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The Surprising Way Political Ads Are Impacting Judge’s Decisions On Alleged Criminals

A new study found that rampant election spending is linked to more prosecution-friendly votes.

The post The Surprising Way Political Ads Are Impacting Judge’s Decisions On Alleged Criminals appeared first on ThinkProgress.

O'Neill Ad

CREDIT: Screemshot from ad against William O’Neill

When William O’Neill was running to become an Ohio Supreme Court justice in 2012, an attack ad by the state Republican Party pegged him as expressing “sympathy for rapists,” while his opponent Robert Cupp would “protect victims of violent crime.”

The ad punished O’Neill for doing his job to enforce constitutional protections in a 2000 case in which he found a rape defendant’s lawyer failed to call a witness that could have exonerated him. O’Neill was elected anyway. But the ad could affect his decision-making on the high court, according to a new study by researchers at Emory University School of Law.

The American Constitution Society-sponsored study found that the more political ads air in a judicial election, the less likely appellate judges in 32 states were to rule in favor of a criminal defendant between 2008 and 2013. This doesn’t just mean they’re less likely to overturn the defendant’s conviction. It means they’re less likely to do anything that improves the outcome for the defendant, including shortening their sentence or ordering them a new trial.

“In states with more advertising and perhaps more competitive electoral environments, elected judges are more likely to be electorally sensitive to being seen as ‘soft on crime’ and therefore less sympathetic to criminal defendants when they decide criminal appeals,” authors Joanna Shepherd and Michael S. Kang conclude. “At the margin, whether consciously or unconsciously, they prefer to avoid a judicial vote in a criminal case that can be the basis for attack advertisements funded by independent expenditures.”

Decision changes occur on a sliding scale. In a state in which the number of ads doubled from 10,000 to 20,000, for example, a justice’s vote would become disfavorable to defendants in 8 percent more cases. If ads doubled from 2,000 to 4,000, votes would become disfavorable in 2 percent more cases. Republican judges were even more likely to change their vote after an increase in campaign ads, the study found:


CREDIT: American Constitution Society for Law & Policy

The study is one of several to document the impact on justice as a slew of money enters judicial elections. Many advocates oppose elections for judges because their decisions are supposed to be insulated from politics. As the report documents, judicial elections started to be flooded with money in the 1980s. But that spending has skyrocketed even further since the U.S. Supreme Court rolled back limits on campaign spending in Citizens United v. FEC.

In addition to analyzing judicial outcomes in 32 states with some sort of judicial elections, the study also looked at those 23 states that had campaign finance restrictions overturned by Citizens United. The take-away: judges in those states were seven percent more likely to rule against criminal defendants now that ad spending has been rendered unlimited.

The Citizens United ruling freed the flow of money from corporate and wealthy donors, through what is known as independent expenditures. These outside spenders can pay for ads with particularly vicious content because they are not directly associated with with the campaign, which might be faulted for negative ads.

In O’Neill’s election, for example, the Republican Party sponsored the attack ad, while opponent Robert Cupp distanced himself from the ad, saying that it is not an “appropriate approach to judicial campaigning.”

Ads that attack judges on criminal justice issues are particularly common, because fear-mongering over scary criminals set loose is more accessible to voters than, for example, tort reform or other dry legal disputes.

Sometimes, those funding the ads may not even care about the judge’s record on crime, but nonetheless use it as a mechanism for attacking a candidate they don’t like for other reasons. In 2004, for example, Massey Energy CEO Don Blankenship spent $3 million on advertisements to replace sitting West Virginia Supreme Court Justice Warren R. McGraw with a Republican. The ads claimed McGraw voted to release a “child rapist” and then “agreed to let this convicted child rapist work as a janitor in a West Virginia school.” But Blankenship later admitted his actual objection to McGraw was his rulings against corporate defendants. In 2008, the U.S. Supreme Court ruled that the judge who won that election, Brent D. Benjamin, should have recused himself from a major case involving Massey Energy because of a perceived conflict of interest. But it didn’t express any objections to the slew of money poured into the election.

Oftentimes, rulings that are used to attack appeals court judges are those in which police or prosecutors violated the law, and the evidence that results should be suppressed in the case. Such rulings are a primary mechanism for curbing the most insidious and invasive procedures that officers might otherwise employ. And John Marshall Law School’s Jonathan Rapping, who recently won a McArthur “Genuis Grant” for his criminal justice work, warned that judges will be wary to preserve these constitutional rights for fear that the ruling will later be depicted as having set a criminal free.

“I think the message that really sends the law enforcement community is that they can engage in particularly aggressive enforcement practices,” Rapping said Tuesday.

In many instances, this judicial politics is more overt than even this study suggests. In Alabama, for example, judges who have openly campaigned in favor of the death penalty have in several cases used a controversial mechanism known as a “judicial override” to overturn the decision of a jury and sentence a defendant to death. In a dissent last year, U.S. Supreme Court Justice Sonia Sotomayor lamented that these judges “appear to have succumbed to electoral pressures.”

O’Neill, by contrast, seems to have resisted the influence of politics in Ohio at least on the issue of the death penalty. Shortly after his election, he issued a strong dissent to an execution, blasting the death penalty as “inherently cruel and unusual.”

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