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.
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:
- What role do judicial candidates’ records in criminal cases, whether as judges or lawyers, play in their campaigns for the bench?
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.