Could voting out judges end mass incarceration?
This week, the Houston Chronicle’s editorial board took the extraordinary step of recommending that nearly every sitting criminal court judge in Harris County be voted out. The reason was the county’s cash bail system, described as unconstitutional in a 193-page decision by a federal judge last year, and misdemeanor judges’ insistence on defending that system. The decision, the editorial said, “presents an astounding and disturbing vision of aspects of our courthouse run by people who don’t know whether our bail methods work and don’t seem to care.” Yet all but two criminal court judges continue to fight to preserve the bail system. When the editorial board met with each judge in preparing its endorsements, those judges offered various defenses, all deemed unsatisfactory. Hence: “we recommend that every incumbent judge continuing to fight the bail lawsuit be removed from his or her seat.” [Houston Chronicle Editorial Board]
The scourge of cash bail has been a topic in other judicial races. Earlier this year in San Francisco, four public defenders set out to unseat four incumbent judges. In their platform, they targeted the racial bias of the criminal legal system; the problems with sentencing, bail, and police misconduct; and the incumbents’ complicity in the status quo. Reporting on their ultimately unsuccessful challenge, and the questions it raised about judicial elections as a vehicle for criminal justice reform, Lara Bazelon described San Francisco’s “much-criticized money bail system,” with an average felony bail more than five times the national average. [Lara Bazelon / Slate]
The challengers’ effort in San Francisco was also an effort to have the bench better represent the community it serves. The San Francisco bench is regarded as diverse, and the incumbents included two Asian-Americans, but only 10 percent of its judges are Black, compared with 51 percent of the public defender office’s clients. Latinx people are also a high percentage of those represented by the office, but are only 6 percent of those on the bench. [Lara Bazelon / Slate]
Nationally, state courts bear little resemblance to the population as a whole. In 2015, the American Constitution Society issued a report on what it called “the Gavel Gap”—the underrepresentation of women and people of color in state courts. Women make up roughly a half of the population and a half of those attending law schools yet less than a third of state court judges are women. Also, the report stated: “Not a single state has as many women judges as it does men.” People of color are 40 percent of the population but less than 20 percent of the judges in state courts. In 16 states, people of color accounted for fewer than 1 in 10 state judges. Women of color are represented at only 40 percent of their presence in the general population. [American Constitution Society]
To some degree, judicial elections are the culprit. The Center for American Progress looked at the underrepresentation of people of color and white women in state court in another 2015 report. It found that even when judges of color were appointed to the bench, they had a lower re-election rate than white judges. White judges had a 90 percent re-election rate, compared with 80 percent for Black judges and only a 67 percent re-election rate for Latinx judges. There is concern that this is the inevitable result of increased spending on judicial races post-Citizens United, the 2010 Supreme Court case that struck down limits on campaign contributions. The Center for American Progress report focused on states with contested judicial election. [Azure Gilman / Al Jazeera America] Earlier this year, a federal judge in Texas found that its statewide elections for judges, while diluting the voting power of Latinx voters and resulting in two overwhelmingly white high courts, did not violate the Voting Rights Act. The judge conceded that the “electoral disadvantage” experienced by the Latinx voters could be overcome by switching to single-member elections, but she declined to order that change, reasoning that voters had failed to prove that the obstacles they faced in electing their preferred candidates were “on account of race.” [Alexa Ura and Emma Platoff / Texas Tribune]
Among the concerns about judicial elections—that they compromise independence, diminish faith in the courts, and depress diversity—are also concerns about how they drive harsher punishments and resistance to social change. But advocates for change are trying to bring enough pressure to bear that judges complicit in the worst of the criminal legal system are punished and progressive candidates are voted in. For that they need voters to turn out and to vote in down-ballot races.
Last week, the Illinois publication Injustice Watch released its 2018 Cook County Judicial Voting Guide. Illinois has a system of retention elections—after winning their seats in partisan elections, judges seek retention six years later in nonpartisan elections. This year, 59 judges are seeking retention. It has been 28 years since a Cook County judge lost retention but the efforts of community groups may mean that disaffection with certain judges could now translate into an impact at the ballot box. There are also elections for open judicial seats, but given the dominance of the Democratic Party in Chicago, the majority of these elections were decided in the primary. [Injustice Watch]
For judges seeking retention, the guide covers multiple areas, including reversal rates, the sentencing practices of criminal division judges, disciplinary records, and courtroom observation. One judge, for instance, is being sued by two exonerated men who allege that when he was a prosecutor, he and a now-disgraced detective worked to frame them for murder 25 years ago. A campaign to unseat him succeeded in making him the only judge the Cook County Democratic Party decided to not recommend for retention. Another judge, Michael Clancy, in bond court, has repeatedly set bail higher than defendants can afford, in violation of a court rule enacted last year. [Injustice Watch]