Crime, Justice, Money, Politics: A Brew That Corrodes the Rule of Law

The politics of crime, coupled with dark money threatens judicial impartiality.

October 24, 2014

In Colorado this week the widow of prison chief Tom Clements, slain by a parolee, wrote an open letter to Republican gubernatorial candidate Bob Beauprez asking him “to please stop referencing our tragedy in your debate statements and your campaign ads.” Forget it, the Beauprez campaign initially responded. “I will remain focused on bringing public safety reform to Colorado that will make our communities safer,” the candidate told the widow. Late last night, however, the Beauprez campaign relented, a bit, and removed one of the more offensive lines from the ad.

In Minnesota, the family of Eric Dean, a 4-year-old murdered by his stepmother in 2013, called upon the Republican Party of Minnesota to stop airing a new television advertisement that blames Gov. Mark Dayton for the death of the little boy. His grandmother, who identified herself as a Republican, said Gov. Dayton was not to blame. “I just can’t believe somebody would use [Eric’s death] for political gain,” she told the Star Tribune. On Thursday, under fire, the state GOP subsequently agreed to remove the ad, which is no longer available on YouTube.

In Kansas, one of the prime topics of conversation in the roiling gubernatorial race also has to do with a high-profile, heinous crime. Republican Gov. Sam Brownback claims in new campaign ads that his Democratic rival Paul Davis will appoint to the state Supreme Court justices like the ones who voted to overturn the capital sentences of Reginald and Jonathan Carr, who were convicted of killing five people. At least one allegation that the governor makes — that one of the current justices on the High Court held a fundraiser for Davis — is demonstrably false but the ad will run anyway.

On and on it goes. There is no evidence that violent crime is surging in any of these three states. In fact, there is evidence that rates for most crimes there are relatively low. Certainly they remain low in Colorado despite the legalization of recreational marijuana there. But in the realm of politics, the realm where image and reality often are cleaved, it doesn’t matter. Republican candidates again are using the “soft-on-crime” trope as a campaign issue, a tactic that is even more cynical now than it was during the era of Willie Horton, when crime rates were higher than they are now.

You combine this cynical strategy — the politics of racial fear of crime during an age of a black president — with the flood of money pouring into political and judicial campaigns thanks to the United States Supreme Court’s decisions in Citizens United and McCutcheon and you get a concerted, two-pronged assault on the rule of law. You get judicial candidates whose independence is threatened by the campaigns they run and by the campaigns run against them. And you get political campaigns, almost always Republican campaigns it seems, that attack judges for doing what judges must do, which is to interpret the Constitution and Bill of Rights in a way that protects individual rights against majority rule. It is a terribly destructive combination.

The folks at the Brennan Center for Justice and Justice at Stake are out with an update this morning that reveals just how bad this problem is in judicial elections alone. The estimate today is that “political parties, outside groups, and judicial candidates’ may end up spending $9.1 million this election cycle. Money is pouring into judicial races in Illinois, Michigan, Montana, Missouri, North Carolina, and Tennessee and there can be no doubt that the independence of the judiciary in these jurisdictions, and perceptions of the role of judges in a democratic society, will be harmed by what these ads say and what they are intended to mean to the average voter.

Judges everywhere must not merely avoid partiality they must avoid the appearance of impartiality. Yet it is this very impartiality, this neutral evaluation of cases and causes, which are attacked in these campaign ads. The ends — the result in any particular case — is elevated over the means — the process by which our judiciary is taught and required to apply facts to law in a reasoned way. For hundreds of years judges have been criticized for unpopular decisions. That’s why the framers of the Constitution fought to ensure life-tenured for federal judges. But the vast majority of cases run through our state courts. And the message these ads send is simple: state judiciaries are for sale.

 “Voters should feel like our courts are fair and impartial, not political playgrounds where business interests and lawyers can tilt the scales of justice with their pocketbooks,” the Brennan Center’s Alicia Bannon says today in the wake of the latest figures. Bert Brandenburg at Justice at Stake puts it this way: “Dark money and hardball politics are turning judicial campaigns into auctions, and judges are trapped in the middle, pressured to answer to donors and supporters who appear before them in court.”

Judicial elections always have been a bad idea. But now that they look more and more like political elections, now that campaign money is flooding into them thanks to the justices in Washington, now that “crime” again is being used as a political strategy to make people afraid, judicial elections are getting materially worse. Nothing good has ever come from making judges look and sound and act more like politicians. And nothing ever will.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.