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How Judicial Elections Impact Criminal Cases

  • Kate Berry
Published: December 2, 2015

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 re-elec­tion campaigns affect judi­cial decision-making in crim­inal cases, making judges more likely to impose longer sentences, affirm death sentences, and even over­ride sentences of life impris­on­ment to impose the death penalty.

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State courts adju­dic­ate the vast major­ity of crim­inal cases. Nearly all felony convic­tions — 94 percent — occur in state courts, includ­ing 99 percent of rape cases and 98 percent of murder cases. The arbit­ers of these cases, state court judges, are mainly elec­ted. Nation­wide, 87 percent of state judges face elec­tions, which occur in 39 states.

Given the extraordin­ary power state court judges exer­cise over the liberty, and even lives, of defend­ants, it is vital that they remain impar­tial. But mount­ing evid­ence suggests that the dynam­ics of judi­cial elec­tions may threaten judges’ abil­ity to serve as impar­tial arbit­rat­ors in crim­inal cases.

This paper collects and analyzes social science stud­ies on the rela­tion­ship between judi­cial elec­tions and crim­inal cases. It considers two ques­tions:

  1. What role do judi­cial candid­ates’ records in crim­inal cases, whether as judges or lawyers, play in their campaigns for the bench?
  2. What, if any, impact do judi­cial elec­tion dynam­ics have on judges’ decision-making in crim­inal cases?

To assess the role of crim­inal cases in judi­cial elec­tions, this paper considers 15 years of tele­vi­sion advert­ising data for state supreme court elec­tions, provided by CMAG/Kantar Media and analyzed by the Bren­nan Center for Justice, 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, as tele­vi­sion advert­ising has become a staple in judi­cial elec­tions, ads discuss­ing crim­inal justice themes have become increas­ingly prom­in­ent. In 2013–14, a record 56 percent of ads discussed candid­ates’ records in crim­inal cases — compared with the previ­ous high of 33 percent in both the 2007–08 and 2009–10 cycles. These campaign ads attack­ing candid­ates for being “soft on crime,” or tout­ing them as “tough on crime,” have focused voters’ atten­tion on candid­ates’ records in crim­inal cases, often in a mislead­ing way.

To assess the impact of judi­cial elec­tions on crim­inal justice outcomes, this paper reviews recent, prom­in­ent, and widely cited empir­ical stud­ies consid­er­ing this topic. While these stud­ies used vary­ing meth­od­o­lo­gies and examined a vari­ety of states, court levels, and meth­ods of elec­tion, all found that the pres­sures of upcom­ing re-elec­tion and reten­tion elec­tion campaigns make judges more punit­ive toward defend­ants in crim­inal cases. (Other stud­ies not addressed here are consist­ent with those reviewed.)

This effect was present across differ­ent elec­tion systems, includ­ing: (1) partisan contested elec­tions, in which candid­ates appear on the ballot with a party desig­na­tion; (2) nonpar­tisan contested elec­tions, in which party affil­i­ation does not appear on the ballot; and (3) reten­tion elec­tions, in which judges stand for an uncon­tested “up-or-down” vote (typic­ally a feature of merit selec­tion appoint­ment systems).

Key find­ings from these stud­ies include:

  • 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 are to re-elec­tion.
  • In states that retain judges through elec­tions, the more support­ive the public is of capital punish­ment, the more likely appel­late judges are to affirm death sentences.
  • In the 37 states that heard capital cases over the past 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 over­ride jury verdicts senten­cing crim­inal defend­ants to life and instead impose death sentences more often in elec­tion years.

These stud­ies leave open several import­ant research ques­tions. For example, they gener­ally do not compare systems, and thus do not address whether some re-elec­tion or reten­tion elec­tion systems have more of an impact on crim­inal justice outcomes than others, or whether reappoint­ment processes may also have an effect. Simil­arly, it remains unclear whether elec­tions for a single term, absent the pres­sure to be re-elec­ted, have an impact on decision-making in crim­inal cases.

Because these stud­ies exam­ine the conduct of sitting judges, they also do not consider what other impacts the emphasis on crim­inal justice issues in campaigns may have. For example, they do not

consider whether these dynam­ics lead to more former prosec­utors and fewer former defense attor­neys on the bench. Finally, many of the stud­ies considered use older data­sets that do not permit an assess­ment of recent devel­op­ments in judi­cial elec­tions, such as the grow­ing politi­ciz­a­tion of reten­tion elec­tions. It would be valu­able to re-exam­ine their find­ings using more recent data.