How do judges affect mass incarceration, and what role do judicial elections play? Today we’re looking at a topic that doesn’t get a lot of attention: the relationship between judges, corporate money, big business interests, and mass incarceration. We talk to Alicia Bannon, program manager at the Brennan Center for Justice, about the role of judicial elections in mass incarceration, and how fear-mongering is used to incentivize harsh decision making.
Brennan Center’s repository of judicial ads is available here.
Brennan Center’s most recent annual report on money spent in judicial elections, “Who Pays for Judicial Races? The Politics of Judicial Elections,” is available here. Past reports can be found here.
Here’s another report from the Center for American Progress on judicial elections and mass incarceration, called “How Judicial Elections Impact Criminal Cases”.
Justice at Stake, an organization focused on judicial independence, is sadly defunct, but their past work is available here.
Also, if you want to read further, there are a few academic papers located here, here, and here, that may be of interest. You unfortunately may need a university login or other credentials for free access, though.
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Alicia Bannon: There’s been a lot of social science research about how election pressures impact judge’s decision makings. And judges they sentence more harshly in election years and there’s evidence that as criminal justice issues become a bigger part of election, so if there’s a lot of television advertisements, for example, judges are more likely to rule against criminal defendants.
Clint Smith: What’s up everybody? I’m Clint Smith.
Josie Duffy Rice: And I’m Josie Duffy Rice.
Clint: And this is Justice in America. Each show we discuss a topic in the American criminal justice system and we try to explain what it is and how it works.
Josie: Thank you so much everyone for joining us today. You can find us on Twitter at @Justice_Podcast, you can like our Facebook page, you can just find us at Justice in America and please subscribe and rate us on iTunes, we’d love to hear from you.
Clint: We opened the show with a clip from our guest Alicia Bannon, who runs the Fair Courts Program at the Brennan Center. Alicia has done a ton of work around today’s topic, which is judges.
Josie: Yes, judges. And not just judges in general but judicial elections.
Clint: And not just judicial elections, but how judicial elections contribute to mass incarceration. But first, every episode we talk about a word or phrase related to the criminal justice system that we think is misused or misunderstood or just bad. The goal is to make you think twice when you hear it and we’re basically trying to make you more skeptical and critically interrogate some of the language and nomenclature you hear out in public.
Josie: Yes. Today’s phrase is “diversion program.” Diversion programs are a type of sentence that is ostensibly focused on rehabilitating the defendant and providing them with skills or opportunities, while helping them avoid a more serious sentence. So the best diversion programs help a person avoid even an arrest. They are programs or classes that they can take or participate in instead of being arrested or sentenced and providing them with skills or opportunities while helping them avoid a more serious sentence. So in theory, diversion programs are awesome. But in practice, they are only sometimes awesome.
Clint: And no one likes something that is only sometimes awesome.
Josie: We want diversion programs to be all the time awesome, that’s our goal.
Clint: All the time. So, if you’re as in to criminal justice as we are, you may have noticed that people really love to talk about diversion programs. You’ll hear a lot of the quote unquote “progressive” candidates for prosecutor or judge say that they started or supported or sent participants to a certain program. But on this stuff, the devil is really really in the details.
Josie: Yeah. So some diversion programs are really amazing and effective. One of my favorites is in Seattle, it’s called LEAD, and it really helps people get the treatment and attention that they need when they are suffering from drug addiction. But others are basically revenue generators for the cops or the prosecutor’s office. And this kind of gets back to our fees and fines conversation that we talked about. Often these diversion programs cost a lot of money. You can only participate in them if you have the $600, $1,000 fee that they may cost. Only those who can pay are eligible. And sometimes, there’s just like no program at all, like you’re not actually getting help, you’re not actually getting treatment, you’re just paying and that’s it, you’re diverted. In a lot of these programs, the entire point is the money.
Clint: Take LACE, a program in my home state of Louisiana. Prosecutors in Louisiana hire cops in their off hours to issue traffic tickets. But these weren’t regular traffic tickets, these were different. These were from the LACE program. Basically, what that meant is as long as the person ticketed paid the fine, the infraction wouldn’t show up on their record. They wouldn’t have to report it to insurance, it wouldn’t result in points on their record. You get the picture.
Josie: Yeah and this sounds like a pretty good deal. You know, they called it a diversion program, and technically it was. It basically helped people get a lesser sentence for their traffic ticket. But really it was this program concocted by prosecutors to rake in money. Normally in Louisiana, if you get a traffic ticket, they are issued through the regular traffic court system. And for every dollar that you pay in fines or fees, different parties get a percentage. The prosecutor’s office gets a chunk. The public defender’s office gets a much smaller chunk. The court gets a little. And so on and so forth. But now, prosecutors were issuing tickets through the LACE program and keeping 100% of the revenue. So their tickets weren’t cheaper. They just weren’t sharing the profits. They were hiring cops to work more hours, to write more tickets and then they were just keeping all the money. And the public defender and the courts were getting none of that revenue. They were just totally starved for resources. In Calcasieu Parish, the office of the district attorney there, John DeRosier, made about $4.4 million dollars off of the LACE program.
Clint: There are many more diversion programs like this where it’s really just about arresting more people and convicting more people to pull in money.
Josie: And what this does is just replicate the same patterns we talk about on here all the time. If you can’t pay the fee it means you can’t be diverted and then those programs are just another way of over-criminalizing poor people. Diversion programs can have other flaws too. For example, access to these programs can be really really limited, even among the ostensibly eligible. So there will be a program for low-level drug offenders, for example, but the prosecutor’s office will only divert 10% of those charged with a low level drug offense. Or the program will be available for low-level drug offenders, but only if its their very first offense. So if you are arrested again, you don’t have access to diversion.
Clint: Now, this may seem reasonable. Prosecutors often say that these defendants had a second chance and since they messed up again they don’t get a third. But this is a real issue when we talk about criminal charges that are evidence of a bigger problem. Addiction, for example, or homelessness. These are the sorts of things that can keep a person cycling in and out of jail and they generally aren’t solved on the first go around.
