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December 11, 2014

Notable new reporting on "tough-on-sex-offenders" rhetoric in recent judicial campaigns

The Marshall Project has this interesting new review of the most recent election cycle headlined "Trial By Cash: Judicial elections have gotten ugly. That’s bad news for defendants." Here is how it gets started:

In this year’s battle for the governorship of Arkansas, criminal justice reform was front and center. The Republican victor, Asa Hutchinson, a former federal prosecutor and DEA administrator, promised to combat prison overcrowding and called out “over-aggressive prosecutors who do not use common sense.”  His Democratic challenger, Mike Ross, advocated lighter sentences for nonviolent offenders and more emphasis on rehabilitation. Neither candidate deployed the fear-mongering attack advertisements that have been a campaign-season staple for decades.

The race for an open seat on the Arkansas Supreme Court seat was another matter.  One outside group's campaign ad praised Judge Robin Wynne of the state court of appeals for “refusing to allow technicalities to overturn convictions.”  Another attacked his primary opponent, defense attorney Tim Cullen, by claiming he had called child pornography “a victimless crime.”  Over eerie black-and-white footage of an empty playground, a woman’s voice responded to the statement (a distortion of Cullen's defense brief for a single case), intoning: “Tell that to the thousands of victims robbed of their childhood.” Wynne won.

If there is a growing bipartisan consensus that America locks up too many people for too long, there is little indication that anyone spending money on judicial elections shares the concern.  The real scourge of American justice, these campaigns seem to suggest, is the rampant coddling of child molesters by judges up for re-election.  “WHY SO LENIENT?” one ad demanded, attacking an incumbent state justice in Illinois.  A similar commercial in North Carolina cut from an image of children pedaling tricycles to one of inmates pacing in their cells, and declared that a justice up for re-election “took the side of convicted molesters.”

Judicial races once were largely polite, low-budget affairs.  But in the 1990s, business and political groups began to focus on these elections as an important (and often cost-effective) path to influencing policy and regulation.  Since then, judicial campaigns have come to look more like any other political circus: rallies, political consultants, attack ads, and a flood of campaign cash.  As of Nov. 5, election watchers at the Brennan Center, a liberal think tank that tracks legal issues, estimated that at least $13.8 million had been spent on TV advertising for state supreme court elections nationwide in 2014 — up from $12.2 million in the last midterm election in 2010.  

The funders of these campaigns aren’t generally motivated by a desire to lock up criminals.  In fact, some of this year’s big donors to organizations running tough-on-crime campaigns — including the conservative philanthropists Charles and David Koch — have simultaneously backed so-called “smart-on-crime” reform efforts aimed at shortening mandatory sentences and reducing prison populations.  But fear works, election strategists believe.  Why run on what really matters to your funders — like tort reform or deregulation — when you can run against paroling pedophiles?

December 11, 2014 at 09:15 AM | Permalink


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The immutable quote by Rabbi Daniel Lapin in his Hitler letter quote:

Hitler (actual quote from Mein Kampf:

"The state must declare the child to be the most precious treasure of the people."

Rabbi Lapin's observation:

"As long as the government is perceived as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation."

This is the most telling and remonstrable attribute of the current state of sex offender laws in the United States, and why a multitude of laws that are more geared toward punishment rather than prevention prevail.

Posted by: Eric Knight | Dec 11, 2014 10:38:49 AM

Politicians remember: RSO's have family members who vote too and our sons and daughters who are on the registry are important to us. We will NEVER forget any politician who uses personal gain for office against the U.S. Constitution.

Posted by: Book38 | Dec 11, 2014 4:55:59 PM


People, lawyers and especially judges are not rational human beings. In my state for electing Supreme Court Justices (I can't think of a worse way to choose them, but we do), you would have thought that the ONLY judicial election issue was being "tough on sex-offenders" as each candidate claimed to be tougher on them than the next. What a crock-of-BS, so much for equal protection under the law. The majority of these ad campaigns were financed by either insurance companies or trial lawyers but you would never know. I swear that more money was spent on these races than for governor.

As someone whose confirmation bias is the most extreme I have ever seen would say, "It's the best Justice System conceived by humankind to date". Yeh, sure! Don't p__s on me and tell me it's raining, I know to much to swallow such a lie.

Posted by: albeed | Dec 11, 2014 5:03:01 PM

I take the optimistic view. The more that they harp on it the more that it wears out people's patience and the more it wears out people's patience the sooner this attack of moral panic will be over. Sooner or later people will get tired of hearing about pedophiles. Look at the how sex offender restriction are beginning to fall.

Posted by: Daniel | Dec 11, 2014 7:07:15 PM

In my opinion, the biggest obstacle to justice in the criminal courts is the popular election of judges. It is contrary to the core belief of judicial review, which supposedly makes our system unique in the world and emanates from the Jacksonian democracy era in the early 1800's. The death penalty, driving while impaired, and now sex offenses are simply to inflammatory to be determined by judges who could lose their jobs by making the right decision in a case.

Simply put, I believe popular election of judges violates the due process clause.


Posted by: bruce cunningham | Dec 12, 2014 5:28:44 AM

I think the biggest obstacle to real justice in American is the failure of Americans to shoot the criminals who now control the system.

Posted by: rodsmith | Dec 13, 2014 7:21:10 PM

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