms 195xi

Table 5.2: Fixed Effect Results for Various Logged Dependent Variables .209Table 5.3: Fixed Effect Results for Logged Case Processing Rates. .209Table A5.1: Chile’s Regions and Corresponding Judicial Districts .215Table C.1: Prison Populations Compared . 228Table A.1: A Comparison: The Federal Guidelines vs. the Pennsylvania Guidelines.233Table A.2: The Effect of Pennsylvania Sentencing Guidelines .235Table A.3: Summary of Alternative Non-Custodial Sentences .237xii

LIST OF FIGURESFigure 2.1: Drug Amount #1: Guideline Range Cases Only (1999-2005) .66Figure 2.2: Drug Amount #1: All Cases (1999-2005) .67Figure 2.3: Drug Amount #2:Guideline Range Cases Only (1999-2005) 67Figure 2.4: Drug Amount #2: All Cases (1999-2005) .68Figure 2.5: Average Sentences after Changes in Law .71Figure 2.6: Departure Rates after Changes in Law .72Figure 2.7: Standard Deviation after Changes in Law .73Figure 2.8: Sentence Length After Changes in Law for Drug Amount #1 (by circuits).74Figure 2.9: Percent of Departures after Changes in Law for Drug Amount #1(by circuits) . .74Figure 2.10: Standard Deviation (Disparity) after Changes in Law for DrugAmount #1 (by circuits) . .75Figure 3.1: Motions for Substantial Assistance as a source of unwarrantedSentencing Disparity . .104Figure 3.2: Responses to Congressional Action and Mandatory Minimums .111Figure 3.3: Responses to Substantial Assistance Departure Question 112Figure 4.1: Hierarchy of Criminal Courts in England and Wales .136Figure 4.2: Criminal Justice System: A Funneling Process .162Figure 4.3: Sentenced Adult and Youth Males in Custody 163Figure 4.4: Sentenced Males and Females in Custody . 165Figure 4.4: Sentenced and Non-Sentenced Individuals in Custody . .166Figure 5.1: Map of Chile’s Regions 195xiii

Figure A.1: Distribution of Pennsylvania Sentencing Cases within the GuidelineRanges .236Figure A.2: Distribution of Pennsylvania Sentencing Cases Applying theGuidelines and Departing 237xiv

ACKNOWLEDGEMENTSIt is quite hard to thank so many people for so many things. In fact, saying thankyou seems insufficient when you owe such great debts.I am especially indebted to Mat McCubbins who helped me direct and focus mymany diverse interests in judicial politics. At the same time, he helped me to see the realvalue in both research design and the constant inquiry as to whether the correct questionswere being asked and answered. His comments and warranted criticism on my workalways drove me to dig deeper and try harder. Further, I am especially thankful for theopportunity he provided me in the summer of 2007 to return to Chile to conduct researchon criminal law reforms which I had begun in 2001 when still working as an attorney.Observing the reforms in action and speaking with judges and lawyers not only helped toinform my own work, but also helped me to see how legal reform operates in ademocracy of only twenty years. It was an experience I will not forget.I would like to thank Steph Haggard for understanding early on that I was keenlyinterested in development work and comparative legal systems. His enthusiasm for myown ideas helped me to pursue questions I thought may be too difficult to answer. Mywork with him on rule of law issues has been extremely gratifying and rewarding.I also would like to thank Dan Rodriguez who always was willing to take extratime to meet and talk to me about ideas and legal concepts in which I was extremelyinterested and for helping me to use my background in law to pursue more politicallyintriguing questions. I also thank Dan for his balanced view on life and understandinghow challenging and rewarding career changes are.xv

Many thanks to committee members Gary Cox and Joel Watson, who both hadinsightful comments on my work. I have learned so much from participating in classesand seminars with them.For those whom I am especially grateful for giving me perspective and support:Julie Deloria, Melanie Hart, Kati Suominen, and all my friends at UCSD mastersrunning/swimming and at the Westside Athletic Club in San Diego.I also am very appreciative of the dissertation grant I received from the NationalInstitute of Justice to do work on sentencing reform in the United States and England andWales. I am in great debt to Carole Ring and Chris Vaz of UCSD, and ChristineCrossland at DOJ for invaluable and persistent assistance in administering my grant.I am very grateful to judges and sentencing officials in the U.S., United Kingdom,and Chile, who spent hours explaining the intricacies of criminal law and judicialdecision-making in their jurisdictions, despite their own very busy schedules. Specialthanks especially, to U.S. Federal District Court Judges Dana Sabraw, Irma Gonzalez,Chilean Public Defender Claudio Pavlic Véliz and numerous judges and sentencingofficials in England such as Crown Court judge Goymer and Sentencing SecretariatKevin McCormac.I also thank Mathew Shugart and Peter Smith, who got me started on this road asa master’s student in Latin American Studies.Finally, I’ll never be able to thank my husband and daughter enough for all of thetime they allowed me to spend pursuing political science. When I had my greatestmisgivings, my husband David was always there telling me to re-focus on the work itself.To him, I owe the most. Although possibly only stalling her own bedtime, I also shallxvi

never forget Natalie asking me on a regular basis whether I had to work on my computeragain tonight. I hope to explain when she is much, much older that I never “had” to workon my computer, I just desperately wanted to and getting to do what you dream of doingis one of life’s grandest rewards.***This project was supported by award # 2007-IJ-CX-0015 awarded by the NationalInstitute of Justice, Office of Justice Programs, United States Department of Justice. Theopinions, findings, and conclusions or recommendations expressed in this publication arethose of the author and do not necessarily reflect the views of the Department of Justice.xvii

