A Reuters analysis released last week shows that state court justices who are elected uphold more than twice as many death sentences as justices who are appointed.
Reuters reviewed 2102 state supreme court rulings in death penalty appeals from the 37 states that heard such cases over the past 15 years. It found a strong correlation between the results in those cases and the method for selecting judges. In the 15 states where judges are elected, the reversal rate was 11 percent, less than half the 26 percent reversal rate in the seven states where justices are appointed.
The findings are consistent with previous studies showing how rulings in death penalty cases and judicial selection are related. They support the argument that the death penalty is arbitrary and unconstitutional because politics influence outcomes in capital cases.
Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, Stephen Bright, a Yale Law School lecturer and President of the Southern Center for Human Rights, told Reuters. “It’s the difference between the rule of law and the rule of the mob,” Bright said.
Recently, several United States Supreme Court justices have expressed concern that the role of politics in the death penalty makes it unconstitutionally arbitrary. In 2013, Justice Sonia Sotomayor, joined by Justice Breyer, dissented from the denial of review in the case of Mario Woodward, who was sentenced to death in Alabama by an elected judge even though his jury voted against the death penalty. Asking why Alabama judges alone continue to override jury verdicts, the dissenters assessed data from EJI’s override report and other sources and concluded that the “only answer that is supported by empirical evidence is one that . . . casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.” Last June, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias and political pressure, “including pressures on judges who must stand for election,” to argue that the unreliability and arbitrariness that infect death penalty cases likely render capital punishment unconstitutional under the Eighth Amendment. Pressure to appear “tough on crime” to ward off attack ads in judicial campaigns has increased as, in the wake of Citizens United, spending by outside interest groups in judicial elections has skyrocketed. Where appellate judges campaign on their support for death sentences, even airing ads that tout their decision to deny relief in specific death penalty cases, not only is the appearance of fairness compromised, but as the Reuters study shows, justices’ actual decisions in the most serious appeals are skewed against the disfavored and disadvantaged.