Fair Courts
Toolkit:
Criminal
Justice
Acknowledgements
Author:
Eric Velasco
Production & management:
Piper Fund
15 Research Drive
Suite B
Amherst, MA 01002
www.proteusfund.org
Contact:
Kathy Bonnifield
Piper Program Officer,
Judicial Independence Project
413.256.0349 x139
[email protected]
Design & layout:
Nerissa Cooney
Piper Fund would like to extend special thanks to Eric Velasco, the Brennan
Center, and Dawn Johnsen, Walter W. Foskett Professor of Law at Indiana
University, for their invaluable research and efforts in developing the content
of these materials. We would also like to acknowledge ReThink Media for
their contribution and guidance in the development of this series of Fair
Courts Toolkits.
Piper Fund
Since 1997, Piper Fund, an initiative of Proteus Fund, has partnered with
foundations and individual donors to invest in and serve as a resource for
efforts to develop cutting-edge strategies to curb corporate and special
interest influence on politics, secure judicial independence, and protect our
democracy. Since its inception, Piper has awarded more than $27 million
in grants for this work. Between 2013 and 2014 alone, Piper’s grant making
totaled more than $8 million to over 45 organizations.
Judicial Independence Project
Piper Fund’s Judicial Independence Project (JIP) was established in early
2012 to build a broad, powerful fair courts movement with the breadth,
depth, and capacity to win policy reforms at the state-level to remove the
influence of special interest money from the judicial branch of our government.
Piper supports four policy remedies to promote fair courts: merit selection;
public financing of judicial elections; strong recusal rules; and disclosure of
corporate and special interest spending on judicial elections. As corporate
and conservative special interests work to skew the courts in their favor,
pushing back against these attempts to preserve fair courts that abide by
the law will, ultimately, uphold fundamental rights and protect our democracy.
The JIP intends to combat the power of moneyed interests through building
an increasingly diverse and powerful movement to protect the courts. This
requires engaging new constituencies and breaking down barriers between
issues. As an important step, through our Courts & Issues project, the JIP
is connecting fair courts to issues that resonate with the public in order
to engage diverse constituencies. The Courts & Issues project has funded
research to better understand the connection between judicial elections and
reproductive justice, voting rights, and environmental justice.
Table of Contents
Introductory overview of fair court issues as
they relate to criminal justice
4
Background/statistics on judicial elections
8
Fair courts advocacy tools
10
Talking points
10
Sample member email alert
13
Sample op-ed
14
Sample letters to the Editor
16
Fair courts resources
20
Fair Courts Toolkit: Criminal Justice
Overview
Dear Colleague,
When special interests with an economic or political stake in civil cases battle
to control state Supreme Court elections, the concept of fairness in the criminal
justice system can become collateral damage.
In an attempt to sway voters, those interest groups often run misleading or
inaccurate attack ads that prey on public fears about crime. Research shows the
ads affect how elected judges rule in criminal cases.
In the name of fairness, justice and equality, we must depoliticize the
selection of our judges. The 2010 U.S. Supreme Court ruling Citizens United v.
FEC, which removed regulatory barriers to corporate and union electioneering,
has fundamentally changed the politics of state judicial elections, according to a
recent study for the American Constitution Society, "Skewed Justice". Outside
interest groups, often with high-stake economic interests or political causes
before the courts, now routinely pour millions of dollars into state Supreme
Court elections, the researchers found.
These powerful interests understand the important role that state Supreme
Courts play in the American government, and seek to elect justices who will rule
as they prefer on environmental and consumer protections, marriage equality,
reproductive choice and voting rights. Although their economic and political
priorities are not necessarily criminal justice policy, these sophisticated
groups understand that “soft on crime” attack ads are often the best means of
removing from office the justices they oppose, Emory University law professors
Joanna Shepherd and Michael Kang wrote in "Skewed Justice".
These examples, drawn from The New Politics of Judicial Elections and other reports
by the watchdog groups Justice at Stake, the Brennan Center and the National
Institute on Money in State Politics, show how the tactic has been used across
the political spectrum:
•
In 2011, labor groups wanted to defeat an incumbent Supreme Court justice
in Wisconsin. Their attack ads claimed the target, Justice David Prosser Jr.,
4
Overview
had protected a pedophile priest. Amid general outrage over the claim, the
victim in the case called for pulling the ad.
•
Michigan Democratic Party ads in 2012 implied the Republican court
incumbents condoned some forms of violence against women and children.