Josie: Another thing to be aware of when it comes to diversion programs is where they exist in the criminal process. Some programs deal with the problem on the front-end. These programs, pre-arrest, pre-booking or pre-charge diversion programs, are generally keeping a person out of the system. At the very least, these programs divert people before they are charged with a crime. And some programs come into play even earlier, they divert people before they have to spend even a second in jail or even before they are arrested.
Clint: Others are more about putting people in the system and giving them an opportunity to get back out. So, a defendant will have to plead guilty to have access to the diversion program, but if they complete the necessary requirements, they can have their record expunged. That’s of course still better than incarceration, generally, but the best diversion programs keep defendants out of the system as much as possible. That’s really important. Sure, its true, giving people in the criminal justice system a more humane option is a good thing to be clear, but a much better thing is keeping people from getting mired in the system in the first place. Alright, now you understand diversion programs, what’s good, what’s not good, but let’s get back down to business.
Josie: Yes. So, we’ve talked about the prosecutor, the defense attorney and we’ve talked plenty about the defendants. But what about the judge? The judge, as you likely know, presides over court proceedings. Note that this doesn’t necessarily mean a trial. Some judges preside over trials, but many others don’t. Theoretically, the judge is this independent presence in a courtroom, someone who knows the law, can make rulings and can fairly decide whether or not someone should be convicted of a crime.
Clint: As we’ve discussed before, in America, our court system is roughly split along two different axes. One is jurisdiction. There’s the federal justice system and the state justice system. The federal system gets a whole lot of attention, rightly so. But the state court system is extremely important. State courts hear 95% of all cases, totaling 100 million cases a year. About 85% of criminal cases are decided in the state system, not the federal one. The other variable is the type of case, which again can be split into roughly two buckets, criminal and civil. Obviously, on this show, we talk a lot about the criminal justice system. But the civil justice system is a whole other can of worms that we’re not exactly experts in. But it will be peripherally relevant today, so it’s important to remember the difference.
Josie: Now, another big thing to know about judges, before we get into how they are selected — is the different tiers. There are lots of specialty courts in the United States and so there are lots of specialty judges like traffic court judges, juvenile court judges, immigration judges, bankruptcy court judges, military judges, veterans court judges. But outside of the specialty courts there are the regular judges like the people you see on Law and Order. And in most states, and in the federal system, these judges usually belong to one of three general tiers. There’s the trial judge, the appellate judge and the Supreme Court judge.
Clint: The trial judge or district judge actually, you guessed it, hears the trial. They evaluate the facts and apply the law. Often, they specialize in criminal or civil court. There tend to be many more district judges than there are in the appellate or the appeals or the Supreme Court. On the federal level, there are around 700 trial judges in 94 districts. On the state level it varies. California has about 1700, Texas has about 1300. Vermont, on the other hand, has about 35.
Josie: So that’s the trial level. The appellate court reviews cases from the trial level and determines whether they got it right. So appellate judges basically never preside over trials. To determine if the district court was right or wrong, they review written documents, they review the court records and in some cases attorneys for either side make a short argument. The general rule is that criminal defendants have the right to appeal their sentence, but the glaring exception to that rule is when defendants plead guilty they often forfeit their right to an appeal and as we’ve talked about before most defendants in this system are incentivized to plead guilty. There are many fewer appellate court judges than district court. In California, where there are 1700 district judges, there are only about 100 judges total on the Courts of Appeal. In Vermont, there are only 5 judges total on the Courts of Appeal. On the federal level, there are about 180 judges in the Courts of Appeal, divided into thirteen circuits. When you hear people talk about the Ninth Circuit or the Fifth Circuit, this is what they’re talking about, the federal appeals level.
Clint: And then there’s the highest level court. The Supreme Court. On the federal level there are nine Supreme Court justices. On the state level, it varies, but it’s mostly between 5 and 7. Now, there are variations in this system. Some states call their courts different names. Other states, like Oklahoma, have just two levels, meaning they don’t have that middle appellate level court. Some states have two Supreme Courts, one for criminal cases and one for civil. But mostly, there are a lot of district court judges, who can be overruled by fewer appellate judges, who can be overruled by just a handful of Supreme Court Justices.
Josie: So how are these judges chosen? Well on the federal level, the president appoints them, and the senate has to vote in favor. You may remember a few months ago when some guy named Brett Kavanaugh faced Senate confirmation. Anyway.
Clint: On the state level, it’s different. Sometimes judges are appointed by the Governor.
But in many states, judges are elected. In fact, in 38 states, Justices on the state’s highest court face election. And around 90% of appellate level justices also face election. Around a quarter or so of those states have partisan elections. The other states hold non-partisan elections.
Josie: You should know if you don’t already that this is kind of a quintessential American thing. We are one of the only countries to elect our judges. And you may be thinking that this is a great thing. After all this is a democracy, elections are generally good. And this is, you know, probably better than the federal system, where it’s left up to the president and the Senate to elect who goes on the Supreme Court.
Clint: But it’s actually not that simple. In a lot of ways, judicial elections have really corrupted the state judiciary. The Constitution made it clear that judges were not and should not be politicians. It didn’t determine how state judges are chosen, that was left up to the states. But federal judges have lifetime tenure for a reason—we want them to be able to theoretically make decisions uninfluenced by things like money or the whims of the voter or potential talking points of their possible opponents. Judicial elections corrupt that.
Josie: Now, to be clear – judges don’t always use the power of lifetime tenure well. I’m looking at half the Supreme Court right now. And appointed judges have enacted many injustices and done some terrible terrible things. And sometimes the person in charge who has the power to appoint is a regressive monster. So appointing judges certainly has its problems, we would never argue otherwise But electing judges is a different sort of mutation of our system. And part of that is because of campaign contributions. These contributions have done so much harm to the judiciary and they’ve really helped perpetuate mass incarceration.
Clint: Here’s the basic outline of how these things are connected. And, like many things, it starts with money. After all, money, all the data shows, is pretty important if you want to win an election. And there are a lot of special interests who are very determined to have state courts on their side. 95% of cases in total and about 85% of criminal cases go through the state courts. A lot of very important decisions are made, a lot of precedent is set, and many many billions of dollars are won or lost in state courts every year. There are definitely people and groups and corporations invested in having friendly faces on the bench.
