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September 23, 2015

Investigating how elected judiciary may impact capital punishment's administration

USA-DEATHPENALTYReuters has this new investigative report exploring the relationship between an elected judiciary and a jurisdiction's administration of the death penalty.  The full headline and subheading provide a summary of the themes of the report: "Uneven Justice: In states with elected high court judges, a harder line on capital punishment. Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer." Here are passages from the report:

Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.

A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.

Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.

Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.

Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.

Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said....

State supreme courts automatically review every death penalty verdict. Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.

But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race. Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.

African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.

Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so....

In 2013, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.

Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."

Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.

September 23, 2015 at 09:26 AM | Permalink


Electing judges is a judgment that the best approach is to have the people at large influence who is on the courts. In some areas, this will encourage judges that are more supportive of the death penalty in part because this is something that will be an easy and emotional thing to use to influence who wins. In some cases, it has been shown that those more concerned about economic matters use this to get judges they like. It's a question of if this is something you think is a valid approach. But, it happening is far from surprising.

Posted by: Joe | Sep 23, 2015 9:57:19 AM

The regional political climate confounds are so great that I think it is very hard to say with any confidence that method of appointment is actually significant. At a minimum, you would want to look a changes in death penalty affirmation rates in the same state before and after it changed its method of judicial selection.

The fact that there is such a big difference between appointment and retention states particularly casts doubt on the finding, because, in practice, non-retention of appellate judges is a vanishingly rare phenomena even when a court rules on high profile death penalty cases. Also, appointment states are frequently political appointments, while retention states have a less partisan appointment process.

Posted by: ohwilleke | Sep 23, 2015 4:18:22 PM

The study is concluding that judges in election states violate their judicial oath of fairness and neutrality just to keep their job. Couldn't the hypothesis also be that judicial appointment allows them to vote their conscience irrespective of the law?

It seems plausible that the data supports the theory that appointed justices are more likely to violate their judicial oath of fairness and neutrality by reversing otherwise valid death sentences because they won't lose their job. Did the study control for the death penalty views or a proxy of those views in the judiciary of the states?

Posted by: David | Sep 23, 2015 10:58:56 PM

In appointed states, I hardly view the way the citizens of that state voted in the 2012 election as a proxy for the justices views on the death penalty generally.

Posted by: David | Sep 23, 2015 11:02:35 PM

The hypothesis to me makes sense though the exact "impact" will be difficult to show as is usually the case. Judicial elections would seem to likely affect outcomes & we judicial campaigns seem to think so, given judicial decision-making are used in advertising and such. As to violating their oaths, hard to tell.

In close cases, what the right answer is can be quite debatable. Again, judicial elections to me likely influences decision-making, but that is the point -- elections in part are in place to influence decision-making. It can be particularly tricky for judges but legislators and executives also have duties to act in certain cases that might not be carried out for electoral reasons. They too have oaths/affirmations.

Posted by: Joe | Sep 24, 2015 10:52:52 AM

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