Interest Group Money in Judicial Elections Makes Courts More Hostile to Criminal Defendants

11.04.14

A major increase in spending on television attack ads in state supreme court elections has made courts less likely to rule in favor of defendants in criminal appeals, a new study finds.

In Skewed Justice, independent researchers with the American Constitution Society found the more TV ads aired during state supreme court judicial elections in a state, the fewer votes justices made in favor of criminal defendants. Second, in states where bans on corporate electioneering were struck down by the United States Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission justices are now less likely to vote in favor of defendants.

Spending by outside interest groups in judicial elections has skyrocketed from $87 million in 2010 to $439 million in 2012, making the races far more expensive and changing how they are conducted. Races are now dominated by TV ads, harsh attack ads are much more common, and highly effective “soft on crime” attacks have proliferated.

Fear-¬≠provoking ads funded by outside groups without public accountability, the study’s authors write, “can swing an election and put judges on notice that their judicial careers may be at stake each time they consider voting in favor of a defendant in a criminal case.” As a result, justices’ voting in favor of criminal defendants has declined seven percent.

Years before Citizens United, Alabama’s judicial campaigns, funded by special interest groups, became extremely expensive, bruising battles reliant on “soft on crime” attack ads. Noting that 92 percent of sentences overridden by Alabama judges in capital cases set aside life sentences to impose the death penalty, U.S. Supreme Court Justice Sonia Sotomayor observed that “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

The study concludes that pressure to appear “tough on crime” to ward off attack ads will continue to mount, biasing more decisions against criminal defendants and, as Justice Sotomayor put it, “cast[ing] a cloud of illegitimacy over the criminal justice system.”