Josie: Campaign contributions to judicial candidates have skyrocketed in the past 20 or so years. The candidates for district court don’t tend to get a lot of contributions, there are so many of them and they really only have local control. And candidates for the appellate level courts are getting more contributions than the district level but still not that many. But donors tend to be very very interested in the state high court or the state Supreme Court. And they show their interest through money.
Clint: So in 2016, 33 states held state Supreme Court elections and 76 seats were up for grabs. According to the Brennan Center, overall spending came to a total of about $70 million for those seats combined. That’s the second highest spending level Brennan has ever recorded in the 16 years they’ve been tracking judicial campaign contributions. Where’d the money come from? Total, about 56% of contributions came from lawyers, lobbyists and business interests. Another 40% came from outside groups who mostly gave through PACs. Out of the 76 seats up for grabs, 27 elections were decided in races that cost over $1 million. So, there’s a lot of money in these races. But who generally is it that is contributing to judicial candidates? The answer is often big business interested in less regulation. In other words, corporations and businesses want to have justices on the bench that won’t interfere with what they do every single day. They want judges who tend to be more supportive of the boss rather the employee. They want judges who won’t fine them for, say, causing environmental harm. They basically want to be able to get away with more without being punished or fined or sued. Now, there are definitely groups on the other side who donate to judges as well like tort lawyers who want these judges to encourage, and not discourage, litigation on behalf of individuals. And we will talk to Alicia about this.
Josie: But suffice it to say there are very self interested groups, largely corporations, who pour money into these races in hopes that they will get a friendly judge if and when they have to face them in court. One thing to note here, again, we know generally who is donating to these races, in other words, we know the general category. But often we don’t really know the actual identity. Often this money is coming from an untraceable PAC or some other shadow entity. In fact, last year, only about 18% of the money donated to judicial candidates could be traced back to an identifiable donor. Just 18%.
Clint: Now, if you think that it’s outrageous that you can’t know who’s donating to a supposedly neutral judge, we would agree. And there’s one main Supreme Court decision to blame, you may have heard of it, its Citizens United. The amount of money corporations spend on judicial elections increased wildly after that 2010 case, where the court found that corporations and unions were allowed to make essentially limitless political contributions. But, while unions have contributed to races in the past, corporate money has traditionally dwarfed those donations. It’s important to note though that we’re not trying to make a false equivalency. While it is true that unions have contributed to races in the past, corporate money traditionally and typically completely dwarfs the donations that unions make. And because of Citizens United, that money can be donated in ways that are basically make it impossible to trace. Millions of dollars going to a judge that is supposed to be impartial and we don’t even get to know who donated it.
Josie: The point here is this is not a grassroots effort. This is not a candidate accountable to a community. The people and groups who donate to judicial candidates often have a professional stake in the decisions that judges might make.
Clint: Now, let’s think back. When is the last time that you, personally, donated to a judicial candidate? Can you name even three of your state’s Supreme Court justices? Surely there are exceptions to this rule, maybe that’s you, but I’m willing to bet that most people listening can’t do those things. And honestly, neither can we. Judicial candidates often don’t have any name recognition and people often don’t know who they’re voting for. And even when they do, simply knowing the name of the candidate isn’t enough to give you the information you need to make an informed decision. Judicial candidates have a stricter set of rules that they have to follow than, say, the person running for Governor. And there are limits to what they can say and what they can promise. Again, that whole perceived neutrality thing.
Josie: Yeah and then there’s this other this which is that many of these judges see very technical cases. The cases that judges see on these state courts are often totally inaccessible and tedious and frankly uninteresting to people outside of this field. It’s not like every day is Brown v. Board. Now, of course, don’t forget—there are people interested in the technicalities—the corporations who want a friendly face on the bench. And these judges know that what their donors care about is deregulation. But that just doesn’t really matter to the rest of the electorate in the same way. So even if judges could say whatever they wanted, they aren’t going to woo voters by bragging about their interpretation of antitrust law. Voters just don’t really care about that. But you know what voters do care about? Crime.
Clint: Yup. For a few decades now, this is how judges motivated voters. They paint their opponent as too soft on crime. They brag about how tough they are on quote unquote “criminals” in the courtroom. Unsurprisingly perhaps, during the campaign, there are television ads that these judges use and oftentimes, they are usually missing some very critical context. So, for example, here’s a clip from an ad in the 2012 Michigan Supreme Court race against a candidate named Bridget McCormack. It features a woman from Flint, Michigan, whose son was killed in Afghanistan.
Woman: My son Joe was taken from me, killed when his unit was attacked by terrorists in Afghanistan. My son selflessly gave his life for this country. So when I heard Bridget McCormick volunteered to represent and help free suspected terrorists, I couldn’t believe it. My son’s a hero and fought to protect us. Bridget McCormick volunteered to help free a terrorist. How could you?
Josie: So McCormack was a law professor who had volunteered to work with the Center for Constitutional Rights, which is a very well respected organization that fights to ensure, you guessed it, constitutional protections. And the quote unquote “terrorist” referenced in the ad was a man McCOrmack had been assigned to represent who was being held at Guantanamo Bay even though he had never been charged with a crime. And, for what it’s worth, McCormack never actually represented this man or even met him. In the end, this guy was freed by George Bush, of all people, and sent back to Tajikistan. But somehow the ad implies something else.
Clint: Here’s another one from that same race.
Man: At just 17 years old, Patty Rosansky was brutally raped and strangled. Thomas Cress was sentenced to life in prison for her murder until Democrat Supreme Court candidate Bridget McCormick successfully fought for the release of this convicted killer. While Patty’s family continues to grieve, Bridget McCormick was elated and thrilled that the man convicted of her murder walked free. Bridget McCormick, the wrong choice for Michigan families.
Clint: The ad forgets to mention one little thing, the defendant in that case was actually innocent. That’s why McCormack was “elated” because she helped exonerate an innocent man. You wouldn’t exactly get that from this ad, though, would you? Here’s another one from a 2016 Wisconsin Supreme Court race. It’s an attack ad against a woman named JoAnne Kloppenburg.
