Television ads attacking candidates for state supreme courts for being “soft on crime” affect more than just elections. A study released Tuesday by two Emory Law School professors and the American Constitution Society, a progressive legal group, finds evidence that they also make judges less likely to rule for criminal defendants in appellate cases.
The study, which examined more than 3,000 criminal cases in 32 states from 2008 through 2013, along with tallies of television ads maintained by the Brennan Center for Justice at New York University, found that more television ads in state supreme court races meant an increased likelihood of rulings against criminal defendants. All 32 states studied have some form of voter approval of judges, either to elect them or to approve sitting judges.
The airing of 1,000 ads would have a minimal decrease on judges’ decisions favoring criminal defendants — perhaps one in 100 cases — while 10,000 ads would result in a change in a justice’s decision in 7 percent of cases. Since state supreme courts are multi-judge panels, it’s not clear how often the changes in their voting behavior would alter the overall ruling in specific cases. A 7-2 ruling against a criminal defendant has the same outcome as a 6-3 ruling.
Even though state supreme courts decide a wide range of civil and criminal cases, the authors focused on criminal cases because many of the advertisements dealt with violent crime, a more visceral issue for voters. “Voters don’t care how you vote in a tort reform case, but they do care in a rape or pedophile case,” said Joanna Shepherd, one of the authors.
The study is the first to correlate independent expenditures in judicial races with judges’ decision-making, said Ms. Shepherd, who last year wrote a report, also published by the American Constitution Society, examining political contributions by business groups in judicial races and subsequent voting by justices in cases involving business litigants.
The study also links an increase in negative advertisements against judicial candidates to the Supreme Court’s decision in Citizens United, which removed limits on independent corporate and union spending in elections. Although Citizens United has led to large increases in independent expenditure spending at the federal level, outside spending in state supreme court races has also grown. More than $24 million in independent expenditures occurred in state supreme court races during the 2011-2012 election cycle, up from $2.7 million 10 years earlier. With greater spending, state supreme court races had more negative TV ads. The authors found that 44 percent of outside group ads in 2012 were negative, a much larger share than for candidate or party spenders.
“The data show that the television campaign ads this money buys put a thumb on the scale in criminal cases, and undermine the promise of equal justice that is a cornerstone of our democracy,” said Caroline Fredrickson, the president of the American Constitution Society.
The effect on judges’ voting does not hold for every state — not all states hold elections for their supreme court seats — and in some states the effect was larger than others. Ms. Shepherd said that although the relationship was evident in many of the 32 states studied, it was not statistically significant in all of them. She cited Michigan as a state with an effect even greater than the one that held nationally. Millions of dollars were spent on television ads in 2012, and the Michigan Campaign Finance Network called the state supreme court races “the most expensive and least transparent in history.”
The practice of using “soft on crime” ads in judicial races isn’t new. In 2004, Don Blankenship, the former chief executive of Massey Energy, a coal mining company, created an outside group to influence West Virginia’s supreme court election. The group, “And for the Sake of the Kids,” spent $3 million on television ads that asserted an incumbent judge voted to free a child rapist from prison; the judge lost his race.
The study’s authors concluded that the Citizens United ruling increased the effect that outside spending had on judicial elections and voting behavior: “In the 23 states that had bans on corporate or union independent expenditures, Citizens United’s lifting of these bans is associated with a decrease in justices voting in favor of defendants,” the authors write.
