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June 17, 2009

Are criminal defendants the "real losers" when judges are elected?

The National Law Journal has this interesting commentary discussing the impact of judicial elections on criminal justice, which is headlined "Only a partial win: The Caperton ruling, while welcome, does nothing to protect the real losers in judicial elections — criminal defendants."  Here are excerpts:

In its recent decision in Caperton v. Massey, the U.S. Supreme Court declared that an elected state court judge must recuse himself from a case involving his largest campaign donor. The decision is a victory for common sense and fundamental fairness. Unfortunately, however, it cannot help the real losers in the 39 states that elect rather than appoint judges — those accused of crimes who rely on judges to protect their rights....

Again and again, judicial elections come down to accusations that an incumbent is soft on crime — and yet these allegations are usually made by corporate interest groups that don't actually care about a judge's record in criminal cases, and thus that are willing to paint even the most justified ruling in favor of a criminal defendant as a danger to the community.

The results are predictable. Studies show that elected judges become notably harder on criminal defendants as elections approach. Political scientists Gregory Huber and Sanford Gordon reviewed 22,000 Pennsylvania trial court sentences in criminal cases and discovered that, when elections were imminent, these judges imposed sentences 25% to 39% longer than judges who had recently been elected or re-elected to the position. Even more disturbing, similar studies show that judges are more likely to impose the death penalty with elections looming. These judges are getting the message that anything short of the harshest penalty will become fodder to be used against them in the next election cycle.

June 17, 2009 at 09:26 AM | Permalink

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Comments

This article doesn't differentiate between multiple candidate elections and retention elections.

Posted by: . | Jun 17, 2009 9:42:43 AM

in reality, judicial elections are political appointments; that is how judicial candidates obtain lines on the ballots. There would be no difference if the judges are appointed or elected. At least, with elections the public retains some minimal say in judicial seating. How they are appointed/nominated/elected is of no real interest and the question should be perhaps judges have an inordinate amount of power.

Posted by: moshe | Jun 17, 2009 10:08:26 AM

Caperton is a fascinating case because I believe both the majority and dissent are correct. The lower court order should have been reversed, but Roberts' opinion in dissent correctly points out the difficulties of the standard employed by the majority. The only way to reconcile the majority and the dissent, in my opinion, is to abolish judicial elections.

bruce cunningham

Posted by: bruce cunningham | Jun 17, 2009 10:57:04 AM

This just goes to show that judges actually perform the job they were elected for part of the time. Better than most legislators in that regard I imagine.

Posted by: Soronel Haetir | Jun 17, 2009 11:34:19 AM

The views of the electorate will and should be reflected in judicial selection. What's the alternative? That the electorate's views NOT be reflected? That judges be selected by The Imperial Council of People Who Know Better than the Unwashed Masses?

The only realistic question, then, is whether the electorate's views should be reflected (a) directly, by judicial elections, or (b) indirectly, by a process similar to that for federal judges (i.e., selection by an elected member of the executive branch, subject to approval by one house of the elected legislative branch). Either way, the public's views are going to count, as they should.

We have to live under the rules and precedents judges establish, so we should have a say in who gets to do the establishing. To me, that is not even debatable. If this means that we get a bunch of tough-on-crime judges, the answer (for those who don't like that outcome) is to persuade the public that "tough-on-crime" is just a slogan, or counter-productive, or what have you -- not to remove from the electorate its right to self-governance.

Posted by: Bill Otis | Jun 17, 2009 12:02:07 PM

bill

You missed the point. The judges are "tougher" right before an election. In other words, they are not as "tough" all the time.

Posted by: . | Jun 17, 2009 12:11:57 PM

Then they should be ashamed of themselves for not adhering consistently to what they promise.

I don't think I "missed the point." The point is whether and to what extent the selection of judges should be left to popular will, and that is what my comment addresses.

Posted by: Bill Otis | Jun 17, 2009 12:23:19 PM

"The only realistic question, then, is whether the electorate's views should be reflected (a) directly, by judicial elections, or (b) indirectly, by a process similar to that for federal judges (i.e., selection by an elected member of the executive branch, subject to approval by one house of the elected legislative branch). Either way, the public's views are going to count, as they should.

We have to live under the rules and precedents judges establish, so we should have a say in who gets to do the establishing. To me, that is not even debatable. If this means that we get a bunch of tough-on-crime judges, the answer (for those who don't like that outcome) is to persuade the public that "tough-on-crime" is just a slogan, or counter-productive, or what have you -- not to remove from the electorate its right to self-governance."


AMEN BROTHER. I simply could not have said it better myself.

Posted by: Daniel | Jun 17, 2009 12:23:31 PM

Daniel -- Thank you. At one time I took you to be more doctrinaire than a fair reading of your comments justifies. I'll attempt to bear this in mind for the future.

