Nearly 30 years after the Alabama authorities relied on analyses of a handgun and bullets to send him to death row, Anthony Ray Hinton was freed on Friday at 9:30 a.m, one day after a Circuit Court judge ordered his release, after experts undermined the state’s case.
Mr. Hinton’s release from the Jefferson County jail, where he was being held awaiting a new trial that was ordered last year, came close to three decades after a court-appointed lawyer mounted such a feeble defense that the United States Supreme Court ruled it was “constitutionally deficient.”
The state refused for years to reconsider the evidence. It took almost a decade for Mr. Hinton and his lawyers to recruit a panel of experts, including a former F.B.I. official, to review the forensic evidence.
Hinton 58, who is the 152nd person exonerated from an American death row since 1973, argued for decades that Alabama officials — including the judge who oversaw his trial and is now retired — had made a series of compounding mistakes and the lawyer appointed to represent him did little to help the defense, and was convicted and sentenced to death.
“The State of Alabama let me down tremendously,” Mr. Hinton said in his first interview after his release. “I have no respect for the prosecutors, the judges.Mr. Hinton’s words were among the starkest reminders that, despite the joyous atmosphere surrounding his release, the case against him had spurred another reckoning for Alabama and a legal system.
This paper by Claire S. H. Lim, American Economic Review 2013,103(4): 1360–1397, compare two selection systems for public officials, appointment by the head of the executive branch and election by popular votes, and find that the sentencing behavior of elected judges is far more variable than that of appointed judges.
- The sentencing harshness of elected judges is strongly related to the political ideology of the voters in their districts, while that of appointed judges is not.
- This behavior is far more intense during competitive election.
The election of state judges is a controversial topic. The role of money and how the presence of campaign contributions can affect the legitimacy of the court is perhaps the most controversial aspect of judicial elections. This raises argument -in the growing literature contributing to politicians and selection of judges.
There are four basic methods by which states select judges: judicial elections, the Missouri Plan, democratic appointment, and hybrid selection, though there are some variations even within these methods. These elections are the same as traditional elections for other offices. This survey of Empirical Evidence Concerning Judicial Elections provide a quick overview of the different methods states use to select judges and some of the most common arguments against judicial elections.
Usually, candidates are selected in nonpartisan primaries, where the top two vote-getters advance to the general election, regardless of their political party. First, in twenty-two states, the judges of the highest court are elected. Seven of these states elect judges in partisan elections. These states are “Alabama”,
Illinois, Louisiana, New Mexico,Pennsylvania, Texas, and West Virginia.
Second, thirteen states select their judges using the Missouri Plan, often called the “merit-selection plan” by its proponents. The remaining fifteen judicial election states elect their judges in nonpartisan elections.
Third, judges in five states are selected through democratic appointment. Three of these states provide for gubernatorial appointment and two states have legislative appointment. Fourth and finally, ten states employ a hybrid selection that combines elements of the Missouri Plan with elements of gubernatorial appointment, in which the governor appoints judges with advice and consent of a democratic body (as in gubernatorial appointment). These states are more similar to the federal model.
Throughout most of the 20th century, if states switched their method of selection, it was to switch to the Missouri Plan. When North Carolina changed its method of selection from partisan to nonpartisan, it also adopted public financing for candidates who qualified for it. It was not the first state to do so; Wisconsin has had public financing for years. But, as money becomes tighter for both individuals and states, the sustainability of public financing programs for state judicial elections is likely to be called into question.
In terms of racial and gender diversity, the evidence is mixed as to whether the method of judicial selection promotes diversity. Bratton, Kathleen A. and Rorie L. Spill. 2002. “Existing Diversity and Judicial Selection: found that women are more likely to be appointed to the bench than elected but “only when the court is all male” and this effect is even greater when the governor is Democratic.
These variation in how judges are selected have several important implications. Gordon
and Huber to examine the differences in sentencing across these methods of selection.
One can look at this spending as a negative or a positive. On the negative side, expensive elections require candidate to raise large sums of money, some of which will be raised from attorneys who will argue cases before the judge they are contributing to or from corporations who have litigation pending before the court. This raises the argument that judges are beholden to contributors and not to the law (Hansen, Mark 1998).
On the positive side: Campaign spending also can have positive effects on elections, however. “In fact, campaign spending is one of the best mobilization agents in state supreme court elections. Rather than being alienated by costly campaigns, citizens embrace highly spirited expensive races by voting in much greater proportions than in more mundane contests.
This information is then used by voters to help them make a decision in the race. In this way, campaign spending actually benefits voters by allowing candidates to run a vigorous campaign and make their case to the voter. This is even more important for lower levels of courts. Challengers, on the other hand, are lesser-known and thus can use their campaign spending to inform voters about their qualifications, views, and so forth. Many of the same factors were found to be important to increase voter participation in conjunction elections.
According to source data: voters participate in these elections, they participate meaningfully, elections do not lead to a loss of legitimacy, and elections do not produce inferior or less diverse judges.
From a legal or constitutional standpoint.
- with the death penalty: the Supreme Court has determined that the death penalty is a constitutional form of punishment for some crimes.
- If a judge in a state with the death
penalty categorically refuses to use it, then that judge is not following the law; that judge is substituting her own policy preferences for the constitutionally permissible laws of the state.
- If an election makes that judge more likely to uphold a death sentence, then the election
is forcing the judge to do her job and follow the law.
The general point is that while there is evidence that judges behave differently in the face of elections, it is unclear what this change in behavior means or if it is problematic.
Geyh, Charles Gardner (2003) wrote that “roughly 80% of the public believes that when judges are elected, their decisions are influenced by the campaign contributions they receive.” and the presence of campaign contributions can affect the legitimacy of the court. Benesh, Sara C. 2006. “Understanding Public Confidence in American Courts”; finds that, among other things, citizens who live in states with appointed courts have higher levels of confidence in the court system.
One of the chief concerns raised by opponents of elections is that elections yield judges who are of lower quality and are less diverse than those in appointed and Missouri Plan states: “Closely related to the complaint that elections excessively empower parties and their bosses is the complaint that voters will select whomever the bosses put before them, and, therefore, elections will fill courts with unfit judges.” If true, this is one of the most serious criticisms that could be leveled against electing judges