Sotomayor: Judicial Elections Undermine Justice

The Supreme Court this week denied cert in a case out of Alabama wherein a judge overrode a jury’s recommendation and imposed the death penalty on a convicted felon rather than life imprisonment. The court has upheld such judicial overrides in the past, so this was not surprising. But Justice Sotomayor took the unusual step of releasing a dissent from that cert denial, joined by Justice Breyer.

On Monday, the U.S. Supreme Court declined to hear a challenge to Alabama’s judicial override, over the protestation of Justices Sonia Sotomayor and Stephen Breyer. In a 15-page dissent to the court’s decision not to hear the case, Sotomayor surmises that there is only one reason supported by empirical evidence why Alabama uses the judicial override where other states have moved away from the arbitrary practice: judicial politics.

“Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures,” Sotomayor writes. Sotomayor points to examples of several judges who have imposed death penalty overrides on multiple occasions after having campaigned on support for capital punishment. One judge cited the murderers he has sentenced to death in a campaign ad. Another admitted in a 2011 news report that voter reaction does “have some impact” on sentencing decisions, “especially in high-profile cases.”

Numerous studies have linked judicial elections to tougher sentences, as campaigns typically come with “tough-on-crime” rhetoric. One study published in Harvard University’s The Review of Economics and Statistics found elected judges issue tougher sentences right before an election. Another recent Center for American Progress report linked corporate spending on judicial elections to more prosecution-friendly outcomes.

These findings, in part, speak to the hazards of elections for judges. But the risk of a wrong decision is particularly dire in the case of the death penalty, which is why Sotomayor calls on the court to at least reconsider the strong possibility that death sentences hinging on electoral politics constitute “cruel and unusual punishment” under the Eight Amendment. At the very least, she writes, the practice “casts a cloud of illegitimacy over the criminal justice system.”

I’ve even seen judges during campaigns put out fliers and commercials talking up their high conviction rate, which is appalling and should immediately disqualify that person from ever being a judge. The job of a judge is not to convict the defendant, it is to ensure that the defendant gets a fair trial. It is to ensure that justice is done and justice sometimes requires an acquittal. Judicial elections should be eliminated completely.

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  • Trebuchet

    The only alternative to judicial elections is, of course, appointment. Which gives us the likes of Clarence Thomas and Samuel Alito. It’s a lose-lose situation.

  • Judge Cletus says he’s “tough on crime”,

    but how many men has he killed?

    Just four.

    And he didn’t even have the balls to do it himself.

    And where are all the men that he hasn’t killed?

    Runnin’ free as jaybirds, racin’ ’round in prison,

    terrorizin’ good, hard-workin’, family raisin’, God fearin’ folks like you and me.


    Judge Cletus: bad for Alabama. Bad for America. Bad for Justice.


    (this message paid for by the Committee to Elect {name})

  • dalemacdougall

    As a Canadian living in the US I have often commented on how ridiculous it is to elect judges. What average person is qualified to know who will/won’t make a good judge? I follow the news both online and on tv, try to keep up with current events, but I no nothing about anyone running in judicial elections.

    Instead, all voters know is what they see in posters and commercials. So electing the arbiters of the law can come down to who has the most money for a campaign. I can remember reading a newspaper columnist during one election who said that a very attractive female candidate had an advantage because of the name recognition she would have. I believe she won that election.

    Can’t judges not on the supreme court be removed for cause?

  • sc_770d159609e0f8deaa72849e3731a29d

    One judge cited the murderers he has sentenced to death in a campaign ad.

    You mean

    One judge cited the alleged murderers he has sentenced to death in a campaign ad.

    It looks frighteningly as if the guilt or innocence of people accused of crimes is less important than the desire to convict someone of the crime.

  • khms

    #1 Trebuchet

    The only alternative to judicial elections is, of course, appointment. Which gives us the likes of Clarence Thomas and Samuel Alito. It’s a lose-lose situation.

    You don’t contrast election and non-election, here – you contrast election by the common voter, as opposed to election by some set of politicians, who are themselves dependent on election by the common voter.

    How about having hiring of judges decided by other judges, such that there is no dependency on the common voter?

  • steve84

    It gets worse. Not only judges are elected, but also the top law enforcement officers and the top prosecutors. It’s not hard to see why the US has such a huge prison population, even without the War on Drugs.

  • steve84


    It’s possible to have committees of other lawyers and judges select new judges. That has some drawbacks too, but it takes out much of the politics.

  • Trebuchet

    @5 and 7: That would indeed be better, were those judges not electees or political appointees themselves. I’m not aware of such a system in use anywhere in the USA, although there may be some.

  • procrastinator will get an avatar real soon now

    Iowa has a pretty good scheme for selecting judges. See here:

    Unfortunately, the retention vote got politicized after the Iowa supremes unanimously declared a hetero only marriage law unconstitutional. This resulted in several highly qualified judges loosing their seats on the supreme court. The right tried again in the last election but failed to remove any judges.

    On a personal note, I used to always vote against retention of any judge on the theory that I didn’t want them to get too comfortable in the job. That stopped as soon as the Republicans decided it was a good idea.

  • Our whole justice system seems to be based on the idea that more convictions equals success. Seems to me less crime and thus fewer convictions would be success. Of course real success would be to arrive at the truth as often as possible.

  • lanir

    I’m with #10… It does nobody any good to avoid the causes of crime and then just fill up jails. I get the whole “eye for an eye” thing but vengeance is only really a useful response when there’s nothing else left. Civilizations can exist becuse we aren’t all going headhunting over every minor slight. Why people imagine the criminal justice system should work by more primitive and less effective rules escapes me.

    As for whether judges are elected by a large group (general elections) or a small one (appointments), I would simply say that it’s much easier for a small group to be advised effectively. They may still not make the right decisions, but it’s much more likely they’ll at least recognize the right decisions when they see them. And if they don’t, that’s something that their opponents have an incentive to use in the next general election.

  • birgerjohansson

    In Russia, only about one percent of the accused avoid a “guilty” verdict. So Russia has cought on to the fact that suspicion= guilt. It was a very popular notion in 1937.