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An ad paid for by And for the Sake of the Kids in West Virginia in 2004.
Feature

Trial By Cash

Judicial elections have gotten ugly. That’s bad news for defendants.

In this year’s battle for the governorship of Arkansas, criminal justice reform was front and center. The Republican victor, Asa Hutchinson, a former federal prosecutor and DEA administrator, promised to combat prison overcrowding and called out “over-aggressive prosecutors who do not use common sense.” His Democratic challenger, Mike Ross, advocated lighter sentences for nonviolent offenders and more emphasis on rehabilitation. Neither candidate deployed the fear-mongering attack advertisements that have been a campaign-season staple for decades.

The race for an open seat on the Arkansas Supreme Court seat was another matter. One outside group's campaign ad praised Judge Robin Wynne of the state court of appeals for “refusing to allow technicalities to overturn convictions.” Another attacked his primary opponent, defense attorney Tim Cullen, by claiming he had called child pornography “a victimless crime.” Over eerie black-and-white footage of an empty playground, a woman’s voice responded to the statement (a distortion of Cullen's defense brief for a single case), intoning: “Tell that to the thousands of victims robbed of their childhood.” Wynne won.

The Law Enforcement Alliance of America's 2014 ad supporting Justice-elect Robin Wynne.

LEAA's 2014 ad attacking judicial candidate Tim Cullen, a defense attorney.

If there is a growing bipartisan consensus that America locks up too many people for too long, there is little indication that anyone spending money on judicial elections shares the concern. The real scourge of American justice, these campaigns seem to suggest, is the rampant coddling of child molesters by judges up for re-election. “WHY SO LENIENT?” one ad demanded, attacking an incumbent state justice in Illinois. A similar commercial in North Carolina cut from an image of children pedaling tricycles to one of inmates pacing in their cells, and declared that a justice up for re-election “took the side of convicted molesters.

Judicial races once were largely polite, low-budget affairs. But in the 1990s, business and political groups began to focus on these elections as an important (and often cost-effective) path to influencing policy and regulation. Since then, judicial campaigns have come to look more like any other political circus: rallies, political consultants, attack ads, and a flood of campaign cash. As of Nov. 5, election watchers at the Brennan Center, a liberal think tank that tracks legal issues, estimated that at least $13.8 million had been spent on TV advertising for state supreme court elections nationwide in 2014—up from $12.2 million in the last midterm election in 2010.

The funders of these campaigns aren’t generally motivated by a desire to lock up criminals. In fact, some of this year’s big donors to organizations running tough-on-crime campaigns—including the conservative philanthropists Charles and David Koch—have simultaneously backed so-called “smart-on-crime” reform efforts aimed at shortening mandatory sentences and reducing prison populations. But fear works, election strategists believe. Why run on what really matters to your funders—like tort reform or deregulation—when you can run against paroling pedophiles?

And evidence is mounting that these campaigns have a life after Election Day. Research published in October by the American Constitution Society, a liberal legal group, found that as more TV campaign advertising aired in judicial election campaigns, elected state supreme court justices became less likely to rule in favor of defendants. Defense attorneys in several states say they are worried that judges are doing more than playing tough on TV; they are acting out their promises on the bench for fear of being pilloried in the next election.

“If I were a criminal defendant,” said Cullen, the defense lawyer who lost the Arkansas judicial election, “I would be concerned about Justice Wynne’s fairness based on the campaign ads that he benefited from.” Wynne declined a request for comment.

Some judges agree. “Judges would have to be saints to ignore the political reality,” said Sue Bell Cobb, the former chief justice of the Alabama Supreme Court. “And judges aren’t saints.”

Screenshot of a 2014 ad supporting Arkansas Justice-elect Robin Wynne paid for the by the Law Enforcement Alliance of America.

By most accounts, the judicial arms race was launched in Texas around 1988, when Republican political consultant Karl Rove worked to turn the Texas Supreme Court into a Republican stronghold. He waged a similarly successful campaign in Alabama in 1994. After that, it wasn’t long before the Chamber of Commerce, trial lawyers, insurance companies, political parties, labor unions and others started pouring hundreds of thousands of dollars into judicial campaigns.

The wars escalated in 2010, when the U.S. Supreme Court freed corporations and unions to spend unlimited amounts on elections through the landmark Citizens United ruling. In the 2007-08 general election, outside spenders put $12.8 million into judicial elections. After the Supreme Court extended free speech rights to corporate money, that number nearly doubled to $24.1 million in the 2011-12 general election cycle.

Much of this money flows through PACs, super-PACs—to which corporations can give unlimited amounts—and “social welfare nonprofits” that don’t have to disclose their donors. All three make it easier for groups with a financial stake in court rulings to hide behind ads focused on keeping predators in prison.

