In a recent opinion dissenting from the denial of certiorari in an Alabama death penalty case, U.S. Supreme Court Justice Sonia Sotomayor questioned whether the pressures of partisan judicial elections influence judges’ decisions in cases involving hot-button issues like capital punishment. Justice Stephen Breyer joined this portion of Sotomayor’s dissent, written regarding a case where a trial judge had overruled a jury’s life sentence and imposed the death penalty instead. Alabama is one of three states—along with Delaware and Florida—where judges have this authority, and it is one of ten states where trial judges are chosen in partisan elections. Since 2000, 26 of 27 judicial overrides of life sentences have occurred in Alabama. The Sotomayor-Breyer dissent references a trial judge in one of these cases who had ”campaigned by running several advertisements voicing his support for capital punishment” and naming some of the defendants he sentenced to death.
Social scientists have examined the question of whether electoral pressures influence sentencing decisions. In an early study of the sentencing behavior of Pennsylvania judges, who run in retention elections after being elected to office, Huber and Gordon (2004) found that criminal sentences are significantly longer the closer the judge is to facing the voters. In a subsequent study, Gordon and Huber (2007) reported that Kansas judges who face a challenger for reelection impose more punitive sentences than judges who stand for retention, and that those sentences become more punitive as the election approaches. (Kansas is an ideal state for such analyses as trial judges face both contested and retention elections, depending on the county in which they sit.) A third study by Berdejo and Yuchtman (2012) replicates these findings for Washington State judges, where criminal sentences are ten percent longer at the end of a judge’s political cycle than at the beginning.