by Casey J. Bastian

Legal scholars and practitioners have begun raising concerns that there is a lack of judicial diversity on court benches in America and abroad. While there have been serious efforts to increase racial and gender diversity, a more impactful form of diversity—professional diversity—is often overlooked. Data suggests that there are four times as many former prosecutors in relation to former criminal defense attorneys on federal court benches. This is resulting in a “pro-prosecution bias.” And disparate outcomes resulting from such biases undermine public confidence in the legitimacy of our courts.

Anglo-American criminal-legal systems are structured on the idea of certain fundamental rights: the presumption of innocence, a right to effective representation, and the “burden of proof is placed solely on the government.”

If our systems have come to rely primarily on judges with prosecutorial backgrounds, the likely result is pro-prosecution bias and outcomes. It is well understood that unconscious biases affect decision-making and behaviors in humans. And judges are obviously human. They are not exempt from the influences of subconscious thought processes. Oaths of impartiality cannot alone prevent these natural behaviors.

As such, the lack of professional diversity on the judiciary “can affect the application of law in real people’s lives.” These concerns reveal a real potential for adverse impacts on defendants and on case outcomes. The impact extends to the “development of precedent that shapes [the] future practice of law.”

From the lowest municipal state court to the Supreme Court of the United States (“SCOTUS”), there are more judges with prosecutorial backgrounds than criminal defense experience. This is a pattern that is repeated internationally as well. This trend of the judiciary comprised of more prosecutors than defense lawyers is present in Australia, Canada, parts of Western Europe, and the United Kingdom. Even SCOTUS has had “three times as many” Justices with prosecutorial backgrounds since the 1970s.

Notably, the first former public defender ever appointed was Justice Ketanji Brown Jackson in 2022. Justice Jackson acknowledged the importance of her defender background and what it reinforces in the discharge of her judicial duties. She said that “every person who is accused of criminal conduct by the government, regardless of wealth and despite the nature of the accusations, is entitled to the assistance of counsel.” What she was explaining is that, just because someone is charged with a crime, does not make them guilty or deserving of excessive punishment.

Absent such professional experiences, are these principles less important for judges with deep ties to prosecutors’ offices? A study was published in 2022 by Colleen M. Berryessa, Itiel E. Dror, and Chief Justice of the Michigan Supreme Court Bridget McCormack, in an effort to advance discussion on the concerns presented in that question. The study is titled: “Prosecuting from the bench? Examining sources of pro-prosecution bias in judges.”

The study presented a “theoretical model of potential sources of pro-prosecution bias in judges with prosecutorial backgrounds.” This theoretical model posits two sources of biases and three derivative forms of bias and the ways in which they are manifested. The first source is described as “a prosecutorial mindset,” including “prosecutorial socialization” and “prosecutorial attitudes.” The second source is described as “selection into the judiciary,” which includes “professional selection” and “self-selection.” The final section is labeled “common unconscious biases shaped by prosecutorial backgrounds,” defined under “belief persistence,” “confirmation bias,” and “role-induced bias” labels.

The bias study’s principal concern is that if prosecutorial perceptions and backgrounds “dominate judging,” it leads to “legal doctrine and precedent that is biased towards the prosecution,” i.e., a “pro-prosecution bias.” There are clear repercussions pertaining to case outcomes remaining fair and impartial, as well as continuing public faith in the fairness of our criminal justice system.

Given these important issues, scholars and researchers began analyses of case outcomes. Pro-prosecution bias is observed in many facets of trial decision-making, including evidentiary and procedural rulings and also guilt- and sentencing-phase decisions. Currently, full empirical studies are “sparse and limited in scope.” This does not mean that the bias study isn’t informative. Serious issues have been identified. An examination by one researcher in 1962 focused on criminal law and procedural rulings in the American state and federal courts. More than 60 years ago, researchers found that “former prosecutors were 15% more likely to rule against the defen[se].”

