Directing Retribution: Ex Ante versus Ex Post Constraints on the Discretion of Trial Court Judges

In most states, trial judges’ sentencing is constrained by both ex ante constraints, in the form of mandatory and guideline sentences, and ex post review, often by the electorate. Might voters alter their evaluation of judges given the existence of boundaries on judicial discretion? Further, can legislators exploit this response? We present a model of ex ante and ex post control of judges given incomplete information about judicial ideology and defendant culpability. A legislator sets mandatory minimum and maximum sentences for a given crime. Judges sentence subject to these constraints, and voters decide whether to retain the judge given the observed sentence. The model has several significant implications. First, if legislators care about proportionality of punishment, judicial discretion increases with legislative punitiveness. Second, whether a voter, having observed a sentence, believes a judge deserves retention depends on the judges discretion. Third, legislators can sometimes manipulate judicial discretion to compel even an ideologically dissimilar voter to filter judges the legislator disagrees with.