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Israel's appeal courts treat Arabs better when one judge is Arab-Israeli

- May 4, 2015

An Arab-Israeli protester waves a Palestinian flag during a march for the right of return for Palestinian refugees who fled their homes or were expelled during the 1948 war that followed the creation of the state of Israel, near Tiberias in northern Israel, on April 23, 2015. Thousands of Arab Israelis marched in protest as their Jewish compatriots partied, each group in its own way marking the 67th anniversary of the Jewish state’s founding. (Ahmad Gharabli/AFP/Getty Images)
Does our justice system treat minorities fairly? The tragic events in Ferguson, Staten Island and Baltimore show how perceived discrimination can erode public confidence in the rule of law among affected minorities and encourage antisocial behavior. This dynamic is not unique to the United States.
Increased representation of minorities in law enforcement is one commonly suggested remedy for addressing inequality. This idea has come up recently in discussions of majority-black cities policed by disproportionately white officers (here) and cities policed by officers who live elsewhere (here). The presumption is that greater representation of minorities in the justice system would improve the way the system treats minority citizens.
Research shows that when some judges come from minority populations, they are more likely to rule in favor of minority civil rights. For example, racially-mixed panels of judges are more likely than all-white panels to rule that the Voting Rights Act has been violated and to support affirmative action. However, it is possible that this is specific to the special circumstances of civil rights in the US, since minority communities care a lot about civil rights and there is a lot of judicial discretion. Together, this means that minority judges may be expected to represent their group’s interests in civil rights enforcement. In contrast, one might expect much less overt politics around rulings in criminal cases, where judges might be more likely to be constrained by existing practices, and unwilling to look “soft” on criminals from their minority group. It is far from clear that minority representation on the bench should change criminal sentencing for disadvantaged minorities.
In a forthcoming article in the American Journal of Political Science, we test whether the presence of minority judges helps criminal defendants from a minority group, using data from Israeli appellate courts. Israel offers an interesting context for examining the relationship between judicial diversity and the outcomes of the justice system. Arab citizens of Israel constitute a distinct national minority, making up about 20% of the population. Though Arab Israelis (unlike Palestinians in the West Bank and Gaza Strip) formally enjoy most of the social and political rights available to Jewish citizens, the relationship between the two communities is often hostile. Arab Israelis have relatively low socioeconomic status; are discriminated against in land allocations; and receive smaller per capita budget allocations for health, education, and municipal infrastructure (see here and here for relevant research).
Sometimes criminal defendants in Israel face a panel composed entirely of Jewish judges, while at other times panels include an Arab judge. Since judges are assigned by the court clerk to hear appeals on specific dates independent of the court’s docket, the assignment of judges to panels and panels to cases is effectively random. This means that on average, mixed panels and all-Jewish panels see similar cases, and we can fairly ascribe differences between their rulings to differences in judicial diversity. Our analysis uses data on sentencing appeals between 2007 and 2011 in Israel’s district courts. We focused on three courts (the only ones with at least one Arab judge hearing criminal appeals) and manually coded defendants and judges as Arabs or Jews based on their names and biographical information found on the Israeli Judicial Authority official Web site.
First, we look at how likely it is that the appellate court will overrule a lower-court decision. In our analysis, sentences are ‘lenient’ when the court overrules a lower-court decision in response to a defendant appeal and ‘harsh’ when it overrules in response to a prosecutorial appeal and gives a harsher sentence, we call that “harshness.”
We find that lenient sentences become more likely and harsh sentences less likely when an Arab defendant faces a mixed panel of judges. We use four different statistical models to try to account for other complicating factors, but find the same basic result, no matter which model we employ. For Jewish defendants, there is no substantial change in either leniency or harshness. In contrast, our models estimated that Arab defendants are 20 percentage points more likely to receive a lenient verdict when facing a mixed panel as opposed to an all-Jewish one and 35 percentage points less likely to receive a harsher verdict. This is strong evidence that the presence of minority judges results in more favorable outcomes for minority defendants.
We furthermore examine how mixed judicial panels affect the likelihood that Arab defendants will go to jail, and the prison term that they face. We find that Arab defendants are 17 percentage points less likely to be incarcerated by a mixed panel than an all-Jewish panel, while Jewish defendants saw no difference. Furthermore, mixed panels result in lower prison sentences for both Jewish and Arab defendants, but the magnitude of the effect is small and insignificant for Jewish defendants. By contrast, there is a much larger change in prison sentence for Arab defendants: their sentences are shorter by 2.7–4.6 months, or somewhere between 15 and 26 percent reduction in the length of the average prison sentence, depending on the statistical model. Strikingly, since mixed panels sentence fewer Arabs to prison in the first place, these shorter prison terms are being given in cases that are more serious on average than those seen by all-Jewish panels. The evidence from Israel shows that minority representation on the bench can have big consequences for minority groups, not merely in civil rights cases but in criminal sentencing too.
Guy Grossman is Assistant Professor of Political Science at the University of Pennsylvania.
Oren Gazal-Ayal is Associate Professor of Law, University of Haifa.
Sam Pimentel is a Doctoral student of Statistics at the University of Pennsylvania.