Ask the Author: More on the Impact of Pauper Status, Part 2

This is Part 2 of our discussion about the impact of IFP status with Christina Boyd and Ryan Black of Washington University in St. Louis. Part 1 of this series can be found here. Ryan and Christina have co-authored a paper on this topic, and it can be found here.

Several commenters wondered whether you kept track of any further distinctions in the IFP pool and how they relate to the Court’s decision-making process. Did you notice any statistical difference between the way that counseled/pro se petitions were treated? Death Penalty versus other criminal cases? If you did not formally run these numbers, could you get a sense of this from looking at cert. pool memos or anything else in Blackmun’s papers?

Pro se vs. counseled

While doing our research, we coded for whether or not the pool or HAB clerk noted that a petitioner was pro se. Below is a simple cross tabulation of pro se and IFP status for our 403 petitions. There were a total of 74 pro se petitions in our sample, nearly all of which were filed IFP. Because there were no pro se petitions in our sample that were granted, we are unable to estimate a model that includes pro se status (because being pro se perfectly predicts that a petition is denied). We are currently working on collecting data for the 1986, 1987, and 1991 terms that will hopefully allow us to gain more leverage on the pro se/counseled distinction. Our sample featured:

Paid & Counseled: 169
Paid & Pro Se: 5

IFP & Counseled: 160
IFP& Pro Se: 69

Death penalty vs. other criminal cases

Just over 70 percent of our IFP sample petitions were criminal in nature (the percentage of paid criminal petitions was around 13 percent). For this project we did not differentiate between criminal death penalty and other criminal petitions. We can say that criminal petitions are significantly less likely to receive a vote to grant cert than their non-criminal counterparts.

What are the implications of your finding that justice ideology had no statistically significant effect on whether or not pauper petitions were viewed more favorably? If this bias that you have found is not based on ideology, but rather on other (and perhaps unconscious) factors, is there any to change the state of affairs, or is it unavoidable considering that there is one Supreme Court and many thousand petitions?

Impact of null finding for ideology on probability of granting review:

Our results actually support the conclusion that as justice ideology becomes more liberal (according to the liberalism measure we use in the paper), the likelihood of voting to grant increases. What Figure 6 and Table 7 attempt to demonstrate, however, is that IFP voting appears to have no ideological component to it. That is, after you control for the fact that the most liberal justice is, all else equal, more likely to vote to grant than his conservative counterpart, the additional substantive impact of IFP status is quite small.

If bias is not ideological, then is there anyway to avoid it:

From an institutional standpoint, the Court faces a tradeoff. If it sought to decrease the number of meritorious petitions that are erroneously denied review, then it would almost necessarily increase the number of not-so meritorious petitions that are granted review as well (the distinction between Type I and Type II errors in statistics). We are agnostic as to which type of “error” the Court should be more interested in minimizing as there are solid arguments on both sides.

Can you tell us a bit about the history of having the Court deal with paid vs. pauper petitions? Have they always conformed to different standards of presentation (bound vs. non-bound, etc.)? Have they always been docketed differently (with pauper petitions currently docketed above XX-5000)? Did you get the impression that perhaps the subliminal factors of petition presentation and docket number are influencing the Justices and the clerks?

The first IFP statute was passed by Congress in 1892 (codified today at 28 U.S.C. §1915). It provides a means for potential litigants to take partake in litigation regardless of their financial status. The Supreme Court’s Rule 39 provides specific guidance for IFP petitioners wanting to petition the Court for cert.

The docketing of IFP cases has not always been done the way it is today. The Miscellaneous Docket began in the 1945 term and ended in 1971. Shortly after its creation, this Docket included all IFP petitions along with all petitions for extraordinary remedies such as mandamus or habeas corpus. Before the Miscellaneous Docket, many of the cases that would later go on that docket had no number whatsoever. When the Miscellaneous Docket was abolished in 1971, the IFP petitions were then placed on the same docket as all other petitions for review.

Beginning with Chief Justice Hughes and continuing until Chief Justice Burger took over, the chief’s clerks were solely responsible for the initial review of IFP petitions. Under this practice, the chief’s clerks would prepare review memos of IFP petitions and circulate them to all nine justices (apparently in a similar fashion to the pool memos that we know today). If any justice wanted to review a particular IFP petition more closely, the chief would send along the record in that case. From what we can tell, at least some of the justices would have their individual clerks mark up the IFP cert memos written by the chief’s clerks.

As far as the clerks being impacted by petition presentation or docket number while making their cert recommendations, we don’t have explicit evidence of this, at least in the 1992 cert pool memos that we have studied. What we have seen, however, are many examples where the pool clerks make very explicit judgments about the poor quality of the IFP petitions, including, for example, that a petition is “unfathomable,” “meritless,” or “perhaps delusional.” Although the pool clerks might make harsh judgments about the merit of paid petitions at times as well, blanket clerk statements about the frivolousness of petitions do seem to occur, almost exclusively, when the clerks are reviewing IFP petitions. The cert memos in IFP cases are also, generally speaking, much shorter than those in paid cases. 95 percent of the paid memos were between 1 page and 23 pages in length with an average length of just under 10 pages. The average IFP memo was only half of that—around 5 pages long. Nearly all of the IFP memos were under 10 pages in length.

Thanks again to Ryan Black and Christina Boyd for their participation.