Skewed Justice: Report on Lobbying's Effect on Sentencing Trends - American Constitution Society, 2014
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10/22/2014 FireShot Capture - Skewed Justice - http___skewedjustice.org_ Summary The e::-.:plosion in spending on television attack a dve1tisements in state supreme court elections accelerated by the Citizens United decision has m ade courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensat ionalist ads labeling them -soft on crime,- are under increasing p ressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake. Citizens United (which removed regulatoty ban;ers to corporat e electioneering) has fundamentally changed the politics of stat e judicial eledions. Outside interest groups, often with h igh-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into st ate supreme court elections. These powerful interests understand the impo11ant role that state supreme courts play in American go,·ernment, and seek to elect justices who will tule as they prefer on priority issues such as environmental and consumer protections, marriage equ ality, reproductive choice and voting rights. Although their economic and political priorities a re not necessarily criminal justice policy, these sophisticated groups understand that ~soft on crime·· attack ads are often the best m eans of removing from office justices they oppose. aa This study's two principal findings: The more TV ads air ed dm·ing sta te s upre m e court judic ial ele ctions in a state , the less likelyjustices are to vote in favor o f cl'iminal defenda n ts. As the number of airings increases, the marginal effect of an increase in 1V ads grows. In a st ate with 1o,ooo ads, a doubling of airings is associated on awrage with an 8 percent increase injustices",·oting against a criminal defendant"s appeal. Justices in states w hose bans on COI-pora t e and union s p e nding on el ections were s t ruck d own b y Citizen s United wer e less likely to vot e in favor of criminal defendants than they w ere before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with , on a\•erage, a 7 percent decrease in justices· voting in favor of criminal defendants. The study is based on the work of a team of independent researchers from the Emory Uni\·ersity School of Law. With support from the American Constitution Society. the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013. State supreme courts a re multi-judge bodies that decide appeals collectively by majority vote; th e researchers coded individual votes from o\·er 470 justices in these cases. l11ese coded cases were merged with data from the Brennan Center for Justice reporting the number oflV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study"s methodology is below. The findings from this study have several important implicat ions. Not o nly do they confirm the in fluence of campaign spending on judicial decision making, they also show that this influence e:\tends to a wide range of cases beyond the prim ary policy interests of the contributors themseh-es. Even more troubling, the findings reveal that the influence of money has spread from ci\i l cases to criminal cases, in which the fundamental righ ts of all Americans can be at stake. Background Judicial Elections and Campaign Finance State courts play a vital role in American democracy State courts handle more than 90 percent of the United States' judicial business. Although ,·astly m ore attention is paid to the U.S. Supreme Court, it decides fewer than too cases each year , compared with owr tOO million cases arising annually in the state courts. State courts handle the cases that are most likely to directly touch peop)e ·s lives: child custody, divorce, consumer disputes and criminal prosecutions. In addition, just as the U.S. Supreme Court decides cases that have important and wide-ranging public policy implications, so too do th e state su preme courts, deciding cases arising from state laws and constitutional pro\-isions invohing chi! and human rights, emironm ental protections and the criminal justice system. State supreme courts decide who can get manied to whom, who can vote, who can drink clean water and breath clean air, who the police can detain, search and arrest and who goes to jail and for how long. "State supreme courts decide who can get marTied to whom, who can vote, who can drink clean water and breath clean air, who the police can detain, search and arrest, and who goes to jail and for how long." State supreme courts play an especially important role with respect to criminal law. Prosecutions in state courts account for almost 94 percent of felony COil\-ictions, including an overwhelming majority of those for serious, violent crimes1 . For exampl e, approximately 98 percent of murder cases and 99 percent of rape cases are p rosecuted in the state courts. In deciding these cases. state courts, and especially supreme com1s, not only try to ensure that the guilty are punished and innocent go free, but also det ermine the scope of fundamental con stitutional rights for everyone. These criminal cases raise issues implicating