The Minnesota state legislature is now considering H.F. 1666, the “Impartial Justice Act“, which would put to the voters a constitutional amendment to eliminate direct election of state judges. Currently, Minnesota voters elect judges just as they would elect a state senator or governor–judicial candidates raise money, campaign against each other, and appear on the general ballot. If the amendment is approved by a majority of voters, the governor would appoint a judge to fill a vacancy based on a merit selection system, the judge would be reviewed by a nonpartisan Public Performance Evaluation Committee comprised of mostly non-lawyers, and the judge would be subject to an up-down vote by Minnesotans at the next election (there would be no competing candidate). If the judge is approved by the voters, s/he would serve an eight-year term before being subject to another retention vote. In the interim, the Committee would conduct two more evaluations, with their recommendation appearing on the ballot.
If this amendment goes to the voters, Minnesota will join a nationwide movement to reform the judicial selection process. Former Supreme Court Justice Sandra Day O’Connor has argued that: “No other nation in the world [elects judges] because they realize you’re not going to get fair and impartial judges that way.” Since her retirement, O’Connor has championed judicial selection reform and created the O’Connor Judicial Selection Initiative to encourage states to abandon direct elections. One problem with electing judges may be the resultant lack of quality and judicial aptitude. A study from 2007 suggested that “elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).” Other concerns include partisanship, bias, and corruption (influenced by campaign contributions). If Minnesota adopts the amendment, it will join five other states (AK, AZ, CO, KS, UT) in a process of commission-based selection, independent evaluation, and voter-approved retention.
For those who believe that the arbiters of justice should be selected based on merit, rather than political savvy or constituent responsiveness, a strong argument can be made for also reforming the selection process for prosecutors, who have wide discretion in whom to indict and what charges to levy.
There are 2,344 local prosecutor offices nationwide, and they handle 95 percent of all criminal prosecutions in the country. The vast majority of these prosecutors (i.e. District Attorneys) are elected by voters and most attorneys general are also elected. Elections may make prosecutors accountable to voters, but they also motivate prosecutors to make decisions not based on the law, but their desire to retain their jobs.
One highly publicized example of prosecutorial misconduct, which may have been prompted by political motives, is the Duke lacrosse case from 2006. In April 2006, three Duke lacrosse players were indicted on charges of rape, sexual offense, and kidnapping. The district attorney was Mike Nifong, who had been“appointed interim District Attorney himself only after the previous District Attorney left to become a judge. Now Nifong faced a tough election against a woman he had once fired and who would undoubtedly fire him if she became District Attorney.” Throughout the investigation, Nifong made “inflammatory statements [as a] prosecutor in the midst of a tough election campaign.” Among these was his denial of there being any exculpatory evidence, when he knew DNA evidence strongly suggested his suspects were innocent of the crime. By June 2007, however, when the extent of his deceptions became clear, Nifong was forced to resign and was disbarred for his ethical violations. Soon after, all charges against the lacrosse players were dropped. The NC State Bar prosecutor noted during the ethics hearing that “Nifong was trailing, by 20 percent to 37 percent, on March 27, 2006, the day the police first briefed him on the case. But he went on to win, by 45 percent to 42 percent, after all the media attention.”
Prosecutors often campaign on their conviction rates (being “tough on crime”), and sometimes even on their ability to send suspects to death row. A recent empirical study suggested that election pressures can affect decisions to take cases to trial. In North Carolina “the average number of pending cases in the year before a re-election campaign is 1377.7, while in all other years it is only 1260.9.” In Harris County, Texas, which alone accounts for nearly 10% of America’s executions since 1977, local prosecutors have campaigned on their records of obtaining the death penalty. This eye toward public opinion can distort the types of cases to prosecute, and cause prosecutors to turn a blind eye to exonerating evidence. Daniel Medwed reported that:
Empirical proof suggests that prosecutors have consented to DNA tests in less than fifty percent of the cases in which testing later exonerated the inmate. Likewise, qualitative evidence of prosecutorial indifference and, on occasion, hostility to even the most meritorious of post-conviction innocence claims is alarming. Some prosecutors have continued to fight these claims despite clear evidence, including DNA test results, exculpating the defendant; others have averted the possibility of post-conviction litigation by destroying biological evidence or urging defendants to waive their rights to the preservation of the evidence. Prosecutorial intransigence to setting aside the conviction of an innocent prisoner all too often wanes only after it becomes politically expedient (or even beneficial to do so).
Accountability is important, but direct democracy does not always create the best type of accountability. Electing judges based on their ability to conform to transient popular demands injects improper motives in a branch of government we often value precisely for an ability to transcend politics. Similarly, requiring prosecutors to campaign for votes creates incentives based on popular approval rather than the fair application of the law. A selection process of merit-based appointment, evaluation, and retention voting would balance the public’s desire to have a say in its champions, while disentangling the interests of justice from political self-interest.