New Study Links Attack Ads in Judicial Elections to Harsher Sentencing

According to new analysis conducted by the Brennan Center for Justice at NYU School of Law, re-election pressures influence judges into doling out harsher penalties in criminal cases.

The study examines what role judicial candidates’ records in criminal cases play in campaigns and what impact these campaigns have on a judge’s decision-making.

State judges decide the outcome of most criminal cases. The report explains that 94 percent of all felony convictions occur in state courts where the judges are mainly elected officials.

Specifically, the study analyzes what role media campaign advertisements play in judicial elections. Negative campaign ads attacking judges for being ‘soft on crime’ or ‘tough on crime’ increased to 56 percent for the 2013-2014 election cycle. This figure is up from a high of 33 percent in 2007-2008 and 2009-2010.

“From 2000 to 2014, a total of nearly $129 million was spent on TV airtime in state supreme court races. The 2011-12 election cycle saw record TV spending — $33.7 million — shattering the previous two-year TV spending record of $26.6 million in 2007-08.” Kate Berry, Counsel for the Brennan Center Democracy Program and author of the report explains.

To assess the direct impact of election proximity to judicial decisions, the study looked at 10 empirical cases across states, court levels, and election type. All studies concluded that the closer it was to election time, the harsher the criminal sentences became. Furthermore, this same effect was observed in partisan, nonpartisan, and retention elections.

Below are a few key findings from the study:

  • The more frequently television ads air during an election, the less likely state supreme court justices are, on average, to rule in favor of criminal defendants.
  • Trial judges in Pennsylvania and Washington sentence defendants convicted of serious felonies to longer sentences the closer they are to re-election.
  • In states that retain judges through elections, the more supportive the public is of capital punishment, the more likely appellate judges are to affirm death sentences.
  • In the 37 states that heard capital cases over the past 15 years, appointed judges reversed death sentences 26 percent of the time, judges facing retention elections reversed 15 percent of the time, and judges facing competitive elections reversed 11 percent of the time.
  • Trial judges in Alabama override jury verdicts sentencing criminal defendants to life and instead impose death sentences more often in election years.

The main reason for the U.S. judicial system is to act as a check on the power of the other two branches. Its intent is to remain impartial. Therefore, the election of judges is often-times regarded as an incentive for them to appeal to those who elect them and the implication is that their impartiality is impinged.

While it is important that voters get to decide who their representatives are, it might be time to re-examine to role of electing judges. On the other hand, if judges are not elected, then they are nominated by representatives who the electorate has chosen. Yet, representatives are often viewed as out of touch with the American people and more in touch with special interests.

If neither electing judges nor nominating them solves this problem, then might it not be the electoral institution as a whole that needs reforming?

Read the full report here.

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