As a public defender, I fought for people who were charged with crimes not because they were guilty but because they were poor. Americans want to know that if they ever face a judge, their case will be decided based on the law. That is only possible with our constitutional right to a fair trial, including legal representation, and the presumption of innocence for all. But our judicial system is facing a crisis since the Supreme Court decided in Citizens United that what people standing before the bench need as much as a lawyer is a Super PAC. You can imagine how ludicrous that seems to Americans fighting for their liberty, facing the awesome power of the state and unable to afford counsel.
In the 2012 election cycle, spending on judicial races was just over $56 million, and 2014 is on a record-shattering pace. As examples, a recent retention election in Tennessee saw a record-breaking $2.4 million spent, while in North Carolina the campaign expenditures could top the $3 million mark. Moreover, spending on television advertisements also reached record levels in 2012, with the vast majority of dollars for such ads coming from independent, instead of campaign, dollars. Justice is supposed to be blind, unconcerned about who stands before her. A recent study focusing on criminal cases, however, provides new evidence that such campaign spending puts fairness at risk.
According to the new research, the more TV ads aired during state supreme court judicial elections, the more likely justices are to vote against criminal defendants. The analysis also found that unlimited independent spending is associated with an increase in justices voting against defendants in criminal cases. In short, justices facing re-election or standing for retention are more likely to make decisions against defendants more often than they were before Citizens United. For most individuals convicted of a crime, state supreme courts are the last step of the process – a final chance to correct any errors that led to a miscarriage of justice. Thus, while such results would be cause for concern at any stage of judicial proceedings, they are even more alarming when they occur in the highest state courts.
All too often, public defenders represent clients whose lives are invisible and whose voices are unheard in the corridors of power. They should not be “photo ops” in some judges’ election strategy. Nor should judges wake up at night with fears of attack ads distorting their record and making them appear “soft on crime” – grim mug shots with an ominous voice praising or defaming them. These distortions of complex legal matters bring more heat than light to voters 30 seconds at a time, oblivious to the facts before the court presented over weeks of carefully parsed testimony. This is no way to determine a person’s guilt or innocence.
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Low-income individuals and families in civil court are similarly at risk of the influences of campaign financing. For instance, studies tell us states that allow for the election of justices are most likely to see rulings that are friendlier to businesses as opposed to consumers. Indeed, 46 percent of judges believe that campaign spending has some influence over their decision-making process. The American people have noticed this trend as well, with 76 percent of the public believing that campaign contributions have some impact on a judge’s decision and 90 percent believing interest groups use the courts to shape policy.
Justice requires public faith and confidence in the fairness and integrity of our judicial institutions. When we allow money to influence judges indebted to, or fearful of, campaign dollars, it is not just individuals charged with crimes who pay the price, but the American people as a whole as we lose faith in our courts and the rule of law altogether.
Merit-based selection and public financing are not perfect solutions, but they offer two healthier alternatives to the special-interest money free-for-all. With public financing, for example, as North Carolina successfully pioneered, judicial candidates could focus on their work as officers of the court and not get drawn into the world of politics and fundraising, but ideology and money trumped even that model program when it was dismantled last year over people’s vocal objections. However your state chooses to select its judges, those that preserve the principles of an independent judiciary, free from political money, will be the states whose citizens are more likely to receive a fair trial, and see justice prevail.
Jo-Ann Wallace is president and CEO of the National Legal Aid and Defender Association.