State Republican Party ads accused Democratic nominee Bridget Mary
McCormack of protecting sexual predators. A Washington-based group,
the Judicial Crisis Network, ran ads claiming McCormack worked to free
terrorists.
•
In 2014, primary campaign ads in North Carolina accused Justice Robin
Hudson of siding with child molesters. She had written a dissent saying
electronic monitoring for convicted child molesters should not be
retroactively applied. The Washington-based Republican State Leadership
Committee (RSLC), with funding from in-state insurance, tobacco and
energy interests, provided the money to a Super PAC that ran the attack
ads.
These ads distort public perceptions of criminal justice issues. Even worse, studies
show that attack ads put pressure on elected judges, causing them to consciously
or subconsciously favor the prosecution in criminal cases.
According to the "Skewed Justice" study of criminal appeals decided from
2008-2013, by putting a thumb on the scales of justice, these television ads
place at risk basic protections afforded all citizens under the Bill of Rights.
With each increase in the number of campaign ads run in a state, the likelihood
that Supreme Court justices will rule in favor of criminal defendants kept
dropping. Looking over their shoulders, wondering what decision will spark
the next attack ad, cause justices will rule differently—and against defendants—
in 7 percent of criminal appeals in those states, researchers predicted, based on
patterns over the study period.
Think about that. If 100 criminal appeals go before the court during a hotly
contested election, "Skewed Justice" predicts that seven additional people will
see negative outcomes. The defendant might stay in prison longer, miss a
chance at a fair retrial or even remain wrongly accused. Their families will
needlessly suffer. And the cause will be political pressure brought to bear by
negative TV ads, not the law or facts of the case.
Some 95 percent of criminal cases begin and end in state courts. The lives and
liberty of all Americans depend on judges applying the law fairly. But in the states
that elect their top courts, judges are under pressure to campaign on how tough
they are on criminals or how many death sentences they impose.
5
Fair Courts Toolkit: Criminal Justice
Perhaps it is no coincidence that 14 of the last 17 executions in Mississippi have
occurred during election years.
In Alabama, trial judges have the power to override juries on any sentencing
verdict in capital cases. About one-fifth of the 200 people on Alabama’s death
row were sentenced by an elected judge and upheld by elected appellate judges
despite a jury’s vote for life without parole.
More than 9 in 10 overrides are for a death sentence, leading U.S. Supreme
Court Justice Sonya Sotomayor to conclude, “Alabama judges […] appear to have
succumbed to electoral pressures.”
More disturbing is how crime-themed attack ads—again often run by groups
with little to no involvement in criminal justice issues—affect how judges rule in
criminal cases. For each 10,000 ad airings in a state, the likelihood for a proprosecution ruling increased by 7 percent, the American Constitution Society’s
"Skewed Justice" study found.
Rulings against defendants rose considerably during years with hotly contested
court races filled with attack ads, compared to the years before and after, according
to a multi-state study by the Center for American Progress, "The Impact of
Judicial Campaign Spending on Criminal Defendants". The trend continued
regardless of whether the election changed the court’s composition, the 2013
study of appeals found.
In 2000 only Alabama, Mississippi, Ohio and Michigan had TV ads in their Supreme
Court elections. TV ads ran in 17 states during the two-year election cycle in
2011-2012, hitting record highs for spending and featuring several attack ads. In
2014, non-candidate groups in court races directly funded about 59 percent of the
estimated $14 million in TV airtime, according to Justice at Stake and the Brenan
Center. In other words, the candidates themselves controlled only 39 percent of
the airtime buys.
Reasonable people can debate the degree to which attack ads subvert criminal
justice. But when the system already is dragged down by issues related to race,
socio-economic levels and other biases, should we allow campaign strategy to be
added to the mix?
Justice for all depends on taking the politics out of judging. Join us in insisting on
fair courts.
•
Push for merit-selection systems, which typically utilize judicial nominating commissions that include lawyers and members of the public to
screen judicial applicants and provide a slate of candidates to the governor,
who selects the judicial appointment. These judges then typically stand for
retention elections for subsequent terms.
6
Overview
•
Advocate public funding in contested court elections to counter special
interest cash.
•
Call for strong disclosure laws that allow voters to know who is behind
high-cost judicial races.
•
Advocate for recusal rules requiring judges to step aside in cases when
lawyers or litigants have spent substantial sums to get them elected.