tights such as privacy, freedom from unreasonable search and seizures and confronting one"s accusers. Eve11·one, not just criminal defendants, has a stake in how these cases are decided, because a state supreme com1·s decision to limit or narrowly interpret a defendanfs rights under a state constitution similarly restricts those rights for evel")·one in that state. Elections play an important role in how state court judges are selected Given the vital role that state courts play in chrome-extension://mcbpblocgmgfnpjjppndjkmgjaogfceg/fsCaptured.html 1/7 10/22/2014 FireShot Capture - Skewed Justice - http___skewedjustice.org_ American democracy, the process by wh ich states select their judges also is ex"tremely important. Almost 90 percent of state appellate court judges must regularly be re-elected by voters. Today, there are four different principal systems of judicial selection and retention: • • • • Fii ure 1: Map of State Court Jud icia l Se lection Met hods partisan elections nonpartisan elections gubernatorial appointment merit selection plans In the selection of judges to their highest courts, 9 states use pat1isan elections and 13 states use nonpartisan elections. 2 In 28 st ates, the gO\·ernor or legislatu re initially appoints judges to the highest court, with 21 ofthose states using some form of merit plan. For the retention of • Parti~an Election • Nonparti~an Election judges on the state's highest cou rt, 6 states use partisan elections and 14 states use nonpat1isan elections. Eighteen states hold retention elections to determine whether th ose judges remain in office beyond their initial term, and the incumbent judges run unopposed and must v..in majority appro,·al for retention. Kine states rely on reappointment by the governor, legislature or a judicial nominating committee. Only three states grant their highest court judges permanent tenure. • Merit Selection • Other Appointment Sy<;tems The growing importance of money in judicia l elections The last 20 years have marked a new era of cont entious politics and ex-ploding spending in the once sleepy world of judicial elections. Before the 1990s, judicial elections were low-key affairs, attracting little campaign spending and often less attention from \'Oters. The very few exceptions to this pattern, including two aggressive campaigns in the 1980s that used the death penalty as a wedge issue to oust justices in California and Tennessee, were viewed as outliers by most observers. ''Almost 90 percent ofstate appellate cottrtjudges must regttlarly be reelected by voters." But beginning in the 1990s, and accelerating in almost every election cycle since, judicial elections have become more competiti\·e and contentious, and campaign spending on these elections has s"k·yrocketed. Incumbent judges almost never lost their reelection b ids during the 1980s, but by :woo their loss rates had risen highe r than those of congressional and state legislative incumbents. 3 The harder-edged, more aggressive campaigns of this new era were fueled by a flood of campaign contributions. In the 1989- 90 campaign cycle, state supreme court candidates raised less than $6 million, but by the 2007-08 cycle, candidates raised 0\'er $45 fm· their campaigns. 4 Just as notable as the explosion in the amount of spending on state supreme court elections are the twin transformations in how this money is raised and how it is spent. Increasingly, the money in judicial elections flows not to the campaigns of the candidates, but rather to ind ependent e:-.-penditure groups, whicl1 while they have an interest in who wins elections and thus becomes a judge deciding cases, have no direct connection to the campaigns of the candidates. For example, in the 20 11- 1:: !: campaign cycle independent expenditures accounted for 43 percent or 824.1 million of the $56-4 million spent in judicial elections during the cycle. 5 A recent spur for this ex-plosive growth in independent expenditure spending in state judicial races was the U.S. Supreme court's 2010 decision in Citizens United v. Fede1'{1l Election Commission. Citizens United was the most important and publicly controversial campaign finance case decided by the U.S. Supreme Court in nearly 40 years. It overruled a half a century's wm1h of federal law by declaring unconstitutional federal prohibitions on corporate electioneering. The Com1"s decision provoked unprecedented outcry for a campaign finance case and clearly struck a public netve. The biggest impact of Citizens United continues to be the larger deregulation of independent expenditures by outside groups that it has ushered in. Citizens United contributed to dramatic increases in independent expenditures at the federal level by outside groups such as Super PACs, 501(c) and 527 organizations. According to the nonpartisan research organization Open Secrets, outside spending on independent expenditures and electioneering communications surged suddenly to roughly $87 million in the 20 10 federal elections, the same year Citizens United was decided. This total represented a nearly sixfold increase from the pre\ious off-year