JUDICIAL ROTATION AS CENTRIPETAL FORCE: SENTENCING IN THE COURT COMMUNITIES OF SOUTH CAROLINA*

• Published date: 01 February 2017
• DOI: http://doi.org/10.1111/1745-9125.12132
• Date: 01 February 2017
• Author: RHYS HESTER

JUDICIAL ROTATION AS CENTRIPETAL FORCE:

SENTENCING IN THE COURT COMMUNITIES

OF SOUTH CAROLINA∗

RHYS HESTER

Robina Institute of Criminal Law and Criminal Justice, University of Minnesota

Law School

KEYWORDS: sentencing, judicial decision-making, court communities, legal culture,

qualitative interviews

Courts as communities theory emphasizes the sentencing differences that can arise

between localities within a single state. The results of published studies have highlighted

how local differences emerge based on informal sociological and political processes

defined by the communities perspective. The findings from recent quantitative studies

from South Carolina have revealed notably less county variation in sentencing than

has been observed elsewhere. I use qualitative interviews with 13 South Carolina trial

judges to investigate sentencing processes and to shed light on these findings. The in-

terviews explore the state’s legal structure and culture, including the practice of circuit

rotation in which judges travel among counties holding court. The results suggest rota-

tion serves as a centripetal force of sentencing culture, homogenizing what might other-

wise be a more varied collection of county-specific norms. Rotation leads to increased

uniformity through judge shopping and the cross-pollination of ideas and norms. De-

fendants can strategically judge shop and plead in front of a lenient judge—a process

that gives rise to the term “plea judge,” which is a label for the most lenient judges

who sentence a large number of defendants. Rotation also increases the interactions

among judges and prosecutors, expanding networks and grapevines, and leading to

cross-pollination and the sharing of ideas.

When it comes to sentencing, location matters. This has been the premise of numer-

ous studies during the past 50 years—from the seminal efforts of Eisenstein, Flemming,

and Nardulli (1988) and Myers and Talarico (1987), to a more recent proliferation of

multilevel research (e.g., Britt, 2000; Fearn, 2005; Johnson, 2006; Johnson, Ulmer, and

Kramer, 2008; Kautt, 2002; Kramer and Ulmer, 2009; Ulmer and Johnson, 2004; Wang

and Mears, 2010; Weidner, Frase, and Schultz, 2005). These studies were premised (im-

plicitly or explicitly) on the court communities perspective, which explains how individ-

ual court communities develop localized legal cultures that exhibit geographic variation

in case-processing norms, going rates, and substantive punishments. Local courts are

∗I would like to thank Joshua C. Cochran, Richard S. Frase, Julian V. Roberts, Michael Tonry, and

Ronald Wright for their comments on an earlier draft of this paper. I would also like to thank Eric

Baumer and the anonymous reviewers for their feedback and direction.

Direct correspondence to Rhys Hester, Robina Institute of Criminal Law and Criminal Jus-

tice, University of Minnesota Law School, 229 19th Avenue South, Minneapolis, MN 55455

(rahester@umn.edu).

C2017 American Society of Criminology doi: 10.1111/1745-9125.12132

CRIMINOLOGY Volume 55 Number 1 205–235 2017 205

206 HESTER

considered to be “policy arenas” (Ulmer and Kramer, 1996: 384), and the different poli-

cies that develop across geographic subdivisions create a varied landscape of norms and

sentencing outcomes. The aim of this line of research is, thus, focused on the differences

between local courts or on what Eisenstein, Flemming, and Nardulli (1988) referred to as

“the contours of justice.” Location matters in sentencing because norms, practices, and

outcomes vary by place.

Although the literature on environmental and contextual court influences comprises

numerous studies aimed at focusing on differences between counties and districts, I build

on this line of research from the opposite angle. By using qualitative interviews with trial

judges from South Carolina, I examine ways that structural and cultural characteristics of

a jurisdiction can reduce local differences—how factors can create a force toward greater

uniformity rather than significant geographic variability. This inquiry is sparked by the

results of recent quantitative studies of sentencing in South Carolina that have revealed

less county-to-county variation in both the decision to incarcerate and the sentence-length

decision than has been found in studies of other jurisdictions (Hester, 2012; Hester and

Sevigny, 2014). The nature of county variation in South Carolina is noteworthy because

the state never adopted sentencing guidelines and, thus, should reveal more diverse prac-

tices and outcomes than those uncovered in guidelines jurisdictions (which account for

most research sites examined in the latest wave of court context research).

Judicial structure and statewide legal culture may hold some answers for these un-

expected findings. South Carolina continues to employ the practice of judicial rota-

tion wherein all judges travel from county to county holding court, a structural fea-

ture that could mitigate the development of localized patterns and spread sentencing

norms statewide. The theoretical ground of state legal culture remains uncultivated by re-

searchers compared with the numerous studies published in the county legal culture liter-

ature. Still, the courts as communities research suggests several normalizing mechanisms

that would lead to more uniform statewide culture. For example, Nardulli, Eisenstein,

and Flemming (1988) noted that state codes, rules, and resources could impart a more

statewide influence on legal culture. They speculated that repeated opportunities for in-

teractions among courtroom personnel—things like statewide attorney meetings, publica-

tions, and other “grapevines”—could lead to unexpected developments in statewide legal

culture (Nardulli, Eisenstein, and Flemming, 1988: 164–5). Yet, as noted, researchers in

the formational courts as communities ethnography found pronounced local county land-

scapes that differed substantially in legal culture and outcomes. Although the results of

studies have advanced this key aspect of the court communities perspective, the issue of

greater statewide culture has remained unstudied by criminologists.

I build on the nascent state culture foundation through qualitative interviews with state

trial judges. In so doing, I answer recent calls for more qualitative sentencing research.

Ulmer (2012: 33), for example, has urged a “major renewal of court community ethnog-

raphy,” with a focus on the “in situ decisions and activities of courtroom workgroup par-

ticipants, and how these are shaped by their surrounding court community contexts.” A

new era of qualitative research is particularly needed because the leading ethnographic

sentencing studies were conducted decades ago1and a whole array of reforms has come

to reshape sentencing practices dramatically since then.

1. For notable exceptions of contemporary qualitative research related to courts, see Clair and Winter

(2016); King et al. (2005); Ulmer (1997); Ulmer and Kramer (1996); and Wright and Levine (2014).