Sympathy For The Devil

Within hours after the Citizens United decision issued, people started asking how big money would fundamentally alter judicial elections. I had my doubts, since buying judges’ loyalties never struck me as a good use of money, and if someone was dying to throw their money away, there were better places to waste it.  And indeed, aside from some high profile purchases, the influence of big outside money didn’t appear to be nearly as serious a problem as initially thought.

From this report by the Center for American Progress, however, it appears that cash for judges may have a more insidious effect than most realize.

As state supreme court campaigns become more expensive and more partisan, the fear of being portrayed as “soft on crime” is leading courts to rule more often for prosecutors and against criminal defendants.

That is the disturbing finding of this Center for American Progress study, which explores the impact on the criminal justice system of the explosion in judicial campaign cash and the growing use of political attack ads in state supreme court elections, which have increased pressure on elected judges to appear “tough on crime.”

The findings reveal a clear trend: As campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.

The report doesn’t suggest anything so nefarious as money coming in from sources that are manipulating judicial decisions for the benefit of the prosecution, but rather the pedestrian use of attack ads on the lowest hanging fruit: fear.

Most of these attack ads allege that a certain judge is soft on crime, telling voters that he or she ruled in favor of a violent criminal without any context or discussion of the legal issue at stake. A single ruling in a case, replete with gruesome facts, can provide fodder for an attack ad. A 2012 candidate for the Ohio Supreme Court, for example, was attacked by the state Republican Party, which alleged in an ad that the judge — Democrat Bill O’Neill — had “expressed sympathy for rapists” in one of his opinions.

During the 2004 West Virginia Supreme Court election, a group funded by coal mogul Don Blankenship warned that an incumbent justice “voted to release” a “child rapist” and then “agreed to let this convicted child rapist work as a janitor in a West Virginia school.” Another campaign ad, this one in the 2012 Louisiana Supreme Court race, claimed that one of the candidates had “suspended the sentence of a cocaine dealer, of a man who killed a state trooper, two more drug dealers, and over half the sentence of a child rapist.”

It’s really quite easy to see:  If a judge rules in a defendant’s favor in a criminal case, he’s a rapist lover. It’s not that the other side may be particularly concerned about rapists, but rather that they use whatever is available in their attack ad. This makes ruling in favor of a defendant a dangerous choice for a judge who is required to run for re-election. The ruling may be legally uncontroversial, and the characterization of the ruling in an attack ad totally disingenuous, but so what? It’s available to be used and abused, so it is.

Curiously, this happens at a time when the pendulum is arguably swinging away from the general “tough on crime” stance abused by politicians for their own political gain.  Of course, that’s a financial issue, saving taxpayers’ money, which is similarly low-hanging fruit.  But judges, not having the power of the purse, can’t get much mileage out of arguing that they let rapists free for the tax savings.

Ironically, it appears likely that the money flowing into judicial election campaigns has nothing to do with concerns over criminal justice issues. These are soft money groups who are far more concerned with hard money issues, such as the Brent D. Benjamin purchase by Don Blankenship of Massey Energy in West Virginia.  But to achieve the goal of electing a state Supreme Court justice, you use whatever tools present themselves:

The enormous sums of money spent in recent judicial elections have fueled an increase in attack ads targeting judges.  State supreme court candidates raised more than $200 million between 2000 and 2009 — two and a half times more than in the 1990s.   A record $28 million was spent on television ads in 2012 high court elections, with half of this money coming in the form of independent spending, according to Justice at Stake and the Brennan Center for Justice.   These independent spenders are more likely than the candidates’ campaigns to run attack ads.

The question remains whether there is any way to counter these ads, and the public impression they develop that fosters fear, hatred of criminal defendants and the belief that “justice” is ill-served by fair and competent judges. 

It’s not likely that forces inclined toward the defense would have any ability to muster the interest or money to put up a fight. Hell, we can’t get funding to defend the poor, and there isn’t much of a chance we can get money to fund advertisements to persuade the public that judges who are fair to rapists and murderers are good guys.

The answer likely won’t come from trying to play the money game with special interests trying to put their pocket judge into a seat on the bench. We can’t match their money, don’t have nearly the personal motivation to go head to head or sufficient personal benefit to be gained to make the expenditure worthwhile, and our position isn’t nearly as easy to sell.  Fear and stupid always makes for a better TV ad than a concept requiring actual thought.

But the solution is anti-democratic, to end the populist fallacy of electing judges as if the public has any rational basis to select who gets to sit on the bench.  Of course, this argument has been around for a very long time and never got much traction before there were big money interests who benefited from the ability to buy a bench for their favorite lawyer. 

The chances of it gaining momentum now will only improve if people realize that outside money is engaged in this insidious marketing campaign to control the judiciary for their own financial gain.  Will people get this? Will anyone care?  Will anything change?  History suggests we’re screwed, and things will only get worse.