federal election in 2006. By the 2012 presidential election year, outside spending mushroomed even further to au unprecedented S439 million, a m ore than fomfold increase o,·er the previous presidential election year. Independent expenditures a nd the new politics of judicial e le ctions Figure 2a: Non-Cand idate Spend ing Increa ses to mo re than 42% Since 2001 • Pe-rcentageNon-Candidate S!M'nding Figure 2b: Non-Candidate Spe nd ing a s a Portion of Tot a l Spending • Non·C.andidate Candidate After Citizens United, independent expenditures and electioneering in state judicial elections have increased just as dramatically. Independent expenditures in these state judicial races had already accelerated e,·en before Citizens United. For in stance, whereas only $2.7 million of independent ex-penditures was spent on state supreme court elections in the 2001-02 election cycle, by the 2007-08 election cycle, over $ 12.8 million was spent. Available data indicates that this politiciz..1.tion has increased e,·en further since Citizens United; the 2011- 1:::!: election cycle saw over $24 million of independent expend itures. 6 FiEure 3:2012 Total SpendinE Breakdown The increase in independent expenditures and electioneering by outside groups has only accelerated in judicial elections since Citizens United. Interest groups spent over $ 15-4 million on state supreme court races in the 2011- 12 cycle, accounting for more than 27 percent of the total. 7 TI1is spending represents an increase of over so percent compared to election cycle \\ith the next highest outside group spending. The majority of money spent by the biggest contributors now goes toward independent expenditures rather th an candidate contributions; 97 percent of the dollars spent by the top 10 spenders in 2011- 12 were independent expenditures. The flood of independent expenditures after Citizens United has not merely made judicial elections more ex-pensive. It has t ransformed how they are conducted (largely via TV ads), altet·ed their tone (by making harsh attacks much more common) and changed the substance of the issues addressed (criminal justice issues, often in the form of -soft on crime~ attacks, are now commonplace). In 2012, an estimated $33.7 million dollars was spent on n r ads in state supreme com1 elections, v..ith unprecedented leYels of independent ex-penditures and electioneering by outside groups in particular. 8 As is often the case, outside groups delivered messages via these ads that were more harshly ne~ative than those put forth by the candidates and their campai~ns. Forty-four percent of chrome-extension://mcbpblocgmgfnpjjppndjkmgjaogfceg/fsCaptured.html • Spec ial ln tere~t<iroup~ • Polit icai Parties • candid ates 2/7 10/22/2014 FireShot Capture - Skewed Justice - http___skewedjustice.org_ the ads sponsored by outside groups were attack ads. In contrast, only2 percent of candidate ads and 11 percent of party-sponsored ads were negative in tone. 9 Fieur e 4: Trends in TV Ads e o o • Promotto • contra~! • Attack • Promote 31,122 TotalSpots • Contra~! • Attack • Promote 16,326TotalSpots • Contra5t • Attack l4,762Total Spots Effects The Influence of Money in Judicial Elections Other Empirical Studies A large body of empirical evidence now demonstrates that money often manages to buy what it wants in judicial elections. Increases in tele\ision advertising and independent e>.:penditures by outside groups in particular, raise important concerns about their relationship to judicial decision making and independence. The authors of this study have written e:d ensively about the worrisome relationship betw·een campaign contributions and judicial decision making. In a previous study, Shepherd found that contributions from vm-ious interest groups are associated with increases in the probability that judges will vote in favor of the litigant s whom those interest groups favor. 10 In another study, the authors specifically analyzed cont ributions from business groups and found that campaign contributions from business groups to state sup reme court justices were correlated with judicial decisions favorable to business interests, at least in states with partisan judicial elections. 11 Shepherd later found that the relationship betw·een business contributions and judges' voting was st ronger in the period from 2010 to 2012, compared to 1995 to 1998. 1!:' In a separate article, the authors also found that political party contributions and independent expenditures in suppott of state supreme court justices were cor related with judicial decisions in favor of the position preferred by the patty across a \\ide range of legal issues. 13 ''A lm·ge body ofempirical evidence now demonstmtes that money often manages to buy what it wants in judicial elections." Public and Judicial Opinion Moreover, 76 percent of voters believe that campaign contributions have at least some influence on judges' decisions and almost 90 percent ofvotet·s believe that l\ith campaign cont ributions, interest groups are tl'}ing to use the courts to shape policy. l4 Even worse, judges generally agree tha t money matters in judicial decision making. Forty-six percent of judges believe that campaign contributions have at least -a little influence- on their decision s, and 56 perc.ent believe "judges should be prohibited from presiding over and ruling in cases when one of the sides has given money to their campaign .