Ten percent of federal judgeships are currently vacant, yet little is known on the impact of these vacancies on criminal justice outcomes. Using judge deaths and pension eligibility as instruments for judicial vacancies, I find that prosecutors decline more cases during vacancies. Prosecuted defendants are more likely to plead guilty and less likely to be incarcerated, suggesting more favorable plea deals. The incarceration effects are larger among defendants represented by private counsel. These estimates imply that the current rate of vacancies has resulted in 1000 fewer prison inmates annually compared to a fully staffed court system, a 1.6 percent decrease.

This is from Crystal S. Yang, “Resource Constraints and the Criminal Justice System: Evidence from Judicial Vacancies,” March 2015. Yang is an assistant professor of law at Harvard Law School.

HT2 Scott Alexander.

How does this justify my title? What if fewer murderers and rapists are being put away? Put aside the fact that most murders and rapes are not federal crimes and go to the content of the paper. Here’s why my title. Yang writes:

Whether the impact of judicial vacancies on criminal justice outcomes is desirable depends on the social costs and benefits of increased dismissals and more favorable plea offers. If prosecutors are unable to devote resources to investigating cases or forced to dismiss viable cases in the face of resource constraints, the deterrent and incapacitative effects of criminal sanctions may be reduced. However, the presence of resource constraints may also force prosecutors to more effectively screen out cases of innocent defendants and people who are not deserving of conviction and incarceration. Specifically, I find that case declinations and more favorable plea offers stem largely from drug offenses.