But first, let's get a few things clear. Judges should not be elected. They are not politicians, in the traditional sense. They should not - and cannot - promise to voters to rule in particular ways on certain issues. Most importantly, judges need the independence to apply the law as it exists, even when it's unpopular to do so. Most often, that comes in criminal cases.
In fact, as this lengthy article from The Atlantic (and The Marshall Project), criminal cases, and fear mongering about them, tends to be the them of the millions of dollars of advertising outside groups pour into modern judicial elections. The theme is simple and familiar - one candidate is "soft on crime" because she was either a defense attorney at one time in her career or, as a judge, she ruled in a vaguely pro-defendant way. That the claims are exaggerated or, at least, more nuanced than presented is a feature, not a bug.
One of the many examples they discuss is one from West Virginia featuring a big player who is now a criminal defendant himself:
When coal executive Don Blankenship wanted to unseat an unsympathetic West Virginia justice in 2004, he didn’t run ads in the name of Massey Energy Co. He funneled nearly $2.5 million to a PAC called “And for the Sake of the Kids” to produce commercials alleging the incumbent had freed a child rapist and allowed him to work as a school janitor. In reality, Justice Warren McGraw had voted with the majority that a juvenile sex offender already on probation should have been sent to rehab instead of back to jail when he was caught drinking and smoking pot. The judge Blankenship helped elect reversed a $50-million ruling against Massey Energy, culminating in a landmark Supreme Court ruling that found the campaign contributions constituted 'a serious risk of actual bias.' (More recently, Blankenship was indicted in November over a 2010 mine explosion that killed 29 miners.)This is an interesting development, for two reasons, one disturbing and one more revealing (but ultimately disturbing, too, in its own way).
It's taken as a given that these ads influence voters - if not, why run them? Ilya Somin has written a lot about the rational ignorance of voters. That is, basically, that the value of any single vote is so minimal that it's rational for would be voters to devote their time to things other than learning about politics, candidates, etc. If that's true (and I'm somewhat convinced) for regular elections, imagine what it must be like for judicial elections. After all, most folks will never appear before a judge they vote for or against, so how much thought will they give to that choice?
But even worse is that evidence is mounting that the ads are changing the way judges make decisions:
A growing body of research suggests that soft-on-crime attack ads may be changing how judges rule on criminal cases. In the American Constitution Society’s study of state-supreme-court races, Emory University law professors Joanna Shepherd and Michael Kang concluded that the more TV ads aired, the less likely individual justices are to side with a defendant. The impact was fairly small but statistically significant, showing that doubling the number of TV ads in a state with 10,000 ads increased the likelihood of a vote for a prosecutor by an average of about 8 percent.
* * *
Previous studies have found that Pennsylvania judges handed out longer sentences as an election approached, and that Kansas judges chosen in partisan elections gave harsher punishments than those who kept their seats in nonpartisan retention elections. A 2013 survey of seven states with judicial-election spending of $3 million or more, conducted by liberal organization Legal Progress, asserted that 'as campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.'While judges deny any kind of influence, numbers don't lie. They may not be as damning as they appear at first blush, but they aren't good. It's bad enough for a would-be judge to use "tough on crime" language to get on the bench. It's even worse for a judge to worry about keeping his seat while making a ruling in a case, criminal or otherwise.
The other thing, the more revealing thing, about all this spending is where it's coming from. The article chronicles how most of this money comes from out-of-state groups that, for the most part, don't really seem to have anything to do with criminal justice. In fact, most are pro-business groups using crime as an issue to support pro-business jurists. For example, one group that spent nearly half a million dollars in a Michigan election was actually based in Virginia and formed by ex-tobacco company execs to fight smoking regulations.
But in some cases, it's worse than that, because the groups funnelling in money for these fearful spots that raise the spectre of child molesters running amok or killers being set loose at least make noises that they care about criminal justice reform:
Koch Industries, owned by the conservative activist Koch brothers, gave $460,530 this year to the Republican State Leadership Committee and $50,000 to the North Carolina Chamber of Commerce’s PAC—money that helped fund an ad promising 'no leniency' for violent criminals in Illinois and one praising a North Carolina candidate for 'putting murderers, drug dealers, and sex criminals in jail,' among others. In the same year, they’ve emerged as champions of due process and indigent defense, announcing a 'major' grant to the National Association of Criminal Defense Lawyers* and sponsoring a forum on the problem of mass incarceration.Another wealthy family took part in that Michigan campaign, while also giving millions of dollars to an organization that fights mandatory minimums.
While you might argue that tactics are not the same thing as principled positions, it's a little disturbing to see people who claim to care about criminal justice reform stoke the fires of fear and misunderstanding that will keep it from happening. Not to mention, the studies above show that there might be some actual impact on the judging, which makes the criminal justice system worse, not better.
It also provides evidence for those who argue that organized libertarians are really only concerned with money and property issues. While they may say the right things about decriminalization or our exploding prison population, where are they putting their resources? Where they think it will benefit their own bottom line.
Like I said - money talks, bullshit walks.
* Full disclosure - I am a member of NACDL.