Money Talks, Defendants Don’t Walk

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Another day, another chilling study about the corrosive effects big money has on our electoral system. What makes this one noteworthy is that it’s not another “shocking” expose about how our politicians are bought and paid for by business interests and lobbyist groups. No. This one details how outside money influences state Supreme Court justices running for election to have a higher likelihood of voting against defendants

The American Constitution Society for Law & Policy (ACS) study found in races where state Supreme Court justices were up for either election or voter review and television advertising about the race was prevalent, the justices increasingly took a hard line against “perps.”

You can read about the methodology of the study here (www.skewedjustice.org) but in essence, once TV advertising about the race crossed a certain threshold, it actively impacted the judges’ decisions.

It’s not just, as you might think, that the ads helped elect “tough on crime” judges, although that’s certainly a part of it. The more insidious finding is that the very prospect of being the target of negative TV ads preemptively influences judges to rule against defendants.

Consciously or not, the study found, judges are influenced by the fear, in essence, of having a “Willie Horton” moment, where a ruling in favor of a defendant backfires, and they can’t watch an episode of “Law & Order” without seeing themselves endlessly depicted in ominous looking commercials accompanied by spooky music as being “soft on crime,” and favoring criminals over innocent citizens.

Not to mention that the judges, already knowing that interest groups will be pouring money into the campaign, may preemptively skew their rulings to curry favor with said groups.

As evidence, the study cites Woodward v. Alabama, a 2013 case arising from an Alabama law which granted elected trial court judges the power to set aside jury sentencing determinations, including the death penalty. The U.S. Supreme Court decided not to hear the appeal, but Justice Sonia Sotomayor dissented, pointing to an Equal Justice Initiative study that determined that 92% of the sentences the Alabama judges overrode set aside life sentences in favor of the death penalty. Moreover, that action was more prevalent in election years, prompting Sotomayor to conclude that “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

Not all states were uniformly affected, the “deviance” rate was around 7%, and since state supreme courts are multi-panel, not every vote correlated to a changed decision. But still.

And while the study didn’t mention lower courts, it’s a safe assumption that in more local level races, this phenomenon is, if anything, amplified.

We recently wrote about a scientific study that concluded that simply standing next to something that people associated with germs, like a soap dispenser, tended to elicit more “conservative” positions on a host of issues, ranging from immigration reform to crime. Apparently, any near-encounter with dirt – or dirt bags – makes folks hunker down and circle the wagons.

The authors point to our old friend, Citizens United, as a major player in this judicial change. That Supreme Court decision has not only resulted in an eightfold increase in outside interest group money being poured into these races compared to a decade earlier, but unlike the candidates themselves, who fear running ads that appear too “negative,” these outside groups have no such compunctions about tarring the opposition as a friend to criminals everywhere.

So, a ramification is that even the judge who is not being supported as the “tough on crime” candidate feels pressure to bend his/her ruling in that direction.

A prior study by ACS examined how outside money influences judges’ decisions on cases ranging from the environment, consumer protection, etc., but for visceral impact, nothing compares to watching TV ads of violent criminals breaking into a house very similar to your own.

Citizens United. Bringing on the nasty. The decision that keeps on giving. Literally.

So, if you know anyone who periodically mixes it up on the wrong end of the criminal justice system, you might want to advise them not to commit a crime during an election year.

 

 

About Stan Sinberg

Stan is an award-winning newspaper columnist, radio commentator, and features writer whose humor has appeared in everything from the NY Times to WSJ and MAD Magazine. Stan is a native New Yorker living on the west coast. His website is www.stansinberg.com and you can email him at stan@stansinberg.com or follow him on Twitter @ssinberg1
Posted in: Law