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POLICING THE USA
Policing the USA

To end police brutality, elect better judges: Column

Presidential politics have significantly less impact on local law enforcement

Meredith Clark
Baltimore Circuit Judge Barry Williams has found cops not guilty of charges in the Freddie Gray case.

My Facebook feed is full of memes from friends on the left and the right and from those who are ideologically indifferent who are discouraged by our presidential candidates.

One of my favorites, features a chummy photo of Hillary Clinton and Donald Trump with the words “Straight Outta Options” superimposed over their faces.

The subtext is disheartening, but I’m encouraged by the number of comments imploring voters to think a little further than this year’s presidential race. Some argue for an ease in political idealism, encouraging friends to vote the lesser of two evils. Others make a stronger point about the down-ballot races that will have a greater impact on individuals at the local and state levels.

After nearly 18 months of watching a series of police brutality cases come to their unsatisfying end with the bang of a gavel, I’m showing up on Election Day with a different priority in mind: having a say about the judges who preside over the law as it is applied in my community.

Policing the USA

Judicial impact on high-profile cases

“Our state courts decide the issues that affect the everyday lives of all Americans. Whether traffic violations, child custody, the way we vote, the way our law enforcement works, divorce proceedings or how our schools are funded,” said Kate Berry, counsel for New York University’s Brennan Center. Berry’s research focuses on, among other things, promoting fair and impartial courts and judiciaries that reflect the communities they serve.

Berry outlined four key concerns about the makeup of who governs from the state bench.

“The outsized role of money, politicalization of the races, the lack of diversity and job security concerns effecting outcomes — what’s most troubling is how all of these add up,” she said.

How they add up is what has fueled the furor over judicial proceedings in cases of police brutality in 2014 and 2015, including the decision by Baltimore Circuit Court Judge Barry G. Williams who presided over the bench trials of officers Caesar Goodson and Edward Nero in Freddie Gray’s death. Santa Clara Superior Court Judge Aaron Persky’s lenient sentence for convicted rapist Brock Turner stoked a newfound interest in civic participation at the judicial level.

Baltimore City sheriff's deputies clear a path for Baltimore Police Officer Edward Nero's family as demonstrators gather at the courthouse after Nero was found not guilty on all charges related to the death of Freddie Gray. Judge Barry Williams presided over the bench trial.

Both judges, at some point, will face voters: Maryland state law requires that circuit court judges, who are appointed by the governor, must stand for an election in order to be retained. And while an uphill battle for a recall is underway in Persky’s case, he stood unopposed in California’s primary in June, and will otherwise retain his seat for another six years.

A complex system where money still influences 

The complexities of each state’s lower courts’ mix of appointments and elections, and the wide-ranging scope of duties that fall to the judiciary don’t make for attention-grabbing headlines during election season. A quick scan of judicial nominating and electoral processes across the United States also turns up a patchwork of election dates that easily slip from our attention when we’re zeroed in on the “big races.” Add in special election dates, and it’s a recipe for low-information voting in judicial races.

Berry also notes that the judicial process is often quite “opaque,” leaving voters with little insight on candidates for the judiciary. Television ads fueled by special interest groups can have undue and outsized influence.

About $129 million was spent in state Supreme Court races between 2000 and 2014, Berry said, meaning that only some of that cash was unleashed post-Citizens United. We may have yet to see the cumulative impact special interest money has on lower-court races. But look closely at campaign ads, and the influences become clearer.

“A judges’ job is to apply the law to the facts,” Berry said. “But with these ads, an outside interest group is shaping the narrative about what a judge should or should not do, and incentivizing what judges should or should not do.”

Satirist John Oliver hammered home Berry's point on Last Week Tonight last year, showcasing three plainly ridiculous ads from candidates for the bench in circuit and state courts. One played on his son’s name — Justice — to underscore his commitment to the law. Another was backed by a banjo-picking pitchman. The third drew on the theater of safety as part of his pitch, touting his credentials as a volunteer rescue diver with the local sheriff’s department.

They all won their races.

Instead of protesting, educate

The judiciary demands as much attention from the electorate as any other race. In ongoing efforts to establish a representative government that reflects the communities it serves, these races are a place for folks who are disillusioned with the idea of the Clinton political machine and disheartened by the idea of a billionaire-turned-reality-TV-star as commander in chief.

Some of the energy that fueled protests in 2015 would be well used to educate voters about who applies the law to the cases that shape our communities.

Judges are elected in 39 state-court systems throughout the country.

In North Carolina, a Republican incumbent who avoided what would have been the state’s first constitutionally required retention election will face off against his Democrat challenger in a partisan battle for control of the state Supreme Court come November. Less than 10% of voters participated in that primary.

And in Kansas, voters will elect five judges to sit on the state’s court of last resort in a multimillion-dollar campaign season.

These elections are often our only opportunity to scrutinize the background, qualifications, credentials and previous positions taken by a candidate for the bench.

They’re one ballot item where we still have plenty of options.

Meredith Clark is an assistant professor at the University of North Texas. Follow her @meredithclark

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