Gavel Grab

Study: Judicial Decision-Making Affected by 'Soft-on-Crime' Ads

From Ad in Illinois Court Campaign

From Ad in Past Illinois Court Campaign

A new study by Emory Law School researchers and the American Constitution Society finds evidence that TV ads attacking state supreme court candidates for being “soft on crime” make judges less likely to side with criminal defendants, the New York Times reported.

The Times article noted regarding any individual justice’s response, “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.” Here are the two principal findings from the study:

  • “The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.
  • “Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.”

The authors said the study comes at a time of an “explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision” of the U.S. Supreme Court.  Outside interest groups, some of whom have economic interests or political causes before the courts, seek the election of sympathetic justices and know “soft on crime” advertising may be the most effective tool to remove targeted justices, the authors said.

It was the first time such a study correlated independent spending judicial elections with decision-making by justices, one of its authors, Emory Law Professor Joanna M. Shepherd told the newspaper.

“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, ACS president.

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