Elections Make Judges Less ‘Tough-on-Crime’ Than Previously Thought

New paper complicates claimed role of elections in mass incarceration

prison
Getty Images

Harsh sentencing may have less to do with judges' responsiveness to "tough-on-crime" voters than commonly imagined, new research released Monday suggests.

Research from economists Christian Dippel (UCLA) and Michael Poyker (Columbia) looked at the way judges change their behavior in the lead up to elections using data from ten states. They found that judges seemed to grow more punitive around election-time in just three of the ten, a conclusion that flies in the face of previous findings and common wisdom.

Elected judges are a popular target of advocates of prison downsizing. They argue that ever-escalating "tough-on-crime" rhetoric in elections, combined with a bloodthirsty public, can lead to the seating of needlessly punitive judges, who in turn drive mass incarceration.

This account suggests a theory of "electoral cycles" in judges' behavior. As reelection draws near, judges should become more responsive to the voters' desires, and, some fear, grow more punitive in an effort to show that they are appropriately tough.

Dippel and Poyker find that all of the current literature examining the phenomenon of judicial electoral cycles supports their existence. However, they note, all of these conclusions are based on studies of just three states: Kansas, Pennsylvania, and Washington.

As part of a "broader research agenda," Dippel and Poyker have collected relevant data from an additional eight states: Alabama, Colorado, Georgia, Kentucky, North Carolina, Minnesota, Tennessee, and Virginia. In their new paper, they conduct similar analyses to precursor work, asking how significant of an effect the proximity of an election has on a given judge's punitiveness.

Taking into account controls for sentencing disparities based on demographic factors about an offender, and looking both at a restricted set of serious crimes and the set of all sentences, the authors replicate the previous finding that electoral cycles have an effect on judges in Pennsylvania and Washington. They also find a third state, North Carolina, where the effect is apparent. But in the other seven states, they find no effect of a near election on punitiveness.

"The core observation," the pair wrote, "is that electoral cycles in criminal sentencing are not as common as previously thought. In fact, they appear to be the exception rather than the norm."

As an explanation for why some states display an electoral cycle effect and others do not, the pair offer as an explanation the variation in how competitive judicial elections are between states. For example, they note, in Washington (where there is a cycle effect) 35 percent of elections in the data set were contested, compared to 10.5 percent in Minnesota (no cycle effect).

This non-competitiveness in local judicial races is a nationwide phenomenon. For example, in 2016, 65 state Supreme court seats were up for reelection across 27 states. Just 24 (approximately a third) were subject to a contested election, while the rest were either uncontested or "retention" elections, in which an elected judge can be recalled but has no opponent.

Rather than leaving office via losing an election, Dippel and Poyker wrote, "the majority of judges enter and exit the profession outside of electoral cycles, i.e., by appointment and retirement rather than by winning and losing elections."

More robust statistical analysis confirms the importance of this reality, as do interviews the pair conducted with "lawyers, legal scholars, and judges."

"A clear narrative pointing to differences in professional norms emerged from these interviews," they wrote. "In some states, we were told that incumbents are almost never challenged because judicial electoral competition is ‘frowned upon' and judgeships are viewed as something to be bestowed by the governor as a hallmark of one's professional standing. In other states, we were told of unfettered competition for judgeships and a complete lack of any norms preventing electoral competition."

Dippel and Poyker's work is preliminary, covering just ten states, and being part of a much larger on-going conversation. However, it challenges the received assumption that a public thirsty for "tough-on-crime" can push a judge to be more punitive than he might otherwise be.

Future, similar work might analyze the possible effects of election on District Attorneys, whose electability is sometimes similarly blamed for mass incarceration, and who are also usually uncontested: 72 percent ran unopposed in 2016.