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Oct 31 2013

Report: Judicial Elections Undermine Justice

The Center for American Progress has a new report on the unprecedented amount of money being spent in state judicial elections, especially by third party corporate groups. The unsurprising conclusion is that the influence of that money undermines justice for criminal defendants and civil plaintiffs.

As state supreme court campaigns become more expensive and more partisan, the fear of being portrayed as “soft on crime” is leading courts to rule more often for prosecutors and against criminal defendants.

That is the disturbing finding of this Center for American Progress study, which explores the impact on the criminal justice system of the explosion in judicial campaign cash and the growing use of political attack ads in state supreme court elections, which have increased pressure on elected judges to appear “tough on crime.” In carrying out this study, CAP collected data on supreme courts that, between 2000 and 2007, saw their first election in which the candidates and independent spenders spent more than $3 million. This includes high courts in Illinois, Mississippi, Washington, Georgia, Wisconsin, Nevada, and West Virginia. For each of these courts, CAP examined 4,684 rulings in criminal cases for a time period starting five years before a given state’s first $3 million high court election and ending five years after that election.

The findings reveal a clear trend: As campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.

  • The 2004 Illinois Supreme Court race broke judicial campaign spending records. As Illinois voters were bombarded with attack ads featuring violent criminals, the high court ruled in favor of the prosecution in 69 percent of its criminal cases—an 18 percent increase over the previous year.
  • Some states saw a sharp increase in rulings for the state just after their first elections in which spending reached $3 million. Mississippi’s high court, for example, saw its first $3 million election in 2000 and some nasty political attack ads that same year. When the next judicial election rolled around two years later, in 2002, Mississippi’s justices ruled against criminal defendants in 90 percent of the high court’s criminal cases—a 20 percent increase from 2000.
  • After two politically charged races in 2007 and 2008, the Wisconsin Supreme Court’s percentage of rulings for the state shot to 90 percent during the 2009 and 2011 election years.
  • The correlations were strongest in years that saw more ads produced and paid for by independent groups unaffiliated with the candidates—ads that tended to be more negative than those of the candidates. The one court in the study that saw no independent spending, the Nevada Supreme Court, did not exhibit a tendency to rule for the state during big-money elections.
  • The Washington and Georgia high courts saw a huge spike in independent spending in 2006, followed by a sharp decline. The percentage of rulings against criminal defendants in these courts also peaked in 2006 and then dropped precipitously as the campaign cash and attack ads disappeared.

These results suggest that, just as judges are more likely to rule against criminal defendants as elections approach, state supreme courts are more likely to rule for the state as the amount of money in high court elections increases.

But that’s really just a side effect of the real goal of all this spending on judicial elections. State chambers of commerce and other third-party groups funded by big business are trying to elect conservative judges not because they’ll be tougher on crime but because they’re less likely to rule in favor of plaintiffs who file civil suits against corporations. The “tough on crime” stuff is just a tool to get them into office.

21 comments

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  1. 1
    doublereed

    “Tough on Crime” can also mean racist.

  2. 2
    Who Knows?

    Can anyone think of a study with results even less surprising?

  3. 3
    StevoR : Free West Papua, free Tibet, let the Chagossians return!

    Maybe its time to empower the victims of crime more, give them veto power on any verdicts passed adn alow them to suggest their own?

    It does seem that the current judicial system is far too lenient and, yes, soft on crime.

    That perception hasn’t come about by accident and isn’t without truth.

    @1. doublereed : Really? Why do you say that? I think it just means exactly that – tough on crime.Racism is a seperate issue entirely.

  4. 4
    Gregory in Seattle

    The alternative, though, is life appointments; this is the approach chosen by the Framers, after all. Given states like Texas and Alabama, though, I believe this would be far worse than corrupt elections.

    So, to beg the question: Is there a better way, and what is it?

    @StevoR #3 – It is a very well documented fact that, in the United States, black defendants are found guilty at a significantly higher rate than white defendants, even when the particulars of the case are identical.

  5. 5
    doublereed

    @3 StevoR

    Mandatory Minimums, War on Drugs, Stop and Frisk, Racial Profiling, Racial and Ethnic “Mapping” programs, Death Penalty, that Arizona Immigration Law, etc. etc. The list goes on.

    These are all “Tough on Crime” stances and they are all racist. If you really want to be generous you can say they “enable racism.”

  6. 6
    Orakio

    @#3, #4

    Not just found guilty – Black people are more likely to be pursued, arrested, and prosecuted, often as a part of the war on drugs. Mandatory sentencing was racially baked – Witness the disparity between crack and powdered cocaine sentence, and remember that over 95% of all crack related sentences in the early 90′s were minorites, despite white people using at roughly twice the rate.