Multiple studies reviewed cases from the early to late twentieth century and found SCOTUS justices with prosecutorial backgrounds were “significantly more likely to rule in [favor] of the prosecution in financial and civil liberties cases.” And district court judges with similar backgrounds “were less likely to decide employment cases” in the plaintiff’s favor, according to a 2021 study. Research literature discusses comparisons between judges with divergent professional backgrounds in relation to their legal approaches. It suggests that former prosecutors-cum-judges “may be likely” to follow “existing guidelines, narrow legal interpretations, [and] precedent,” and will likely “defer to prosecutors’ recommendations.” This is especially the case when the prosecutor uses an approach similar to the judge.

A 1991 study of U.S. District Court rulings found that judges with a prosecutorial background were “significantly less likely” to rule against the federal sentencing guidelines when contemplating a sentence’s validity. These judges also show “significant hesitation to diverge from sentencing precedent,” even when such hesitation renders it difficult to conform to requirements of 18 U.S.C. § 3553(a)(6). This statute subsection is intended to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” As the bias study cites, a 2016 study demonstrated that judicial “opinions affirming pro-prosecution sentencing decisions constitute almost all binding precedent, judges [are] essentially defer[ring] to the prosecution when deferring to precedent in federal sentencing.”

But these models reveal only outcomes resulting from biases. They do not seek to understand the sources and causes of the biases in relationship to judges. Much of the previous studies of bias focused on other experts, both within and without the legal field. And while the concepts generally are applicable to this concern, the bias study attempts to further understanding of the more critical components of prosecutorial biases: the “psychological and social sources of bias as stemming from case-specific factors” as well as “structural- and individual-level factors.” These factors also pertain to the judge as the professional person and include: “personal and background factors (i.e., education, professional training, pre-existing values), organizational factors (i.e., nature and structure of the criminal-legal system), and commonly exhibited biases that stem from and are shaped by one’s background, experiences, and attitudes.”

As the bias study makes clear, case-specific factors do “bear on the exhibiting of pro-prosecution bias.” This model’s specific focus is on structural- and individual-level sources of bias. These sources “may be more broadly applicable to understanding the development and exhibition of pro-prosecution bias.” These sources of bias can perpetuate the effects by interacting with each other in a kind of positive feedback loop.

Psychologists have described a “prosecutorial model” as the key to understanding a prosecutor’s thinking in relation to detecting and punishing criminal behavior. These “intuitive prosecutors” focus their “general attitudes about norm violations” into their ostensible goal of safer communities. “Norm violations” are essentially violations of accepted regulatory, civil, and criminal laws. Compliant behavior is considered the “norm.” Prosecutors are trained to identify and understand offenders and imposing punishments they deem appropriate.

This leads to prosecutors seeing themselves as “crime fighters.” When your primary objective is convicting people in an effort to “protect society,” these values will extend to duties on the bench. The widely-supported “attitudinal model of judicial-decision-making” explains why judges don’t utilize specific case facts alone to decide a case, instead relying on their personal beliefs and values.

Professional socialization occurs when a person is formally trained for a specific job and acquires values from “ongoing social systems.” This also occurs with prosecutorial socialization. This limits prosecutors to specific approaches towards legal concepts. This includes “distinct views about constitutional protections, precedent, and [the] law’s flexibility and limit….” In this way, prosecutorial socialization is likely to shape judicial behavior and decision-making; this is referred to as “prosecuting form the bench.”

As these individuals have been socialized to prosecute, they develop a prosecutor’s mindset. Prosecutors want cases to be “winnable” and usually only prosecute cases if they are certain that they can secure a conviction. As such, “prosecutors are trained to selectively identify and assess evidence in ways that are partial to a suspect’s guilt.” Researchers refer to this as the “guilt-confirming hypothesis.” Prosecutors will then “subconsciously prefer or put weight on” inculpatory evidence but not exculpatory evidence, which they tend to diminish or ignore. This mindset invariably carries over when prosecutors become judges. Judges who were former defenders will likely exhibit an opposite perspective.

Multiple studies speculated that pro-prosecutorial socialization might be mitigated with time on the bench and judicial experience. A 2011 study discovered, however, that “time on the bench did not affect whether Circuit Court judges with prosecutorial backgrounds sided with the government in their rulings.” And if a majority of judges are former prosecutors, their judicial peers will hold similar biases. This leads to “judicial socialization,” which suggests that the “effects of prosecutorial training may potentially last far into judges’ careers.”

