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Elected judges rule more harshly on violent crime when up for re-election, study shows

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NOVEMBER 25, 2012

Elected judges increase the harshness of their sentences in cases of violent crime in the months leading up to an election where they are at risk of losing their seats, a forthcoming study co-authored by a professor in the UC Berkeley Haas School of Business has found.

The study analyzed the felony sentences of more than 260 superior court judges in Washington state, controlling for factors like defendants’ race, gender and age as well as whether they chose to go to trial or plead guilty outright. The authors discovered as much as a 10 percent increase in the length of a sentence handed down by a judge facing re-election as compared to the start of that judge’s tenure. Notably, judges who were retiring, and therefore not worried about being re-elected, did not display similar sentencing behavior.

“We started by thinking about how elections can affect the way that judges decide cases,” explained Luis Berdejo, an associate professor at Loyola Law School and co-author on the study, adding that the authors were broadly interested in how different selection systems can affect an individual’s behavior. With its explicit sentencing guidelines and clear organizational structure, United States criminal law is an ideal arena to study.

“Initially, my co-author and I were more interested in racial inequality in sentencing,” said Noam Yuchtman, an assistant professor in UC Berkeley’s Haas School of Business and a co-author on the study. “We were really worried that elected judges were going to reflect preferences of the average constituent, and the people that they’re sentencing are certainly not average and tend to be part of a minority group.”

Ultimately, though, the authors found no race-specific effect of political pressure when the severity of the crime was controlled for.

Yuchtman noted that the average voter believes that judges are too soft on crime, and the increase in sentence severity the authors did find might be directly correlated to judges facing political pressure from a punishment-minded electorate. Interestingly, the researchers found no such increase in severity for defendants in cases of nonviolent crime.

“Judges are very sensitive to the public’s wishes,” said Paul Jesilow, a UC Irvine professor of criminology, law and society. “But if you look again in 20 years, you might get different result. The general movement in last few election cycles has been away from more severe punishments, particularly in California.”

The authors said they could not say for certain whether or not electing judges is a better system than appointing them. The case for continuing with a system of judicial elections is based on the notion that without such political pressure, judges might rule according to their own preferences instead of society’s, which is often more punitive.

“The negative spin is that … (they could be) pandering to an uninformed public,” Yuchtman said. “Of course the idea is that if two people behave the same, the two people should be treated the same way, and that’s being violated here.”

Jesilow added that the role of a judge is to be a referee between the prosecution and defense and to ultimately ensure that the individual on trial gets a fair deal.

“The question is, should the judge’s sentence reflect what the public wants?” Jesilow said. “Yes, to a certain extent, but the judge also has to weigh justice — given the circumstances, was the sentence fair?”

Sara Grossman is the lead research and ideas reporter. Contact her at [email protected].

NOVEMBER 25, 2012