Sourced via Lex Pelger Newsletter
Abstract
This article investigates the effect of the decision maker’s profile on sentencing drug-trafficking cases. Based on habeas corpus from defendants under pretrial custody for drug trafficking sentenced by a subnational criminal court in Brazil, favorable and non-favorable decisions were examined in light of the biographical classifiers of the judges. Variance among votes was analyzed with the aid of decision categories, concerning the application of the legal text, and decision makers’ typologies, concerning background and organizational status. Results show that judges recruited in the state, who attended traditional law schools in the state capital city, with homogeneous careers, are more inclined to repeat the collective orientation of the court: denying the petition. However, decision makers from diverse regional backgrounds, with a non-traditional college education and hybrid professional trajectories have a greater likelihood of exhibiting pro-defendant behavior. Women and substitute judges, whose performance is subject to greater group pressure, are highly unlikely to release custody of an individual facing a drug-related accusation. While focusing on the votes issued by women as opposed to their male counterparts, more attachment to formal requirements of the law was observed; thus, further research on the impact of gender in criminal decision-making is recommended.
Keywords
Trial-judging; decision-maker profile; drug trafficking; Brazilian criminal justice; habeas corpus
Introduction
Brazil has a draconian policy of remanding to custody individuals arrested for common drug offenses.1 Using a dataset of habeas corpus cases on drug trafficking judged by decision makers sitting on multijudge panels of a subnational court, I will examine how justices’ profiles and judicial behaviors relate. This paper is meant to analyze the extralegal factors that affect an appeal judge when deciding whether to keep or release an alleged drug dealer from remand. Given that the circumstances of the crime, such as amount, type and variety of drug seized, and the record of the defendant, such as being a first-time offender, do not undergo much variation, judicial discretion is the alternative explanation mobilized for understanding sentencing behavior. This framing emphasizes the effect of both biographical variables of the decision maker and the organizational setting. First, I expect a more diverse background to positively affect the likelihood of a justice disregarding the normative orientation and authorizing the alleged drug trafficker be released pending trial. Second, in a collegial appellate court, I assume personal experiences of trial judging to be socially structured. On the basis of quantitative analysis of the judges’ background, panel effects are found to be greater among individuals who comprise the collegiate minority. Non-conformist votes are concentrated among male justices, with the probability to dissent2 increasing for holders of a more heterogeneous profile.
The next section (2) is a review of the relevant scholarship on trial judging, followed by section 3, an outline of the legal framework applicable to drug-related offenses in Brazil and a presentation of the formal model to be tested. In section 4, decisions and decision makers are associated using statistical tests in the search for patterns related to biographical variables of the judges. Findings are then discussed in light of previous research and a predictive model is presented. Then, section 5 aggregates strategic variables of the court’s internal dynamics relative to judges who are women and designated judges who exhibit a strong anti-defendant bias. I conclude with a discussion on limitations and suggestions for future research in this area of court studies.