-15 ~·Ioreowr, So percent of judges believe that with campaign contributions, interest groups are tl')ing to use the courts to shape policy. 16 One jmist who has taken note of the role political forces have come to play in judicial selection is U.S. Supreme Comt Justice Sonia Sotomayor. In 1-Voodward v.Alabama, a 2013 case arising from an Alabama law giving elected trial court judges the power to set asid e sentencing determinations made by juries, including the imposition of the death p enalty, Justice Sotomayor wrote a powerful dissent from the Court's decision not to hear the appeal. Citing a study by the Equal Justice Initiative, 17 which found that 92. percent of the sentences overridden by Alabama judges set aside life sentences in favor of the death penalty and that the proportion of death sentences imposed by judicial override is elevated in election years, J ustice Sotomayor wrote that the only explanation for the functioning of the Alabama system "that is supported by empirical elidence is one that, in my liew, casts a cloud of illE'gitimacy owr the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures." 18 How Money in Elections Influences Judicial Decisions: A Note on Causation These same concerns regarding rapidly growing levels of money in judicial elections and political pressure on judges also arise for the recent surge in independent expenditures by outside groups and the television adve1tising that they fund. The increasing cost of campaigning for state supreme court might affect the politics of judicial elections and judicial decisionmaking in at least two ob\ious, impo1tant - and troubling- ways. First, outside groups can get what they want by pa};ng for television advertising th at helps sympathetic judges win office and thereby shape the ideological composition of the state judicial)'. Outside groups can first detennine which candidates are most likely to decide cases as the groups prefer and which candidates they want to oppose. n1ese outside groups can then fund television advertising campaigns that help their fa\·ored candidates, and attack their opponents, thus helping favored candidates win and retain judicial offic,e o\·er candidates less sympathetic to the group's in terests. In this way, independent e:-..'Penditures and telelision adwrtising help decide jud icial elections and shape the judicial)' in the direction that outside groups prefer. "The only answer that is Stlpported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the crimina/justice system: Alabama judges, who m·e elected in pm·tisan proceedings, appea1· to have succumbed to electoml pressures -Justice SOtomayor Second, less obviously, judicial candidates may foresee the imp01tance of su ch independent expenditures and TV attacks ads a nd thus consciously or unconsciously bias their decisions in order to insulate themselves from such attacks. Judici al candidates may be tempted to lean toward the preferred positions of wealthy outside groups, either to draw their support or at least avoid their opposition in subsequent elect ions. What is mo re, judicial candidates may want to do what they can to decide cases in ways that do not leaw them vulnerable to campaign attacks through negative TV ads. Why Independent Expenditure Groups Often Feature Criminal Justice Issues in Their Ads This study explores the effect of increasing independent expenditures follO\dng Citizens United on judicial decision making by examining criminal appeals. Pre\·i ous empirical studies on judicial selection and criminology establish that criminal cases are particularly effective in n10tivating voters and more likely to be considered by judges with electoral considerations in mind. 19 Independent expenditures are more negative overall than advertisements by candidates, who prefer not to -go negative- if they can avoid doing so. Candidates for judicial office are frequently concerned about appearing aggressively negative, wishing instead to convey an image of -judicial temperament - in their campaigns. Thus, the best means of pa};ng for a sensationalist attack advertisement invohing a violent, bloody fact pattern may be an independ ent expenditure by an outside group not directly connected to the benefitting candidate. Because this combination of funding and electioneering techniques is so effective, it should be particularly worrisome to those concemed abou t the influence that money in judicial elections can chrome-extension://mcbpblocgmgfnpjjppndjkmgjaogfceg/fsCaptured.html 3/7 10/22/2014 FireShot Capture - Skewed Justice - http___skewedjustice.org_ ha\·e on judicial decision making. Th ese concerns are particularly relevant in appeals arising from criminal cases, in which the liberty (and in capital cases, the life) of the defendant, as well as th e constitutional rights of all residents of the state in question, are at stake . Both judicial ca ndidates and outside groups are well aware of the power of attack advertisement s that portray judges as "'soft on crime.