•
Develop or distribute neutral voter guides with pertinent information
about candidate qualifications.
•
Alert members to fair courts issues. Push them into action when legislators
try to politicize merit selection or threaten judges with impeachment over
rulings.
•
Promote the connection between fair courts and criminal justice issues
with editorials and letters in the media.
•
Spread the message on social media using the hashtags #CourtsMatter
and #FairCourts.
Included is our Fair Courts Toolkit with background, talking points and sample
media materials.
7
Fair Courts Toolkit: Criminal Justice
Background/Statistics
on Judicial Elections
State Supreme Court justices often are chosen in expensive battles among special
interests, fought with television ads. Each election has at least one million-dollar
candidate, funded by lawyers, corporations, special interest groups and others
with a financial or political stake in how the judge will rule. A handful of interest
groups dominate, according to the biennial studies of judicial campaign financing
and influence, The New Politics of Judicial Elections.
Judicial elections were profoundly affected by the January 2010 U.S. Supreme
Court decision, Citizens United v. FEC, which removed limits on independent
campaign spending by unions and corporations. For example, starting the next full
election cycle, interest groups and political parties combined began outspending
court candidates on television ads, according to research by Justice at Stake and
the Brennan Center for Justice, which produce The New Politics of Judicial Elections
report with the National Institute on Money in State Politics.
Selection methods vary for state courts of final resort:
•
Contested races: 19. Some use partisan elections and others nonpartisan
to pick Supreme Court justices. The distinction is blurred, sometimes to
the point that the parties themselves get directly involved in nonpartisan
elections. In Michigan and Ohio, the parties nominate candidates but the
party labels do not appear on the general election ballot.
•
Appointment/retention systems: 16. Often called merit selection, the
governor appoints the justice initially with input from a Judicial Nominating
Commission and sometimes with consent of legislators. The justice later
is on a ballot in an up-or-down vote for retention. Subsequent terms are
decided in retention elections.
•
Hybrid systems: 3. Illinois and Pennsylvania initially select each justice
in partisan elections, but the jurist runs solo for retention. New Mexico’s
governor appoints initially; voters soon weigh in during a contested
election. The winner runs alone for retention after that.
•
Other selection methods: 12. Judicial selection is handled by the executive
and legislative branches.
8
Background/statistics on judicial elections
In the early years of the United States, most state high-court judges received
lifetime appointments (they still do in Rhode Island, New Hampshire and
Massachusetts). By the mid-1800s, contested judicial elections were the norm.
But states struggled with the influence that money and politics had on judicial
selection and judges’ rulings. In 1940 Missouri adopted the first merit-selection
plan, with an independent committee including lawyers vetting candidates and
nominating finalists for the governor’s appointment. Judges appointed under this
system then seek new terms in retention elections. Several states later adopted
the “Missouri Plan.”
Judicial elections in the late 20th century were mostly placid. Judicial candidates
were barred from making political promises about judicial issues. When the U.S.
Supreme Court lifted those restrictions in 2002, in Republican Party of Minnesota v.
White, hardcore politics of the sort common in races for the other two branches of
government soon became a feature of judicial elections.
Election spending picked up in the 1990s, as local corporate interests funded
candidates to break the power of plaintiff trial lawyers in several states. Spending
skyrocketed after 2000, the year the U.S. Chamber of Commerce announced
it would focus on court elections. In 2014, the Republican State Leadership
Committee announced a Judicial Fairness Initiative program aimed specifically
against “liberal” judge candidates.
Only four states had TV ads for judicial elections in 2000. Court-campaign ads ran
in 17 states and set spending records during the 2011-2012 elections, the first full
cycle after Citizens United. In 2014 court elections, non-candidate groups funded
59 percent of TV airtime, research by Justice at Stake and the Brennan Center
shows.
Many election battles are over torts—who can sue corporations for faulty
products or other wrongs, and how much can they recover. Plaintiff trial lawyers
tend to side with Democrats, while corporate interests and their lawyers tend to
back Republicans. Unions are active in several states, often supporting Democrats.
RSLC president Matt Walter summarized the organization’s decision to focus on
state court elections in a 2014 Washington Post interview: “Republicans have had
a significant amount of success at the state level, not only being elected to offices
but implementing bold conservative solutions. […] Unfortunately that’s running
into a hard stop with judges who aren’t in touch with the public.”
In this new era of big-money fundraising and hardball election campaigns for
judicial office, judges increasingly feel pressure to become “politicians in robes.”
