Judges who are elected rather than appointed hand down more severe sentences in the months proceeding an election than they do earlier in their terms, according to a recent study.
The study wasn’t designed to determine how aware the judges were that they were taking a tougher view about sentencing right before they were up for re-election. As I’ve noted here before, other research has suggested that judges’ rulings can be influenced by something as non-rational (and unconscious) as how hungry they are.
This new study offers even more evidence of the capriciousness of sentencing in criminal cases. In this instance, how many months or years a person is incarcerated may come down to when in a political cycle he or she appears before a judge.
Gathering the data
For the study, Carlos Berdejo, an associate professor of law at Loyola Law School in Los Angeles, and Noam Yuchtman, an assistant professor of business and public policy at the University of California, Berkeley, analyzed the sentences handed down from July 1995 through December 2006 by 265 full-time Superior Court judges in Washington State. Those judges are voted in or out in non-partisan elections held every four years. The study, therefore, covered three elections: 1996, 2000 and 2004.
The researchers focused their analysis on felony sentences for criminal cases (murder, assault, rape and robbery), which composed 6.7 percent (18,447) of the 276,119 cases heard by the judges during the period studied. The reason, explain Berdefjo and Yuchtman, is that such high-profile cases tend to receive considerable media attention, which raises the stakes for everybody involved, including judges up for re-election.
The two researchers controlled for a variety of factors, including the defendant’s age, gender, race and prior criminal history, and such confounding variables as the political cycles of other officials who might have had some involvement in the cases and whether the sentence resulted from a plea bargain.
After crunching all the data, Berdefjo and Yuchtman found that in the three months leading up to the judges’ re-election bids they handed out sentences that were as much as 10 percent longer on average than the sentences they gave early in their terms. Furthermore, the severity of the sentences immediately fell after the election — only to rise four years later as they were once again approaching re-election.
Yet, perhaps most telling, no increase in the average severity of sentences occurred among those judges who were not seeking re-election.
The data revealed one other interesting finding: The judges tended to deviate from their state’s sentencing guidelines 50 percent more often at the end of an electoral cycle than at its beginning. This suggests, say Berdejo and Yuchtman, that the influence of politics on sentencing relies on judicial discretion in sentencing.
The public’s preferences
It’s probably wise — at least for their re-election chances — that judges are harsher with their sentencing right before the public goes to the polls.
That’s because other research has shown that voters prefer more severe penalties than judges tend to hand down. It’s not known why that’s so, but several theories have been offered, which Berdejo and Yuchtman outline in their paper. To begin with, judges don’t want to be reversed on appeal — an action they know is more likely to happen if they exceed by too much the higher end of sentencing guidelines. In addition, judges tend to be better educated than most voters, a factor that might result in a different and more lenient perspective about criminals, the penal system and sentencing.
Then there’s the influence of the media. The public may have biased perceptions of the average criminal and his or her crime based on inaccurate media portrayals — perceptions that lead them to demand a tougher sentence than a judge would deem necessary based on the facts of the case.
‘A simple, but important, tradeoff’
Berdejo and Yuchtman make it clear in their study that they can’t predict whether states would be better served by appointed rather than elected judges. Their findings, they say, simply “present evidence that the most commonly used method to retain judges — nonpartisan elections — generates different sentences for very similar crimes across a judge’s political cycle.”
But their findings, they add, “quite definitely” point to the fact that the sentencing patterns of the Washington state judges would be different if they were appointed.
“When you tell people in other countries that some American judges are elected, they are often shocked,” Yuchtman says in a statement released with the study. “Maybe they’re right: We don’t like to think of judges as being influenced by external pressure. On the other hand, our results suggest that elections do make judges feel accountable. This is a simple, but important, tradeoff.”