~ For example, during a 2004 \Vest Virginia Supreme Court election, an outside group called An d for the Sake of the Kids, which was funded by Massey Coal Company CEO Don Blanke nsh ip ran an 1V ad alleging that an incumbent justice voted to release a "'child rapist Mand then -agreed to let th is convicted child rapist work as a janitor in a West Virginia school.·· Similarly, an ad in a 20 12 Louisiana Supreme Court race claimed that a candidate had Msuspended the sente nce of a cocaine dealer, of a man who killed a stat e trooper, two more drug dealers, and over half the sentence of a child rapist. MFear-provoking adve11isements such as these, funded by outside groups ,,.;thout public accountability, can S\\"ing an election and put judges on notice that their ju dicial careers m ay be at stake each time they consider voting in favor of a defendant in a criminal Attack: Candidate Bride;et McCormack "foue;ht to p rotect sexu al p red ato rs" Attack: Candidate Bill O' Neill " sympathetic to ra pists" Attack: "Whe n he was a dist rict attorney, Incumbent J ustice David Prosser covered up " State:Michigan Sponsor: State Repub!lcan Party State:Ohio Sponsor. State Republican Party Sponsor. Greater Wisconsin Committee (progressive) Results Skewed Justice: Empirical Analysis This study find s that increases in television cam paign advertising, often funded by independent expenditu res, are associated \'>"ithjustices voting against criminal defendants in ways that call into greater question the fundament al fairness of the criminal justice system. fl1e more 1V ads aired during state supr eme com1.judicial elections in a state, the less like ly jus tices are o n a,·erage to vote in fa,·or of crimin al defe ndan t s . Jus tic es in states w h ose bans on corporate and unio n s p e nding on e lections until the-y were. struck down by Citizens United were le-ss likely on ave-rage- to vote- in favor of c1iminal defe ndants than ti1e~· were b e fore ti1e decision. Data To e:-.:plore wh ether the increase in TI7 ads has in fluenced state supreme court justices· rulings against criminal defendants, this study compiled data from several different sources. First, a team of independent researchers from Emory UniYersity School of Law collected and coded data from almost 3,100 criminal appeals decided in st ate supreme courts. Because justices' votes are likely to become fodder for future 1V attack ads in only the most heinous cases, the researchers examined only cases im·ohing certain violent crimes tracked by the FBI's Uniform Crime Reporting Program: mu rder, robbery, "iolent aggraYated assault, and rape and other sex crimes. The cases were randomly selected from state supreme court published opinions from zooS to 2013 from 32 states. w The researchers coded the individual votes from over 470 justices in each of these cases. :n All coding went through a two-step quality control process; ultimately, over 25 percent of the cases were coded by at least 2 researchers to confirm reliability. The researchers coded whether the justice, sitting as a member of a multi-judge appellate panel, voted in favor of the criminal defendant on appeal. Follo\\ing other data on judicial decisions, a \'ote in fa\·or of a defendant is defined as any vote that improves the defendanfs position-whether it is O\'erturning any part of a criminal comiction or reducing a defendant's sentence. In addition, the researchers coded data on the offense for which the defendant was convicted, the number of victims im·olved in the crime and whether any \"ictims were juveniles. The researchers also collected data on each stat e's ban on corporate and union indepen dent e!>.."J)enditures p1ior to Citizens United, data on indh"idual judge characteristics, and data about state judicial selection and ret ention methods. These d ata were merged \\ith data from the Brennan Center for Justice, -su)ing Time- project. Since 2000, the Brennan Center has collected all available tele\ised state supreme com1 campaign ads that were aired in states holding supreme court elections. This data on 1V ad aitings are calculated and prepared by Kantar lldedia/ CMAG, which captures satellite data in the nation's largest media markets. The authors compiled the Brennan Center's data measuring the number oflV ads aired during each judicial election from 2008 to 2013. 