That is why reforms such as merit selection, neutral voter guides, public funding
and strong recusal standards are important to preserve the fair and impartial
courts upon which our democracy depends.
9
Fair Courts Toolkit: Criminal Justice
Fair Courts
Advocacy Tools
Talking points
Attack ads in judicial campaigns
•
The judicial branch is different than the legislative and executive. We elect
legislators and governors as advocates. Judges should be accountable to
the law and Constitution, not political forces or campaign donors.
•
Crime and criminals are hot-button topics exploited by interest groups in
attack ads designed to sway voters in court elections, professors Joanna
Shepherd and Michael S. Kang wrote in the American Constitution Society
study, "Skewed Justice".
•
Usually these groups have no involvement in criminal justice issues, but
rather economic or political concerns they expect to come before the
court.
•
Often the people airing these attack ads have no connection to the state,
but instead are funded by out-of-state groups or Super PACs. Many of
these organizations do not disclose their donors, shrouding dark money
interests.
•
Attack ads run by political parties or special interests commonly use
distorted facts or inaccuracies to rouse the public’s worst fears about
murderers, child molesters and terrorists. Others criticize candidates who
are criminal defense lawyers for having played their essential role in the
justice system.
•
Sometimes the tactic backfires or is ineffective. Three of the justices
who faced the nastiest crime-related attack ads in the two-year election
cycle, 2011-2012—Bridget Mary McCormack (Michigan), William O’Neill
(Ohio) and David T. Prosser Jr. (Wisconsin)—were all elected or retained,
according to The New Politics of Judicial Elections, 2011-12.
10
Fair Courts Advocacy Tools
Attack ads affect criminal justice
•
Studies show how campaign contributions and spending in judicial races
affect judicial decision-making.
•
Most obvious is in the area of tort reforms such as limits on who can
file suit, deadlines to file lawsuits and how much a jury can award. Less
obvious is the effect on criminal justice rulings.
•
Rulings against defendants rose significantly in states experiencing large
numbers of judicial campaign ads, only to fall again when the ads ended,
according to a study by the Center for American Progress, which examined
criminal appeals in seven states with hotly contested court elections from
2000-2007. The effect was consistent, whether the court composition
changed or was unaffected by the election outcome, "The Impact of
Judicial Campaign Spending on Criminal Defendants" study found.
•
The likelihood of the court ruling against a criminal defendant rose
with each increase in the number of judicial campaign ads in that state,
according to a 2014 American Constitution Society study, "Skewed
Justice", which examined rulings in 32 states from 2008-2013.
•
In the 2010 decision, Citizens United v. FEC, the U.S. Supreme Court struck
down limits on corporate and union independent election spending in 23
states. "Skewed Justice" found that justices in those states were less likely
to vote in favor of criminal defendants after the Citizens United decision
than before it.
•
"Skewed Justice" found that in states with 10,000 or more ads, justices
were less likely to rule for defendants in 7 percent of criminal cases
versus in non-election years.
State examples
11
•
Alabama had more than 10,000 court campaign ads air in the 2006 and the
2008 judicial elections, and 6,000-9,999 ads in 2004, 2010 and 2012. Not
only does Alabama rank sixth nationally in modern executions and fourth
in death row population, it also ranks fourth in rate of adult incarceration.
•
Alabama is the only state that gives elected trial judges unfettered power
to override jury verdicts for life-without-parole capital sentences. Roughly
1 in 5 death row inmates is condemned due to a judicial override; 92% of
overrides result in death sentences.
Fair Courts Toolkit: Criminal Justice
•
Three states cited in the Center for American Progress study—Illinois,
Mississippi and Georgia—were among the top states in that period for
death row population and executions.
•
In Mississippi, 14 of the last 17 executions were set for election years. (Four
of those executions were in years in which Supreme Court incumbents
ended up having no challengers.)
•
North Carolina, one of the states in which unfettered corporate and union
spending is now allowed because of Citizens United, has become a hotbed
of judicial politics. Crime-related attack ads ran in both the 2012 and 2014
elections.
Effect on minorities
•
This thumb on the scale in criminal cases likely will have the greatest
impact on African-Americans and other minorities.
•
Minorities in general already are more likely than white offenders to receive
longer sentences, spend longer in jail awaiting trial, get lower sentence
reductions for helping prosecutors and receive the death penalty.
