Yesterday, the Birmingham News published an article by Alabama State Bar President J. Mark White on the topic of financing for judicial campaigns. White stated, “At a time where we desperately need judges who are viewed as and are, in fact, impartial decision-makers, more than 75 percent of the public believes that there is a correlation between campaign contributions and judicial decisions. Worse yet, more than 49 percent of the trial judges in this country share the same feeling. And one thing one can be assured of in a partisan judicial election — it’s expensive. In 2006, which was the last major election cycle here in Alabama, $17 million was spent on judicial campaigns in our state. Last year, more than $5 million was spent on the race for a single open Supreme Court seat. More and more money is poured into judicial elections with every election cycle, with no end in sight.”
As shocking as the data White shared is, campaign financing in judicial elections is but one factor that can pervert justice, and many other judicial selection models (perhaps just as vulnerable) are being discussed across the U.S., like Colorado’s commission model wherein candidates are nominated and the governor makes a selection, with the judge chosen undergoing a retention election after a period of time. Other formal selection processes aside, there is a powerful social norm that guides the election of Alabama judges, one that may not disappear no matter the selection process—the expectation that all judges be tough on crime.
From handing down excessive sentences to rendering disparate sentences for crimes committed, many Alabama judges, as well as other officials, feel that in order to gain public support come election time, they must be tough on crime. They feel they must go beyond empirical sentencing standards to prove they are the toughest, or at least tougher than their political opponent. This feeling among judicial candidates is not just conjecture, but has been the catch phrase or byline of many campaigns. As AWRN reported last week, the United Nations Human Rights Council sent a special rapporteur on judicial processes to Alabama, Philip Alston, who stated, “But if – as research and practice show –the outcome of such a system [judicial elections] is to jeopardize the right of capital defendants to a fair trial and appeal, there is clearly a need to consider changes. Studies reveal that in states where judges are elected there is a direct correlation between the level of public support for the death penalty and judges’ willingness to impose or uphold death sentences. There is no such correlation in non-elective states. In particular, research shows that, in order to attract votes or campaign funds, judges are more likely to impose or refuse to reverse death sentences when: elections are nearing; elections are tightly contested; pro-capital punishment interest organizations are active within a district or state; and judges have electoral experience.”
In addition to high profile death penalty cases, the tough-on-crime banner has the momentum to push judges to be “tougher” in other areas, such as drug possession cases which are no doubt influenced from the social and political context of our nation’s longstanding drug war that diverts more money to enforcement than prevention and treatment.
In Alabama, we have to be honest and realize that following the money trail is only part of the problem for our justice system. There is a real, actionable belief that in order to be elected, one has to hand down harsh, punitive justice and that rehabilitative measures are of less value to our society. It is perplexing that the case that finally brings to light the implications of electing judges in Alabama is a white collar, business-related case in West Virginia with a direct campaign financing connection, one in which the judge’s decision to not recuse himself was the pinnacle of injustice. What about the hundreds upon hundreds of people affected by a judge’s tough-on-crime campaign strategy? What about the many women in Alabama serving excessive sentences, serving actual hard time behind bars, whose case did not have a party linked with the judge’s campaign finances? Is a direct financing connection necessary to implicate judges for bringing their extrajudicial motivations to the courtroom?
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