In its recent decision in Caperton v. Massey, the U.S. Supreme Court declared that an elected state court judge must recuse himself from a case involving his largest campaign donor. The decision is a victory for common sense and fundamental fairness. Unfortunately, however, it cannot help the real losers in the 39 states that elect rather than appoint judges — those accused of crimes who rely on judges to protect their rights.
Caperton illustrates the threat that judicial elections pose for criminal defendants. Don Blankenship, the chief executive officer of Massey Energy Co., spent $3 million to unseat West Virginia Supreme Court of Appeals Justice Warren McGraw and elect in his place Brent Benjamin, whom he believed to be more "business-friendly" than the incumbent. The U.S. Supreme Court has now declared that Benjamin should have recused himself from hearing a case involving Blankenship's company. What does this have to do with the criminal justice system? A lot actually. Blankenship, like many savvy donors to judicial campaigns, realized that the best way to unseat McGraw would be to accuse him of being soft on crime rather than admit that his real interest was to replace McGraw with a judge who would vote in favor of Blankenship's corporate interests.
In interviews, Blankenship candidly admitted that he distorted McGraw's record in criminal cases to win votes for Benjamin. As Blankenship explained, he first combed through McGraw's decisions until he discovered an opinion involving an accused child molester that he knew he could exploit. Blankenship then founded an organization that he audaciously named "And For the Sake of the Kids" and spent millions on television commercials accusing McGraw of voting to release a dangerous child molester back into the community.
The advertisements were misleading. The "child molester" was only 14 years old when he was accused of abusing his half-brother, and it turns out that he had been abused himself by adults in the family. After serving time in a juvenile facility, he was released on probation at age 18. McGraw, along with two other judges, refused to revoke his probation for alcohol and marijuana use, explaining that they hoped this former victim could "salvage his life" and become "a productive member of society." None of these facts made it into the ads, which declared simply that "Liberal Judge Warren McGraw cast the deciding vote to set this reprehensible criminal free."
Blankenship is unusually honest about his motives, but his strategy is typical of big donors looking to influence judicial elections. Again and again, judicial elections come down to accusations that an incumbent is soft on crime — and yet these allegations are usually made by corporate interest groups that don't actually care about a judge's record in criminal cases, and thus that are willing to paint even the most justified ruling in favor of a criminal defendant as a danger to the community.
The results are predictable. Studies show that elected judges become notably harder on criminal defendants as elections approach. Political scientists Gregory Huber and Sanford Gordon reviewed 22,000 Pennsylvania trial court sentences in criminal cases and discovered that, when elections were imminent, these judges imposed sentences 25% to 39% longer than judges who had recently been elected or re-elected to the position. Even more disturbing, similar studies show that judges are more likely to impose the death penalty with elections looming. These judges are getting the message that anything short of the harshest penalty will become fodder to be used against them in the next election cycle.
States choose to elect judges in part because they want judges to pay attention to majority preferences when deciding cases. Opponents of judicial elections argue that judges must be insulated from public pressure so that they can protect the legal rights of unpopular litigants and causes. But the most pressing problem with judicial elections right now is that voters are being manipulated by special interests that care only about their bottom line, and not about electing the best qualified judges.
If states want elected judges to serve their constituents, they have to start policing elections so that the Don Blankenships of the world cannot pull the wool over the public's eyes. Candidates should be given an opportunity to explain decisions in controversial cases, and to blunt the force of attack ads against them. Organizations such as "And for the Sake of the Kids" should be identified as being funded by corporate interests. Lawyers, judges and elected officials should loudly condemn unethical campaign tactics. At stake is not only justice for those accused of crimes, but the integrity of the state judiciary itself.
Amanda Frost is a professor at American University Washington College of Law.