When coal executive Don Blankenship wanted to unseat an unsympathetic West Virginia justice in 2004, he didn’t run ads in the name of Massey Energy Co. He funneled nearly $2.5 million to a PAC called “And for the Sake of the Kids,” to produce commercials alleging the incumbent had freed a child rapist and allowed him to work as a school janitor. In reality, Justice Warren McGraw had voted with the majority that a juvenile sex offender already on probation should have been sent to rehab instead of back to jail when he was caught drinking and smoking pot. The judge Blankenship helped elect reversed a $50-million ruling against Massey Energy, culminating in a landmark Supreme Court ruling that found the campaign contributions constituted “a serious risk of actual bias.” (More recently, Blankenship was indicted in November over a 2010 mine explosion that killed 29 miners.)

A 2004 ad by the And for the Sake of the Kids PAC against West Virginia justice Warren McGraw, funded by a state coal executive. 

Like Blankenship, many of the outside spenders have contradictory interests in criminal justice issues. Several actually support policies that go against the severe sentencing they celebrate in campaign ads.

Less than two weeks before Election Day this year, an organization called the Center for Individual Freedom paid an estimated $468,110 to run a TV commercial in Michigan hailing two Republican-appointed justices for having “thrown the book at violent child predators.”

But the center has little to do with child predators or Michigan. The Virginia-based organization was founded in 1998 by former tobacco company executives to fend off regulations on smoking. Since then, the center has been sustained by millions of dollars from Rove’s Crossroads GPS and has focused mainly on taxes, Obamacare and reforming tort law to rein in liability lawsuits. When it has weighed in on criminal justice, the center has decried the sort of messaging being used in their own judicial election advertisements. “Ancient legal principles go by the wayside when politicians pretend to be ‘tough on crime,’” a senior fellow wrote in 2011. Another post criticized the media for presuming guilt when it comes to “heinous” sexual crimes.

The Center for Individual Freedom did not respond to a request for comment.

Another nonprofit known as American Freedom Builders spent roughly $596,440 this year on an ad in Ohio praising state supreme court justice Judith French for “working hard to protect us” and listing several horrific crimes against women and children for which the justice upheld stiff sentences or convictions. But the only obvious reference to child safety on the group’s otherwise free-market-focused site is criticizing regulation of private daycare centers.

In an email, the group’s president, David Myhal, declined to comment on any of their advertisements.

Koch Industries, owned by the conservative activist Koch brothers, gave $460,530 this year to the Republican State Leadership Committee and $50,000 to the North Carolina Chamber of Commerce’s PAC—money that helped fund an ad promising “no leniency” for violent criminals in Illinois and one praising a North Carolina candidate for “putting murderers, drug dealers and sex criminals in jail,” among others. In the same year, they’ve emerged as champions of due process and indigent defense, announcing a “major” grant to the National Association of Criminal Defense Lawyers and sponsoring a forum on the problem of mass incarceration.

A spokeswoman for Koch Industries declined a request for comment.

Michigan’s influential DeVos family has also given millions that have helped pay for soft-on-crime attack ads in recent elections, through donations to the state Republican Party and Republican-nominated Supreme Court candidates. But their family’s foundations have also given nearly $13 million to Prison Fellowship, an evangelical organization that lobbies against mandatory minimums and other stiff sentencing laws.

A spokesperson for the DeVos family could not be reached for comment.

Organizations affiliated with political parties also fly the tough-on-crime flag to elect justices who will uphold their partisan agendas and approve redistricting maps that help consolidate their electoral strength.

At a campaign event in October, Judith French explained why party-line voters should care who sits on the bench. “The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever they do, we decide whether it’s lawful,” she said before introducing Republican Gov. John Kasich. “So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative.”

In April, the Washington-based Republican State Leadership Committee announced a $5 million “Judicial Fairness Initiative” to fund state supreme court campaigns. “Republicans have had a significant amount of success at the state level … implementing bold conservative solutions. Unfortunately, that’s running into a hard stop with judges who aren’t in touch with the public,” the committee’s president, Matt Walter, told The Washington Post.

That money helped pay for ads in Montana, Missouri, Tennessee, Illinois, and North Carolina, calling out sitting justices for “siding with child predators,” being “liberal on crime,” and “finding loopholes in the law, overturning convictions of violent criminals.”

Screenshot of a 2012 Michigan Republican Party ad attacking three Democratic-nominated justices. 

A growing body of research suggests that soft-on-crime attack ads may be changing how judges rule on criminal cases. In the American Constitution Society’s study of state supreme court races, Emory Law professors Joanna Shepherd and Michael Kang concluded that the more TV ads aired, the less likely individual justices are to side with a defendant. The impact was fairly small but statistically significant, showing that doubling the number of TV ads in a state with 10,000 ads increased the likelihood of a vote for a prosecutor by an average of about 8 percent.

