Politicizing Judge Selection -Lessons from America’s Mass Incarceration

Opinion: American judges are politically appointed. How does this relate to the fact that the incarceration rate in the US is higher than during the Gulag era in the Soviet Union?
Dr. Tamar Hofnung|
Here is an astonishing figure: while the population of the United States accounts for only about 5% of the world's population, approximately 25% of the world's prisoners are incarcerated in the United States. In fact, the American incarceration rate is so high that it even surpasses the rate of incarceration in the Soviet Union’s Gulag camps during the Stalinist era.
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The magnitude of the American mass incarceration problem has detrimental social and economic effects, casting a dark shadow over the American justice system. The pronounced racial bias within the inmate population—combined with a series of exonerations of innocent people of color who were wrongly convicted—has sparked mounting accusations and concerns regarding institutional racism. On an economic level, the incarceration of approximately two million individuals imposes an immeasurable burden on the American taxpayer. The majority of incarceration costs are dedicated to security measures, with the cost of incarcerating an inmate averaging around $100,000 per year in California, for instance. How did the United States come to find itself in such a state?
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Reality isn't quite as sexy as 'Orange is the new Black'
Reality isn't quite as sexy as 'Orange is the new Black'
Reality isn't quite as sexy as 'Orange is the new Black'
(Photo: HOT)
Various mechanisms have devised and sustained the American mass incarceration crisis. These include the War on Drugs, harsh minimum sentencing laws, and the Three Strikes laws, which dictate that a person convicted for a third time receives an escalated sentence, often without the possibility of parole. Notorious cases illustrative of the impact of these laws revolve around individuals serving life sentences without parole for offenses involving marijuana, a drug that is now legal for consumption in several states in the US.
Another significant factor contributing to the exponential growth in the number of incarcerated persons is the mechanism of judges selection. In the US, similar to the changes currently being promoted by Netanyahu’s coalition in Israel, the judge selection process is political: judges are appointed by state legislatures, directly by state governors, or, in certain states, judges even compete in elections for positions in the judiciary. Federal judges are nominated by the president and confirmed by the Senate.
Similar to Justice Minister Yariv Levin's proposal, political nomination takes place across all judiciaries, thus making the advancement of judges from one level to another inherently political. As a result, and particularly pronounced in the case of mass incarceration, external considerations, and political pressures often influence the manner of rulings. Judges aspiring for promotion or selection provide assurances regarding their future ruling approach.
In the 1980s and 1990s, during the height of the war on drugs and the panic over crime rates—which was greatly magnified by the American media but disproportionate to the true rate of crime—, mob mentality demanded harsher sentences, reminiscent of the approach that the Israeli National Defense Minister Itamar Ben Gvir is currently trying to implement.
In those days, the American public firmly believed that should the system implement harsher sentences, crime rates would inevitably diminish. Politicians sensing an easy political gain began targeting their campaigns on the issue, portraying themselves as being "tough on crime." Consequently, judges faced immense pressure to impose harsh sentences, even if such rulings ran counter to professional evaluations. Judges perceived as lenient on crime often found themselves subjected to smear campaigns, at times jeopardizing their careers (recall the case of Penny White in the 1990s).
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יוסיף סטאלין
יוסיף סטאלין
Josef Stalin could only dream of these numbers
(Photo: AP)
With political pressures ever intensifying, Judges' verdicts, on aggregate, brought about the expansion of the American incarceration system to a scope never before seen. Yet the tough-on-crime approach did not yield significant results in reducing crime. On the contrary, it brought about detrimental social outcomes.
Given the zero-sum mindset inherent to the “tough on crime” approach, any benefit given to a prisoner is perceived as an undeserved benefit, even if it involves rehabilitation. As a result, the hurdles and societal barriers to inmates' integration into American society are substantial. The challenges faced by inmates seeking reintegration are twofold.
First, extended periods of absence from the job market due to lengthy sentences lead to continuous skills erosion. Second, the stigma attached to individuals with a history of incarceration hinders their successful reentry into the workforce. Consequently, due to these integration challenges, the rate of recidivism (the tendency of a convicted criminal to re-offend) in the United States stands as one of the highest globally.
Dr. Tamar HofnungDr. Tamar HofnungPhoto: Courtesy
Despite these criticisms, a dramatic change does not seem to be on the horizon. A series of intertwined interests, including the privatization of prisons, are fortifying the current state of affairs. While awareness of the destructive societal consequences of American mass incarceration is increasing, the politicization of the American judicial system results in judges still being subject to scrutiny and backlash if they impose lenient sentences.
Not without reason did the conservative jurist Alan Dershowitz (a friend of Benjamin Netanyahu) warn against adopting the American judge selection method. Given Israel’s political structure and its much weaker separation of powers, embracing the politicization of judge selection will not only result in jeopardizing Israel's identity as a democratic and liberal nation but will also bring about an intolerable weakening of the foundations of justice.

Dr. Tamar Hofnung is the Israel Institute Fellow at the UCLA Y&S Nazarian Center for Israel Studies
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