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New Analysis: Judicial Re-Election Pressures Tied to Harsher Criminal Sentencing

Pressures of upcoming re-election and retention election campaigns make judges more punitive toward defendants in criminal cases, according to a new Brennan Center analysis of social science research.

December 2, 2015

Pressures of upcoming re-election and retention election campaigns make judges more punitive toward defendants in criminal cases, according to a new analysis of social science research by the Brennan Center for Justice at NYU School of Law.

How Judicial Elections Impact Criminal Cases looked at 10 empirical studies examining whether and how judicial elections impact criminal justice outcomes. These studies, conducted across states, court levels, and type of elections, all found that proximity to re-election made judges more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty.

The analysis also assessed 15 years of television advertising data in state supreme court races, as well as a series of reports synthesizing this data written by the Brennan Center, Justice at Stake, and the National Institute on Money in State Politics. This data reveals that TV advertising has become a staple of high-cost judicial elections and ads discussing criminal justice themes have become increasingly prominent. In 2013–14, a record 56 percent of ads discussed candidates’ decisions in criminal cases — up from the previous record of 33 percent in both the 2007–08 and 2009–10 cycles. These ads, attacking candidates for being “soft on crime” or touting them as “tough on crime,” focus voters’ attention on candidates’ records in criminal cases, often in a misleading way.

“The research is clear: Judges are more likely to hand out harsh sentences, including death, the closer they get to a re-election or retention election campaign,” said Kate Berry, counsel in the Brennan Center’s Democracy Program and author of How Judicial Elections Impact Criminal Cases. “As long as judges worry about what the next 30-second campaign ad will look like, there is a risk that re-election pressures will continue to impact their decision-making. This threatens the promise of fair and impartial justice in America.”

Over the past 15 years, judicial races have become expensive affairs. Television advertising, much of it from outside interest groups that are more likely to run negative ads, plays a critical role in these high-cost contests. The pressures of upcoming election campaigns affect judicial decision-making in criminal cases — to the detriment of defendants — according to a growing body of empirical work described in the Center’s analysis. This finding was consistent across the assessed studies regardless of the method of election considered, including partisan, nonpartisan, and retention elections.

The surveyed research found:

  • The more frequently television ads air during an election, the less likely state supreme court justices are, on average, to rule in favor of criminal defendants.
  • Trial judges in Pennsylvania and Washington sentence defendants convicted of serious felonies to longer sentences the closer they were to re-election.
  • In states that retain judges through elections, the more supportive the public was of capital punishment, the more likely appellate judges were to affirm death sentences.
  • In the 37 states that heard capital cases over the last 15 years, appointed judges reversed death sentences 26 percent of the time, judges facing retention elections reversed 15 percent of the time, and judges facing competitive elections reversed 11 percent of the time.
  • Trial judges in Alabama overrode jury verdicts sentencing criminal defendants to life to instead impose death sentences more often in election years.

Read How Judicial Elections Impact Criminal Cases here.