“Constitutional rights of the accused persons are often the road kill in these judicial campaign wars,” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. “Our freedom and our constitutional rights depend on judges who have the courage to be fair and impartial. It’s a real problem if they know every ruling is likely to become fodder in a campaign.”

Previous studies have found that Pennsylvania judges handed out longer sentences as an election approached, and that Kansas judges chosen in partisan elections gave harsher punishments than those who kept their seats in nonpartisan retention elections. A 2013 survey of seven states with judicial election spending of $3 million or more, conducted by liberal organization Legal Progress, asserted that “as campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.”

Research by the Equal Justice Initiative in 2011 also found that in Alabama, one of three states where judges have the power to override a jury’s decision, justices impose the death penalty in place of a jury's life sentence more often in election years.

Most justices are adamant that political pressure has no impact on their rulings from the bench. But some defense attorneys aren’t convinced.

“I have to say I don’t believe them, especially as it gets closer to election time,” said Valerie Newman, an attorney with Michigan’s State Appellate Defender Office. She defended a young immigrant client who, at the age of 17, went on a crime spree and killed a man. Afterwards the state Democratic Party bought an ad attacking a Republican-nominated judge for not sending the teenager to an adult prison or deporting him after an earlier string of minor offenses, neither of which the judge had the authority to do.

While she doesn’t think an election campaign is “at the forefront” of any judge’s mind, Newman worries that the prospect of a nasty election ad may shade things in favor of the prosecution. “If a judge looks the other way on prosecutorial misconduct because that judge doesn’t want to have an ad, then it just allows things to get worse.”

Screenshot of a 2014 ad against Illinois Justice Lloyd Karmeier, paid for by a PAC called the Campaign for 2016. 

In the nationwide judicial campaign spending spree, Michigan has stood out. The state’s nearly $19 million supreme court race in 2012 was the most expensive in the country. Roughly $14 million of that was spent on TV advertising by outside groups. Spending is typically lower in midterm elections, but the estimated $7.2 million spent on TV commercials in Michigan this year was still the most spent on any judicial campaign in the country.

And Michigan is a reminder that it’s not just Republicans promising to show no mercy to violent criminals. In recent elections, Michigan’s state parties have excoriated judges for handing down probation instead of more prison time (an ad by Democrats), for defending a mother convicted of sex crimes after her accuser recanted (Republicans), for not moving a teen into an adult jail (Democrats), and for taking on a wrongful conviction case (Republicans). The ads portrayed these positions as “[enabling] violence against Michigan kids,” “fighting to protect sexual predators,” “failing as a judge” and winning “the release of a convicted killer.”

“Criminal justice has become a big issue in these races disproportionate to the amount of time the court devotes to [it],” said former Democratic Party chairman Mark Brewer. “That’s because it drives voters.”

“In terms of a particular case, yeah, the larger philosophical point might get sacrificed,” he said. “Because in the end, the party and these other organizations are about electing people.”

A 2010 ad by the Michigan state Democratic party against Justice Mary Beth Kelly.

A 2012 ad by the Michigan state Republican party against Justice Bridget McCormack. 

The 2012 election was particularly ugly. A nonprofit group called the Judicial Crisis Network ran an ad criticizing Democratic nominee Bridget McCormack for “volunteering to help free a suspected terrorist” when she represented a Guantanamo detainee. The state Democratic Party produced a commercial featuring a mother whose toddler had been killed, cutting from an image of her daughter’s grave to claims that the Republican nominees had “protected criminals, not kids.”

The election prompted Michigan’s state bar association to call for campaign finance reforms in 2013, but those efforts were immediately quashed by the state Legislature. When the Republican secretary of state proposed making public the names of funders behind so-called “issue ads,” the Legislature rewrote a pending bill that same morning to prohibit disclosure, and it was signed into law six weeks later.

“We were all so amazed, because we’ve hardly ever seen the legislature act so fast,” said former Michigan Justice Marilyn Kelly, who leads a bipartisan task force calling for changes to the supreme court elections.

Screenshot of a 2014 North Carolina ad for judge Eric Levinson, paid for by the state chamber of commerce's PAC. 

Most judges leave the heavy politicking to the interest groups and party organizations. But their advisers are increasingly telling them to defend themselves. Judges also have more freedom to campaign after a 2002 U.S. Supreme Court ruling that judicial candidates have a constitutional right to declare their positions on controversial issues.

“If you don’t get ready, someone who is ready will come a month before the race, dump a ton of money, and get your guys out,” warned J. Alex Villalobos, a former Florida state senator that helped defend three Florida justices from a 2012 attack, at a recent conference on judicial elections. “Who first defines the justices is going to win this campaign.”

