Racial Disparities in the Allocation of Wiretap Applications across Federal Judges

The degree to which discrimination causes the large racial disparities in the criminal justice system is a long-standing and difficult empirical question. This paper studies a decision in which the influence of race on prosecutors is directly observed: the process of obtaining judicial approval to conduct wiretap surveillance. The Department of Justice requires that federal prosecutors obtain its authorization before seeking judicial approval for a wiretap warrant, and the Department’s strict internal review of these applications implies that federal judges approve all wiretap applications that reach them. After the Department gives its authorization, prosecutors in most judicial districts have discretion to choose the judge who will review the application for a wiretap warrant. In this setting, a judge’s personal characteristics, including a judge’s race, should not influence the number of wiretap applications she receives. The paper tests this prediction using all wiretaps in federal criminal investigations during the years 1997-2007. The results show that African-American judges receive substantially fewer wiretap applications than other judges, even after controlling for numerous judicial and district characteristics. Consistent with the absence of an incentive to “shop” for favorable judges, other judicial characteristics such as ideology and prior professional experience do not influence the number of wiretap applications received. Nor do prosecutors appear to match the stringency of the reviewing judge with the quality of application; the wiretaps approved by African-American and other judges do not differ in the rates at which they produce incriminating evidence, arrests, or motions to suppress evidence. The results suggest that race may influence even sophisticated and closely monitored actors in the criminal justice system, such as federal prosecutors. Comments welcome at [email protected]. The author thanks David Abrams, Jonah Gelbach, Christine Jolls, Jens Ludwig, Richard McAdams, Max Schanzenbach, Petra Todd, Justin Wolfers, and several current and former federal prosecutors (who wish to remain anonymous) for helpful conversations and participants in workshops at Duke University, the University of California Berkeley, the University of Chicago, the University of Pennsylvania, the Midwest Law & Economics Association Meeting, the American Law & Economics Association Meeting, and the University of Maryland Crime & Population Dynamics Conference for helpful comments. The author also thanks Arthur Baptist, Youn Jin (Ann) Choi, Bryan T. Hart, and Diana Watral for outstanding research assistance. DRAFT Preliminary & Incomplete 1