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Pressures of upcoming re-election and retention election campaigns make judges more punitive toward defendants in criminal cases, according to a new analysis of social science research by the Brennan Center for Justice at NYU School of Law.
How Judicial Elections Impact Criminal Cases looked at 10 empirical studies examining whether and how judicial elections impact criminal justice outcomes. These studies, conducted across states, court levels, and type of elections, all found that proximity to re-election made judges more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty.
The analysis also assessed 15 years of television advertising data in state supreme court races, as well as a series of reports synthesizing this data written by the Brennan Center, Justice at Stake, and the National Institute on Money in State Politics. This data reveals that TV advertising has become a staple of high-cost judicial elections and ads discussing criminal justice themes have become increasingly prominent. In 2013-14, a record 56 percent of ads discussed candidates' decisions in criminal cases -- up from the previous record of 33 percent in both the 2007-08 and 2009-10 cycles. These ads, attacking candidates for being "soft on crime" or touting them as "tough on crime," focus voters' attention on candidates' records in criminal cases, often in a misleading way.
"The research is clear: Judges are more likely to hand out harsh sentences, including death, the closer they get to a re-election or retention election campaign," said Kate Berry, counsel in the Brennan Center's Democracy Program and author of How Judicial Elections Impact Criminal Cases. "As long as judges worry about what the next 30-second campaign ad will look like, there is a risk that re-election pressures will continue to impact their decision-making. This threatens the promise of fair and impartial justice in America."
Over the past 15 years, judicial races have become expensive affairs. Television advertising, much of it from outside interest groups that are more likely to run negative ads, plays a critical role in these high-cost contests. The pressures of upcoming election campaigns affect judicial decision-making in criminal cases -- to the detriment of defendants -- according to a growing body of empirical work described in the Center's analysis. This finding was consistent across the assessed studies regardless of the method of election considered, including partisan, nonpartisan, and retention elections.
The surveyed research found:
Read How Judicial Elections Impact Criminal Cases here.
The potential campaign finance law violations were exposed amid reporting that the DOJ asked the FEC not to take action against the Republican congressman while prosecutors conduct a criminal probe.
A pair of Mother Jones journalists revealed late Friday that more than a dozen people identified as top donors to GOP Congressman George Santos' campaign who collectively account for over tens of thousands of dollars raised from individual donors in 2020 "don't seem to exist."
That revelation came as The Washington Post reported Friday night that the U.S. Department of Justice (DOJ) asked the Federal Election Commission (FEC) "to hold off on any enforcement action" against the first-term New York Republican "as prosecutors conduct a parallel criminal probe, according to two people familiar with the request."
Since his November win—which followed an unsuccessful 2020 run—Santos has faced intense scrutiny and pressure to resign over his mounting "lies and misdeeds," from dishonesty about his education, employment, family, religion, and residence; to concerns about net worth soaring; to claims of fraud in Brazil and the United States.
\u201cSomehow, George Santos's campaign finance scandal just got a lot worse https://t.co/R8IFNFIGYo\u201d— Citizens for Ethics (@Citizens for Ethics) 1674868219
The Mother Jones reporters attempted to contact "dozens of the most generous donors" to Santos' unsuccessful 2020 campaign. While several people confirmed their contributions, the investigation also uncovered various "questionable donations, which account for more than $30,000 of the $338,000" raised from individuals that year.
As the magazine detailed:
During Santos' first run for Congress, only about 45 people maxed out to his campaign during the primary and general elections. In nine instances, Mother Jones found no way to contact the donor because no person by that name now lives at the address listed on the reports the Santos campaign filed with the FEC. None had ever contributed to a candidate before sending Santos the maximum amount allowed, according to FEC records. Nor have any of these donors contributed since. The Santos campaign's filings list the profession of each of these donors as "retired."
Two other donors who contributed $1,500 and $2,000, respectively, were listed in Santos' FEC filings as retirees residing at addresses that do not exist. One was named Rafael Da Silva—which happens to be the name of a Brazilian soccer player.
Another suspicious donation was attributed to a woman who shares the name of a New York doctor who has made dozens of donations to Democrats. The Manhattan address listed for this donation does not exist. The doctor did not respond to a request for comment.
The outlet noted that "Santos did not respond to a detailed list of questions Mother Jones sent to his lawyer and his congressional office that included names of donors whose identities could not be verified."