Nowhere is this imperative more evident than in Tennessee, where judges are appointed by the governor and then retained—or not—by popular vote. The first retention election to get heated was in 1996, when Supreme Court Justice Penny White was attacked by a local newspaper for voting with the majority to vacate a death sentence for a man convicted of raping and murdering an elderly woman. She became the only Tennessee justice to ever lose a retention election.

“I did nothing, primarily because the canons disallowed me from doing anything,” said White, who now teaches law at the University of Tennessee. “I never spoke about the case. I never spoke about capital punishment.”

This year, Tennessee's Republican Lieutenant Governor Ron Ramsey led a nearly $1 million campaign to oust three Democrat-appointed justices, with $196,865 from the Republican State Leadership Committee. Among several attacks for being too liberal, the judges were blamed for a lull in executions since 2009.

Unlike White in 1996, Justices Gary Wade, Sharon Lee and Connie Clark fought back. Their campaign raised over $1 million to, in part, promote their record of “upholding nearly 90 percent of death penalty sentences” and to tout the endorsements of police and prosecutors. One prosecutor praised the current court at a campaign event as the “most conservative court in 45 years.” Their supporters noted the 10 executions the court had recently scheduled. All three justices kept their jobs.

While the justices traveled the state assuring voters they were not “liberal” on the death penalty, 10 death row inmates awaited the outcome of appeals these judges would decide. (Since the election, three of those execution dates have been stayed due to ongoing appeals over the state’s lethal injection protocol.)

Chief Justice Wade said the judges had no choice but to address the attacks. “Our polling data indicated that some 70 percent of Tennesseans favored capital punishment,” he said. “We could hardly avoid the topic.”

But he has some concerns about what it might say to future judges. “It was not the kind of election that I thought was overall a healthy thing for the judicial branch,” Wade said. “Whether subtle or unintentional or not, there may be a tendency in the future for appellate judges to have one eye looking over their shoulder.”

Under the codes of judicial ethics in most states, judges are not supposed to make campaign promises about how they will rule from the bench. John Paul Stevens, then an associate justice of the U.S. Supreme Court, told the American Bar Association in 1996 that “a campaign promise to ‘be tough on crime,’ or to ‘enforce the death penalty,’ is evidence of bias that should disqualify a candidate from sitting in criminal cases.”

But it is rare that judges face disqualification or other serious consequences for aggressive campaign rhetoric. And when defense attorneys and their clients raise concerns about a judge’s impartiality, they are often dismissed.

A Texas judge on the state's court of criminal appeals was “publicly warned” in 2001 by the State Commission on Judicial Conduct for campaign mailers that declared, “I have no feelings for the criminal. All my feelings lie with the victim.” He won the election and remains on the court of last resort for all criminal defendants in the state.

A 2008 ad by Wisconsin Justice Michael Gableman's campaign, attacking the state's first African-American justice, Louis Butler. 

In 2008, Wisconsin challenger Michael Gableman ran an ad that featured the face of Justice Louis Butler, the state’s first African-American Supreme Court justice, next to the mug shot of a black sex offender he had represented in the late 1980s. “They tried to find the defendant that looked the most like me so they could blend our faces together,” Butler said of the ad.

Gableman’s ad boasted that as a county judge he had “put child molesters behind bars for over 100 years,” while Butler “worked to put criminals on the street.” Other ads attacking Butler for voting to overturn convictions of violent crimes based on “technicalities” were paid for by state business organizations.

The Wisconsin Judicial Commission filed a complaint claiming that Gableman’s ad distorted the facts. The charge ultimately died when the state supreme court, with Gableman abstaining, split 3-3. The three Republican justices who ruled in Gableman’s favor received support from many of the same business donors.

After Butler lost his seat and Gableman was elected, the new justice faced eight requests to recuse himself on criminal cases because of the pro-prosecutor tenor of his campaign. “This particular race just went totally overboard,” said defense lawyer Robert Henak, who was the first to file a motion. “I believe that Justice Gableman was siding with one side in litigation before he [was] even elected.”

Gableman denied the requests. The remaining justices again deadlocked 3-3 on whether they had the authority to intervene, and the issue was dismissed. Justice Gableman’s office did not respond to a request for comment.

Election reform advocates saw some reason to celebrate in this year’s results. Judges targeted by the Republican State Leadership Committee in Montana, Tennessee, Missouri and North Carolina held on to their seats. Two justices in Kansas, maligned for overturning two high-profile death penalty sentences, also remained in office.

But others, such as former Tennessee Justice White, are not so reassured. “It’s still a horrible time to be a lawyer,” she said. “I told somebody the other day, ‘Well, I’m glad you’ve got your case now, because it’s eight years until the election.’ It gets to the five- or six-year mark, you’re in real trouble.”