77 Pages Posted: 27 Nov 2009 Last revised: 8 Feb 2014
Date Written: November 1, 2009
In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures. Building on this description and the work of empiricists, this Article bridges the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications. And in the final analysis, the thesis -- namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases -- is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics. Thus, pro-prosecution judges and their not-too-sophisticated message -- "me tough on crime, you soft on crime" -- should cease and desist or be ceased and desisted.
Part I briefly describes elective judicial selection systems and thoroughly describes "tough-on-crime" judges, their messages, and their motivations. Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification. All of these frameworks -- some four or five different legal and ethical barriers, depending on one's jurisprudential view -- ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence. By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.
Keywords: Judicial Disqualification, Recusal, Caperton v. A.T. Massey Coal, Due Process, Campaign Contributions, Appearance of Bias, Impartiality, Judicial Ethics, Tough on Crime Campaigns, Pro-Prosecution Judges, Judicial Elections
Suggested Citation: Suggested Citation
Swisher, Keith, Pro-Prosecution Judges: 'Tough on Crime', Soft on Strategy, Ripe for Disqualification (November 1, 2009). Arizona Law Review, Vol. 52, No. 2, 2010; Arizona Summit Law School Research Paper. Available at SSRN: https://ssrn.com/abstract=1513186