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November 23, 2010

"Pro-Prosecution Judges: 'Tough on Crime', Soft on Strategy, Ripe for Disqualification"

The title of this post is the title of this interesting new piece available via SSRN by Keith Swisher.  I have been told that this article has been "adored by every criminal defender, public or private, who has happened to read it," and this abstract helps explain why:

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures.  Building on this description and the work of empiricists, this Article bridges the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications.  And in the final analysis, the thesis -- namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases -- is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics.  Thus, pro-prosecution judges and their not-too-sophisticated message -- "me tough on crime, you soft on crime" -- should cease and desist or be ceased and desisted.

Part I briefly describes elective judicial selection systems and thoroughly describes "tough-on-crime" judges, their messages, and their motivations.  Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification.  All of these frameworks -- some four or five different legal and ethical barriers, depending on one's jurisprudential view -- ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence.  By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.

November 23, 2010 at 11:40 AM | Permalink


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"I have been told that this article has been 'adored by every criminal defender, public or private, who has happened to read it,' and this abstract helps explain why."

Doesn't it ever.

I wonder if judges who run on, "We need to understand the root causes of crime" (e.g., Kevin Fine in Texas) should also be disqualified from criminal cases.

Here's a novel idea. When a judicial candidate runs on a platform saying, "I have X idea about how judges should approach their job," and the electorate chooses him having run on that platform, he should be able to do what he promised -- whether it's Kevin Fine or anyone else.

Posted by: Bill Otis | Nov 23, 2010 6:11:51 PM

Treating judges like elected politicians in that way is fundamentally flawed - it turns the justice system into a result orientated sham, designed to produce as many anti-defendant rulings as possible.

You do have an arguable point in that pro, as well as anti, defendant judges should disqualify themselves. Or better yet, if there must be elected judges, just have a retention election system. The recent Iowa elections show that a significantly unpopular ruling can have negative consequences and that system can work.

Posted by: jsmith | Nov 23, 2010 7:46:48 PM

Treating judges as elected officials when they are, in fact, elected officials is simply a truism, not a scandal.

This does not mean that judges, elected or otherwise, may properly prejudge any individual case. It does mean that, since the public has to pay for and live with a judge's rulings, the underlying attitude toward law that informs those rulings is proper for the electorate to consider and the judge to employ if and when the people put him on the bench.

What the author of the article actually wants is not a bit difficult to discern. He wants a bench biased toward the defendant. I don't begrudge him his desires, but the Constitution requires no such thing.

Posted by: Bill Otis | Nov 23, 2010 8:17:18 PM

What the outgrowth of Caperton will be is yet to be determined. But the all of the claims being made in this article about disqualification could be made about pro-defense judges. Like it or not, the extrajudicial doctrine at least drew a clear line.

Posted by: Steve Erickson | Nov 23, 2010 8:45:31 PM

How about non-elected Federal judges who serve as long as they wish but are so obviously pro-prosecution that it is almost laughable, save for the unfortunate wretches who appear in the dock before them? We have a prime example here in the southeast...Judge Carnes of the Eleventh Circuit Court of Appeals, an ex-death penalty prosecutor from Alabama. No sentence can be too long or too harsh for this short little warped cretin in black robes. Yet there is no safety valve to short-circuit him, save for his fellow judges on the panels.

Posted by: Mike | Nov 23, 2010 9:12:04 PM

Bill - it is not really important what the author of the article wishes. It is not difficult to discern that you wish for a more anti-defendant justice system. I do not begrudge you that either.

I wasn't suggesting that elected judges weren't elected, I was saying that their role in the justice system means they cannot be treated in the same way as other elected officials. If a judge said that he would 'sentence every criminal defendant to the maximum time permitted' and 'make sure that the jury saw through every one of those lying scum bags' then this clearly wouldn't be proper, even if he technically isn't prejudging any individual case. He has effectively prejudged all his criminal cases. If a legislator said the same thing he might be too crazy to be elected, but he wouldn't be unable to do his job.

