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May 25, 2008

Judging, politics, sentencing and elections

Adam Liptak has this effective piece in today's New York Times headlined "Rendering Justice, With One Eye on Re-Election."  Here are some highlights that should especially interest sentencing fans:

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election.  The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people.  A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.  In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence.  The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals....

There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges.  Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage.  When voters do have information, these experts say, it is often from sensational or misleading television advertisements.

“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota.  “When you vote with no information, you get the illusion of control.  The overwhelming norm is no to low information.”

Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.

Since 2008 is an election year, the linked study perhaps ought to be foremost in the mind of state lawyers trying to figure out how quickly or slowly to move a case along.  In addition, as suggested in this Linda Greenhouse NY Times article about the lack of 5-4 rulings by the Supreme Court so far this Term, there is reason to speculate that appointed judges also are impacted by election cycles:

The court’s modulated tone may also stem from the fact that this is an election year. Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term.  “Of course, lots of things could explain this, but the pattern is pretty interesting,”  Ms. Epstein said in an e-mail exchange, adding that the justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”

May 25, 2008 at 11:48 AM | Permalink


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I believe that it is unfair to both judges and defendants to have a system of selecting judges which makes them vulnerable to the public will if they make a legally correct but politically unpopular decision. This is true particularly in capital cases, sex offense cases, and, in district court, Driving while impaired cases.

The North Carolina legislature has enacted a statute which requires clerks of court to compile the statistics of trial judges with respect to convictions and acquitals and report those figures to the legislature and post them on the Internet. That sounds like a blatant violation of the separation of powers clause to me and an effort to intimidate the judiciary.

It has gotten so bad that sometimes prosecutors will no longer dismiss unwinnable cases, but make judges do the deed. On Judge told me that it is a practice in his county for DAs with unwinnable cases to call the case for trial and then rest without calling any witnesses, thereby forcing the Judge to dismiss the case, rather than the prosecutor dismissing it. In my opinion, that is inexcusable.

Bruce Cunningham

Posted by: bruce cunningham | May 25, 2008 8:27:13 PM

I don't know about that so-called "election effect" on Supreme Court decisions. I might have to look into that. The article should point out, however, that while most state judges are elected, most of those "elected" judges are originally appointed and they usually run opposed. The typical level of support in retention elections is also very high. It is freakishly rare for an incumbent judge to lose. As such, it is really hard to argue that such elections really provide much of a check on judicial behavior.

Posted by: P.S. Ruckman, Jr. | May 25, 2008 10:10:48 PM

That Prosecutors do not dismiss a case and force the judge to do so is a symptom of something far more serious. The real disease is a lack of respect for law and due process. California Supreme Court Judge Rose Byrd was voted off the bench not because of her stand on death penalty cases, but because of her rulings on big business, farm workers for example. The Right learned then to tell a lie often enough was a virtue and very effective. They followed with the California Victims Bill of Rights that wasn't really a Victim's Bill of Rights at all. It was a straw man attacking due process. It worked perfectly and was passed. The Right was able to suck the Left in.

Now, with the FLDS raid in Texas, the Right must acknowledge the monster it gave to the Left for a pet. It is no longer cute and cuddly.

Until "The People" realize the country is founded on due process and the strength of the country is founded on respect for the law in the courtroom, it doesn't matter if judges are elected or not. As it is, the pervasive political atmosphere is that due process is repugnant, some sort of excuse to avoid meting out justice. History is replete with examples of the executive or legislative branches crossing constitutional boundaries and the courts are supposed to be above that. The Constitution is always first and foremost a court's client. That's why I've always had a great deal of respect for courts, but I think now too often courts cave in and surrender.

Maybe the only solution is a massive "Respect for Due Process" campaign supported by those in the trenches on both the Left and the Right. Both sides should have an equal interest in popular respect for due process.

Posted by: George | May 26, 2008 11:00:43 AM

I don't think that it is an issue of Right and Left, rather of principled or not. (Is Herbert Wechsler's 1927 Columbia Law Review article entitled "Toward Neutral Principles of Constitutional Law" still required reading in law school?)

There is no one more "Right" , whatever that means, than Justices Scalia and Thomas. But then, who was it who said in his opinion for the majority in Blakely , "Jury trials may not be efficient but they have always been free."?????

Bruce Cunningham

Posted by: bruce cunningham | May 26, 2008 4:26:46 PM

I have long been against electing judges and the fact that there is an actual study out there showing that there is in fact an "election effect" on judges surprises me not in the slightest. The decision that judges must sometimes be forced to make between the law and their jobs robs the justice system in general and the defendant in particular of "blind" justice. And as to the above insistence that since judges rarely are not reelected, I would say there may be less pressure, but any pressure at all still upsets the balance of our adversarial system.

