Elected Judges More Punitive Just Before Elections

by Gary Hunter

Research compiled by Gregory A. Hubner of Yale University and Sanford C. Gordon of New York University revealed that trial judges hand out more prison and jail time to defendants just before they come up for reelection.

A total of 645 trial and appellate judges in ten states with retention elections were surveyed. Observations were restricted to only the most punitive felonies. Measures were taken to control for factors that could skew the results such as age, experience of elected judges, political party affiliations and the nonrandom assignment of cases. All total 22,095 cases of discretionary sentences were studied for punishment imposed between 1990 and 1999. The legal guidelines applied to these sentences were established in 1988, 1994 and 1997.

Once the numbers were crunched results revealed that just before election time judges sentenced defendants from 12 to 16 months longer. No judge included in the study handed down more lenient sentences. Pennsylvania judges close to reelection sentenced defendants to “more than two thousand years of additional incarceration” during that 9-year period.

In spite of the tremendous power wielded by trial court judges the study showed that “voters are almost entirely uninformed about judge behavior.” The Hubner-Gordon study hypothesized that because voters tend only to evaluate a judge’s performance just prior to election most judges ignore constituent preferences while in office then try to portray a “tough on crime” stance just prior to the election.

This right-leaning position is exacerbated by what the study refers to as “fire alarm oversight by activist groups ready to publicize any perceived underpunishment by judges.
Reports on recidivism are usually accompanied by commentaries that refer to a repeat offender who previously served a “seemingly” brief shay in prison. Conversely, overpunishment of wrongfully convicted prisoners is usually publicized only years after the conviction, if at all.

Fire-alarm oversight tends to only publicize a judge’s overly lenient response to specific cases rather than his or her overall performance throughout their tenure. This creates what Hubner and Gordon refer to as unidirectional convergence in a judge’s behavior causing them to be more punitive and less representative as elections near.

A prime example of the fire-alarm principle is seen in the April 2008 election of Wisconsin state Supreme Court judge Michael J. Gableman. At the time, Gableman, who is white, was challenging incumbent Supreme Court judge Louis P. Butler, who is black.

In an extremely caustic and race-baited campaign Gableman ran a TV advertisement with side-by-side photos of Butler, in his robes, and convicted child rapist Ruben Lee Mitchell.
The ad said, “Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”

The ad was making reference to Butler’s stint as a defense lawyer, 20 years earlier, when he represented Mitchell at trial. At the time Butler convinced two appeals courts that Mitchell’s trial should be reversed for error. However, the State Supreme Court ruled that the error was harmless. Mitchell served his entire sentence and only afterwards went on to reoffend.

Gableman defeated Butler in the election and replaced him on the Supreme Court even though Butler had nothing to do with Mitchell’s release.

Some critics claim that elected judges are often more responsive to private interests than public opinion. Before he was elected to the state Supreme Court, Gableman had only been a county Judge since 2002 when be was appointed to fill a vacancy. Gov. Scott McCallum, a Republican, chose Gableman over two other candidates and Gableman contributed $2,500 to the governor’s campaign.

The United States is one of very few countries that has elected judges. Easily 87 percent of all state court judges face elections at some point in their tenure.

“No other nation in the world [elects judges],” said former U.S. Supreme Court Justice Sandra Day O’Conner, “because they realize you’re not going to get fair and impartial judges that way.”

Most other countries require a high degree of technical skill and experience before a judge is appointed to office. Certain judgeships in France, for example, require applicants to take a four-day written test and a 27-month training program.

“It gives you nightmares for years afterwards,” Judge Jean-Marc Baissus said of his qualification exam. Baissus sits on the Tribunal de Grand Instance. “You come out of this completely shattered.” There have been instances where only 5 percent of the applicants survived the process.

Law Professor Mitchel Lasser is author of Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy. Lasser succinctly explains the advantages of trained judges over elected judges saying, “You have people who actually know what the hell they’re doing. They’ve spent years in school taking practical and theoretical courses on how to be a judge. These are professionals.”

Unfortunately, knowledge and expertise play second fiddle to partisan politics in the U.S. In 1998, state trial court judges sentenced nearly one million U.S. residents to over two million years behind bars. In 39 states these trial court judges are elected. The “near consensus among legal scholars” says in one study is that the process of electing judges is “...insidious in its potential for compromising judicial independence.”

Sources: New York Times, “Accountability and Coercion: Is Justice Blind When It Runs For Office?”

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