Author ORCID Identifier

https://orcid.org/0000-0002-0467-6265

Year of Publication

2020

Degree Name

Doctor of Philosophy (PhD)

Document Type

Doctoral Dissertation

College

Arts and Sciences

Department

Political Science

First Advisor

Dr. Mark Peffley

Abstract

This dissertation explores whether and how the re-election prospects faced by trial court judges in many American states influence criminal justice policy, specifically, state levels of incarceration, as well as the disparity in rates of incarceration for Whites and Blacks. Do states where trial court judges must worry about facing reelection tend to encourage judicial behavior that results in higher incarceration rates? And are levels of incarceration and racial disparities in the states influenced by the proportion of the state publics who want more punitive policies? These are clearly important questions because they speak directly to several normative and empirical issues concerning institutional design, representation, and equal treatment under the law. In addition to the role that court retention procedures are found to play, the dissertation also investigates the influence of a range of other factors, especially state characteristics, that shape state incarceration rates and racial disparities in punishment.

To answer these questions, I first construct a theory of judicial retention goals that leads to testable hypotheses about how institutional design and state public opinion influence incarceration rates and racial disparity in state prison populations. I also assemble an original dataset by drawing information from a variety of sources. Annual state-level incarceration rates, my principal dependent variable, is drawn from the National Prisoner Statistics (NPS), 1978-2015 data compiled annually by the Department of Justice. A primary independent variable, judicial retention procedures is derived from the National Center for State Courts. Population data come from the U.S. Census Bureau. An original dataset of yearly state-level public punitiveness provides more nuanced data for exploring the linkages between election goals and judicial behavior. Finally, hypotheses are tested with a variety of methods, including multilevel regression and post-stratification (MRP), recursive analysis, time-series analysis, and difference-in-differences estimation.

Before discussing how this dissertation contributes to the scholarly literature, it is important to note that this study does not attempt to resolve the longstanding argument between two values of judicial decision-making—judicial accountability versus and judicial independence—that continues to vex the judicial literature. A strong normative case for an independent judiciary can be made. American courts are considered a countermajoritarian institution, guarding against the tyranny of the majority and protecting the rights of minorities from the whims of the masses. Jurists, in an ideal world, would rule in strict accordance with the law, except when the law was used as an instrument of injustice. Such utopian judges—dispensing justice free of extra-legal considerations—would not, of course, consider the opinions of the public when making rulings. They would not be more punitive simply because the public wants them to be. They would not dispense “justice” to members of one group of citizens more harshly—or differently at all—than to members of another group. Indeed, such judicial independence would ideally put a brake on the excesses of punitive policies, which have produced questionable results in deterring crime.

However, in the American judiciary, such a judge is relegated to mythical status. A robust literature in political science demonstrates that judges who staff American courts are not jurisprudential robots. Judges are influenced—whether explicitly or implicitly—by myriad extra-legal considerations including their policy preferences, the anticipated behavior of other actors in the politico-legal system, or even how recently they have taken a break. These influences, however, are to be considered seriously by political scientists and other scholars of the courts. More to the point, if judges are or will be influenced by political matters regardless of whether or not they should be, the question becomes one of accountability. Put another way, if judges are political actors, to whom should they be politically responsible?

Most scholars in the state courts literature argue that judges are held accountable by the voters. If voters are to exercise such a role, jurists must take into account the preferences of the electorate and respond strategically to those preferences while still attempting to maximize their own preferences, whether those be policy-related or motivated by jurisprudence. Elections, thus, provide political accountability to a political actor who frequently behaves is a very political way.

But evermore responsiveness to public opinion is not necessarily always desirable and is sometimes certainly very undesirable. To be certain, mass incarceration is accompanied by a host of negative consequences. However, judicial elections also provide a solution to these problems. Judges who go rogue in states (or the federal judiciary) with strong institutional tenure protections are unlikely to face consequences for their wayward behavior. On the contrary, judges who must stand for re-election are very likely to face consequences for straying too far. It is even possible for a vocal minority to sufficiently mobilize against and ultimately depose a rogue judge, especially considering the ordinarily low-profile nature of judicial elections.

Over the course of this dissertation, I accomplish four major scholarly endeavors. First, I develop a democratic theory of state trial court judicial behavior. The theory is built on the punitiveness of public opinion and the salience of crime. From those foundational elements, I theorize that elected judges are responsive to public opinion on criminal justice issues in an effort to secure re-election. From this theory, I hypothesize that incarceration rates and racial disparity in prison populations will be higher in states with elected judges than in non-electoral states and that public opinion will condition the effect of elections such that as public opinion becomes more punitive in electoral states, the levels of incarceration and racial disparity will rise, compared to non-electoral states.

Second, I assemble and validate an original dataset of public opinion toward crime and punishment. The first of its kind, this dataset, which is introduced in chapter 3, varies both over-time—year to year—and across space—state to state. Using the data compiled from more than 30 years of public opinion surveys, I demonstrate its validity by replicating previous work on the impact public opinion has on incarceration rates. I further discuss the utility of the data for myriad social scientific questions, both in political science and in other disciplines.

Third, I explore the impact of judicial elections on incarceration rates and how the impact of those institutions on the penal system are conditioned by public opinion. Specifically, in chapter 4, I show that, when contrasted to states where judges are retained by some mechanism other than elections, states that use elections to keep judges on the bench are more responsive to public opinion and that incarceration rates are higher in electoral states when the public desires a more controlling response to crime. Additionally, I show that non-partisan elections create the conditions for judges to be more responsive to public opinion than partisan elections. Despite the finding from the time-series analysis that non-partisan elections are associated with more punitive outcomes, a causal analysis shows that none of the three states that changed from partisan to non-partisan elections experienced an increase in incarceration rates following the reform that would not have existed absent the reform.

Finally, I show that racial disparities in incarceration are largely unaffected by the institutional arrangements for judicial retention. Time-series models indicate that, when compared to states without judicial elections, states with them are statistically no different in terms of the disparity between Black and White prison populations. However, when comparing types of elections, non-partisan elections produce Black disparity that is more responsive to public opinion than partisan elections.

The project contributes to research in several fields of study. First, I extend the argument that that judicial elections provide voters with a mechanism for accountability to an important but often neglected setting of state trial court judicial decision-making. Trial court accountability to public opinion is important for government’s response to citizen demands for public safety. Prior research on the effects of judicial elections has focused primarily on appellate courts, with much less systematic research on the “workhorse” of the court system at the state level. This project moves beyond the study of appellate courts to study trial courts, expanding our understanding of previous findings. Second, I contribute to the growing literature that examines the political, partisan, and ideological antecedents of the criminal justice system. Previous research shows that electoral considerations affect criminal justice policy and that the partisan nature of the political system influences incarceration rates. I extend these findings to study state judiciaries. Third, I contribute to the fields of public opinion and state politics by demonstrating that elected trial state judges can improve representation by being responsive to the policy preferences of the public in the area of criminal justice policies.

Digital Object Identifier (DOI)

https://doi.org/10.13023/etd.2020.327

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