Judicial attitudes under shifting jurisprudence: Evidence from Brazil’s new drug law of 2006

Abstract

This paper attempts to quantify the response of different types of appellate judges to a major shift in criminal jurisprudence on drug offenses in Brazil, which, in 2010, revoked the prohibition of conversion of prison sentences in drug offenses. Appellate judges may react to criminal reform by changing their rates of judgements that are favorable to defendants and, depending on the judge type, responses run in different directions and with variable intensity. This study offers detailed estimates of such responses and interprets them in the light of the literature on the determinants of judicial decision-making, which resorts not only on legal factors but also on the ideology, personal attributes and strategic behavior of judges. According to the Brazilian constitution, 10% of the seats in appellate courts must be filled by formerly practicing lawyers and 10% by former prosecutors, both by executive appointment. The remaining 80% are reserved for career judges. In addition to these appointments, appellate panels also rely heavily on judges sitting by designation, who acted as rapporteurs, between 2009 and 2013, in as many as 14% of all criminal appeals in the state court of São Paulo, which is the subject of the analysis. A large dataset of criminal appeals related to drug offenses and the exogenous assignment of cases allow identifying the causal effects of career backgrounds on the response of appellate judges to the shift in drug jurisprudence. Estimates of the effect of judge types on appellate case outcomes, conditional on case characteristics and judging panel-specific effects, confirm that career judges are more likely to rule in favor of defendants, in line with the shift in jurisprudence. Former prosecutors and sitting judges seem to react against the shift, by increasing their rate of rulings against defendants. Former lawyers tend to exhibit mixed behavior, possibly resulting from a combination of liberal attitudes and strategic behavior, in deference to policy preferences of the executive branch.