Due Process is on the Ballot
The Louisiana Supreme Court in New Orleans. Photo by Bobak Ha’Eri.
Barring some kind of intervention from the U.S. Supreme Court, Fair Wayne Bryant, 62, will spend the rest of his life in prison. Just last week, the Louisiana Supreme Court declined to review the proportionality of Mr. Bryant’s most recent sentence. Given his criminal history, his case fell under the purview of Louisiana’s habitual offender law. As a result, the state’s highest court deemed Bryant too dangerous to return to public life.
His crime? Stealing a set of hedge clippers.
With just one dissent, from Chief Justice Bernette Johnson, the Louisiana Supreme Court held that the life sentence given for Bryant’s 1997 conviction on one count of attempted simple burglary was not unconstitutionally harsh or excessive.
The people of Louisiana elected those judges—or, at least, they had the right to. Around the country, many states, including Louisiana, elect their judges in either nonpartisan or partisan elections, ranging from local and state trial courts (29 states), to intermediate appellate courts (17 states), to state Supreme Courts (21 states). Taken together, state courts hear 95% of all cases filed in the United States.
And yet, voter turnout for these elections consistently lags behind legislative and executive races. In Louisiana, more than 2 million residents cast a ballot in the 2016 presidential election, but only 261,000 voters participated in the State Supreme Court election held that same year, a startling 87% decrease in participation. In neighboring Texas, 58.6% of registered voters cast a ballot in the 2012 presidential election, but only 44% voted in the statewide partisan race for the Court of Criminal Appeals, the second-highest court in the state. These figures indicate that a significant number of Louisiana and Texas voters did not select a judicial candidate even though they were already at the polls. Research from the University of Chicago found that turnout is even lower for nonpartisan judicial elections. Simply put, voters often overlook their power to elect—or replace—judges in their states.
Perhaps this lack of constituent enthusiasm indicates that judges do not work on the controversial political issues that drive turnout. Indeed, Herbert Jacob’s foundational study of judicial elections found just that: a pervasive perception that judges are more disconnected from the policymaking process than other political bodies at the state level. This perception, however, could not be further from the truth. Judges are essential political actors in the modern struggle for civil rights and criminal justice reform, as well as other urgent issues. As an intern at the A.C.L.U., I studied the ways state judges across the country intercede in civil rights policy and identified countless ways local judicial actors can shape the boundaries of equal protection under the law.
Here’s how it works with criminal justice reform. Around the country, trial court judges have vast authority over criminal sentencing, both in the actual imposition of the sentence and in the ability to deviate from jury or statute recommendations, known as “judicial discretion.” Unsurprisingly, structural racism is implicated in every stage of criminal sentencing. A 2019 study from U.C.L.A. and Columbia found that judges in eight states consistently passed longer sentences for black defendants, with Alabama judges imposing an average of six additional months of jail time to black defendants for the same crimes.
Judicial discretion itself is clearly riddled with racial bias. In 2017, the United States Sentencing Commission reported that black male offenders were 21.2% less likely than white male offenders to receive a below-range prison sentence when the sentencing judge had the discretion to give a lesser sentence, with Latino male offenders 31.4% less likely to receive a lenient penalty. At the appellate level, state judges, particularly those on state Supreme Courts, have the authority to review the constitutionality of these sentences to ensure compliance with the Sixth and Eighth Amendments.
While sentencing is an integral dimension of a state’s criminal justice system, it is also fraught, fragile, and dependent on the inclinations of individual judges. For one thing, information about which court has appropriate jurisdiction in civil and criminal cases is often buried in convoluted state laws. And the metrics used in these decisions are often dubious, as most states accord judges at all levels with broad discretionary authority to both impose and review criminal sentences.
That’s where 2020 comes in. In November, Louisiana will hold elections for two seats on its Supreme Court. While state and local judges do hold immense authority to impose and review criminal sentences, judicial elections also mean that these judges are directly accountable to the people. In other words, the people of Louisiana can vote them out.
Across the country, then, voters have a hidden opportunity to substantively advance social justice on the ground. Nationwide, judges can be virtually unknown to the public and far removed from governor’s offices or assembly chambers yet still legislate the lives of the citizens in their states. For some Americans, electing more fair-minded judges at the state level might have a more immediate impact on their experience of due process than candidates for Congress or even the President.
That’s why we need to think beyond the Oval Office when we’re in the voting booth, especially the branches that are too often overlooked. It’s easy to get informed: the dates for upcoming judicial elections can be found on Ballotpedia, your state’s policies regarding judicial elections are provided by the National Council for State Courts, and the Brennan Center is an indispensable resource to understand the often-overlooked influence of state courts on domestic policy, particularly issues of civil rights and due process.
In more ways than we might realize, criminal justice is on the ballot in 2020. We cannot afford to forget about the judges who administer it.
Zachary Kimmel is a senior in Columbia College studying U.S. History with a concentration in African American Studies. Zachary is the founder and outreach director of ColumbiaVotes, a student-run voting rights organization. He is also the president of Columbia SHARP Acapella and works as a national Resetting the Table Fellow through Columbia’s Kraft Center for Jewish Student Life. He enjoys Amtrak train rides, playing and watching soccer, and all things Brooklyn.
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