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October 25, 2016

"Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this notable report authored by Joanna Shepherd and Michael S. Kang which I learned about via an email from The American Constitution Society for Law and Policy. Here is the text of that email, which provides a summary of the report's contents:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. That’s according to independent research sponsored by the American Constitution Society for Law and Policy (ACS).  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

The report, Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, is a compilation of data from over 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013.  Researchers found that the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to rule in favor of criminal defendants; and justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the Citizens United decision.

“The amount of money spent in state judicial elections has skyrocketed and the results of that spending are clear.  The flood of interest group money set free by Citizens United are endangering what should be impartial judicial decision-making and putting the fundamental constitutional rights of every American at risk,” said ACS President Caroline Fredrickson. “The data show that the television campaign ads this money buys put a thumb on the scale in criminal cases, and undermine the promise of equal justice that is a cornerstone of our democracy.”

Skewed Justice, by Dr. Joanna Shepherd and Dr. Michael S. Kang, both law professors at Emory University, follows the report Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, published by ACS in 2013.  That report, authored by Professor Shepherd, revealed the growing influence of contributions on state supreme court judges. While the majority of media attention is focused on the United States Supreme Court, elected judges at the state level handle more than 90 percent of the United States’ judicial business.  This gives money and advertising huge influence in American democracy.  Beginning in the 1990s, and accelerating in almost every election cycle since, judicial elections have become more competitive and contentious, and campaign spending on these elections has skyrocketed, the research finds. Incumbent judges almost never lost their reelection bids during the 1980s, but by 2000 their loss rates had risen higher than those of congressional and state legislative incumbents. 

UPDATE: A helpful reader realized that this ACS-sponsored study is actually not so new, as it was first released a couple tears ago. I now assume ACS was promoting it anew (and led me to think it was new) because the report is extra-timely during a big elections season.

October 25, 2016 at 09:25 AM | Permalink


Hmmmm, the ABA influences the judiciary, and that's ok, but the public doesn't get to?

Posted by: federalist | Oct 25, 2016 10:18:54 AM

I think the study is asking the wrong question, Whether appointed courts are more pro-defendant than elected judges is a secondary issue. The primary issue is whether it makes a difference in terms of correctness of results.

There are four basic options for choosing judges -- partisan election, non-partisan election, appointment with a retention election, and appointment for a life term. In states that use a mixed system (different rules for trial judges depending upon the size of the county), are the reversal rates significantly different based on the method for selecting trial judges in the different counties. Similarly, adding in the method of selecting appellate judges, is there a significant difference in the number of reversals from the federal courts (either the U.S. Supreme Court or through federal habeas) based on the method of selecting judges in a particular state.

If judges elected by partisan elections and appointed judges are equally following state law (as determined by the state appellate courts) and the appellate judges in states with partisan elections are equally following federal law (as determined by the Supreme Court), the alleged harm is non-existent. Defendants do not have a right to have a judicial system that regularly errs in their favor. It is only if electing judges tends to make the system more error prone that less favorable results to a defendant would have legal significance.

The goal is a system that gets the correct results -- not one that errs in favor of the defendant or errs in favor of the State. By comparing which side wins and not the correctness of the result, the study assumes that decisions in favor of the State are presumptively wrong (even if the claims of error in those cases are frivolous) and that decisions in favor of the defendant are presumptively correct (even if those decisions require re-writing established law or disregarding the standard of review).

Yes, it would be nice if method of selection did not change who sits on the courts. Nobody wants a system that makes it difficult for "good" judges to get on and stay on the bench. Similarly, nobody wants a system that tends to result in "bad" judges. But the fact that different systems result in a different composition of the bench (one more favorable to the defendant, the other less favorable) does not tell us which system is better.

Posted by: tmm | Oct 25, 2016 12:42:59 PM

Good post, tmm.

My guess is that democratic accountability, which means elections and all the advertising (i.e., protected political speech) that goes into it will result in moonbattery being checked but may, at times, tip the scales inappropriately against defendants. I could see, however, leftists attacking one-off harsh sentences that were affirmed in ads too.

Posted by: federalist | Oct 25, 2016 2:57:12 PM

Another option for choosing judges would be appointment (there are various ways) for a limited term.

There is discretion when judging so "following" the law only takes one so far. There is also going to be various leanings with a range of reasonable debate. The appropriate leaning here is going to be a matter of dispute. So, I think it relevant if a system in place tends to be more pro-defendant as compared to pro-prosecution ... or somewhere in between. I don't think it is "the wrong question." It is one question.

The correct criteria is also unclear. One citation was "reversals from the federal courts." That assumes the federal courts do enough to protect defendants' rights. Many states go their own way there. A term like "correct results" requires some degree of nuanced discussion. For instance, if you don't like current legal trends, elections can be a place to put new judges who have the "correct" views.

The method of selection is likely to affect who sits on the courts -- structure affects results. The concern is that elections results in a certain type of judge that is less independently minded in various respects, including to protect the rights of those that those who elect or influence their elections are less likely to honor. This includes criminal defendants but also others. This doesn't mean this class of defendants should win each time or something. But, it does mean they shouldn't be unfairly biased against.

Independence of the judiciary was traditionally honored for that very reason. The balance of "democratic accountability" there is tricky. Appointments are often done by elected officials and often confirmed by elected officials; this is a form of that. Direct elections would be another and long practice shows that has benefits. It does result in certain leanings. It's useful to learn about them to make a final judgment. Note: people on both the left and the right have spoken out against judicial elections at various times.

Posted by: Joe | Oct 25, 2016 3:20:58 PM

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