Sentencing: Federal Judges More Likely to Acquit Than Juries

Federal judges are much more likely to acquit defendants than juries are, according to a review of some 77,000 federal criminal trials between 1989 and 2002. Juries convicted 84% of defendants, while judges in bench trials convicted only about half. The phenomenon is recent, with judges and juries convicting at about the same rate from the 1960s through the 1980s, and prior to that, judges were much more likely to convict than juries.

The findings come from a paper published by University of Illinois College of Law professor Andrew Leipod, "Why Are Judges So Acquittal-Prone?," published in the Washington University Law Quarterly and discussed at some length at the Volokh Conspiracy blog. According to Leipold, he was puzzled at the shift and sought an answer.

"The core problem," he wrote, "is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries." The evidence suggests a likely culprit, Leipod argued. "I think the sentencing guidelines best fits this description. The guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh - maybe too harsh - sentence. We don't have to say that judges were acting 'lawlessly' to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving."

Because judges do not fill out forms showing what factors they weigh when they rule, any evidence of a link between conviction rates and the sentencing guidelines is necessarily indirect, but, Leipold notes, it is probably not coincidence that "with the Guidelines really hitting stride just as the judicial conviction rate started to slide." Many judges "were harshly critical of the how the guidelines made it harder for them to do justice in individual cases," he noted.

[Editor's Note: One might suppose that mandatory minimum sentencing is also having this effect on federal judges -- an equally, sometimes harsher federal sentencing system that is parallel to and interlocks with the guidelines. Congress enacted mandatory minimums very hastily, two years after creating the sentencing guidelines, following the 1986 overdose death of University of Maryland basketball star Len Bias.]