There are two primary means of selection into the profession of jurist, and each can lead to prosecutorial bias. Professional selection by election or appointment can require judges to be “tough-on-crime” and adopt “pro-prosecution pledges” in order to secure judgeships. These “pro-prosecution pledges” may extend and affirm prosecutorial conditioning into “judicial philosophies and practice.” Approximately 90 percent of state judges are elected. State judicial campaigns feature prevalent motifs in ads, platforms, and speeches of “tough-on-crime” stances.

Judicial election campaigns feature “crime control, ‘cracking down’ on criminals, and law enforcement partnerships” as common themes. A county judge in Florida campaigned on the promise that he will “always have the heart of a prosecutor.” A judge on the Texas Court of Criminal Appeals stated that she considers “legal issues from the perspective of the state instead of the perspective of the defense” because she was a “prosecution-oriented person.”

The media may be largely responsible for the “pro-prosecution pledges” phenomena. Research suggests media coverage of violent crime leaves the public “primed to support harsh criminal legal responses.” This focus on perpetrators leads to the public perception that criminals are a greater “pressing societal issue than statistics show.” In addition to the judicial candidates’ response to be “tough-on-crime,” the criminal justice system continues to respond to crime in perpetrator-oriented ex ante responses rather than addressing the root causes of criminal behavior. The media have conditioned the masses to respond with ideas of retribution, not restorative justice or prevention. Tellingly, studies have found increased “sentencing punitiveness” in re-election years.

The appointment of judges doesn’t necessarily ameliorate the situation. Judicial candidates must answer to an appointing authority, including governors, legislatures, and presidents. If those authorities appear more supportive of “tough-on-crime” stances, then judges inevitably “adopt similar stances and legal approaches.”

Evaluation of judicial candidates’ backgrounds show that a defense-oriented background actually serves as an occupational liability. The most typical path for professionals with “judicial ambitions is via a prosecutors’ office.” Those desiring to be appointed often adopt certain approaches, backgrounds, or rhetoric to “fulfill expectations” as to what they feel may make them a “better” choice.

This self-selection behavior indicates that individuals who choose to become prosecutors and then judges are predisposed to believe in this uncompromising worldview. Their decision to be “tough-on-crime” is a matter of values. Naturally, punitive tendencies are reinforced by prosecutorial training and later “exacerbated during professional selection to the judiciary.”

Both professional selection and self-selection may facilitate the individual translating either adopted, learned, or inherited beliefs into later judicial behavior. If “pro-prosecution pledges” and conservative approaches are the “expected norm” for election or appointment and are favored or labeled as “correct,” former prosecutors entering the judiciary have “little incentive to reevaluate their own, or consider other, legal approaches.” After appointment or election, the continuation and support of these ideologies are also considered a means for promotion to a higher court. It is important that the sources of unconscious pro-prosecution biases are acknowledged and discussed. It is equally important that we identify these biases and how they present. Their negative impact often results in unjust adjudicative procedures and case outcomes—in other words, miscarriages of justice.

Confirmation bias is a common cognitive phenomenon. This is when a person only favors, interprets, or credits information that confirms or supports prior attitudes, beliefs, or values. A 2019 study found that when prosecutors are influenced by confirmation bias, it tends to reenforce their guilt-confirming hypotheses. This suggests that “prosecutorial attitudes and training lend to the exhibition of confirmation bias in their decision-making.”

Looking for evidence of confirmation bias in action, legal experts in 2017 examined “727 jury trial appeals” in Santa Clara County, California. They discovered “over 100 instances” where the higher court “found trial judges erred in ways that helped the prosecution.” Some errors included allowing prosecutors to “introduce questionable or improper evidence” or the judge “failed to give the jury proper direction on the law,” with almost every error disfavoring the defense. Other experts identified similar patterns in different studies. Confirmation biases reveal themselves when judges “cognitively conform their legal approaches” to “preexisting values and prosecutorial training.”