    Stem to stern, the justice system screws minorites, and the crackpots know it, making “tough on crime” another dog whistle.

  7. 7
    Nathair

    Maybe its time to empower the victims of crime more

    The fundamental purpose of having a justice system in the first place is to do exactly the opposite. In the interest of justice (as opposed to punishment or revenge) these decisions are given into the hands of an uninvolved, (supposedly) impartial third party. This is why officers of the court are expected to recuse themselves if they are even peripherally involved in the cases before them.

    Personally I don’t think that victims should have any involvement at all in the justice process beyond factual testimony. The entire purpose of this exercise is to get away from raw emotional reactions. Do you really think it’s a problem that we’ve come this far from the old revenge, lynching, vendetta and feud approach?

  8. 8
    Pteryxx

    Nathair: it’s telling that you think victims of crimes have nothing to contribute to the justice system as a whole but dangerous, mob-inciting raw emotion, and thus should be kept silent, when it’s well established that supposedly impartial judges have a host of biases informing their decisions. If you expect the justice system to endure purely emotional ploys from prosecutors and defenders on a daily basis, why do you think victims have to be kept silent lest they threaten the entire system?

    Gregory in Seattle:

    The alternative, though, is life appointments; this is the approach chosen by the Framers, after all. Given states like Texas and Alabama, though, I believe this would be far worse than corrupt elections.

    So, to beg the question: Is there a better way, and what is it?

    Another article by the same writer suggests limiting judges to single but very long terms so they don’t need further campaign cash once in office:

    http://www.americanprogress.org/issues/civil-liberties/report/2013/07/29/70765/fixing-wisconsins-dysfunctional-supreme-court-elections/

    The State Bar of Wisconsin appointed a task force to study the problems surrounding Wisconsin’s high court elections. On July 1, 2013, the task force proposed a constitutional amendment to elect the justices to a “single, 16-year term” beginning in August. The report argues that such a system would “improve public perception of our judicial system and … promote collegiality.” The proposed constitutional amendment would prevent anyone from being elected to the high court more than once, but it would allow the current justices to run for another term.

    The task force argues that limiting justices to one long term would remove political pressure from their jobs. Once on the bench, the justices would never again have to solicit campaign cash or “seek support and approval from individuals and groups with identifiable political perspectives and economic agendas.”

    Also I had a thought that since these campaign moneys seem to go almost entirely to toxic attack ads, maybe the smear campaigns themselves could be prevented by, say, requiring them to be subjected to fact-checking and run with in-ad disclaimers before the ads can make it to air. It’s well established that corrections and fact-checking, even lawsuits, aren’t sufficient to undo the damage once attack ads have already run; and that’s become integral to campaign strategy.

  9. 9
    Alverant

    #3 the only reasons I can think of that someone would say the justice system is “soft on crime” is:
    1) some serious crimes aren’t taken as seriously as they should be (rape, spousal abuse, white color crime, the victim is a minority or woman etc)
    2) the judges follow the law and throw out evidence that was illegally obtained
    3) not-guilty verdicts when “everyone” knows the defendant is “obviously guilty” but the prosecution hasn’t made their case and/or there are reasonable doubts

    Only the first one is a valid reason. The other two are expressed by people who would rather have a police state innocent people punished than accept the fact that occasionally the bad guy will get away.

  10. 10
    matty1

    @4 Off the top of my head lets try this.

    1. The existing judges pick an appointments commission none of whose members may be a serving judge or an elected official (I’d suggest a mix of retired judges, practicing lawyers, law school academics and members of the public picked on the same basis as juries)

    2. The commission appoints new judges for long but not lifetime terms (16 years is mentioned above)

    3. It is made illegal to lobby the commission (not sure how this would work)

  11. 11
    Ramel

    @Alverant
    You missed one:

    4) They actually really do believe that inflicting a psychotic level of nastiness on those that they consider to be bad people will magically fix the problem.

    Given that many cultures have used enslavement, torture, mutilation, victim decided punishments, and horribly painful public executions as punishments for for various crimes and still failed to become crime free utopias, I think it’s safe to assume that people who babble about the legal system being “too soft on crime” are idiots.

  12. 12
    Nathair

    it’s telling that you think victims of crimes have nothing to contribute to the justice system as a whole but dangerous, mob-inciting raw emotion, and thus should be kept silent

    That is not my point. It is not that victims have nothing to contribute to the justice system, nor is it that they should be kept silent. My point is that they should not be specifically invited into the process as it deals with their own particular case for the specific purpose of undermining the already fragile impartiality of the system.

