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Racial Disparities in Wiretap Applications before Federal Judges

Federal investigators must obtain permission from two authorities before wiretapping suspects: first from the Department of Justice (DOJ) and then from a court. The DOJ imposes a higher standard on the use of wiretaps than courts do, and, as a result, all wiretap applications reaching federal judges are legally sufficient and receive judicial approval. In this setting, prosecutors have no incentive to seek review from favorable judges, and a judge’s identity should not correlate with the number of wiretap applications received. The paper tests this prediction using all wiretaps in federal criminal investigations during the years 1997–2007. Consistent with the prediction, judicial characteristics such as ideology and prior professional experience do not influence the number of wiretap applications a judge receives. But African American judges receive substantially fewer wiretap applications, even after numerous judicial and district characteristics are controlled for. The paper investigates several potential explanations for this disparity.