H/T Doug Berman 

15 comments on “Sympathy For The Devil

  1. Jeff Gamso

    It’s not exactly relevant, but O’Neill won that election to the Ohio Supreme Court. His major campaign point – he accepted no financial contributions from anyone. (He’d run before, and lost, when he accepted contributions of no more than $100.) He’s not rich, so he didn’t just spend millions of his own, instead. His campaign spent comparatively little.

    He’s now the only Democrat on the Ohio Supreme Court. Oh, and he’s declared that the death penalty is unconstitutional and therefore will vote to reverse every death sentence and refuses to agree to setting execution dates.

    1. SHG Post author

      It seems relevant to me, that the counter-argument to soft money attack ads is that a judge hasn’t been bought and paid for by the other side. Maybe there is hope?

  2. Mark Draughn

    I wonder if anyone has ever tried the reverse attack ad: “When the boyfriend of this mother of two was arrested for doing a drug deal in her apartment, police accused her of being an accomplice, and Judge Robert Hardball sentenced her to three years in prison, causing her to lose her parental rights.” Or “Judge Hardball once set bail at $10,000 for a homeless vet accused of shoplifting a bottle of whiskey.”

    I suppose some people would see these as good things.

    1. SHG Post author

      That’s a good question: Judge Jones put three innocent men in prison. Is that who you want deciding your case?

      I don’t know if that has been tried, if it sells or if there aren’t enough people who relate to it that care.

  3. Rick Horowitz

    Around here, I doubt that would work.

    I have heard people excuse the facts that lead to imprisoned innocents by saying either that “it’s not perfect, but we have the best system in the world,” and alleging that far more guilty people still go free because of loopholes and soft sentences.

    But, then, I’m in Fresno. “Three Strikes” was literally born in a backyard in this town. (Per rules, I’m not posting the link, but in June, 2012, this was mentioned in a story about the 20th anniversary of Kimber Reynold’s death, which lead directly to her father’s mission to prevent any repeat offenders from ever getting out of prison.)

    Even many lawyers seem not to understand that centuries of legal evolution resulted in laws meant to protect innocents from conviction by forcibly shielding the system from anger, emotion, and overzealousness.

    1. SHG Post author

      First, I assume this is meant to reply to Windy, though you neglected to hit the reply button. Second, it makes me nuts whenever anyone proffers the old hoary “not perfect, but the best there is” chestnut about the system. Whether it’s the best or not is irrelevant to whether it’s sufficient to bet lives on it.

      And third, you live in Fresno, which is the only thing the prevents Jersey from getting having the official nickname, armpit of the nation.

  4. Jack

    I don’t think attack ads, or really ads of any sort, for judges really matter all that much since the average voter doesn’t care much about them. I would think in most cases voters simply pull the lever for the judge on their side of the aisle. Everyone I know will consciously vote for the governor and maybe referendums they’ve heard of, but simply pull the handle on the “D” or “R” side all the way down and not even read the names (or simply pull no levers besides the governor).

    Honestly, I think all the spending judges do on TV ads are pretty well wasted since there aren’t enough people who care to outvote the people who don’t care and only see “(R)” or “(D)” when voting.

    1. SHG Post author

      There’s a huge difference between whether the ads (any, attack or otherwise) work and how judges conduct themselves in anticipation of or reaction to them.

      1. Jack

        I know, my comment was written more as a cherry on top of this shit sundae rather than brushing it off.

        Judges making changes in anticipation of attack ads, which would have been ineffectual in the first place, is even worse IMO because of typical incumbent bias. The judge winning the election after making changes in anticipation for weak-on-crime attack-ads may improperly credit his win on those changes, and double down – even though he would have won if he didn’t do anything . If a judge is so unprincipled as to make changes for the camera to win an election that have a real impact on peoples lives, he is probably going to credit those changes with the win because he was worried about it enough to make the change in the first place.

        I know what I am saying is convoluted, but I hope you can find my point in there somewhere.

        1. SHG Post author

          Your point is the irony that they react to attack ads given that people don’t vote for judges based on advertisements anyway. While I don’t know whether that’s entirely true if there is enough noise made in the ads that people do take notice, in fact pay attention, the irony remains, at least to some extent.

  5. Ultraviolet admin

    The biggest incident of this happening was nearly 30 years ago in California with Chief Justice Rose Bird and Associate Justices Cruz Reynoso and Joseph Grodin being removed.

    In California, the Justices are appointed by the Governor, but there’s a retention vote at the first general election after appointment and then every 12 years. The only time a Justice lost the vote was in 1986 when those 3 were removed and replaced with 4 conservative justices. The campaign was based on the Justices being soft on crime, especially the Death Penalty. The money for the campaign, however, was mostly from business interests as these three were major figures in product liability theories.

  6. Ted H.

    I wonder if there is some relationship between incentivizing elected judges to be pro prosecution and the privatization of the prison system. I haven’t got any evidence, but this was my initial reaction to this.

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