•
An African-American male has a 1 in 3 chances of winding up in jail versus
a 1-in-17 chance for white men, according to The Sentencing Project.
•
Drug use knows no color, yet two-thirds of those imprisoned for drugs are
minorities, according to The Sentencing Project.
Bottom line
•
Campaign ads tend to make elected judges less open to constitutional
arguments favoring criminal defendants. The more ads state voters see,
the less likely it is the justices in that state will side with defendants, the
"Skewed Justice" study found.
•
States with appointment/retention systems are shielded to some degree. But
retention races no longer are immune from politicization. The Tennessee
retention race in 2014 featured ads critical of how the incumbents ruled in
criminal cases; justices seeking retention in Kansas were criticized for a
ruling in a criminal case by opponents to their retention.
12
Fair Courts Advocacy Tools
Sample member email alert
Members,
In our quest for justice for criminal defendants and prisoners, we must pay
closer attention to how state judges are chosen. Contested judicial elections are
subverting justice.
How? Through nasty campaign attack ads voters in many states see end-lessly
around election time. Special interests and political parties often run ads that
prey on public fears about crime. Often the ads are funded by out-of-state
groups with an economic or political interest in the court’s rulings. But they think
crime will motivate voters.
Recent studies show those ads cause judges to rule differently, to consciously or
subconsciously overlook the kinds of injustices that arise every day on our streets
and in our courtrooms.
Voters choose Supreme Court justices in 38 states through contested races, retention elections (after an initial appointment by the governor) or in hybridsystems.
In 2010, the U.S. Supreme Court removed limits on independent election spending
with the decision, Citizens United v. FEC. In the aftermath, special interest groups
and political parties together have surpassed the judicial candidates themselves
in spending on television ads in two-year Supreme Court election cycles. Attacks
in some recent court races echoed the race-baiting Willie Horton ads of the 1980s.
As elected judges look over their shoulders wondering what decision will spark
the next attack ad, they will change how they rule, favoring the prosecution more
often and therefore denying justice to those defendants. It will happen in 7 out of
every 100 criminal appeals in those states, researchers predicted after studying
appeals covering several years before and after Citizens United.
With all of the racial, social and economic biases already existing in the criminal justice system, we cannot allow campaign strategy to affect how justice is dispensed.
We urge you to expand your advocacy for justice by calling for changes that
depoliticize judicial selection. Talk about the need for merit selection instead
of contested elections for judges, or alternative public financing for contested
judicial elections to reduce the influence of non-candidate spending. Promote
neutral voter guides that examine candidate credentials.
More information, including sample editorials and letters you can send to your
local media, is attached.
13
Fair Courts Toolkit: Criminal Justice
Sample op-ed
One of the most cynical weapons used in state judicial elections is the campaign
attack ad that uses twisted facts and outright lies to provoke the public’s fear
of crime.
The ads negatively affect how people view the criminal justice system and our
protections under the Bill of Rights. Research shows attack ads can cause elected
judges to rule differently than they normally would, subverting justice.
In 2010, the U.S. Supreme Court allowed unlimited independent campaign spending
with the decision Citizens United v. FEC. In the 2011-2012 judicial elections, noncandidate groups paid for roughly 60 percent of the $33.7 million spent to air
television ads, according to The New Politics of Judicial Elections 2011-12.
It was the first time court candidates were outspent on TV ads by noncandidate groups, according to the Brennan Center for Justice and Justice at
Stake, which monitor court elections. The pattern repeated in 2014.
In the name of fairness and justice we must depoliticize the selection of our judges.
Justice should not be dictated by the highest bidder.
Corporations, unions, social-issue activists and plaintiff trial lawyers routinely
spend millions seeking judges who will rule their way on civil litigation,
environmental regulation, redistricting or same-sex marriage. But they often use
crime as a theme in attack ads, even when they have no interest in criminal
justice issues. For example:
•
Labor groups paid for ads in the 2011 election alleging Justice David Prosser
protected a pedophile priest three decades ago. Amid general outrage over
the claim, the victim in the case called for pulling the ad.
•
Michigan Democratic Party ads in 2012 implied the Republican court incumbents condoned some forms of violence against women and children.
State Republican Party ads accused Democratic nominee Bridget Mary
McCormack of protecting sexual predators. A Washington-based group,
the Judicial Crisis Network, ran ads claiming McCormack worked to free
terrorists.