0 Learn More To learn more about this report- particularly the data that it draW!; from- visit the spet:ial reporn and collaboratJons page of tht' NatJonallnstJtute for Money in State Politics. The American constitution Societystronglyencourageinterestedpartiesto reviewthedata,study t heissuefurther, and contributetoandexpandthelmportant conversation about fair courts. NIMSP istheon1ynonpartisan,nonprofit organizatlonreveallngthelnlluenceof campalgn money on state-level elections and public policy in ati SOstates.The organization encourages transparency andpromotes "indepefld{'nt iflvestigationofstate-levelcampaigncontributions Methodology byjournalists, academ icres.earcht'~,public inlerest groups,governmentagencies, policymake~.studentsandthepublicatlarge." The analysis tests wheth er the threat of future TV att ack ads influences justices to cast more '"toughon-crimeM votes. It measures th e th reat of future attack ads in two different ways. First, it uses the number of televised campaign ads that aired in the most recent supreme court election in each state; this measure assumes that recent airings Figur~ s : States with T~ levised Campaign Ads Concern~d detern1inejustices" estimates of the likelihood of With Stat~ Supreme Court Elections 2008- 2013 futu re attack ads. Figure 5 repol1s states in which 1V campaign ads concerned ,...;th state supreme court elections aired in the years :woS-13. The awrage number oflV campaign ads aired in eacl1 state per year was 3,650; the minimum was 30 and the maximum was 17,830. The study's second measure of the threat of futu re attack ads is the nonexistence or removal of a ban on corporate an d union independent expenditures. Prior to the Citizens United decision, 23 states had bans on such spending. As most 1V ads sponsored by interest groups are funded by independent expenditures, the availability of such spending can dramatically chrome-extension://mcbpblocgmgfnpjjppndjkmgjaogfceg/fsCaptured.html 4/7 10/22/2014 FireShot Capture - Skewed Justice - http___skewedjustice.org_ increase the possibility of future 1V attack ads. Figure 5 identifies which states had a ban on independent e:-.:penditures from either corporations or both unions and corporations at the time of the Citizens United decision. Citizens United also may have increased independent expenditures e,·en further by opening the door to independent expenditure-only committees, known at the federal level as Super PACs, that can r~eive uncapped contributions from their donors. 22 Figure 6: States with Bans on Corporate Independent Expendit ures Pri or to Citizens United Control variables in the estimations include various case, judge and state characteristics that might also influence judicial voting. Case characteristics include the crime for which the defendant was convicted (murder, aggravated assault, rape, robbery), the number of v;ctims, and whether any of the ,;ctims were children. It also includes a measure of the underl};ng st rength of the case. This control ' 'ariable is impot1ant because some cases are so strong (or • C.Orpor.lte/Union S.ln weak) that justices will ,·ote in fa,·or of or against the criminal defendant t-egardless of their ideological predisposition or the influence of 1V ads. To create a measure of case strength , we estimate how many of the justices hearing a case would be predicted to vote in favor of the defendant based on certain quantifiable case and state characteristics. The difference between this predicted number and the actual number of justices ,·oting in favor of the defendant provides a measure of case strength-the more justices voting in favor of the defendant compared to the predicted number, the stronger the defendant's case. • Corpor.lte B.an The study also takes into account th e justices· political party affiliation to control for the role of ideology on justices· voting in criminal appeals. It includes indicators for retention method for state supreme court justices to measure whether the method of reel~tion or reappointment affects judicial vot ing. All estimations also include state and year fixed effects to capture systematic differences in the criminal appeals process across st ates and general trends in TV ads. The analysis estimates a series of ordinary probit models with t-statistics computed from standard errors clustered by case. Results The More TV Ads, The Fewer Votes in Favor of Defendants The analyses reveal that TV ads are associated with justices casting fewer votes in fa,·or of defendants in criminal appeals. The first analysis finds that the more 1V ads aired during state supreme court judicial elections in the state, the less likely justices are to \'Ot e in favor of criminal defendants. The results are statistically significant across n umerous estimations that alter the specification and include various combinations of control variables, e nsuring robustness. To illustrate the results in an intuitive way, Figure 7 shows the relationship between the number of TV ads aired and justices' likelihood of voting in favor of criminal defendants. The figure reports, for different numbers of tele,;sed campaign ads, the expected change in the justices' probability of voting in fa\·or of the criminal defendant if ads increased by 100 percent, holding all other variables at their mea n ,·alue. That is, the figure shows that in a state that aired only 2,000 ads, a doubling of airings would be expeded to d~reasejustices· mting in favor of defendants by 2 percent, or change a justice's vote in 2 percent of cases. However, as the number of airings increases, the marginal eff~t of an increase in TV ads grows. In a state \\;th 10,000 ads, a doubling of airings would change a justice's V'Ote in 8 percent