A report issued last week found record spending on political ads by independent groups in judicial races during the 2011-2012 election cycle, the first in the wake of the U.S. Supreme Court’s 2010 decision in Citizens United v. FEC. The report, from Justice at Stake, the Brennan Center for Justice, and the National Institute on Money in State Politics, found that these independent spenders were largely responsible for the attack ads which targeted judges, ads that typically accuse a judge of being soft on crime or “voting for” a defendant accused of a terrible crime. A new Center for American Progress report explores the impact of these ads on criminal justice.
These ads are paid for by special interest groups—big business and trial lawyers—which have essentially no real interest in crime or public safety. These groups do, however, have a real financial interest in rulings in civil lawsuits. Big business groups target judges who they believe will rule for plaintiffs in civil lawsuits, and plaintiffs’ lawyers fund ads attacking judges who they believe are more inclined to throw out lawsuits. These ads exploit Americans’ largely unjustified fear of violent crime in an effort to elect judges whose rulings will benefit the groups funding the ads.
In addition to scaring viewers into voting for judges that interest groups prefer, these ads create immense political pressure on judges to appear “tough on crime.” The CAP report—an analysis of nearly 5,000 criminal cases from state supreme courts which have recently seen multimillion-dollar elections—concludes that courts are responding to this pressure:
The 2004 Illinois Supreme Court race broke judicial campaign spending records. As Illinois voters were bombarded with attack ads featuring violent criminals, the high court ruled in favor of the prosecution in 69 percent of its criminal cases—an 18 percent increase over the previous year.
Some states saw a sharp increase in rulings for the state just after their first elections in which spending reached $3 million. Mississippi’s high court, for example, saw its first $3 million election in 2000 and some nasty political attack ads that same year. When the next judicial election rolled around two years later, the justices ruled against criminal defendants in 90 percent of the high court’s criminal cases—a 20 percent increase from 2000. . . .
The Washington and Georgia high courts saw a huge spike in independent spending in 2006, followed by a sharp decline. The percentage of rulings against criminal defendants in these courts also peaked in 2006 and then dropped precipitously as the campaign cash and attack ads disappeared.
These “soft on crime” attack ads—a cynical political ploy by special interest groups—are harming criminal defendants. The CAP study profiles criminal cases which were decided during highly politicized elections in which the judges’ constituents were subjected to attack ads warning them about judges setting violent criminals free. As Mississippi airwaves were flooded with “soft on crime” attack ads during the 2002 Mississippi Supreme Court election, the court upheld a sentence of life without parole for a 14-year-old defendant who was tried as an adult.
The CAP report concludes that “the recent calls to reform our criminal justice system should include proposals to insulate elected judges from political pressure or switch to systems that appoint judges.” If judges are subject to political pressure, they cannot protect the constitutional rights of litigants who are despised or feared by voters.