Highlighting the report on Twitter Saturday, Brendan R. Quinn of the Campaign Legal Center (CLC) shared a "general reminder (that is apparently needed) that it is illegal to donate money using a false name or the name of someone else."
\u201cThis violates campaign finance laws & harms democracy. The integrity of the electoral process depends on transparent public disclosure of who is spending money on elections. \n\nLearn more about this issue and what @CampaignLegal is doing you fight it, here: https://t.co/c2cPn2OpkH\u201d— Brendan R. Quinn (@Brendan R. Quinn) 1674915720
As Common Dreamsreported earlier this month, on the same day that the CLC filed a complaint with the Federal Election Commission regarding Santos' 2022 campaign, the group Citizens United filed complaints with the DOJ, FEC, and Office of Congressional Ethics (OCE).
The Post on Friday framed the DOJ Public Integrity Section's request that the FEC refrain from taking action against the congressman and turn over any relevant documents as "the clearest sign to date that federal prosecutors are examining Santos' campaign finances."
As the newspaper explained:
The FEC ordinarily complies with DOJ requests to hold off on enforcement. Those requests arise from a 1977 memorandum of understanding between the agencies that addresses their overlapping law enforcement responsibilities.
"Basically they don't want two sets of investigators tripping over each other," said David M. Mason, a former FEC commissioner. "And they don't want anything that the FEC, which is a civil agency, does to potentially complicate their criminal case."
The request "indicates there's an active criminal investigation" examining issues that overlap with complaints against Santos before the FEC, said Brett Kappel, a campaign finance lawyer at D.C.-based Harmon, Curran, Spielberg & Eisenberg.
According to the Post, Santos and his attorney did not respond while an FEC representative said the agency "cannot comment on enforcement" and a DOJ spokesperson declined to weigh in.
However, critics of the embattled congressman—who is also being investigated by the offices of Democratic New York Attorney General Letitia James and the Republican district attorneys in Nassau and Queens counties—had plenty to say.
\u201cIt's been said before, but winning this election was the basically worst thing that could have happened to Santos. At this point, there's pretty much no one in DC or NY who is *not* looking into him and his web of lies: https://t.co/g4LPPzsIH1\u201d— Chris \u201cSubscribe to Law Dork!\u201d Geidner (@Chris \u201cSubscribe to Law Dork!\u201d Geidner) 1674940654
"Mr. Santos has one existential reason to remain in office: to gain enough leverage to secure a plea bargain with the U.S. attorney," said Rep. Ritchie Torres (D-N.Y.), who has urged the Republican to resign and advocate for federal investigations into him.
Attorneys for Nichols' family called the move "appropriate and proportional" in response to his death and urged other cities to follow suit but also stressed that "misconduct is not restricted to these specialty units."
The family of Tyre Nichols and others appalled by his death—for which five fired Memphis cops now face murder charges—welcomed the police department's decision on Saturday to disband a unit created in 2021 to patrol high-crime areas.
The move came a day after the Tennessee city put out videos of the former Memphis Police Department (MPD) officers—Tadarrius Bean, Demetrius Haley, Emmitt Martin III, Desmond Mills Jr., and Justin Smith—brutally beating Nichols following a traffic stop on January 7. The 29-year-old Black man was hospitalized and died three days later from cardiac arrest and kidney failure.
The MPD's Street Crimes Operation to Restore Peace in Our Neighborhoods (SCORPION) Unit hasn't been active since Nichols' January 10 death, according to the mayor. The five ex-officers, who are all Black, were part of the unit and on assignment with it when they pulled over Nichols, police spokesperson Maj. Karen Rudolph confirmed to multiple news outlets on Saturday.
In public comments leading up to the footage being released Friday night—which sparked nationwide peaceful protests—Nichols' family along with Memphis residents and people across the United States called for the unit to be shut down.
The MPD said in a statement that members of the unit met with Chief Cerelyn "C.J." Davis on Saturday "to discuss the path forward for the department and the community in the aftermath of the tragic death of Tyre Nichols."
"In the process of listening intently to the family of Tyre Nichols, community leaders, and the uninvolved officers who have done quality work in their assignments, it is in the best interest of all to permanently deactivate the SCORPION Unit," the statement continued. "The officers currently assigned to the unit agree unreservedly with this next step."