of cases. The analysis also explores whether the relationship between televised campaign ads and ju dges' likelihood of ,·oting in fa,·or of defendants ,.al)' across political party. As a baseline, Republican justices are, on average, slightly less likely to vote in fa,'Or of defendants than other justices; in this sample, Republiean justices voted in fa,·or of the defendant in 27 percent of cases but Democratic justices voted in favor of defendants in 3 1 percent of cases. Howe,·er, the analysis indicates that TV ads exacerbate this difference. Figure 4 shows that, although campaign ads are related to decreases in voting in favor of defendants across all parties, the relationship is more pronounced for Republican justices. Even starting from different baselines, the relationship between campaign ads and judicial voting is stronger for Republicans than either Democrats or Independents. Figure 7: The Relationship betw een Televised Campaign Ad s and Voting in Favor of Criminal Defendants NumM r ofTV Campai1n Ads - • PI'fcer~tage Notes: Tile figure reports the m.lrgln.ll effect on the probability of votir~g in f.Jvor of defend.lnts for .l proportional ch.Jnge in the number of televi~ c.lmp.lign .ld5, ev.lluated .lt different numbers of TV ad5 and hold ing .lll other v.lri.lbles at t heir me.Jn Figure a: The Relationship betw een Televi sed Campaign Ads and Voting i n Favor of Criminal Defendants Across Political Parties NumM r ofTV Campai1n Ads • Independent • Democratic • Republlc.ln Notes: The figure reports the expected probability of voting in f<lVOJ o f defend.lnt s in sute/ years with .lnd without b.lns on corpor.lte independent expenditu res, holding <lll other ll.lri able5 .lt their me.1n. Justices Less Likely to Vote in Favor of Defendants After Citizens United The analysis also explores whether the U.S. Supreme Court's decision in Citizens United had any impact on justices· votes in criminal appeals. The Court's decision immediately was followed by a dramatic increase in both the actual number of TV ads aired during judicial elections and the threat of future TV ads. However, Citizens United changed campaign finance most significantly in the 23 st ates that had bans on corporate or union indep endent e:q>enditures prior to the ruling; 27 states had no such ban and thus were not as affected by the Citizens United decision. The analysis empirically e:-.:ploits this variation across states and the resulting differential effect of the decision to isolate the impact of corporate a nd union independent expenditures in judicial elections on justices· ,·otes in criminal appeals . The results from this analysis indicate that unlimited corporate and union independent expenditures are associated \',.;th a d~rease injustices \·oting in favor of defendants. n1e results are statistically significant across different sp~ifications and with different control variables. Figure 9 shows that unlimite-d independent spending is associated \\ith, on ave-rage, a seve-n percent decre-ase injustices· ,·oting in favor of criminal defendants. That is, the results predict that, after Citizens United, justices would ,·ote differently and against criminal defendants in 7 out of 10 0 cases. chrome-extension://mcbpblocgmgfnpjjppndjkmgjaogfceg/fsCaptured.html 7% of cases ''The results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 Ollt of100 cases." 5/7 10/22/2014 FireShot Capture - Skewed Justice - http___skewedjustice.org_ Conclusion In states \\ith more advertising and perhaps more competith·e electoral en\-ironments, elected judges at·e more likely to be electorally sensitive to bein g seen as wsoft on crimew and therefore less sympathetic to criminal defendants when they decide criminal appeals. 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 e:\:pe nditures. Indeed, the analysis set forth abo,·e demonstrates that as television ad,·ertising in a state goes up, st ate's judges are more likely to decide criminal appeals against criminal defendants. The analysis also demonst rates that Citizens United exacerbated the influence of money in judicial elections influence on judicial decision making. In the 23 states that had bans on corporate or union independent expenditures, Citizens Unitecfs lifting of these bans is associated with a decrease in justices voting in favor of defendants. These findings are likely to be only a preview of escalating trends in judicial campaign finance and elections. There has been only one presidential election cy cle since Citizens United. Outside groups, whether funded by corporations , unions and wealthy individuals have only begun to professionalize their operations and \\;11 only grow more sophisticated in the years to come. Attribution About the Authors Joanna Shepherd J oanna Shepherd teach es Torts, Law and Economics, Analytical Methods for 1...'1\'<·yers, Statistics for Lawyers, and Legal and Economic Issues in Health Policy . Before joining Emory, Professor Shepherd was an assistant professor of economics at Clemson Unh·ersity. Much of Professor Shepherd's research focuses on topics in law and economics, especially on empirical