There is a fundamental difference between the two - while a legislator is meant to be an advocate for the people who elected him and argue with those who do not represent their views, a judge is meant to be a neutral umpire in a dispute resolution mechanism and not allow any personal bias to affect his decisions.

Posted by: jsmith | Nov 23, 2010 11:03:32 PM

I believe the greatest impediment to a criminal justice system based on the Rule of Law is the popular election of trial and appellate judges. I think we are missing the point talking about pro-prosecution or pro-defense judges. Instead, we should agree firmly with Justice O'Connor's position that we should abolish the election of judges altogether.

The notion that judges should be subject to the whims of the majority is antithetical to our constitutional form of government. By definition, one of the main purposes and unique attributes of the Constitution is to protect the minority from the majority when it comes to fundamental principles of our country. It is not fair to judges , prosecutors or defendants to place the arbiter of what the law means in a position that if they make a legally correct but politically unpopular decision, they stand to lose their job.

I have advocated for the abolition of popular election of judges for thirty years and I see my position only getting stronger with cases like Caperton.


Posted by: bruce cunningham | Nov 24, 2010 9:55:40 AM

The election of judges is one of the most systematic threats to a constitutional democracy. It may enhance the latter, but it risks eviscerating the former. And it is the former which the judicial branch is meant to protect.

Posted by: Mike Teal | Nov 24, 2010 9:56:44 AM

The presiding judge on Texas' Court of Criminal Appeals, Sharon Keller, actually ran for office explicitly declaring herself "pro-prosecution" in her campaign. Imagine, by comparison, a family court judge running on a "pro-husband" platform. Only in criminal court does the political system tolerate overt bias, and then only if that bias favors the state.

Bill may not like Kevin Fine, but seeking to understand "root causes" (which in some instances may lead to harsher sentencing, depending on the cause) isn't remotely the same as openly proclaiming a preconceived bias in favor of one side of the bar.

Posted by: Gritsforbreakfast | Nov 24, 2010 10:45:15 AM

Ditto re the election of judges being the worst possible thing for a system of "justice." The next worst thing is for politicians (presidents and governors)to stack the bench with former prosecutors. If you surveyed any jurisdiction, state or federal, you woud find it lopsided in the proportion of former prosecutors to former defense lawyers. It's shameful.

Posted by: lawyer | Nov 24, 2010 3:14:06 PM

I would hope that the defense lawyers who appear before the Texas Court of Appeals are routinely filing motions to recuse Judge Keller. In one capital appeal I filed motions to recuse the chief justice for giving an interview to the press in which he stated that he favors capital punishment because it saves innocent lives , another judge for writing a letter to the editor of the Raleigh paper supporting a prosecutor who was under attack, and another judge who was elected from the county in which the highly publicized crime occurred.

I have been looking for the case where the prosecutor made a campaign donation to the judge who was assigned to preside over a capital trial. I would file a motion to recuse in a heartbeat.

Just like the emporer has no clothes, electing judges is a bad idea for many, many reasons.


Posted by: bruce cunningham | Nov 24, 2010 3:19:07 PM

Bruce cunningham ,

Sorry, but I don't see you having a legitimate complaint against a judge (trial or appellate) for holding the public view that death sentences are not handed down often enough and are not carried out swiftly enough when they are initially ordered.

So long as the ultimate outcome falls within the bounds of granted discretion (even if a particular judge's decisions always fall at one end of that band) I don't see that it much matters. As Bill Otis said it is not unreasonable for the people who will be bound by a judge's decisions to know beforehand what standards guide the decision making process.

Constitutional democracy is only meant to protect the minority in those areas where the majority has agreed to so protect the minority. It is not an unlimited grant of tolerance. I would, however, agree that retention elections would be preferable to either straight election of judges or the federal appointment system with its life tenure.

Posted by: Soronel Haetir | Nov 24, 2010 4:22:42 PM

The hierarchy of the criminal cult enterprise is hitting back. Election is a tiny, lonely island of judge accountability. This is intolerable to its imperialism.

Posted by: Supremacy Claus | Nov 24, 2010 6:46:35 PM

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