A review of 2,102 state supreme court death penalty rulings from the 37 states that heard cases over the past 15 years found a strong correlation between the results and the way each state chooses its justices, Reuters reports. In the 15 states where high court judges are elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed. Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, found research by Westlaw, a unit of Thomson Reuters.
Some academic studies have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings. At least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics influence the outcome of an appeal. Courts have a responsibility to protect a defendant's constitutional rights without political pressure, especially when the person's life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It's the difference between the rule of law and the rule of the mob,” he said.