analyses of legal changes and legal institutions . She has published broadly in lawre\;ews, legal journals, and economics journals. Professor Shepherd received a BBA from Baylor University and a PhD from Emory University. MichaelS. Kang MichaelS. Kang's research focuses on issues of election law, voting and race, shareholder voting, and political science. His work has been published by the Yale Law Journal, NYU Law Re\;ew, and Michigan L."lw Review, among others. Professor Kang received his BA and JD from the Unh·ersity of Chicago, where he served as technical editor of the University of Chicago L.1 w Review and graduated Order of the Coif. He received an MA from the Unh·ersity of Illinois and his PhD in government from Harvard University. After law school, Professor Kang clerked for Judge Micl1ael S. Kanne of the US Court of Appeals for the Seventh Circuit and worked in private practice at Ropes & Gray in Boston before joining the Emory Law faculty in 2004. About the American Constitution Society ~- Th e Ame rican Cons titution Socie ty for Law & Poli~· (ACS), founded in 2001 and one of the nation·s leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, poliC)makers and other concerned individuals. ACS embraces the progress our nation h as made toward full embodiment of the Constitution·s core values and believes that law can and should be a force for improving the lives of all people. ACS is revitalizing and transforming legal and policy debates in classrooms, courtrooms, legislatures and the media, and we are building a diverse and dynamic n eh,·ork of progressi\·es committed to justice. By bringing together powerful, relevant ideas and passionate, t alented people, ACS makes a difference in the constitutional, legal and public poliC)· debates that shape our democracy. For mor e infonuation about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please \;sit acslaw.org. All expressions of opinion in this report are those of the author. ACS takes no position on specific legal or poliC)· initiatives. Endnotes 1 Matthew R. Durose, Donald J. Fa role, Jr. Ph.D. and 5ean P. RosenmeOle, Felony 5entences in State Courts, Table 1.6 (2009), http:r lwww. bjs.gov/inde~.cfm'ty=pbdetail&iid=2152 2 Roy A. SChotland, New Cllollenges to Stores· Judicio/ selection, 9S Geo.L.J.1077, 1085, (2007). 3 Melinda Gann Hall and Chris w. Bonneau, Does Quoliry Matter.1Chollengers in Store supreme coun Elections, 50 Am. J . Pol. S.Ci. 20, 21 {2006). 4 James sample, et al., The New Politics of Judicial ElectKlns, 2000.2009: Decade of Changeat 5 (Char1es Hall ed., 2010). http://www.brennarn::enter.org/content/resource/the_new_politiu_ofjudicial_elections 5 Alicia B.:mnon, et al., The New Politics of J ud ic ial Elections, 2011-2012 at 5 (laurie Kinney and Peter Hardin ed., 2013). http:/rwww.brennancenter.org/Sites/default/files/publlcatlons/New%20Pohtlcs%20of%20Jud1Ciai%20Electlons%202012.pdf 6 Ibid. 7 1bid.,3- 4. 8 lbid.,19-20. 9 lbid.,22. 10 Joa nna M. Shepherd, Money, Politics, ond Impartial Justice, 58 Duke L.J. 623, 671)-72& Tables:7-8 (2009). 11 Michael Kang and Joanna M. Shephe rd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, 86 N.Y.U. L. REV. 69 (2011). 12 Joa nna Shepherd, Justice at Risk: An Empirical Analysis of Campaign Cont ributions and Judicial Decisions, Ame rican Constitution So<:iety for Law and Policy (2013). 13 Michael Kang and Joanna M. Shephe rd, The Partisan Foundations of J udicial Campaign Finance, 86 S. CALL. REV. 1239 (2013). 14 Greenberg Quinla n Rosner Research Inc., Justice at Stake-State Judges Frequency Questionnaire 5 (2002), http:r lwww.justiceatstake.org/files/JASJudgesSurvt'yResults.pdf 15 Ibid. 16 Ibid. 17 Equal J ust ice InitiatiVe, The Death Penalty in Alabama: J udge Override, at 14, {2013), http: /eji.org/files/CNerride_Report.pdf 18 Woodward v Alabama, 511 U. S. 405, 408 (2013). 19 5ee Billy Corriher, Center for American Progress, Criminals And Campaign Cash: The Impact Of Judicial Campaign Spending On Criminal Defenda nts, (20 13). 20 Alabama, Alaska, Arizona, AOlansas, California, Colorado, Connecticut, Florida, Georgia, Id aho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Monu na, New Jersey, North Carolina, Ohio, Oklahoma, Oregon, Pe nnsylvania, Tennessee, Texas, Virginia , West Virginia, Wisconsin 21 The resear(hers coded cases from the highe st court of criminal a ppeals in Texas and Oklahoma because the supreme courts in those states do not hear crimina l appeals. 22 However, in other analyses not presented here, the authors found that their gene ral findings remain substantive ly urn::hanged when they cont rolled separately for the changes in state law regardmg contribution limitS to independent E>xpenditur@-only <Ommittee. They plan to present t hese analyses in forthcoming academic work. chrome-extension://mcbpblocgmgfnpjjppndjkmgjaogfceg/fsCaptured.html 6/7 10/22/2014 FireShot Capture - Skewed Justice - http___skewedjustice.org_ Join the Conversation 'I f in Cl 2014 Am~rl{.lln Conslrtuhon SooE"Iy for L oow ;and Polt<y All nghts resef'tled chrome-extension://mcbpblocgmgfnpjjppndjkmgjaogfceg/fsCaptured.html 7/7