Endorsing a proposed amendment to the Tennessee Constitution on the ballot next month that would grant the General Assembly and the governor more power to appoint appellate and Supreme Court judges, while preserving arguably unconstitutional “judicial retention election” statutes, president of the Tennessee conference of the NAACP Gloria Sweet-Love recently said, “We want fair and impartial judges who will protect the rights of all people, not just the special interests with their campaign contributions.”
But while touting “fair and impartial” courts, the campaigns to retain state Supreme Court Justices Clark and Wade and Chief Justice Lee this summer bragged on Facebook at one point that they had raised almost a quarter of a million dollars from trial lawyers in a single night. What “special interest” is more special in this context? Meanwhile, they admonished the public that “justice is not for sale.”
The “Vote Yes on 2” committee has also raised and spent more money than any of the four constitutional amendment campaigns to date, according to recent disclosures. Most of VYo2’s funding has come from strange bedfellows: a big business front group and trial lawyers — the very types of special interests Sweet-Love says she opposes.
Not for sale, indeed.
Despite this dissonance, Sweet-Love encouraged NAACP members in Tennessee to cast ballots next month in favor of Amendment 2. State Senator Reginald Tate, an African-American Democrat from Memphis, also recently reversed course on the issue, evolving his position from opposition to support.
One would think that these endorsements of Amendment 2 are peculiar turns for Sen. Tate and the NAACP. Not only do Republicans currently hold majorities in both chambers of the General Assembly and the Governor’s Mansion, but scholarship also shows that the American justice system disproportionately impacts minority communities.
William Julius Wilson’s sociological research in the 1980s, on the efficacy of LBJ’s Great Society in achieving progressive goals, found that black communities have suffered from the declining availability of “marriageable” men since 1960 – for every 100 single black women, there has been a smaller number of employed single black men. This is in part because of increases in minority school enrollment. But a justice system that is biased against racial minorities, and constituted by political elites with no accountability to voters, only compounds the likelihood of unwed motherhood in minority communities, which in turn contributes to poverty, disparate health outcomes, and mortality rates.
Indeed, American juries are almost ten times more likely to recommend a death sentence in cases with an African-American defendant and white victim than vice versa, according to data compiled by the Death Penalty Information Center in Washington, DC. In the Volunteer State, trial court judges don’t have to adhere to the jury’s sentencing recommendation. If juries nationally disproportionately recommend the death penalty for African-American defendants, this might seem like a step forward. But in cases in which the trial jury reflects the demographic makeup of a jurisdiction, and both counsels have agreed on jury selection, a judge could still assess a more severe sentence.
Thank goodness we still elect trial court judges in Tennessee.
Normative voting rights questions aside, and making the issue more complicated, we have no real sense of exactly how biased against racial minorities the Tennessee approach to capital crimes really is. That’s the gubernatorially-selected Supreme Court’s fault.
A 2007 American Bar Association report evaluating the fairness and accuracy of Tennessee’s death penalty system condemned the Administrative Office of the Courts for failing to “collect, analyze, and disseminate data regarding racial, ethnic, and gender demographics.”Good luck finding those specific statistics in the judiciary’s annual reports today, even after the legislature convened a months-long Death Penalty Study Committee, replete with investigative panels, expert testimony, and taxpayer-funded studies on disparate racial impact, in 2008.
The ABA also noted that many trial judge reports in first-degree murder cases in the Volunteer State, which Tennessee law requires to denote the race of the victim and defendant, “are incomplete or missing altogether.” Ultimately the members of the Tennessee Supreme Court are responsible for oversight and administration of the judiciary. These bureaucratic missteps that shield the court from public scrutiny only serve as further reasons to restore the input African-Americans (and all Tennesseans, really) once had in the composition of the Supreme Court.
Furthermore, the Supremes who ran for retention this summer bragged not once, but twice that they’ve upheld 90 percent of death sentences, insisting to voters that they’re “conservative on crime.” Is this really the type of outcome the NAACP wants to permanently cement with a constitutional amendment?
If a trial court errs in sentencing an African-American to die, based on systematic racial discrimination in either the jury or in a politician’s handpicked judge, the appellate or Supreme Courts can and should provide relief to the defendant. The framers designed the appellate system to provide extra layers of protection to human liberty in the adjudication of disputes. But no Tennessean has been able to vote an appellate or Supreme Court judge onto the bench since the 1970s. This is unfortunate, because the stakes for civil rights are much higher in the appellate system than in the trial courts, because of the finality of the rulings issued there.
No, in an effort to “keep politics out of the court room,” Tennessee politicians have insisted that they should pick our appellate and Supreme Court judges for us. They’re trying to do it again this fall, with even more power, by trying to pass Amendment 2.
African-American Tennesseans should be pushing the General Assembly to restore citizens’ right to vote for or against appellate judges in contested elections. Democrats, whose political base has traditionally included racial minorities, have vocally expressed disappointment with the Supreme Court’s recent selection of Republican attorney and Governor Bill Haslam’s consigliere Herbert Slatery as the state’s new attorney general. Some have even whispered about introducing measures during the next session that would facilitate popular election of the AG. That’s all well and good, but Democrats should also be fighting tooth and nail for the right to elect appellate and Supreme Court judges.
They aren’t, and that’s a problem.
George Scoville is a public affairs consultant and an adjunct professor in the department of political science at Belmont University in Nashville.