The method for selecting members of the bench by judicial elections may seem unfounded and unnecessary compared to the European practices, but it bears paramount significance in the United States, as almost 90 percent of all state judges face voters at least once during their career (Streb, 2007, p. 7). Although the debate between advocates and opponents of the judicial elections emphasises the constitutional and financial approaches, the aim of this essay is to fathom the effect of the elective methods on the criminal justice system. After analysing the origins and the different methods of these elections, the following parts focus on the effects on the severity of the sentences and the appellate decisions.
1. The System of Judicial Elections
There are five methods for judicial selection, out of which three are based on election. These are the partisan, nonpartisan and retention elections. The partisan elections show no difference to electing the members of Congress as the ballot contains the name of the candidates and the designated political party affiliation (Streb, 2007, p. 7).
The majority of the states which choose the elective method use the nonpartisan system, where political affiliation is not shown on the ballot. Michigan and Ohio use a combination of these two, as the judges are appointed by political parties, but their affiliation is not displayed (Hogan, 2006, p. 142).
The retention system is a merge between the appointment and the elective method – the governor appoints the judge (with or without a merit system) for a given period of time; after the commission expires, the voters decide whether the judge should remain for a new period. The judge does not run against other opponents, the question is a simple ‘yes’ or ‘no’. The majority of the votes should be supportive in order that the judge can begin a new period (Streb, 2007, p. 7).
2. The Role of Criminal Cases in the Campaigns
Since the average voter does not have the time or the intention to examine complex issues and cases, the judges have to advertise themselves just like any candidate who participates in the elections. To grab their voters’ attention the candidates like to emphasize their role in the punishment of criminals.
For instance, a campaign ad supporting Alabama judge Claud Neilson stated that the candidate “looked into the eyes of murderers and sentenced them to death” (Dow et al. 2002, pg. 84-85). These seem even more sinister, considering Alabama is infamous for the highest number of executions per capita. From 1977 to 2013, 457 death sentences were carried out in Alabama, which means that 0.956 inmates were executed for every 10.000 residents. (The second state is Oklahoma, with 0.823, and then the rates drop noticeably. The third state is Mississippi, with 0.586.) (Death Penalty Information Center, 2017)
Not only do these ads tend to advertise the toughness of a candidate, but they aim to attack other competitors on their ‘softness’ on crime. During the 2014 retention campaign of Judge Lloyd Karmeier of the Illinois Supreme Court Justice, the ad against him stated that “in one case, Judge Lloyd Karmeier gave easy bail to a woman later found guilty of murdering her 4-year-old stepson” and “gave probation instead of prison to a man who sexually assaulted a child” (Berry, 2015, p. 4). Berry quotes another case as well: in the 2012, Supreme Court election in Kentucky, Will Scott attacked his competitor, Janet Stumbo, with an ad including the following statements: “former Justice Janet Stumbo sided with criminals 50 percent of the time. For fairness, re-elect Will T. Scott, Supreme Court justice” (Scott, W. T., 2012).
Moreover, contenders who used to represent defendants as lawyers might be criticised for their previous acts. In 2012, Bridget McCormack participated in the elections for the Michigan High Court. The Judicial Crisis Network sponsored an ad which examined her work when she used to represent prisoners held at Guantanamo Bay (Berry, 2015, p. 4). In the ad, a mother, Teri Johnson, whose son was killed in action during his service in Afghanistan, blames McCormack for her work as a lawyer. Johnson narrates the ad with the following words: “my son’s a hero and fought to protect us. Bridget McCormack volunteered to help a terrorist. How could you?” (Judicial Crisis Network, 2012)
Furthermore, these ads also simplify complex legal issues and propagate lies among the voters. For instance, Illinois Supreme Court Justice Tom Kilbride faced severe attacks from his critic group called the Illinois Civil Justice League, during the retention elections. In one of the ads, three shadowed-faced actors standing in the infamous orange prison uniform presented their crimes (‘I was convicted of stabbing the victim with a kitchen knife 24 times,’ […] ‘I was convicted of shooting my ex-girlfriend in the face and murdering her in front of our child.’ […] ‘Sexual assault on a mom and her 10-year-old daughter, then I slashed their throats.’) Afterwards, the ad concludes the decision of Justice Kilbride: “On appeal, Justice Thomas Kilbride sided with us over law enforcement and our victims. […] Vote no on retention of Supreme Court Judge Thomas Kilbride”. When asked by NPR, Kilbride addressed these ads as “They're horrific. I think they're vile”. Also, he added that the only things he examined were procedural issues, and they did not result in lighter sentences (Johnson, 2010).
Albeit these are individual cases, data from various researches show a connection between TV ads and the votes of a justice in favor of a defendant. Independent researchers from Emory University School of Law examined almost 3100 criminal cases from state supreme courts, and their findings were merged with the results of the Brennan Center of Justice, which studied TV ads of judicial elections. The outcome revealed that “the more TV ads aired during State Supreme Court Judicial elections in the state, the less likely justices are to vote in favor of criminal defendants” (Shepherd & Kang, 2014).