\u201cBig. \n\nMemphis Police have shut down the so-called SCORPION Unit. The officers that beat Tyre Nichols to death were all part of that unit. \n\nSeveral Memphis City Council members have called for it to be disbanded permanently.\u201d— Gabriel Elizondo (@Gabriel Elizondo) 1674942545
In response, attorneys Ben Crump and Antonio Romanucci said in a statement that "the Nichols family and their legal team find the decision to permanently disband this unit to be both appropriate and proportional to the tragic death of Tyre Nichols, and also a decent and just decision for all citizens of Memphis."
"We hope that other cities take similar action with their saturation police units in the near future to begin to create greater trust in their communities," the pair added. "We must keep in mind that this is just the next step on this journey for justice and accountability, as clearly this misconduct is not restricted to these specialty units. It extends so much further."
Memphis City Council Member J.B. Smiley Jr. told the Commercial Appeal that shutting down the unit was "essential for the family" of Nichols, but "my ultimate concern is just, it may just be surface level," because "the police department has the ability to create other units and just call it something else."
Fellow Memphis City Council Member Patrice Robinson told CNN's Jim Acosta that "the community has a lot more questions and a lot more demands."
"We have gotten emails from many citizens in our community, they're all concerned and they're expressing exactly what they see and what they want to see in our police department," she said. "We really need to investigate and find out what's going on."
Rolling Stone reported on institutional changes that some locals want, according to Memphis organizer Amber Sherman:
They're calling for widespread reforms in the Memphis police: dissolving similar task forces in the city, ending the use of unmarked cars and plainclothes officers, and banning traffic stops without probable cause. All three help escalate police violence, Sherman tells Rolling Stone. "We can't just get rid of one of them. We have to do all three."
The SCORPION Unit was only 14 months old when it was disbanded. Founded in late 2021 during a rise in the city's murder rate, it was touted by local officials for its high number of arrests and a decline in violent crime, but locals say the unit quickly developed a reputation for its policing tactics. "Here in Memphis we call them the Jump-out Boys," Sherman says. "They're in unmarked cars, and they jump out of them and assault people."
Activists in Memphis emphasized that this type of policing is not a new phenomenon. "It's not just the SCORPION Unit. We've had these task forces for years," Sherman continues. "I'm born and raised here, in my 20s, and this has always been a practice."
National leaders also responded to the development on Saturday by warning that much more must still be done at all levels.
"This is what immediate action looks like in the face of crisis and traumatic events on behalf of a community," NAACP president and CEO Derrick Johnson declared of the department disbanding the unit, while also wondering why local leaders can "move to address the needs of the people faster than elected officials throughout the halls of Congress."
Meanwhile, Black Lives Matter activist DeRay Mckesson tweeted: "This is good. And not enough. And we've seen this happen before only for these units to pop back up when the world isn't watching."
\u201cAs news spreads the Memphis PD will disband the murderous \u201cScorpion\u201d Unit, it is important to know that back in 2020 NYC disbanded its own \u201canti-crime\u201d unit responsible for shootings, brutality, & Eric Garner\u2019s murder. \n\nNYC Mayor Eric Adams revived & expanded the unit last year.\u201d— Scott Hechinger (@Scott Hechinger) 1674949043
"I must reiterate that this is not the win they want you to think it is. Cops have and will continue to be brutal despite not being in a cool 'special taskforce,'"
coder, organizer, and YouTuber Sean Wiggs warned.
Legal reform advocate Dyjuan Tatro similarly argued that "the problem with this statement is that the SCORPION Unit should have never existed. It's well documented that police special units are violent, reckless, and racist. Furthermore, the rest of the officers of this violent unit are still on the police force, armed and ready to kill."
Strategist and writer Jodi Jacobson
took issue with another element of the department's statement, telling the MPD: "It was NOT a 'tragic death.' It was murder at the hands of our department. What you say matters, and you clearly are not taking responsibility."
"It undermines the health and well-being of adolescents, limits the options of doctors, patients, and parents, and violates the constitutional rights of these families," said the ACLU of Utah's executive director.
Defying the guidance of the nation's leading medical organizations, Republican Utah Gov. Spencer Cox on Saturday signed into law a bill banning gender-affirming care for minors in the state.
Passed by the Utah House of Representatives on Thursday and the state Senate on Friday, S.B. 16 prohibits gender-affirming surgeries for trans youth and bars hormonal treatment for new patients who were not diagnosed with gender dysphoria before the bill's effective date, May 3.
