Elected Judges Pick Donors as Defense Lawyers, Study Says

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Nearly 60 years ago, the Supreme Court decided that poor people accused of serious crimes were entitled to lawyers paid for by the government. The court did not say how the lawyers should be chosen, and many states settled on a system that invites abuses, letting the judge appoint the defendant’s lawyer. That system has been criticized for promoting cronyism and dampening the zeal of lawyers who want to stay in judges’ good graces. A new study documents a more troubling objection: that elected judges tend to appoint lawyers who contribute to their campaigns, the New York Times reports. “Campaign finance is perverting the criminal justice system,” said Georgetown law Prof. Neel Sukhatme, an author of the study. The study examined Houston’s Harris County, the nation’s third most populous county. The problem identified by the study may be widespread, as the same basic incentives exist in many places.

“‘Pay to play’ might affect millions of Americans in other states, such as California, Georgia, Maryland, Missouri, North Carolina and Ohio, among others, which also permit attorneys to contribute to judges who control indigent defense appointments,” the study said. Sukhatme conducted the study, to be published in The Duke Law Journal, with Jay Jenkins of the Texas Criminal Justice Coalition, a research and advocacy group. It considered 290,000 felony cases in Harris County between 2005 and 2018, analyzing data on elections, assignments, campaign contributions, lawyers’ fees and bar records. “What we find is shocking,” the study said. “While donor and nondonor attorneys appear similar in terms of their education and experience, on average, judges assign their donors more than double the number of cases they assign to nondonors.”

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