Vestal: Study finds judges are harsher as Election Day approaches

If you have to be hauled before a judge for sentencing, try to schedule it after an election.

New research shows that Washington judges are more likely to throw the book at criminals in the weeks before they’re in an election, suggesting that they respond, consciously or not, to the public’s strong preference for tough sentences.

The study examined criminal sentencings by Washington state Superior Court judges between 1995 and 2006 and found that sentences were about 10 percent longer when judges were nearing an election or crucial political cycle than afterward. The number of sentences above the standard range rose by 50 percent.

“(T)he most commonly used method to retain judges – nonpartisan elections – affects judges’ sentencing behavior, resulting in different sentences for identical crimes across a judge’s political cycle,” according to the paper published by Carlos Berdejo of Loyola Law School and Noam Yuchtman of University of California-Berkeley.

“We cannot say whether social welfare would increase or decrease if judges were appointed or if judicial discretion were more … but we can quite definitively say that sentencing patterns would differ, and that the variation in sentencing solely due to political pressure would be diminished.”

As with any research, the findings come with a couple of important caveats. Critically, the sentencings analyzed almost all came before the institution of more rigid statewide sentencing guidelines, which limited a judge’s discretion in giving tougher-than-usual sentences. In fact, the pattern of judicial rulings since 2004 presents an opportunity for researchers to delve further into the question: Did limiting judicial discretion in Washington result in more even-handed sentencing?

Also, the research doesn’t shine any light on which sentences – the longer ones during election seasons or the shorter ones in between – were the most just.

“There is this unequal sentencing,” Yuchtman said in an interview this week. “But at the same time, we don’t really know when the sentencing is right and when the sentencing is wrong.”

The subject of judicial elections pits several values against each other: judicial independence, equal justice and accountability for public officials. Concerns over judges and the influence of political pressures have been expressed for years – former Supreme Court Justice Sandra Day O’Connor is a prominent critic of judicial elections. But quantifying the relationship between electoral pressures and sentencing decisions is difficult.

The research of Yuchtman and Berdejo applied economic models to try to eliminate alternative explanations for the variations in sentencings, and to focus directly on the relationship between the judges’ incentives and actions. They examined hundreds of thousands of criminal sentencings by the 32 Washington Superior Court judges between 1995 and 2006, narrowing down to the most serious crimes: murder, rape, assault and robbery.

Then they looked at the sentences in the context of electoral pressure – the times when a judge might perceive the chances of an electoral competitor. For judges in contested races, this was the weeks leading up to an election. For uncontested judges, it was the weeks leading up to the filing deadline.

“Elected judges do face public pressure,” Yuchtman said. “In the case of criminal sentencing, that public pressure will push them toward sentencing more harshly.”

This preference is unmistakable. The authors looked over the annual General Social Surveys conducted by the University of Chicago between 1972 and 2006 and found that 82.8 percent of respondents say the courts are not harsh enough.

The authors looked at the lengths of sentences for comparable crimes by quarter and compared them over the four-year cycles of judicial elections in Washington. The results are striking: The length of sentences goes up significantly before an election or filing deadline – and sinks significantly afterward.

Judges who were retiring, and not facing a possible election challenge, did not exhibit the same variations in sentences, Yuchtman said.

The research doesn’t suggest that judges make cynical, calculated decisions; it’s possible that the pressures are felt or expressed indirectly, and the influences may be subtle or unconscious. But judges are like any elected official – or any human being – in that they are influenced by “incentives” to act in certain ways, Yuchtman said.

The variation in the sentences flies in the face of equal justice, but it does not suggest an automatic solution. Limiting judicial discretion – as the state has done since 2004 – might produce a more even range of sentences, but that doesn’t guarantee their case-by-case justice. And freeing judges from the accountability of elections has downsides, too.

“We don’t know that judicial elections are bad for society,” Yuchtman said. “We don’t know that they’re good or bad.”