Man: We’ve heard it before. Liberal judges letting criminals off on technicalities. Judges like JoAnne Kloppenburg. This man had a long criminal history including beating his wife in front of their two year old daughter. Then after pleading guilty to sexually assaulting a 15 year old child, he got 15 years. Incredibly he appealed, saying he didn’t understand the charge and JoAnne Kloppenburg, she agreed to give him a new hearing. Tell Judge Kloppenburg courts should protect children, not criminals.
Josie: Yeah and this ad too is just so misleading. The case is kind of technical but the defendant had some confusion about his plea, the appeals court gave him a hearing, but his argument was rejected, his sentence upheld. Notice how the ad implies that caring about technicalities is a bad thing. That’s an outrageous thing to say about a judge. But this language works. These ads work. Kloppenburg was defeated. And lastly, here’s a 2012 ad in support of North Carolina Supreme Court Justice Paul Newby, who was running for reelection. It’s um, it’s something.
Man #1: North Carolina Judicial Coalition sponsored this ad supporting Paul Newby for Supreme Court.
Man #2: [Banjo music. Singing.] There’s a judge they call Paul Newby, he’s got criminals on the run. Steely stare, got ‘em running scared, take ‘em down one by one. Paul Newby, he’s the tough old judge, respected everywhere. He’s heard the call, to lay down the law, to bring justice tough with prayer. Paul Newby. Criminals best beware. A prosecutor for 20 years, bringing justice tough but fair, walk the line or you’ll do hard time. Criminals best beware.
Josie: And he won his race.
Clint: A couple of things before we talk to Alicia about this more. First, notice in the last ad, as wild as it was, with the song, how it mentioned the judge’s history as a prosecutor. This is important. The tone of judicial elections has made it much easier for prosecutors to sell themselves as tough-on-crime and to win a race for the judiciary. On the other hand, when tough-on-crime is the key point, it’s much much much harder for public defenders or criminal defense attorneys to win a judicial election.
Josie: And that leads us to our next point, which is really the whole point, the money that is spent in these elections, spent on these ads is having a real effect on judicial decision making. Judges facing tough elections tend to sentence defendants to more time in prison, they are more likely to rule against the defendant in a case and they’re also more likely to affirm a death penalty sentence. And, as an added bonus, corporations are simultaneously getting the gift of deregulation.
Clint: To talk to us more about this is Alicia Bannon, the Deputy Director for Program Management at the Brennan Center. Stay tuned.
Josie: So thank you so much for joining us today Alicia. I’m so excited that you’re here to talk to us and um, you’re a leading voice on the issue of judicial elections, which I think is really interesting. And at the Brennan Center, you guys have been talking about this for like decades it feels like, for a really long time. Can you tell us how you sort of got interested in this issue and how you came to be at the Brennan Center and doing this work?
Alicia Bannon: Yeah. Well, so before I was at the Brennan Center, I was representing clients in civil rights cases and death penalty cases and we relied on the courts really heavily, you know, to make sure that our client’s rights were being protected, that they were going to get a fair shake on the claims that they had. And you know, there’s a whole bunch of reasons why people have hurdles in terms of getting a fair shake in court and a bunch of barriers to access to justice. But judicial selection and the dynamics around judicial elections is a really important one and one that people don’t tend to pay attention to. So I was representing a client on death row in Alabama and you have judges in Alabama that are literally campaigning on their records of, you know, putting people to death and you know, it’s a really important issue that I felt wasn’t getting the attention it deserved. And so I was really excited to have the opportunity at the Brennan Center to kind of cast a spotlight on what I think is a really important issue of access to justice and should be kind of central to the conversation around a host of issues including criminal justice reform.
Clint: So I’m curious just kind of on a day to day level, how the fact that judicial elections exist, how does that shape the way that they go about their practice as opposed to if they had been appointed, for example?
Alicia Bannon: Well, one thing that’s important to understand with respect to judicial elections is that it’s not just that judges are getting elected to the bench, once they’re on the bench, then they’re also standing for future elections. So they’re hearing cases and deciding cases with sort of a shadow over them. They’re going to have their records put before voters.
Clint: And how often are judicial elections?
Alicia Bannon: It varies quite a bit by state. For some lower courts it can be as frequent as every two years or every four years. For a state high courts it’s often a longer period, six years, eight years, some states as many as twelve years.
Clint: And so if your election is every two years, I mean as soon as you’re elected, you’re thinking right after, the day after the election I imagine about your next election and how you can sort of present yourself to the voters as a compelling person to reelect. It’s such a quick turnaround time for a judge.
Alicia Bannon: It is and there’s been a lot of social science research about how election pressures impact judge’s decision makings. Judges, they sentence more harshly in election years and there’s evidence that as criminal justice issues become a bigger part of election, so if there’s a lot of television advertisements, for example, judges are more likely to rule against criminal defendants. So you know, it’s borne out both in kind of a common sense way, you know, if you think about it, if you’re worried about your job security, that’s gonna put pressure on you as you’re hearing cases. And then it’s also borne out in a lot of research that’s looked at how different states judges are actually ruling in cases.
Josie: So it’s interesting, like you made this point earlier, but people don’t know about this and it’s not really, doesn’t seem to be something that motivates people. You know, I even think about, I’m sure even, and I am interested in this, I’m sure I’ve voted for judges I knew nothing about. And why do you think it is that people are not as driven to know who they’re putting on the bench or know about who is donating to that person or understand sort of this system in the same way they are maybe other issues in criminal justice or access to justice more broadly?
Alicia Bannon: I think that generally people don’t know a lot about their courts. They don’t know a lot about the judges that are sitting on the bench. Most people couldn’t even name who’s on their state Supreme Courts. And so I think there’s just a real information deficit and as a result, the elections themselves tend to be really low information races. So people you know, are not, they don’t tend to know a lot about the judges that they’re voting on, which means that attack ads and other sort of efforts to politicize these races I think can have a really big impact because oftentimes that’s the only piece of information that voters have. I think what we’ve seen across the country is that there’s one set of constituents that pay a lot of attention to these elections and that’s kind of big money interests that have a, have a big financial stake in who’s sitting on these courts. You know, they’re paying attention, they put a lot of money into these races, they’re paying, they’re really investing in them, but most members of the public really aren’t paying attention to it as an issue.
