Judge Pays Price of Her Convictions

Penny White, once the Tennessee Supreme Court’s only woman, now is a symbol for two distinct groups of activists: those who think electing judges is a bad idea and opponents of capital punishment.

White was voted off her state’s highest court in a retention election in August, after a conservative group attacked her as a death-penalty foe.

The evidence? In the one and only capital case of her two-year tenure, White had joined in a 3-2 decision that overturned a convicted murderer’s death sentence. The court ordered a new sentencing trial.

White’s fate, says a recent report, is similar to that of a growing number of elected judges across the nation who, fairly or not, get labeled as “soft on crime” because of their votes in highly publicized death penalty cases.

The Washington-based Death Penalty Information Center suggests that some judges may be succumbing to the political pressure as they make decisions about the lives of convicted murderers.

“The infusion of the death penalty into political races is reaching new extremes and distorting the criminal justice system,” says the report written by the group’s executive director, Richard Dieter.

“When judges who will decide whether a defendant is to live or die, and who even have the power to reject the unanimous vote of jurors, run for office by proclaiming how tough they will be on criminals, fairness is threatened,” said the group, which opposes the death penalty.

Judges are elected in 32 of the 38 states with death penalty laws. While Tennessee justices are appointed by the governor, a 1994 law requires that every eight years voters decide whether to retain the jurists.

Dieter’s report tells of Alabama’s Judge Bob Austin and Louisiana Supreme Court Justice Jack Watson, who as candidates “prominently mention their toughness on the death penalty.”

In Texas, Supreme Court candidate Rene Haas advertised her “strong support for the death penalty,” even though that court doesn’t handle any criminal appeals.

Dieter conceded in an interview that the report is largely anecdotal. “The evidence suggesting that death-penalty politics affects judges has been growing in recent years, but we still are talking about isolated examples,” he said.

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At least one highly placed jurist also has voiced concerns about elected judges and the death penalty.

“A campaign promise to ‘be tough on crime’ or to ‘enforce the death penalty’ is evidence of bias that should disqualify a candidate from sitting in criminal cases,” U.S. Supreme Court Justice John Paul Stevens told an American Bar Assn. audience in August, two days after White’s defeat in Tennessee.

Stevens, who has the life tenure afforded all federal judges, believes electing judges is “profoundly unwise.”

“Persons who undertake the task of administering justice impartially should not be required--indeed, they should not be permitted--to finance campaigns or to curry the favor of voters by making predictions or promises about how they will decide cases before they have heard any evidence or argument,” he said.

“Moreover, making the retention of judicial office dependent on the popularity of the judge inevitably affects the decisional process in high-visibility cases, no matter how competent and conscientious the judge may be,” he said.

The American Judicature Society, an organization that works to improve the nation’s courts, shares Stevens’ views on judicial elections.

“Electing judges is not congruent with their role as neutral and independent decision-makers,” says Kathleen Sampson, the society’s acting executive director. “The danger is that people will come to see a judge as just another politician who should be voted out of office if he or she doesn’t happen to agree with you.”