"This bill effectively bans access to lifesaving medical care for transgender youth in Utah," said Brittney Nystrom, executive director of the ACLU of Utah, after the Senate vote Friday. "It undermines the health and well-being of adolescents, limits the options of doctors, patients, and parents, and violates the constitutional rights of these families."
Nystrom also sent Cox a letter urging him to veto the bill. She wrote that "the ACLU of Utah is deeply concerned about the damaging and potentially catastrophic effects this law will have on people's lives and medical care, and the grave violations of people's constitutional rights it will cause."
\u201c"Treating transgender families with respect" by interfering with their healthcare decisions and depriving them of the standards of care endorsed by every major medical org in the country.\u201d— Alejandra Caraballo (@Alejandra Caraballo) 1674939187
Cathryn Oakley, Human Rights Campaign's state legislative director and senior counsel, had also pressured Cox to veto the bill, arguing Friday that "Utah legislators capitulated to extremism and fear-mongering, and by doing so, shamelessly put the lives and well-being of young Utahans at risk—young transgender folks who are simply trying to navigate life as their authentic selves."
"Every parent wants and deserves access to the highest quality healthcare for our kids," Oakley said. "This discriminatory legislation bans care that is age-appropriate and supported by every major medical association, representing more than 1.3 million doctors. Medical decisions are best left to medical experts and parents or guardians, not politicians without an ounce of medical training acting as if they know how to raise and support our children better than we do."
Dr. Jack Turban, an assistant professor of child and adolescent psychiatry at the University of California, San Francisco who researches the mental health of transgender and gender diverse youth, also pointed out that the new Utah law contradicts the positions of various medical organizations.
\u201chttps://t.co/y7aqIjCzcW\u201d— Jack Turban MD \ud83c\udff3\ufe0f\u200d\u26a7\ufe0f\ud83e\udde0\ud83c\udff3\ufe0f\u200d\ud83c\udf08\ud83e\ude7a (@Jack Turban MD \ud83c\udff3\ufe0f\u200d\u26a7\ufe0f\ud83e\udde0\ud83c\udff3\ufe0f\u200d\ud83c\udf08\ud83e\ude7a) 1674936238
Some LGBTQ+ advocates had hoped Cox would be compelled to block the bill because last March, citing trans youth suicide rates, he vetoed H.B. 11, which banned transgender girls from playing on school sports teams that align with their gender identity. Utah lawmakers swiftly overrode his veto but a state judge in August issued a preliminary injunction blocking enforcement of the law.
Republican lawmakers in various states have ramped up efforts to enact anti-trans laws—particularly those targeting youth—over the past few years. As The New York Timesreported Wednesday:
But even by those standards, the start of the 2023 legislative season stands out for the aggressiveness with which lawmakers are pushing into new territory.
The bills they have proposed—more than 150 in at least 25 states—include bans on transition care into young adulthood; restrictions on drag shows using definitions that could broadly encompass performances by transgender people; measures that would prevent teachers in many cases from using names or pronouns matching students' gender identities; and requirements that schools out transgender students to their parents.
Legislative researcher Erin Reed, who is transgender, told the Times that the more aggressive proposals could make others seem like compromises.
"I really hope that people don't allow that to happen," Reed said. "Because these bills still target trans people who will then have to suffer the consequences."
In a tweet about Cox's decision Saturday, Reed said that "my heart breaks for Utah trans kids."
\u201cMy heart breaks for Utah trans kids.\n\nThe governor of Utah has signed a gender affirming care ban for trans youth into law. Utah becomes the first state of 2023 to ban gender affirming care and unless it is blocked in court, it would be the only state with such a ban in effect.\u201d— Erin Reed (@Erin Reed) 1674931607
After the Utah House passed the measure Thursday, the chamber's Democrats expressed their disappointment with what they called "a misguided step by our Legislature and a violation of parents' rights," and said that "we recognize that gender-affirming healthcare is lifesaving, patient-center healthcare."
"With no pathway forward for children in need of care, this legislation will inevitably lead to litigation and a likely injunction," they added. "This is a tremendous waste of taxpayer money, and worse, a terrible message for our Legislature to send to transgender Utahns, their family, and their friends."
After the governor signed the bill, the ACLU of Utah tweeted Saturday that "trans kids are kids—they deserve to grow up without constant political attacks on their lives and healthcare; we will defend that right. We see you. We support you."