Josie: Right. One of the big things that you mentioned is that the people who are paying attention to these races are corporate donors, big business and people who have kind of constant stake in who’s on the bench. Everybody has a constant stake, but maybe a direct stake in a different way. And so could you talk briefly just about who those people are and the levels of money they’re donating and how that money is being spent?
Alicia Bannon: Yeah, absolutely. And I mean, just to step back, there was a time when judicial elections tended to be pretty low profile, low cost events, and you know, that started to change in the nineties and really kind of took off around the year 2000 where you started to see, um, a lot more money pouring into those races. If you look generally you’ll see with respect to support for conservative judges, a lot of money comes from, um, business interests. On the other side, you see a fair bit of money coming from plaintiff side lawyers, to a lesser extent unions. And there’s been kind of an arms race where you’ve seen more money coming in on both sides as, you know, interests are basically trying to shape who’s sitting on the courts. And ultimately the decisions that courts are making. What we’ve seen, which I think is really troubling is that oftentimes, you know, the people that are spending money do you have direct financial stakes in the decisions that courts are making oftentimes with cases pending at the very time that these judges are running for elections and, you know, they’ll put in six figures, sometimes seven figures into these elections. So these are large dollar amounts for races that most people aren’t really paying attention to. Right now there are 20 states where at least one justice on the state Supreme Court has been involved in a million dollar race. So it’s something that really is an issue in states across the country.
Josie: So what you’re basically saying is that if I work for, you know, whatever ACME Construction Company and we’ve donated a million dollars or we’ve donated $500,000 to the campaign of someone on the State Supreme Court and a case that involves us, goes up to the Supreme Court you’re looking at a justice who’s clearly compromised or is at risk of being compromised much more than maybe the other, the person that we’re in a case against, who maybe they didn’t donate any money to the Supreme Court.
Alicia Bannon: Yeah. And I mean, to give a concrete example, you know, in North Carolina, Duke Energy is a big player in that state and they are routinely in court in that state. You know, there’ve been a number of lawsuits involving claims to environmental damage, um, you know, coal, ash, polluting, polluting the state and they are frequently a defendant in environmental litigation. You also look at who have been the big spenders in North Carolina judicial elections. One of the big spenders is a group, the Republican State Leadership Committee, they’ve spent millions of dollars in that state, who is one of their biggest donors? It’s Duke Energy. Now, you know, I’m not suggesting that every justice is, you know, calculating who’s given them money or not. But I think if you, you know, from the perspective of people that are going into court and relying on courts to give them a fair shake, you know, I think it, it does create, at least in appearance that, you know, these judges are, you know, might have trouble squaring in and deciding cases based on their understanding of what the law requires. And I think it’s so, I mean, money in politics is an issue across the board, but I think it raises particular concerns in the context of judges because judges’ jobs are to put aside any kind of personal financial interest and really decide cases based on their understanding of what the law requires and what the facts require. And you know, they’re not supposed to have constituents. They’re not supposed to, you know, put the thumb on the scale. That’s an abdication of their duty. And so I think it raises real concerns about the ability of our justice system to function fairly.
Clint: Has it always been like this? Like was there a period of time in which ostensibly money and the campaign donations and money in politics and money specifically in judicial elections, didn’t play the same role that it’s playing now?
Alicia Bannon: It didn’t always used to be like this, it, you know, for many years you didn’t see much money in judicial elections. People didn’t pay much attention to them. The first two states where it started to change were Texas and Alabama. Karl Rove actually got, he cut his teeth in some really nasty big money elections in those states, which were an effort to essentially flip those courts, which had been, um, you know, Democratic for many years to, to Republican control. And that was, those were kind of the canary in the coal mine states. It started to pick up in the nineties, I think in part a byproduct of the tort reform movement. You had a number of states where legislatures had passed various laws to limit punitive damages to make it harder for plaintiffs to go into court, um, bringing various lawsuits against corporate interests and several state Supreme Courts struck those lawsuits down as violating their state constitutions. And that I think attracted the attention of the Chamber of Commerce and other big money interests saying we need to focus on these courts because these are keeping us from, you know, basically, uh, an agenda, a tort reform agenda. So you started to see money go into judicial elections to some extent in the nineties and then by the year 2000 it really started to take off.
Clint: And do you see it disproportionately coming from folks on the right and going to right leaning judges or is there, is it an even split? Like how is the money breaking down?
Alicia Bannon: So there’s, there’s been spending on both sides. Um, and to some extent it depends on the state. There have certainly been some states where it’s been largely kind of corporate money. There’ve been some states where it’s actually been plaintiffs trial lawyers that has been the big spending, big, big spenders. If you look in the aggregate, it’s tended to, um, overall there’s been more spending on the right than the left. And one thing that I think is interesting is particularly among national groups. So it’s not just how much money is being spent on both sides, but who’s spending that money. So in terms of spending for, spending on the left, it’s principally from interests within that state. Um, if you look at spending on the right, you’ve seen a lot of money coming from national groups that have a multistate agenda, so groups like the Republican State Leadership Committee, the Judicial Crisis Network, which also a big spender in the Kavanaugh confirmation hearing and in federal nominations. So I think a really striking dynamic has been, I think, a real national agenda on the right to shape the ideological composition of especially state Supreme Courts and to a lesser extent lower courts as well. I don’t think you’ve seen the same national attention coming on the left.
Josie: So for people who are listening who maybe don’t know what tort reform really means and what it is, can you, um, can you give an explanation of that?
Alicia Bannon: Sure. I mean, tort reform can mean different things, but generally what it involves is you have people coming into court, oftentimes consumers that are suing companies or businesses for various harms. You know, it could be a, um, a product defect, it could be, um, you know, a medical malpractice issue. There’s different reasons why people might come into court. The tort reform movement has been a movement to essentially make it either harder to bring those kinds of cases into court in the first place or limit the kinds of damages that you can get from those cases.
