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Judging the judges in the land of the free

Penelope Gibbs
27 Jun 2019

In the UK, we have traditionally prided ourselves on a fair justice system, and compared ourselves favourably to the USA, particularly in relation to mass incarceration.

But we should maybe be less complacent, particularly about politics and criminal justice. I visited the USA twice in April and was impressed by the actual progress made there in terms of reducing prison numbers, but also by the success campaign groups had had in changing the political debate. In the UK we are about to have a new Prime Minister. So far, neither candidate has said anything about the woeful state of our criminal justice system, bar a commitment from both to increase police numbers and an article from Boris Johnson on our “cock-eyed crook-coddling criminal justice system” which suggested prisoners should never be allowed out on day or early release. We have not yet persuaded our politicians that prison is a dead end and that #thelawisbroken.

We need to take a leaf out of the book of political campaigning in the States. There, groups like the ACLU have galvanised voters to put criminal justice high on the agenda, and to call for more progressive policies. Joe Biden, the Democratic front-runner is under intense scrutiny for his role in advocating for punitive policies for two decades.

The campaigners in the States are immensely sophisticated. They are trying to influence the Democratic race, Trump himself and every single local election. In the States nearly all prosecutors are elected, as are most judges. This voter influence has in the past fuelled punitive policy and practice. American prosecutors have huge power to affect how those convicted are sentenced. The offence someone is charged with dictates their sentence. Prosecutors decide on the charge (for which they have ample flexibility), and in making their decision usually “plea bargain” with the defence. A tough prosecutor will push for the maximum possible charge and be unforgiving if the defendant refuses to plead guilty and is then convicted at trial. I highly recommend episode 5 on the role of the prosecutor from the recent podcast series of Serial.

In the old days prosecutors vying for election would often try to get votes by being tough on crime. But in some States the tables have turned. In 2016 Chicago voted in a new prosecutor – Kim Foxx – after she promised to make her department more transparent, to turn a blind eye to some low level traffic offences and to prioritise violent crime. The progressive approach Foxx has brought to the office came under the spotlight when celebrity Jussie Smollett was accused of staging an assault on himself. There was a hue and cry when all charges against Jussie were dropped, but this was consistent with the new prosecution policy in Chicago – to focus on violent crime, and exercise discretion in the case of non violent crimes.

Many progressive prosecutors have been elected in the US. Arguably prosecutors in the States have more influence over sentencing than judges. But judges also of course have great influence over who is convicted, who is remanded and what sentences are meted out. Again listen to Serial to witness some very different judicial approaches. The election of judges is never overtly party political, and in many cases involves very little politics or campaigning. Many judges are elected unopposed or the candidate whose name is at the top of the voting form gets elected because voters don’t really exercise choice.

Perhaps the most interesting of the influencing campaigns is a new effort to sway the election of judges. Like prosecutors, when they did campaign, judges tended to talk tough. In 2013 and 2014, a record 56% of judicial campaign ads lauded tough-on-crime records or lambasted opponents for being soft.

But in some areas campaigners have focused on trying to get candidates to endorse progressive policies. In Texas (yes Texas) campaigners helped to oust 59 sitting judges who were up for election. One of the most interesting campaigns was in Philadephia where a coalition of organisations asked judicial candidates for their views including on bias, and tried to get them to endorse their “manifesto” which includes the abolition of bail, probation/parole reform and the decriminalization of drug use! The coalition – Reclaim Philadephia – endorsed a slate of candidates on the basis of their responses. The steering committee refused to endorse any candidate for the Municipal court since “none have reached the criteria we felt necessary to endorse them as an organization”.

In the event only one of their endorsed candidates was elected, but watch this space. I don’t agree with electing judges, but if elections happen there is always an opportunity to influence, for good or ill.