    If you expect the justice system to endure purely emotional ploys from prosecutors and defenders on a daily basis, why do you think victims have to be kept silent lest they threaten the entire system?

    So your solution to the problem of eliminating bias is to intentionally take steps to add even more certain bias in an effort to drag the entire system a few steps back towards frontier justice and lynchings? I’ll pass thanks. Instead I would suggest such steps as eliminating the pernicious use of elected prosecutors, judges and law enforcement officers and expanding the government’s responsibility to the accused.

  13. 13
    eric

    The entire purpose of this exercise is to get away from raw emotional reactions.

    IANAL but I very much doubt our judicial system’s “purpose” is to give a spock-like analysis of evidence. Remember that prior to about 100 years ago, physical evidence as we normally think of it today didn’t even exist. Historically, it would have been practically impossible for US courts to do what you say their purpose is. So clearly, that wasn’t their purpose.

    If I can suggest an alternative, the purpose of having victims (and experts, and anyone else) speak in court is so that the jury can evaluate their testimonial evidence. As such, it is perfectly fine and may even be necessary to evaluate the credibility of the person giving it. And while reading someone’s written testimony is better than nothing, it is a far cry from seeing them give it. Can we be wrong in ‘reading’ people? Absolutely. Happens all the time. Nevertheless, it is up to the jury to do that evaluation – not the judge, not the lawyers.

  14. 14
    Nathair

    IANAL but I very much doubt our judicial system’s “purpose” is to give a spock-like analysis of evidence.

    Star Trek hyperbole aside, yes, to a large extent that is exactly the purpose of assigning a “neutral” third party to act as judge.

    the purpose of having victims (and experts, and anyone else) speak in court is so that the jury can evaluate their testimonial evidence.

    Sure it is, as I suggested in #7. But that is a far cry from the extravagant suggestion that we should “empower the victims of crime more, give them veto power on any verdicts passed adn alow them to suggest their own“.

  15. 15
    Nick Gotts

    Do you really think it’s a problem that we’ve come this far from the old revenge, lynching, vendetta and feud approach? – Nathair

    Yes, I’m pretty sure that is exactly what StevoR thinks, based on previous comments which make clear that he doesn’t give a shit whether correct legal process is followed, as long as what he believes is the right outcome is reached.

    empower the victims of crime more, give them veto power on any verdicts passed adn alow them to suggest their own – StevoR

    And he’s so fucking ignorant he doesn’t even know the difference between “verdict” and “sentence”.

  16. 16
    Nathair

    he doesn’t give a shit…And he’s so fucking ignorant

    Noted.

  17. 17
    steve84

    >”to a large extent that is exactly the purpose of assigning a “neutral” third party to act as judge.”

    The problem is that judges don’t decide in all cases. If you actually want a focus on evidence and the law instead of emotions you first need to abolish juries (and let judges decide) and have the entire process be less adversarial. Which is the exact opposite of what the American “justice” system was meant to be.

  18. 18
    Nathair

    If you actually want a focus on evidence and the law instead of emotions you first need to abolish juries

    No, I don’t think so. But my point was not really about what we should do to reform the justice system, it was about what we shouldn’t.

  19. 19
    Thumper: Who Presents Boxes Which Are Not Opened

    I still find the idea of elected judges to be utterly mind boggling. How can they be expected to dispense justice in a fair and neutral manner if they are playing politics and worrying about whether their benefactors and voters will agree with their decision? The whole concept is ludicrous.

  20. 20
    Thumper: Who Presents Boxes Which Are Not Opened

    @SteveoR

    Maybe its time to empower the victims of crime more, give them veto power on any verdicts passed adn alow them to suggest their own?

    What an utterly fucking stupid suggestion. Let’s say you have a mugger. Someone like me would demand the return of my property or the equivalent monetary value and and a small prison sentence with the focus being on reforming the mugger and teaching them marketable skills so they don’t repeat the crime. And perhaps five minutes in a ring, though I like to think I could restrain that all-too-human part of me. Or they could end up with some authoritarian nutjob like you who would demand capital punishment. The sentencing would be completely inconsistant, let alone that the natural human thirst for revenge would result in sentences way higher than the crime deserves, and put the focus firmly on punishment and vengeance rather than reform.

  21. 21
    steve84

    >”The whole concept is ludicrous.”

    So ludicrous that only the US and Japan have judicial elections. And Japan got it from the US after WWII.

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