Confirmation bias is also exhibited through “belief persistence.” Once a person has created a belief system, it can be extremely hard to change or influence those beliefs. Strong contrary evidence is generally not enough. When evaluating or interpreting contradictory evidence or information, the new information is inherently deemed “questionable or irrelevant to decision-making,” even in important situations like adjudicatory proceedings. This can result in difficulties for the defense when introducing arguments or specific evidence when a “pro-prosecution” jurist disregards or restricts them as irrelevant.

Psychological research has also revealed a cognitive bias mechanism labeled “role-induced bias.” A person’s analysis of an immediate situation may be “subconsciously influenced and biased by their own role they play in it.” Even experimentally, random assignments of roles as prosecutors versus defenders “triggers skewed judgements, behavi[ors], and systemic discounting” of competing views. The creation of our adversarial system was an attempt to mitigate such biases. Role-induced bias is extremely difficult to overcome. If a judge is trained as a prosecutor, he or she will be “subconsciously influenced by role-induced bias stemming from years in this role.” Oaths of impartiality are rarely sufficient to overcome the dynamic, as it is largely unconscious. When role-induced bias is coupled with an “adversarial mindset,” this can escalate to “inter-group conflict” and “in-group favoritism.” This is in-group bias, a persistent feature of human psychology.

The focus has been on pro-prosecution judges prosecuting from the bench. This does not mean that judgeships should all be filled with former defenders. A jurist with a defender background is not immune from unconscious biases. What we as a society must strive for is an assurance of balance to promote fairness in all criminal cases. A 2016 study argues for professional diversity in order to achieve this goal. Professional diversity may be the “key to long-lasting, ‘deep-level’ diversity,” and in turn, would refine and develop broader judicial decision-making processes through the introduction of varying attributes, attitudes, experiences, and values.

The lack of professional diversity in judgeships has created the “public [skepticism] regarding courts’ fairness and credibility.” These concerns exist because courts appear to favor “governmental interests over public good,” especially at the expense of marginalized groups. During her Senate confirmation hearings, Justice Jackson highlighted the importance of professional diversity within SCOTUS because it “bolsters public confidence in our system.” Defense experience would result in greater empathy for defendants within the judiciary.

The bias study suggests that the first step to eliminating bias is for judges to acknowledge that “previous professional backgrounds can subconsciously bias legal approaches and decisions.” The answer is not to balance pro-prosecution bias with pro-defense bias. Instead, what’s needed is training that involves observation of, and feedback about, biases that can promote cultural shifts in the judiciary. Judges rarely receive formal feedback that facilitates professional development. One training strategy is known as “prejudice habit-breaking.” Prejudice habit-breaking teaches about biases and how they influence behavior. Then, judges can take an Implicit Association Test that can enhance feedback. Judges need to be informed that everyone is susceptible to a “bias blind spot.” This occurs when a person believes others can be biased but not them.

It is very important to provide training from those with similar backgrounds; of course, it is imperative that the trainers themselves are well-trained. Having those with similar backgrounds provide feedback is important because mutual experiences allow for the material, feedback, and suggested solutions to be more readily accepted. Peers and colleagues are part of the “in-group” and are therefore more influential.

Another solution is to change the system itself. As the bias study suggests, appointment by public election or political appointment should be replaced with appointment by professional bodies. These bodies would possess “knowledge on the types of credentials, backgrounds, or experiences that may contribute to judges being well-rounded in their legal approaches.”

A final suggestion is to diversify career experiences. Judicial candidates should be mandated to practice law as both prosecutor and defender. Either the encouragement or requirement of experiential diversity may “mitigate the development of one-sided biases associated with either professional background and expand their views on the law, precedent, and legal philosophy.” Regardless of the means, it is evident that professional diversity is lacking in the judiciary, and pro-prosecution biases need to be corrected. Judges are to be acting as impartial arbiters, not prosecuting from the bench. 

Source: Berryessa, C. M., Dror, I. E., & McCormack, B. (2022). Prosecuting from the bench? Examining sources of pro-prosecution bias in judges. Legal and Criminological Psychology.

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