•
In 2014 the Republican State Leadership Committee, with funding from
North Carolina-based insurance, tobacco, cable and energy corporations,
paid for ads run by Justice for All NC PAC that accused North Carolina
Supreme Court Justice Robin Hudson of protecting sexual predators. She
14
Fair Courts Advocacy Tools
had written a dissent arguing the Constitution prohibited retroactively
applying a new law requiring electronic monitoring for convicted child
molesters.
Although these crime-focused attack ads are not always effective in winning
elections, studies show a disturbing side effect. The ads become a factor in how
elected judges decide criminal cases, and thus, who goes to prison and for
how long.
In years with heavy advertising during court races, rulings against criminal
defendants rose considerably in those states, versus years before and after with
no court-campaign ads, according to a multi-state study, "The Impact of Judicial
Campaign Spending on Criminal Defendants". The trend continued regardless of
whether the election changed the court’s composition.
"Skewed Justice", a 2014 study published by the American Constitution
Society, looked at criminal appeals before and after Citizens United. It found
that each incremental increase in the number of TV campaign ads that aired
during state Supreme Court elections made it less likely justices in those states
would vote in favor of criminal defendants.
The "Skewed Justice" researchers also found that justices in states where bans
on corporate and union spending on elections were struck down by Citizens
United were less likely to vote in favor of criminal defendants than they were
before that decision.
Is that justice? That is how Citizens United affects justice.
The judicial branch is different than the legislative and executive. We elect
legislators and governors as advocates. Judges should be accountable to the law
and Constitution, not political forces or campaign donors.
Common sense reforms can reduce how big money and hardball politics
undermine the fair and impartial courts on which our democracy depends. Merit
selection systems, in which judicial nominating commissions review candidates
and recommend the best qualified finalists for the governor to appoint, reduces
the power that politics and money have over the judges. Voters still have a say in
retention elections.
Smaller improvements include public funding, which reduces the need for judicial
candidates to rely financially on lawyers and corporations with matters before the
court. Neutral voter guides help separate fact from the fiction in attack ads.
We cannot continue allowing attack ads to define justice.
15
Fair Courts Toolkit: Criminal Justice
Sample letters to the Editor
To the Editor:
Attack ads in judicial elections that paint judges as “soft on crime” or “coddling
criminals” have no place in a society that values fairness and equal protection
under the law.
First, we can never realistically expect true justice from judges who sling mud
like any other politician. More importantly, studies show attack ads affect how
judges rule in criminal cases.
The problem has been magnified by the U.S. Supreme Court’s Citizens United
decision in 2010, which allowed unrestricted independent spending on attack ads
and other political “speech.” Non-candidate groups now dominate discussion in
any states over who should be our judges. Often the message is conveyed via
attack ads.
Studies show that in years with heavy campaign advertising in court elections,
rulings against criminal defendants go up in those states, only to drop significantly
afterward. Another study predicts that concern about sparking the next attack
ad will cause judges in the post-Citizens United era to rule differently in 7 out of
every 100 criminal appeals in those states on court-election years.
If you are concerned about justice, join me in the call to keep attack ads out of
our state court elections. Push for merit selection or at least public financing in
judicial elections to soften the impact of independent campaign spending. Utilize
neutral voter guides that provide facts over fiction.
To the Editor:
Five years ago, the Citizens United ruling allowed unfettered spending on elections
in the name of free speech. Groups trying to control our state Supreme Courts are
using that newly amplified voice to spread lies that undermine justice and fairness
in our criminal courts.
Groups with an economic or political interest in court cases often rely on attack
ads that exploit public fears about crime. The ads warp public perception of the
criminal justice system and the Bill of Rights. Disturbingly, studies show the ads
cause judges to rule differently in criminal cases.
16
Fair Courts Advocacy Tools
Last spring, a group calling itself Justice for All NC ran misleading court campaign
ads claiming Supreme Court Justice Robin Hudson sided with child
sexual predators over victims. The ads were funded with $900,000 from the
Republican State Leadership Committee (RSLC), which is interested in state
redistricting and new voter ID laws now under legal challenge.
Within the month prior, RSLC received more than $250,000 from North Carolina
corporations interested in civil litigation and state environmental issues—
including Medical Mutual Group insurance, Reynolds American and Duke Energy.
In all, the RSLC spent some $1.4 million on the North Carolina Supreme Court
elections in 2014.
This political ploy has no place in our justice system. Public financing in judicial
races will soften the blows from independent campaign spending. Informative
voter guides will provide facts over fiction.