Josie: Right. And so kind of connecting that to the criminal aspect of this, tort reform is a tough thing to run on, right? Like you’re not gonna run campaign ads about tort. People just don’t, it’s not as interesting to people as maybe tough-on-crime or kind of the fear mongering ads that justices kind of rely on. Can you talk a little bit about why, you know, the people who are donating to these justices and these judges are not actually interested in criminal being, tough-on-crime necessarily. It’s not, that’s not a tort reform issue. It’s not a big business issue. So how is it and why is it that these judges are relying on their criminal records to get elected when the people who are donating are not necessarily, you know, it’s not the prosecutors who are donating to them or the defense attorneys, um, it’s the more civil cases, but it seems like the criminal cases play such a big part of this. So can you connect the dots for us on that?
Alicia Bannon: Yeah. Well, one thing that’s really striking when you look at the ads that come out in these judicial elections is that criminal justice issues are a huge theme. Usually they’re the most common subject of an ad. Um, and you’ll have judges either celebrated as tough-on-crime or attacked as being soft-on-crime. Usually those are ads that are taken out by, um, groups. You look at those groups and almost never are they groups with a criminal justice mission. If you look at who’s funding those groups, it’s often corporate interests or plaintiff side trial lawyers, as you said, a groups interest that are much more focused on civil justice issues. Things like tort reform. But what the rhetoric in those races is really focused on criminal justice issues and they’re actually taking out ads not on their issues, but on criminal justice because that’s seen as a wedge issue, an emotional issue, something that’s likely to motivate people when they’re to the polls.
Clint: What is the role that Citizens United has played in all of this? You’ve kind of alluded to it I think, we’ve talked about money in politics but, but explicitly what are the sort of effects that that ruling has had on the landscape of judicial elections?
Alicia Bannon: So we already saw big spending in judicial elections before Citizens United. I’d say the biggest impact that Citizens United has played on these elections is how that money gets spent and the real rise of interest groups spending directly on judicial elections rather than contributing directly to candidates or working through political parties. And that matters for a couple of reasons. One, you know, we’ve been talking about the tenor of these elections and um, you know, these, these misleading attack ads that we often see, you know, groups are much more likely to go on the attack then candidates themselves. Candidates have reputational interest, they, especially if you’re running for a judgeship, you don’t necessarily want to be seen as attacking the other side. Groups have a lot more freedom to do that-
Clint: So someone can put a nasty attack ad out on your behalf and you can say, ‘I didn’t do that. My campaign didn’t do that. I would never do such a thing.’ But the message is still getting out there.
Alicia Bannon: Exactly. Exactly. Um, and so I think one thing we’ve seen is it affects overall the tenor of these races and I think contributes to the politicization of the elections and this focus on criminal justice issues. Another big impact of this rise of outside groups has been on transparency. So, um, you know, we found in the last presidential election cycle 2015 to ‘16, we saw record amounts of spending by outside groups. About 80 percent of it was non transparent, more than half of it was completely dark money where you had no idea who the donors were, it wasn’t disclosed at all. And then you had about 30 percent where you essentially had to keep unpeeling the onion, you know, so it was a group and they disclose their donors, but if you looked at who the donors were, it was another group, so you had to keep on peeling to figure out who the actual interests are so that, you know, it leaves voters in the dark about who’s trying to shape their courts and it can also obscure real conflicts of interest. So you might have somebody who has a case before judge who’s contributing through these dark money groups. There might be a real reason why that judge shouldn’t be hearing the case, but we don’t know about it.
Josie: That’s such an immense amount of dark money. Is that sort of comparable to people being elected to state legislatures? Is there more dark money in judicial races than in other races?
Alicia Bannon: Well, the short answer is we don’t really know because it’s very hard to identify and track all of the dark money. The Brennan Center has done some work looking at dark money in state elections. And what we’ve found is, again, not systematically, but at least looking at a couple of states, is that there’s some indication that it’s the state races and some of the down ballot races that are most attractive to dark money because they kind of can get the most bang for their buck. These, you know, when you’re, when you’re dealing with, you know, a really high profile election where there’s a lot of media coverage and a lot of people paying attention to it, you know, those, the ads matter. But they might not matter as much as a down ballot race where somebody’s going to pay attention the week before the election and that’s, you know, the, the two ads they see on TV and the mailer that they get is going to be the only pieces of information that they have when they go into the voting booth. And so there’s at least some indication that, you know, if you look at proportionately there, um, the dark money is even perhaps the biggest issue in some of those down ballot measures and sort of other areas where the public isn’t super focused on it as an issue.
Clint: How much of an anomaly is this sort of thing? Like globally, like is this, judicial elections, something that happen in other countries across the world? Or is the United States unique in its absurdity on this front?
Alicia Bannon: Virtually no other countries use judicial elections. So we’re basically a global outlier. Um, you know, it’s, it’s an interesting history around how the United States adopted judicial elections. So when we, you know, at the time of the founding, no states had judicial elections, either the governor or the state legislatures appointed judges in the 13 original colonies. And then it was only in the late 19th century that states started to adopt judicial elections. And it was seen as a reform measure. So there was a concern that judges were too closely tied to the politicians that were appointing them and that they weren’t being enough of a check on the political branches of government. So the idea was that this would actually enhance the independence of the judiciary because they would just be accountable to the people. So that was, that was the motivation. I think what we’re seeing now, especially with the rise of these big money elections, is that it’s not playing that role anymore.
Josie: And I think that’s an important point because it’s hard to say to people, people like the idea of elections, it is a main part of democracy obviously. Right? So the idea of saying to them, actually we shouldn’t be electing judges, you shouldn’t have a say in who’s on the bench is not like a, is not a attractive selling point. So, and I’ve had trouble selling people on that.
Clint: And it runs counter to a lot of people’s ideas of like what a democracy is.
Josie: Totally. Like why shouldn’t we elect judges? But I’m hoping, it’d be great if you could just explain, you know, what is the value of an independent judiciary and the way that we, that the founders kind of imagined it? Um, you know, because obviously we see in federal, on the federal level, like Trump’s appointing whoever anyway. So what difference does it make if, you know, it’s the conservative guy that we pick or the conservative guy that he picks, but I think there is an important difference and I’m hoping you can sort of just lay out what is that value of an independent judiciary.
