Post-Columbine: Juvenile Offenders and the State Supreme Courts*

Article excerpt

Recent research finds elected state court justices are constrained from implementing policy preferences by electoral necessity; however, the research lacks a consideration of how judges' perceptions of issue salience might also restrict judicial voting choice. I examine the voting behavior of state supreme court justices in cases where juveniles are tried as adults decided before and after the Columbine incident and find elected justices show an increase in conservative voting after Columbine. The results suggest that the ability of retention methods to structure judicial behavior is partially a function of issue salience.

Much has been written about the impact of state judicial selection and retention methods on judicial behavior, with scholars consistently finding that elected justices are restricted from attitudinal voting because they must be reelected (Hall and Brace, 1989; McCaIl, 2005, 2008) and must raise sufficient funds to run a successful campaign (McCaIl and McCaIl, 2007b). While these studies have laid the foundation for analysis of the constraints institutional arrangements can place on individual behavior, lacking is a consideration of how changes in the political environment might be filtered through institutions to exert pressure on state court justices. Specifically, does the ability of elections to structure judicial behavior differ depending on the judge's perceived salience of any given issue? Are justices able to place greater emphasis on personal policy preferences when they believe the public is not watching and less when they believe the public is watching? The purpose of this article is to examine the influence of judicial institutions on judicial behavior in a changing political environment.

Accordingly, this research examines the voting behavior of justices on state courts of last resort controlling for the institutional and political variables that may influence decision-making practices. Consistent with past research, I first question if elected justices vote differently than appointed justices. Second, expanding on the literature, I examine if the political context surrounding any case, specifically the judge's perception of the importance of a given topic, is a relevant factor in judicial decisions that should be incorporated within analyses of elected state court judges' behaviors.

To this end, I study the voting behavior - specifically, a justice's tendency to cast a vote favoring a juvenile offender - of justices from state supreme courts in randomly selected cases where juveniles have been tried as adults litigated between 1991 and 2007. l The time frame allows for an evaluation of cases litigated before and after the April 1999 shooting at Columbine High School in Littleton, Colorado in which two juvenile gunmen murdered thirteen people before killing themselves. As President William Clinton stated, "What happened in Littleton pierced the soul of America" (Watson, 2002), and it propelled the problem of juvenile offenders into the public spotlight. I use cases litigated before and after Columbine to test hypotheses regarding how factors such as issue salience expand or constrict the boundaries within which elected justices render decisions. The research design allows for a study of differential voting by appointed and elected justices operating within a changing political environment.

LITERATURE REVIEW

In the last two decades, scholars have made great strides in evaluating the determinants of judicial behavior on state supreme courts. Most research concentrates on delineating the import of judicial elections by questioning if states' retention methods structure judicial behavior (Hall and Brace, 1989; McCaIl, 2005, 2008). Early works, using death penalty cases as units of analysis, indicate that dissent rates among elected and appointed judges varied because elected justices were more inclined to suppress dissent in cases that might illicit public reaction to minimize the possibility of electoral defeat (Hall and Brace, 1989). …