To the Editor:
America continues to struggle with troubling issues regarding race and justice.
From the use of deadly force by police to racial sentencing disparities, African
Americans feel the whip sting of unequal justice.
When I see race-baiting attack ads in state court elections, with images of black
criminals and white victims, I know justice will not result.
You see, research shows attack ads cause elected judges to rule differently in
criminal cases than they would otherwise. Elected state appellate judges tend to
rule for the prosecution more often in states when numerous court-election ads
are running, versus before and after the election year.
That is a chilling message for minorities in those states. Statistics show minorities
are more likely than whites to receive longer sentences, spend longer in jail awaiting
trial, suffer capital punishment more often and get shorter sentence reductions for
helping prosecutors. Drug use knows no color, yet two-thirds of those imprisoned
for drugs are minorities.
Race already plays a role in how justice is dispensed. Campaign ads using race
and fear of crime only make matters worse. We need to depoliticize how we pick
judges. It is an important step toward justice for all.
17
Fair Courts Toolkit: Criminal Justice
To the Editor:
Capital punishment is our prime justice issue. But in some states that elect judges,
it is a pawn in a political chess game.
Campaign attack ads by interest groups routinely criticize judges for “protecting”
murderers and molesters. To avoid being seen as soft on crime, elected judges in
some states brag about how often they impose the death penalty.
Studies show attack ads can cause elected judges to rule against defendants
more often, overlooking shoddy police work, unreliable eyewitness testimony or
overzealous prosecution.
States that have been hit with negative court campaign ads in one or more
elections since 2000—Alabama, North Carolina, Ohio, Louisiana, Georgia and
Pennsylvania—also rank high in death row populations; some top the list in
executions. In Mississippi, 14 of the last 17 executions were during election years.
In 2010, the U.S. Supreme Court unshackled independent campaign spending
with its Citizens United ruling. In the two-year election cycle of 2011-2012, special
interests and political parties combined outspent court candidates overall on
television ads for the first time. It happened again in 2014.
We fail justice when we allow campaign ads to play a role in who lives and who
dies. Is this how we want our fate judged?
Take politics out of the courtroom. Merit selection and public financing reduce
politics and money in judicial selection. Neutral voter guides provide facts, not
fiction.
18
Fair Courts Toolkit: Criminal Justice
Fair Courts Resources
Information about state judicial selection: http://judicialselection.us
Information about specific state judicial elections: http://judgepedia.org
Information about Citizens United: http://www.oyez.org/cases/2000-2009/2008/
2008_08_205
Fair courts groups
•
Justice at Stake http://www.justiceatstake.org
•
Justice at Stake’s daily blog summarizing news about fair courts is Gavel
Grab: http://www.gavelgrab.org
•
Brennan Center for Justice: http://www.brennancenter.org
•
Brennan Center’s Fair Courts resource page: http://
www.brennancenter.org/issues/fair-courts
•
Brennan Center’s Buying Time page, tracking Supreme Court TV
advertisements: http://brennancenter.org/analysis/buying-time
•
National Institute on Money in State Politics: http://
www.followthemoney. org
The above organizations jointly issue biennial reports on judicial campaign finance
and influence, The New Politics of Judicial Elections: http://
www.justiceatstake.org/resources/the_new_politics_of_judicial_elections.cfm
or http://brennancenter.org/analysis/new-politics-judicial-elections-all-reports
Other resources
•
American Constitution Society: http://www.acslaw.org/State-Courts
•
ACS, "Skewed Justice": http://skewedjustice.org
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Fair Courts Resources
•
Center for American Progress: Billy Corriher researches state courts and
the influence of political contributions: https://
www.americanprogress.org/projects/legal-progress/view/
•
CAP, “The Impact of Judicial Campaign Spending on Criminal Defendants”
study: https://cdn.americanprogress.org/wp-content/uploads/2013/10/
CampaignCriminalCash-6.pdf
•
National Center for State Courts blog on legislation affecting courts:
http://gaveltogavel.us/
•
Equal Justice Initiative, “The Death Penalty in Alabama: Judge Override”:
http://eji.org/files/Override_Report.pdf
Justice, death penalty statistics
21
•
http://www.deathpenaltyinfo.org/home
•
http://www.naacpldf.org/death-row-usa
•
http://www.bjs.gov/content/pub/pdf/p13.pdf
•
http://www.sentencingproject.org/template/page.cfm?id=122