Professional Background and Judicial Behavior in Brazil

Abstract

This paper exploits the diversity on the bench of Sao Paulo's supreme court to address two issues in the judicial decision-making literature: first, the influence of career backgrounds or personal attributes on appellate decisions; second, whether sitting, designated judges exhibit a distinct decision pattern, compared to circuit judges, attributable to career incentives or institutional motives. Based on a large dataset of criminal appeals in the State Sao Paulo, Brazil, this study exploits the random assignment of cases to rapporteurs, to identify the causal effects of career backgrounds on judicial decision-making. The Brazilian constitution establishes that 80% of appellate court seats be filled with career judges, 10% with lawyers and 10% with prosecutors. In practice however, vacancies in panels coupled with overburdened courts have significantly increased the participation of judges sitting by designation in appellate panels - who acted as rapporteurs in as much as 14\% of all criminal appeals in Sao Paulo, in the period 2009-2013. Based on a judicial-decision-making model, conditioning on detailed case characteristics, collegiate-effects and time-effects, this study suggests that career backgrounds seem to affect judgments in many ways: former lawyers are more likely to decide in favor of defendants, whereas judges sitting in panels by designation are more likely to decide against defendants. Designated judges also exhibit an anti-defendant behavior, specially in crime types that are sensitive to the political agenda of the executive, such as drugs, illegal weapons and juvenile offenses. This distinctive behavior is particularly pronounced in sentence executions, which constitute a key component of the security policy. Finally, former prosecutors seem to be more likely to reverse circuit court decisions, possibly due to legal motives, although decisions favorable to the prosecution in some types of crimes (drug offenses) is suggestive of political and institutional preferences. This paper corroborates the importance of the path of juridical careers on decision-making standards of appellate judges. Moreover, the strength of results regarding designated judges highlights the potential of (a lack of) judicial independence in influencing decision patterns and shaping appellate decisions in a way that corroborates the status quo criminal policy orientation.