How Attack Ads in Elections for Judges Can Affect Sentencing

Frederica Freyberg:
If you’re only getting your information about the Supreme Court candidates through attack ads, you would think both judges are happy to give light sentences to pedophiles and domestic abusers. Here & Now senior political reporter Zac Schultz tells us why so many ads focus on sentencing decisions and how that can impact how all judges in Wisconsin rule from the bench.

TV announcer # 1:
Susan Crawford, the radical liberal judge who let the predator out in just four years.

TV announcer # 2:
Guys like Brad Schimel, who gave big plea deals to rapists, domestic abusers, and even a man caught with child pornography.

Zac Schultz:
Dane County Judge Susan Crawford and Waukesha County Judge Brad Schimel have each been a circuit court judge since 2018. They’ve presided over thousands of cases and handed out sentences for every type of offense, allowing their opponents to cherry pick their record and find cases that make them look soft on crime.

TV announcer # 3:
Her criminal coddling record is an injustice to us all.

TV announcer # 4:
Schimel let domestic abusers walk with no jail time.

Zac Schultz:
They’ve also been running for a spot on the Wisconsin Supreme Court for more than a year and actively considering it for much longer than that. But Crawford and Schimel deny that their candidacy ever had an impact on the severity of sentence they imposed.

Brad Schimel:
Well, from the time I decided to run for Supreme Court, I’ve been in the civil division, so I haven’t handled any criminal cases. But no, you can’t do this. You can’t put your — your own personal political views or interests in, in place of doing justice.

Susan Crawford:
Well, you know, I don’t make decisions as a judge based on what I think some future attack ad might look at. I make decisions, particularly in that example of criminal sentencing, based on what I believe is necessary to protect the safety of the community, what’s necessary to protect the crime victims in a case.

Zoe Engberg:
There’s a lot of evidence that when judges are approaching an election, they sentence people more harshly than they do at other points in their term.

Zac Schultz:
Zoe Engberg is an assistant clinical professor at the UW Law School.

Zoe Engberg:
There’s also a lot of evidence that shows that negative campaign ads, in particular, have a large impact on how judges make decisions in cases.

Zac Schultz:
She points to a study out of Pennsylvania that examined a decade’s worth of sentences from every judge in the state to show the fear of attack ads and reelection didn’t just impact high profile judges who were running for higher office. It affected every judge.

Zoe Engberg:
They were able to really see how these trends developed and point to, I think, it was about 2000 years of incarceration over the space of a decade that was directly attributable to reelection, and not just typical sentencing.

Zac Schultz:
What’s most concerning is typically the cases in the attack ads aren’t even egregious decisions by the judges.

Zoe Engberg:
A lot of attack ads of this nature about individual cases, about individual decisions made for judge — by judges, often are attacking judges for fairly typical decisions that almost any judge would have actually made, given a similar case and similar circumstances.

Zac Schultz:
Brad Schimel makes the same point, saying one of the domestic abuse cases he’s being attacked over involved a veteran with PTSD, where the victim pleaded with Schimel to give the man probation to get help.

Brad Schimel:
Any judge in their right mind would have done the same thing I did that day and give him a chance, on probation, to show that he is truly redeemed and he did it. He hasn’t been in any trouble ever since, and he never was in trouble before.

Zac Schultz:
But that didn’t stop Schimel from attacking Crawford over her sentencing decisions.

Susan Crawford:
The law instructs judges in those kinds of cases to look at all the relevant factors: what the defendant’s rehabilitative needs might be, that person’s criminal — prior criminal record. And I make a decision that I believe is in the interest of justice and will protect community safety and protect the crime victim.

Zac Schultz:
Every one of those campaign ads lack context. And while they’ll likely help one of these candidates win a seat on the Supreme Court, Engberg says the impact of the ads will be felt in every courtroom in the state.

Zoe Engberg:
The impact of this is that I think it, it motivates judges to always err on the side of being more punitive and make decisions, kind of, because in the back of their mind, they’re thinking, “What will this case look like in an election ad in my next reelection?”

Zac Schultz:
Reporting from Madison, I’m Zac Schultz for “Here & Now.”