VITA1987Bachelor of Arts, University of Michigan1991Juris Doctor, American University, Washington College of Law1991- 2004Practice of law2002Master of Arts, Latin American Studies,University of California, San Diego2008Doctor of Philosophy, University of California San DiegoPUBLICATIONSJudicial Independence: Often Cited, Rarely Understood, Journal of Contemporary LegalIssues 15: 129-161 (2006).Delegating Discretion: Quasi-Experiments on District Court Decision-Making, AmericanPolitics Research 35(5): 595-620 (2007).The Rule of Law and Economic Development, Annual Review of Political Science 11:205-34 (with Stephan Haggard and Andrew MacIntyre) (2008).FIELDS OF STUDYMajor Fields: Comparative and American PoliticsFocus Area:Judicial Politicsxviii

ABSTRACT OF THE DISSERATIONThe Politics of Criminal Law Reform:A Comparative Analysis of Lower Court Decision-MakingbyLydia Brashear TiedeDoctor of Philosophy in Political ScienceUniversity of California, San Diego, 2008Professor Mathew McCubbins, ChairThis dissertation includes an analysis of sentencing reform in the United Statesfederal system and England and Wales as well as an analysis of more general criminallaw reform in Chile which converted its criminal process from one that waspredominantly inquisitorial to one that is more adversarial in nature. By focusing on theeffect of select instances of criminal law reform on lower court decision-making, thedissertation includes an analysis of whether lower courts are responsive to legislation andhigher court mandates and whether the intent behind criminal law reforms was achievedor whether the reform resulted in unintended consequences.xix

The dissertation includes empirical analyses of how lower court judges respond tolimitations or expansion of their discretion imposed by the legislature and sometimeshigher courts. In the U.S. federal example, case level data as well as opinions of judgesfrom surveys conducted in 1991 and 2008 are analyzed. The analysis of sentencingreform in England and Wales relies on a content analysis of the reform, interviews withjudges and sentencing officials, and statistical information on various prison populationsfrom 1983 to 2007. In the case of Chile, the effect of reform on lower court judges istested using data about rates of convictions, acquittals, and case processing times in lowercourts.Although focused on criminal law reform, the dissertation describes therelationship between some higher law-making body (the principal) and lower courts (theagents). The principal-agent framework is used to explain why higher law-makingbodies delegate to lower courts in the first place and to explain the risks involved indelegating discretion to lower court judges whose preferences may differ from the higherlaw-making bodies.Finally, the dissertation explores the political nature of criminal law reforms bycomparing the political motivations behind reform with the actual consequences of suchreform. Often political objectives, such as appearing tough on crime and reducing prisonpopulations, are mutually exclusive. As a result, the political nature of criminal lawreform prevents legislators from creating cogent or effective criminal law policy.Further, in reducing judicial discretion, a cornerstone of much of the reform analyzedhere, legislators are discounting and weakening their most experienced and effectiveagents in the battle against crime.xx

Introduction:The Politics of Criminal Law ReformCriminal law reform is a manifestation of the constant battle waged betweenpoliticians who want to appear tough on crime and judges who want to act independentlyto apply their expertise and judgment in adjudicating criminal cases. Politiciansworldwide are concerned about what voters think and this electoral connection makesthem especially interested in the public’s opinion on issues concerning law, order, andsecurity. As a result, legislators enact and amend criminal laws and procedures at aconstant pace in the hope of constraining judges deemed to be too soft on crime and ajudicial branch deemed to be too independent. Sometimes, higher courts assertthemselves in the reform process by ruling legislation unconstitutional or directing lowercourts regarding interpretation of the law.This dissertation shall analyze select instances of criminal law reform to ascertainhow lower courts make decisions when constrained by higher law-making andinterpreting bodies. In doing so, I ask can legislators really control judicial discretion andif so, should they? The dissertation also shall analyze whether the intent behind thevarious reforms was achieved. In other words, do criminal law reforms achieve theirintended purpose or do they result in unintended consequences? These questions areanswered by analyzing how law and legal reform affect both lower court decision-makingin particular cases and larger societal concerns such as

on criminal law reforms which I had begun in 2001 when still working as an attorney. Observing the reforms in action and speaking with judges and lawyers not only helped to inform my own work, but also helped me to see how legal reform operates in a

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