Posted by: Bill Otis | Jun 17, 2009 12:39:39 PM

There are alternatives that still take into account the will of the people and diminish the "OMG my opponent is saying that I am soft on crime" effect. I believe in Iowa, a bipartisan commission appoints the judges and then judges are retained or not retained by the public during the election, they dont run against anyone, but the public has a direct continuing opportunity to address their performance.
This also prevents special interests from spending money raising tough on crime issues when their real agenda is to install their guy. They could still attack a judge they didn't like, but they wouldn't be able to choose the replacement.

Posted by: KRG def attny | Jun 17, 2009 1:05:36 PM

I am not exactly sure what Bill and Daniel are railing against. In all American jurisdictions, judges ARE selected with input from the people. Either through Bill's options (a) and (b), or by an elected executive without ratification by the legislative branch (let's call this option (c)). In each option, the public gets a say. I am not aware of any state in which the selection of judges is left to an unelected Imperial Council.

There is of course much room for debate on how DIRECTLY the selection of judges should reflect the popular will, but no one is trying to steal our right to self-governance. Step away from the straw man.

Posted by: CN | Jun 17, 2009 1:17:21 PM

CN -- So what is your view on the direct election of judges?

Posted by: Bill Otis | Jun 17, 2009 3:16:26 PM

"I am not exactly sure what Bill and Daniel are railing against.... I am not aware of any state in which the selection of judges is left to an unelected Imperial Council.

There is of course much room for debate on how DIRECTLY the selection of judges should reflect the popular will, but no one is trying to steal our right to self-governance. Step away from the straw man."

AMEN BROTHER. I could not have said it better myself.

Posted by: Jay | Jun 17, 2009 4:44:29 PM

"I am not aware of any state in which the selection of judges is left to an unelected Imperial Council."

There are several states where the governor is constrained to appoint someone on a short list prepared by a body that the nonlawyers of the state have no voice in selecting.

The Orwellian name of this power grab by the bar is "merit selection."

Posted by: Kent Scheidegger | Jun 17, 2009 4:55:44 PM

Whether you want judges to be appointed for good behavior tenure rather than campaign for election every n years should probably turn on whether you want judges to follow the law rather than follow the politics.

Posted by: Michael Drake | Jun 17, 2009 5:42:41 PM

As a practical matter, I oppose the direct election of judges. I think the best method is selection by the executive subject to ratification by a majority of the legislature. The executive and legislature, working together (or at least agreeing) is wiser than the well-meaning but poorly-informed citizens who bother to vote in judicial elections.

If Kent is right and some states prohibit the executive from choosing beyond a short list, I am opposed to that. The ABA or state bar should have the right -- just as all groups and individuals have a right -- to recommend individuals to the executive, but the executive's discretion in picking judges should be constrained only by the legislature.

Posted by: CN | Jun 17, 2009 6:34:31 PM

Michael Drake's comment can be refuted in two words: Ninth Circuit.

Posted by: Kent Scheidegger | Jun 17, 2009 6:53:12 PM

No one who has passed 1L should be allowed on any bench. Professional judge schools should the primary point of inculcating obedience to the law and not manufacture of the law in accordance with capricious personal preference.

Posted by: Supremacy Claus | Jun 18, 2009 12:26:00 AM

Mr. Drake:

Do you accept the fact that laws are the outcome of politics?

Posted by: Daniel | Jun 18, 2009 1:22:29 AM

In my opinion the popular election of judges is the single greatest impediment to criminal defendants receiving a fair trial. It is also not fair to the judge himself or herself to make them place their job security on the line whenever they make a legally correct but politically unpopular decision.

What sets our legal system apart from the rest of the world is our notion of majority rule with minority rights. The job of judges is to protect the minority from the majority and the majority from itself. To subject the protector of the minority to the whim of the majority is inherently inconsistent.

bruce cunningham

Posted by: bruce cunningham | Jun 18, 2009 7:22:24 AM

Bruce has it right. In a system where the judiciary has the primary responsibility to protect minority rights, there must be some insulation of the judiciary from majoritarian whims. This is not the same as removing the people's input into judicial selection or judicial retention. Indeed, these kinds of checks and balances on shifting majority preferences are entirely consistent with popular government and are fundamental to our system: a big one is called the Bill of Rights. If that could be changed by simple plebiscite, it would have been gone a long time ago. Most State constitutions similarly insulate fundamental minority protections from majority rule. (The mess that is California being a partial exception.)

Moreover, to talk as if it is a simple matter of democratic process to persuade the public that "tuff on crime" rhetoric is not in the public interest is to ignore the realities of politics: incentives and resources matter. For example, those with the most direct incentive to make that case through partisan politics (criminal defendants) lack the resources or standing to do so. (The fact that the list of states with partisan judical elections largely overlaps the list of states with permanent felon disenfranchisement doesn't help.)

That doesn't mean we appoint Imperial Councils of Do-Gooders by fiat, but it does support the need for thoughtful checks and balances to ensure our commitment to minority rights, accurate criminal convictions, and impartial justice.

Posted by: Observer | Jun 19, 2009 11:24:46 AM

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