Just the Facts

Five Facts on State Judicial Selection

By No Labels
July 30, 2019 | Blog

Criminal justice is an ever-present area of contention. Critically, state courts and their presiding judges play a central role in how sentences are determined and justice dispensed. In response to the immense power judges wield, Americans continually debate the merits of the various methods of judicial selection. Here are five facts.

State courts are responsible for nearly all criminal cases

Ninety-four percentof all felony cases in the United States are adjudicated in state courts, and trial court judges make the first sentencing determination in all of these cases. A closer look at these statistics underscores this importance because state judiciaries are responsible for 99% of rape cases and 98% of murders. Different states have penal codes that grant judges more or less discretion, but the magistrates’ role is nonetheless essential in the cases set before them. [1]

13 states elect trial court judges through partisan elections

Most states employ one or more of the following forms of judicial selection: 1) appointment, where the governor or an executive council nominates a judicial candidate and the legislature confirms; 2) nonpartisan election, where judicial candidates campaign for office without party affiliation; and 3) partisan election, where judge candidates must first win a partisan primary then be elected in a general election with party affiliation.

Currently, 13 states elect trial court judges through partisan election, 19 through nonpartisan election, and 16 through appointment. Two states also utilize a less common method known as legislative election. [2]

Judicial races can be political and expensive

Examining statistics from state supreme court justice races reveals the political nature of such elections. From 2013-2014, over half of judicial ads highlighted candidates’ past rulings in criminal cases, attacking them as “soft on crime” or praising them as “tough on crime.” [3]These races can also become extremely expensive. In 2016, 20 states had at least one Supreme Court justice who was elected in a race that cost at least $1 million, and 11 of these states had at least half of their Supreme Court bench elected in million-dollar races. [4]

States have evolved in their judicial selection processes 

When the U.S. was founded all the original 13 states selected their judges through appointment. By 1838 this shifted under President Andrew Jackson whose populist efforts led many states to select judges through nonpartisan elections. By the early-1900s in many of the new western states, this populist culture pushed even further, subjecting judges to partisan elections. This partisan electoral trend continued until midcentury when many states reverted back to nonpartisan election systems. Around this time, the Missouri Plan grew in popularity as a more democratic version of the appointment method. Here, a special commission reviews judicial candidates then sends acceptable candidates to the governor, who picks a nominee for confirmation by the legislature. [5]

Judges statistically rule more stringently as they approach re-election

From 2000-2015, appointed judges reversed death sentences 26% of the time while judges facing competitive elections reversed 11% of the time. [6] Looking at a specific state, trial court judges in Pennsylvania must bere-elected every 10 years, and according to a study of over 22,000 cases, these judges make longer sentences as re-election nears. [7]Similarly, a 1995-2006 study of judges facing four-year re-elections in Washington State found that criminal sentences grow 10% longer as trial judges approached re-election. [8]

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