Posted by: lawschoolinmate | May 26, 2008 9:04:12 PM

bruce, thanks. Not being a lawyer it is very difficult to articulate what I'm trying to say, but while searching for Wechsler's article, I found Wechsler’s Century and Ours: Reforming Criminal Law in a Time of Shifting Rationalities of Government, (pdf) by Jonathan Simon, and it says pretty much what I would say if possible. No, it's not a left/right issue. It's deeper and more pervasive than that. Simon and Wechsler might call it Populist, with the loss of distinction between the parties. Each wants the other side to sacrifice some constitutional principles, and if both sides succeed, there won't be much Constitution left for anyone. Still searching, but my guess is that the "Neutral Principles" in Wechsler's article aims to prevent exactly what is happening. If his article is on the web, I'll find it.

Posted by: George | May 27, 2008 2:24:45 AM

The Revolution was fought precisely to put an end to justice being doled out by The Elite (i.e., King George and his judges).

What replaced the King was a country whose core principle is democatic self-rule ("We the People....").

Judges are paid with taxpayer money, and taxpayers have to live under the rules judges adopt, be it on gay marriage or anything else. If the electorate is to be displaced as the body ultimately having the power to select judges, by what right? Should people in a democratic state really have no say, or only a small say, in deciding who makes the rules for them?

And who will do the judge picking? How will THAT person, or body of persons, be chosen? To whom will they be accountable? Or will accountablity just get deep-sixed?

Posted by: Bill Otis | May 27, 2008 9:01:03 AM

Bill, ours is a constitutional government first and foremost, with the premise that there is a fundamental structure of principles, which are insulated from the current political winds. Democracy is without a doubt the best form of government in the world, as long as you are in the majority. Our founding fathers had the wisdown of realizing that democracy run amok is not necessarily a good thing. (the electoral college for example) The Constitution itself for the best example.

Then, the question becomes, who is going to insure that we adhere to our basic beliefs and not give way to popular , transient, issues of the day? The majority? Or a group of individuals somewhat insulated from politics? (admittedly, as Mr. Dooley said, the Supreme Court reads the papers. And a"switch in time saved the nine," under Roosevelt' court packing plan) Marbury v Madision is the decision which solidifies our position as unique in the world for its adherence to the Rule of Law over the Rule of Men.

Do you try criminal cases? I do. And I will never fodrget overhearing a judge tell the bailiff after striking the death penalty in a case, properly under the law, and then saying, "I wonder what the papers will say tomorrow, Judge strikes death penalty or judge imposes two consecutive life sentences?" Judges shouldn't have to worry about that . Defendants shouldn't have to be sentenced by judges who do.

Posted by: | May 28, 2008 9:10:36 AM

To 9:10:36 am:

I appreciate the spirit of your remarks, but they still leave me with the questions I posed. So let me repeat them. I would be interested in your views.

If the electorate is to be displaced as the body ultimately having the power to select judges, by what right? Should people in a democratic state really have no say, or only a small say, in deciding who makes the rules for them?

And who will do the judge picking? How will THAT person, or body of persons, be chosen? To whom will they be accountable? Or will accountablity just get deep-sixed?

Posted by: Bill Otis | May 28, 2008 1:32:15 PM

Bill, fair questions. As a practitioner, I am less concerned about how a judge gets their job than how they keep their job, as far as impact on the criminal justice system. I am personally in favor of an appointed system to get the job and then the judge stands for retention elections after four or eight years. The retention election would not be a campaign with an opponent, so much as an up or down vote on the judge continuing in office. That leaves room for the electorate to register their discontent but avoids the mudslinging campaigns that we are starting to see. Yes, people should have a say in the rules that they are governed by. But some rules are more important than others and should be more insulated from the whims of the moment. Which is not to say that rules enshrined in the Constitution cannot change. That is why there is an amendment process. Your real question is who should decide what the Constitution means? Judges somewhat immune from majority will or the bald majority? Give me at least a shred of insulation from the daily pressure of jeopardizing your job to make a legally correct but politically unpopular decision.

I think the appointment should be made by the governor from a list of three candidates nominated by a multi-interest commission composed of representatives from a broad cross section of society. The best resource I know on this issue is Norman Greene from the New York City Bar. He moderated a widely attended panel discussion on judicial selection methods at Fordham Law School two years ago and all the presentations are available from Fordham Law Review.


Posted by: | May 28, 2008 1:55:41 PM

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