Life Terms or Death Sentences: The Uneasy Relationship between Judicial Elections and Capital Punishment
Brooks, Richard R. W., Raphael, Steven, Journal of Criminal Law and Criminology
One day Louise Harris approached her lover, Lorenzo "Bo Bo" McCarter, with a proposition that led to an agreement to kill her husband. (1) Harris and McCarter paid Michael Sockwell and Alex Hood one hundred dollars to carry out the gruesome killing. (2) Following the killing, Harris, McCarter, Sockwell, and Hood were all convicted of capital murder in separate proceedings. In each case, a jury recommended life in prison without parole. Yet, in two of the four cases, the trial judge declined to follow the jury recommendations, choosing instead to sentence the defendants to death by electrocution. Different sentences following guilty verdicts on the same offense often occur because the "guilty/not-guilty" determination affords only the crudest approximation of culpability. Through sentencing, however, mitigating and aggravating considerations can give countenance to culpability. Still, the juries in the Harris murder cases had access to these considerations when they reached the same sentence recommendation for all four defendants. Why two defendants ultimately received death sentences and two received life sentences is a question that has more to do with the trial judge's temperament and discretion to impose his preferences than with some "objective" balancing of mitigating and aggravating circumstances. (3) In this Article, we attempt to measure the extent to which judicial temperament affects the likelihood of a defendant being found guilty of murder and the impact of specific judges on sentencing. Using detailed historical data on all murders recorded by the Chicago police over a sixty-year period during the late-nineteenth and early-twentieth centuries, we find significant judge-specific effects for both convictions and sentencing outcomes. Our analysis also reveals a consistent pattern of harsher outcomes correlated with the race of the defendant, (4) the race of the victim, (5) and the killing of police officers. Further, we observe a strong relationship between election years for judges and the likelihood that a defendant will receive a death sentence. That is, conditional on being found guilty of murder, criminal defendants were approximately 15% more likely to be sentenced to death when the sentence was issued during the judge's election year.
A. POLITICS AND CAPITAL PUNISHMENT
In Louise Harris's death sentence appeal before the U.S. Supreme Court, Justice John Paul Stevens remarked that judges may be too responsive "to political pressures when pronouncing sentence in highly publicized capital cases." (6) Given the broad support of capital punishment among Americans, Justice Stevens observed that "judges who covet higher office--or who merely wish to remain judges--must constantly profess their fealty to the death penalty." (7) When up for re-election, most judges simply cannot afford to ignore popular sentiment about the death penalty. Nor, apparently, can many other elected officials. (8) For instance, one recent study found that during gubernatorial election years, states are 25% more likely to execute prisoners. (9) Prosecutorial election cycles have also been long known to correlate with the state's willingness to seek death sentences in murder cases. (10) It would be surprising if judges, during their election cycles, were unresponsive to the political pressures confronting their elected counterparts in the governors' and prosecutors' offices. (11) In these offices, the pressure is often relieved through an exercise of gubernatorial or prosecutorial discretion. One might expect that in judicial chambers and courtrooms throughout the country, judicial discretion serves a similar purpose.
B. JUDICIAL DISCRETION AND JUDGE SPECIFIC EFFECTS
Judicial discretion can, of course, be good or bad. Through discretion, judges can tailor punishments to conform to socially desirable objectives. Unfortunately, judicial discretion based on unwarranted considerations, such as re-election prospects or ethnicity, will lead to undesirable variations in sentencing. …