Furthermore, those who decide to run in a judicial election often find themselves in a need for sponsors to aid them with the high costs of campaigning. Although the deep examination of the financial element in the elections is beyond the aim of this essay, it is worth noting that these elections also undermine the trust of the citizens in the judiciary branch of power. Surveys found that 70 percent of the US citizens believe that campaign contributions influence the decision of the justices (Skaggs, 2010). The harmful effect of these statistics stretches far; Justice Sandra Day O'Connor addressed this issue with the following words: “this crisis of confidence in the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold” (Foreword of Hall, 2010).
3. The Effects of the Elections on The Sentencing Practice
The link between the elections and the sentencing practice is connected to the campaign ads. If a judge decides to run for office in a later election, he or she has to keep in mind that their sentencing may be a target for other contenders. Upcoming elections influence both the length of the sentences and the less frequent votes in favor of defendants during an appeal.
3.1 The Punitive Sentence
A research by Huber & Gordon, in 2002, examining more than 22,000 sentences for aggravated assault, rape, and robbery, concluded that “sentences for these crimes are significantly longer the closer the sentencing judge is to standing for reelection” (Berry, 2015, p. 13). A similar result was found by Carlos Bendejó and Noam Yucthman (2010); they examined Washington Superior Courts, where the judges contend in nonpartisan elections every four years. As they stated in their report, “essentially the same defendant (based on observable characteristics), having committed the same crime, facing the same judge, receives 10 percent more time in prison if he is sentenced at the end of the judge’s political cycle rather than the beginning” (Bendejó & Yuchtman, 2010, p. 18).
These results conclude that this behavior affects the rule of law and the requirement of computability in obvious ways. John Oliver, host of the talk show Last Week Tonight With John Oliver addressed this issue with the following words: “That’s terrifying. ‘Cause you shouldn’t be sitting in a prison going «How did you get fifteen months for public urination?», «Well, you know, it was October, in an election year…» (season two, episode three).
3.2 Appellate Decisions
Shepherd and Kang also examined the fear of future attacks, in their 2014 research. They defined a vote in favor of the defendant during an appeal as “any vote that improves the defendant’s position – whether it is overturning any part of a criminal conviction or reducing a defendant’s sentence”. First of all, even without the ads, the likelihood of voting in favor of the defendant vary based on the political party; As a baseline, Republican justices are, on average, slightly less likely to vote in favor of defendants than other justices. (As their findings state, Republican judges vote in favor 27 percent of the cases contrary to the 31 percent of the Democrats.)
Furthermore, just as there is a relation between the amount of campaign TV ads and the length of the sentences, a similar link can be found between the likelihood of the votes ‘in favor’ and the ads. For instance, 17,000 ads cause a 9,5 percent decrease of the ‘in favor’ votes for the Republican judges and 7,5 percent for the Democrat ones. The independent judges are less likely to be affected by the ads, as the same number of ads resulted only in a 2,5 percent decrease (Shepherd & Kang, 2014).
3.3 Do Election Methods Matter?
As summarised in the second point, judicial election methods vary between states and even between courts. Gordon and Huber tackled this issue in 2007, when they studied the effect of different election methods in the state of Kansas. The election system of Kansas has partisan and retention elections. During the primary, in fourteen districts where roughly 42% of residents of Kansas lives, holding partisan elections (Gordon & Huber, 2007, p. 5), the district court judges participate representing their party. The candidate with the most votes may advance to the general elections, while appellate judges and appointed district court judges participate in the retention elections.
Gordon and Huber studied 18,139 sentences from 1997 to 2003, where 31% resulted in prison sentences, ranging up to 3,237 months, with a median of 32 months. Comparing the results from the partisan and the retention districts, the study concludes that “35% of sentences handed down in the competitive districts include prison terms, compared with 27% in the retention jurisdictions. Likewise, the median non-zero prison sentence is higher in the partisan than retention districts – 33 versus 31 months” (Gordon and Huber, 2007, p. 10).
Concluding this issue, the results show that partisan elections induce more severe sentences than the retention method. On the other hand, 14 years passed since the sentencing practice examined in the cited study and it is worth noting that retention elections became more and more politicized in the recent years (Berry, 2010, p. 9). Hence, an elaborate study is required both in Kansas to measure the changes, and across the various states.
Although the essay might seem one-sided, as it lacks the advantages of the judicial elections, the aim was to emphasize the effects on the criminal procedures as analysing this vast subject in a whole system would exceed the current limits, hence complete books were written on the topic. To summarise the previous paragraphs, the aim of the essay was to shed light on one of the drawbacks of the controversial method of judicial elections. After summarising the various versions of the elections, the essay listed the negative effects on the sentencing practice, albeit further research may be needed in some aspects.
As for the future, the author hopes that the system will be changed, or at least legislatorial steps would be taken for the sake of securing legal principles if the elective method is to be upheld.
By Máté Hodula
This article has been published in Lawyr.it Vol. 5 Ed. 2. All references used can be found at the end of that issue.