Alicia Bannon: Courts play a vital and unique role in our democracy. You know, sometimes what the law requires is not going to be what’s popular. And I think that’s a real challenge and issue with the use of judicial elections. I think especially as they’ve evolved today where judges are routinely being targeted for particular decisions that they’ve made on the bench. Like I think back to, you know, in um, after Brown v. Board of education you had billboards going around the South saying “Impeach Earl Warren” and what world would we live in if then you could have had a campaign and just kind of booted or worn off the bench the next election because you didn’t like him or something like. I think that it’s a real challenge to the role that courts are supposed to play where, you know, they’re supposed to be defending people’s rights, they’re supposed to be following the law and the Constitution and that’s not always going to be popular. That’s not always going to be consistent with what the majority wants. And so, um, I, I think that that, as I said, I think that’s a real challenge to using judicial elections. That said, I think that sometimes people that criticize judicial elections are a little bit too flippant when they’re talking about the alternatives, right? Like we just saw, you know, the Kavanaugh confirmation process a few months ago. That’s not, you know, it’s plainly not a model for a well functioning system either. So, you know, I think it’s important to acknowledge that appointment systems can be really problematic as well and can introduce their own brand of politics and special interest influence as well.
Josie: And maybe a bigger question sort of like what do you think is the solution to the judicial election question?
Alicia Bannon: So I’ll say first, I mean we’ve done a lot of research about this question of how judges should be selected and we actually just finished kind of a long term project where we looked at how different states choose their judges, interview different stakeholders, looked at the social science research, really tried to do a deep dive into this question. My own view and we discussed this in a report that we put out recently, is that, you know, there is a model of an appointment system that I think is really superior, at least for Supreme Court levels, in terms of how to choose judges. We kind of, we call it a publicly accountable appointment system where you have a bipartisan commission that recruits and reviews applications for potential judges. Vets them, interviews them and then creates a short list based on those interviews. And you know, the composition of that commission really matters. We have a lot of recommendations about, you know, the need for diversity on a bunch of different measures so that you’re really both recruiting from a wide swath of people and have people with diverse backgrounds that are, um, you know, evaluating those candidates. But I think with that kind of a commission creating then a short list that goes to the governor, you have a system that can be publicly accountable, have transparency, um, and have trust basically that you’re getting judges who are being chosen based on, um, you know, that they’re well qualified and that they’re being vetted in a fair and transparent way. So I think that in my mind is a, is a better model then using judicial elections and a better model than just, you know, empowering a governor to just, you know, use own brand of politics to, to appoint judges.
Clint: Is that a model that exists somewhere or is that something that you all have sort of imagined and created as what the ideal framework would look like?
Alicia Bannon: So there are several states that do use judicial nominating commissions. Um, many of them don’t sort of have that balance that we think is so important. So in some states, for example, the governor appoints all the nominating commissioners. So that’s not really a recipe-
Clint: So functionally how is that different? I mean, I guess to some extent it’s a bit different, but if the governor can appoint every single person on the commission, I guess it’s just another degree of separation from the governor appointing someone themselves.
Alicia Bannon: Exactly. So we don’t think that, we think it’s important that you have different appointing authorities involving different stakeholders. So not just the governor are making all the appointments. Not every state has requirements that, um, the commissions have members of different political parties. Um, you know, there’s an, another issue is professional diversity. So if you look at who’s on those commissions, oftentimes you don’t see representation from non lawyers. You don’t see representation from lawyers that don’t come from corporate backgrounds or plaintiff side backgrounds. So for example, you don’t see public defenders on those commissions. So we think it’s important that they be structured carefully so that you really do have representation from a wide set of interests which encourages, you know, real robust vetting and focusing on qualifications. You know, another thing that we think is really important is also looking, you know, I, I talked about these backend pressures, right? Judges, it’s not just that you’re elected to the bench, it’s that then you have to worry about being reelected. And I think that’s where some of the pressures on judges are most serious. So another recommendation that we have is that judge’s stand for lengthy single terms rather than being regularly reelected because, because we think it’s those reselection pressures that are the most serious with respect to judges really doing, doing their jobs.
Clint: Is there a length of time that you think is his best?
Alicia Bannon: Um, we recommend something in the realm of kind of 14 to 18 years. So you, um, and at least for the state Supreme Courts, like you want it to be a long enough time that you attract good people and that they have the ability to develop expertise on the court. But you also don’t want judges to be there, you know, for a lifetime.
Josie: So you just mentioned the idea of sort of like interviewing judges and asking them their positions on certain or trying to get a sense from them if you’re a part of a bipartisan commission, when you think about interviewing judges or electing judges, part of the reason it seems like people don’t always have a lot of information about who’s on their state Supreme Court or who they’re electing is because judges do have some constraints on what values they can espouse as judicial candidates. Is that correct? And what are those constraints?
Alicia Bannon: Yeah, so judges are limited in how they can behave in judicial campaigns. There are codes of conduct that every state has that address how you behave on the campaign trail. Those codes of conduct are actually weaker than they used to be because the Supreme Court, um, about I guess in 2002, there was a, a case actually challenging some of these codes of conduct-
Josie: Was this Minnesota v. White or something like that?
Alicia Bannon: Yeah. So Republican Party of Minnesota v. White. And so that was specifically about whether or not judges could talk about issues of public concern on the campaign trail and several states had limits on their ability to do so and the Supreme Court struck those down and so that did open up kind of more, I guess, ideological seeming rhetoric on the campaign trail than there used to be, but judges are still constrained and other ways. I think how this plays out most significantly in the context of criminal justice issues is that generally judges are limited in talking about their own cases, so if you issue a ruling and you’re attacked, judges usually aren’t in a good position to then respond to those attacks and say, ‘well, that was a misrepresentation of what I said.’ It’s a very uncomfortable, awkward position for judges to be in because usually they’re expected to kind of rely on their reasoning in their cases and their opinions as their explanation of what they did. And so when they’re attacked for those decisions, it puts them in a very awkward position. And so you end up with judges frequently being targeted for cases and not feeling comfortable really responding at least with full force to those kinds of attacks and I think you’ve seen other people, I don’t think we’ve seen enough of other stakeholders like state bar associations or retired judges or just another kind of interested people in the state stepping up to say, you know, ‘no, this is misleading, this is wrong. This is not appropriate. You’re not fairly discussing these judges’ records.’ We sort of haven’t seen that infrastructure yet coming up in, in states.
