The US is unusual among western democracies in that most of its judiciary is elected by popular vote. Almost 90% of judges in the US have to run for (re-)election. The practice of electing judges began in the early 1830s because people were worried about the emerging ‘spoils system’ of political patronage. Americans at this time thought an elected judiciary was necessary to safeguard the separation of powers between the three branches of government (Shugerman 2012).
From the beginning, critics of the system questioned the wisdom of electing judges. They feared it would politicise the judicial system. In 1835, Alexis de Tocqueville wrote in amazement about state constitutions that:
“[P]rovide for election of members of the courts and require them to submit to frequent re-election … [and this] will sooner or later lead to disastrous results, and that someday it will become clear that to reduce the independence of magistrates in this way is to attack not only the judicial power but the democratic republic itself” (de Tocqueville 1835: Chapter 8).
The election of judges has become ever more contentious. Today judges face challengers from their own party in primary elections or are forced to attract campaign contributions that allow them to engage in multi-million-dollar re-election campaigns. We must question whether a directly elected judiciary is the best way to safeguard the separation of powers. Lim and Snyder (2015), for example, find that partisan election – in which judges run under an official party label – in particular leads to the selection of lower-quality judges.
It is possible that re-election campaigns may change judges’ sentencing decisions, creating electoral cycles in criminal sentencing. If so, what should we do about it? On one hand, judicial elections were designed in part to increasing congruence between voter preferences and the decisions of judges. On the other hand, people in the 1830s did not anticipate the electoral landscape of today, with lobbying, campaign contributions and advertisements, and a revolving door between the private and public sector. This may give special interests a disproportionate influence on elections.
Previous research strongly suggests that such electoral cycles exist. Sentencing for felonies appears to become harsher as election-day approaches for a judge (Huber and Gordon 2004, Gordon and Huber 2007, Berdejó and Yuchtman 2013, Park 2017). The hypothesis is that risk-averse judges fear cases in which a defendant who is freed or serves a short sentence will commit another felony, something for which the press may blame the sentencing judge.
But existing evidence comes from only three states (Kansas, Pennsylvania, and Washington), and each study used data from only one state. This is because the records of state trial courts, which handle the vast majority of criminal cases in the US, are handled by each state separately. It is therefore difficult to collect and integrate data from more than one state.
Also, many states have recently digitised their sentencing records. We have been able to collect and integrate criminal sentencing data from 20 states (Dippel and Poyker 2019). Of these, only half included judge identifiers in their sentencing data, which we need to test for electoral cycles. In these states, we could construct each judge’s sentencing cycle from public records.
Electoral cycles can be highly non-monotonic, depending on the scenario. For example, in a state with partisan elections, a judge facing an own-party challenger has to compete in a primary election between the filing date and the general election date. If the own-party challenger is the only challenger, the election is uncontested between the primary and the general election dates. But a judge in a neighbouring court in the same state may only face challengers from the other party, and the electoral cycle in the same state and year may only pick up after the primary election date.
The list of cases to consider goes on. To keep the task manageable, we measured the electoral cycle between a judge’s last election and the filing date of the next election, omitting the months between the filing date and election day (Figure 1). When no challenger files paperwork by the official date, the election becomes uncontested the day after the filing date.
Figure 1 Example of an electoral cycle
Source: Authors’ analysis of state records
Evidence of the presence of electoral cycles
We re-estimated the tests for electoral cycles in criminal sentencing from Huber and Gordon (2004), Gordon and Huber (2007), and Berdejó and Yuchtman (2013), and successfully replicated the existing results for the states considered in previous research.
But these findings extend to only one of the states with new data. This means that of the ten states that have judicial elections, and whose data included judge identifiers, only four show evidence of electoral cycles.
This does not appear to be due to publication bias in previous research (the ‘file-drawer problem’ by which non-findings, such as the lack of an electoral cycle, do not get published). It also does not appear to be due to site-selection bias (i.e. testing a hypothesis in a sample where it is most likely to generate interesting results).
Earlier research was performed on states that first digitised their criminal sentencing data, and those states happened to exhibit electoral cycles in sentencing.
This variation can be explained by equally pronounced differences in the degree of the competitiveness of judicial elections across states, alternatively measured by campaign contributions, or by the average probability of being challenged.
This finding in turn raises the question of what explains these differences in the competitiveness of judicial elections. We called judges in some of the states in our study to ask why. Our interviews revealed striking differences across states in the professional norms governing the judicial selection process. In some states, challenging a sitting judge is frowned upon within the judicial profession. As a result, competition in judicial elections is low. In other states, such professional norms are not present and competition in judicial elections is high.
Our interviews also suggested a potential explanation for the professional norm of not challenging sitting judges. Many of the steps on a judge’s career ladder happen by gubernatorial appointment, even if these appointments later need affirmation by re-election. The prospect of a future appointment by the governor can discipline potential challengers to bide their time if challenging a sitting judge (likely appointed by the governor) would prevent them obtaining an appointment in the future.
Testing this hypothesis – and investigating which professional norms apply in different states – are fruitful areas for future research.
Berdejó, C and N Yuchtman (2013), “Crime, punishment, and politics: an analysis of political cycles in criminal sentencing”, Review of Economics and Statistics 95(3): 741–756.
de Tocqueville, A (1835), Democracy in America, HC Mansfield & D Winthrop.
Dippel, C and M Poyker, 2019, “How Common are Electoral Cycles in Criminal Sentencing”, NBER working paper 25716.
Gordon, S C, and G A Huber (2007), “The effect of electoral competitiveness on incumbent behavior”, Quarterly Journal of Political Science 2(2): 107–138.
Huber, G A, and S C Gordon (2004), “Accountability and coercion: Is justice blind when it runs for office?“ American Journal of Political Science 48(2): 247–263.
Lim, C S, and J M Snyder (2015), “Is more information always better? party cues and candidate quality in U.S. judicial elections”, Journal of Public Economics 128: 107–123.
Park, K H (2017), “The impact of judicial elections in the sentencing of black crime”, Journal of Human Resources 52(4): 998–1031.
Shugerman, J H (2012), The people’s courts: The rise of judicial elections and judicial power in America, Harvard University Press.