Criminal justice-themed television ads are a fixture in state Supreme Court elections. This was especially true of the 2013-14 cycle, as 56 percent of all ads discussed criminal justice themes, often attacking judges for being “soft on crime” or praising them for imposing tough sentences—raising troubling questions about whether this focus on justices’ criminal justice records may impact their behavior on the bench.
Skewed Justice, a 2014 study published by Emory Law School professors Joanna Shepherd and Michael Kang with support from the American Constitution Society, examined the relationship between campaign ads and judicial decision-making in criminal cases. 1 It found that “The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.” In examining the impact of the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission—which struck down limitations on corporate and union independent spending on elections—the authors discovered that “In the 23 states that had bans on corporate or union independent expenditures, Citizens United’s lifting of these bans is associated with a decrease in justices voting in favor of defendants.”
Shepard and Kang were not alone in their findings. In 2013, when the U.S. Supreme Court declined to hear a case addressing an Alabama law that allows judges to override jury decisions in capital cases, Justice Sonia Sotomayor wrote a strong dissent. 2 Sotomayor expressed her concerns that electoral pressures, including advertisements, were influencing outcomes. Since Alabama’s jury override law was implemented in the 1980s, judges have overridden jury decisions and imposed death sentences in 95 cases, yet have reduced a capital sentence to life in prison in only nine cases. “The only answer that is supported by empirical evidence,” wrote Sotomayor, is that Alabama judges “who are elected in partisan proceedings, appear to have succumbed to electoral pressures.” She went on to highlight one Alabama judge who had overridden jury verdicts to impose the death penalty six different times, and who campaigned for office by running ads that emphasized his support for capital punishment. “One of these ads boasted that he had ‘presided over more than 9,000 cases, including some of the most heinous murder trials in our history,’ and expressly named some of the defendants whom he had sentenced to death, in at least one case over a jury’s contrary judgment,” Sotomayor stated. 3
In her dissent, Sotomayor also referenced a study published by the Equal Justice Initiative (EJI) that highlighted pro-death penalty campaign ads aired by Alabama judicial candidates. 4 “These political pressures produce the appearance and reality of a judiciary that is insufficiently independent to provide a fair and impartial hearing on controversial issues or enforce the rights of politically unpopular minorities,” the report argued. Similarly, a February 2014 study 5 published by professors Brandice Canes-Wrone, Tom Clark, and Jason P. Kelly found that “On hot-button issues like the death penalty, state supreme court justices in the United States are more likely to side with the public majority sentiment … This occurs only after moneyed interest groups begin pushing for or against specific judicial stances—a phenomenon that began in the 1970s called ‘new-style campaigning.’” 6
This mounting evidence suggests that the basic fairness of state criminal proceedings may indeed be at risk.