Josie: I’d love to hear some examples of some of the ads you’ve seen or some of the, you know, candidates you’ve seen really pay the price for thinking more progressively on crime or for example, not supporting the death penalty. Um, or, you know, really how this actually affects people who are on the bench.
Alicia Bannon: That’s a great question. Well, I mean, one ad that I always found chilling, and this is, this is actually the other direction, this is judges touting their records, was, um, one in Tennessee in a retention election. So judges were standing for an up or down vote, do you keep them or don’t keep them? And there was a big attack basically trying to get these justices off the bench. One of the issues in those attacks was saying that they were soft-on-crime. The justices came out and said, ‘no, we’re really tough-on-crime’ and took out these ads saying ‘we uphold nearly 90 percent of all death sentences’ and that was their campaign ad or a big banner saying ‘uphold 90 percent of death sentences.’ And I always think about that one because I just think, gosh, like what if you had a case and you might put them below 90 percent, you know, are you’re going to feel really comfortable going into that court, are you really gonna feel like you’re going to get a fair shake when judges are campaigning on the percentage of cases that they’re upholding? Um, so I think that’s one that always struck me and stuck with me as a real exemplar of some of the really problematic dynamics that we see when people are really campaigning on their records in death penalty cases. And obviously the answer shouldn’t be what percentage of cases you upheld. The answer should be, well, what percentage of cases did you get right and maybe some of those you should have upheld and some of those you shouldn’t have. On the other side, one ad that’s always stuck with me was in Wisconsin, there was, Louis Butler, who is the state’s first and only African American justice on the Wisconsin Supreme Court, was targeted in a very nasty and misleading Willie Horton-style ad really, sort of suggesting that he basically, juxtaposing his face along with the face of a criminal defendant, also black who bore sort of a similar physical resemblance to him and basically suggesting that he had gotten this person off on a loophole. The facts were that he wasn’t even a judge involved in this case. He had represented this person as an appointed counsel, as a criminal defense lawyer and had represented him and all of those facts were really distorted in an ad that was widely broadcast and he lost his seat. And so I think that’s a good example of both how these ads are used and you know, the impact that they can have. I mean, my sense from what happened in Wisconsin was that that ad really did kind of change the narrative in that state. You know what I mean? Usually sitting justices have a pretty good incumbent advantage. They usually hold onto their seats and you know, and, and he lost his seat.
Josie: Right. Is the reality of that story told about Louis Butler and how he was sort of a public defender appointed council for this guy and then it’s paying the price on the back end saying you supported this person even though that’s his job. Does that mean that they’re probably, do you see a lot more former prosecutors on the bench who are being able to benefit from this tough-on-crime platform then people who maybe were previously defense attorneys?
Alicia Bannon: I think that is a real issue. If you look at the composition of state judiciaries, it’s true for federal judiciary as well, that, um, it’s, it’s definitely overrepresented by people with prosecutor backgrounds, corporate backgrounds and it can be very hard for public defenders or other people with defense backgrounds to win in these races because, you know, in doing their jobs they’re representing criminal defendants and some of those cases can be very easily caricatured in ads and that happens all the time where, you know, it’s not just judges being attacked for decisions that they made on the bench. You’ll also see lawyers running for judge being attacked for their representation.
Clint: So you spoke a little bit about what you all at the Brennan Center think about as the ideal framework and scenario for mitigating a lot of the issues that exist as a result of judicial elections and money in these sorts of, but also not giving a sort of unfettered power to a governor of a state or what have you. I’m curious what the entry point is to achieving that sort of scenario?Like if someone is listening to this and they’re like, ‘okay, well actually I want to play a role in making sure that we are attempting to put in place the framework that the Brennan Center is advocating,’ how would they go about doing that?
Alicia Bannon: With respect to how states structure there judicial selection systems, usually that’s a function of the state constitution and so, you know, in some states that can be changed by a ballot measure, so people in the state can come together and say we want to change our system and we’re going to, you know, put forward a measure to do that. In other states it requires action by the state legislature as well to um, change the constitution. So, you know, I think it depends a little bit on the state that you’re in. The other thing I’ll say though is that, you know, that’s a big reform. That’s probably something that’s going to take, you know, time to do. There’s lots of other work that can be done in the more immediate term for people in states that elect judges, you know, to research their judges, you know, to pay attention to these judicial elections, vote in these judicial elections, make sure they’re voting for good people in those elections. And then I think there’s also other reforms that you can make that don’t require quite as heavy a lift in terms of a constitutional amendment, but you know, to help take money out of the elections by supporting things like public financing for judges in their state, strengthening the rules, the ethics rules around when judges have to step aside from cases in the face of these kinds of conflicts of interest. So I think there’s a lot of intermediate steps that people can call for as well. I think the biggest hurdle to reform that we’ve seen in states across the country, is just a lack of public understanding and engagement on this issue. So I think just understanding this as a problem and saying, you know, this is something that we think needs to be addressed would be a really important first step towards any of these reforms.
Clint: Alicia, thank you so much for joining us. This was really informative. I learned a lot and I’m sure our listeners appreciate it.
Alicia Bannon: Thank you so much for having me.
Josie: That was Alicia Bannon, the Deputy Director for Program Management at the Brennan Center. It was great to talk to you Alicia. Thank you so much for joining us.
Clint: Thank you so much we really appreciate it. And thank you for listening to Justice in America. I’m Clint Smith.
Josie: I’m Josie Duffy Rice.
Clint: You can find us on Twitter at @Justice_Podcast, or like us on Facebook at Justice in America, also subscribe and rate us on iTunes. Every review helps.
Josie: Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. And we’d like to say a special thanks to Jon Hanson for his help on this today. Hope you join us next week.