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Can Judicial Independence Be Attained in the South, GA State University Law Review (Bright), Vol 14, P 817, July, 1998

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By Stephen B. Bright*
Volume 14, Georgia State University Law Review, Page 817 (July 1998)
tate University Law Review; Stephen B. Bright

[Footnotes appear at the end of the document]
The question in some states is not whether judicial independence can be preserved, but
whether it can be attained. Courts that have historically allowed racial, economic, political and other
improper considerations to influence their decisions cannot easily shed a legal culture developed over
decades. In addition, misperceptions about the role of the judiciary and the elections of judges may
thwart any progress toward judicial independence and the rule of law. However, attaining an
independent state judiciary is critically important because of the rapidly declining – some would say
evaporating – role of the federal courts in enforcing the Bill of Rights on behalf of racial minorities,
the poor, and others for whom the Bill of Rights is the only protection from the government.
While these issues can be raised in many parts of the country, consideration of them is
particularly appropriate here in the South, where the state courts have not been independent and have
played a major role in defiance of the law. I will discuss our history, the problems of elections, and the
misperceptions and then assess whether we have much cause for hope that independence will be
obtained and what we might do to help achieve it.
The southern states and their courts have a long history of defying the rule of law,
particularly federal constitutional law, in the areas of race and criminal justice.1 This history has
profoundly influenced the state courts and judges. Federal courts played a central role in the 1960s
and 1970s in ending injustices that state courts had tolerated or participated in for decades. They
ordered an end to racial discrimination in every institution of society and to human rights abuses in
prisons and mental institutions. They granted writs of habeas corpus when the state courts refused to
recognize constitutional violations in criminal cases. More recently, however, the federal courts have
been in full retreat as protectors of the Bill of Rights as the nation has moved into a new era of states'
A. State Court Defiance and Resistance
Before the Civil War, one could at least argue that the Constitution sanctioned the "peculiar
institution" of slavery, and that the failure of the state courts to protect the rights of Africans and their
descendants brought here against their will was in conformity with the law, as unjust as it was.
However, after the Civil War and passage of the Thirteenth, Fourteenth and Fifteenth Amendments,

the courts had the constitutional obligation to provide equal protection of the law to all citizens and to
guarantee the right to vote regardless of race.
However, the state courts in the South provided the freed slaves no protection at all.
Instead, they played a major role in continuing their oppression. Perhaps the worst example of this
defiance was the involvement of the courts in many states, including Alabama, Arkansas, Florida,
Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Texas, in maintaining a system
of convicting and leasing people that was the virtual perpetuation of slavery.2 Convict leasing "was
designed for black, not white, convicts.”3 When a work force was needed, men would be arrested for
vagrancy and other minor crimes, convicted and then leased to plantations, railroads, turpentine
camps, or others who needed cheap labor.4 One participant in the practice admitted, "it was possible
to send a negro to prison on almost any pretext but difficult to get a white there, unless he committed
a very heinous crime."5 Many convicts were literally worked to death.6 One historian has observed
that "[t]he South's economic development can be traced by the blood of its prisoners."7
On the other hand, the legal system usually failed to punish whites who engaged in violence
against African-Americans. At least 4743 people were killed by lynch mobs.8 More than ninety
percent of the lynchings took place in the South, and three-fourths of the victims were AfricanAmericans.9 The threat that Congress might pass an anti-lynching statute in the early 1920s led
Southern states to "replace lynchings with a more '[humane] . . . method of racial control' – the
judgment and imposition of capital sentences by all-white juries."10 Once again, the courts ignored
the rule of law to satisfy popular passions. As one historian observed:
Southerners . . . discovered that lynchings were untidy and created a bad press. .
. . [L]ynchings were increasingly replaced by situations in which the Southern legal
system prostituted itself to the mob's demand. Responsible officials begged wouldbe lynchers to "let the law take its course," thus tacitly promising that there would
be a quick trial and the death penalty. . . . [S]uch proceedings "retained the essence
of mob murder, shedding only its outward forms."11
Mississippi's legal system "allowed whites to exploit blacks without legal limit, to withhold the most
basic rights and safeguards while claiming to be indulgent, paternalistic, and fair. Worse, perhaps, it
turned the criminal justice system into a corrupt and capricious entity, utterly undeserving of
Shocking abuses in the criminal justice systems of the South were only occasionally
corrected by the United States Supreme Court. In Brown v. Mississippi,13 the Court reviewed a
decision by the Mississippi Supreme Court that upheld death sentences for three black men. Quoting
from the dissenting opinion of a justice of the Mississippi court, the U.S. Supreme Court described
how confessions had been obtained from the three defendants:
Upon [Ellington's] denial, [the deputy sheriff and other men] seized him, and
with the participation of the deputy they hanged him by a rope to the limb of a tree,
and having let him down, they hung him again, and when he was let down the
second time, and he still protested his innocence, he was tied to a tree and

whipped, and still declining to accede to the demands that he confess, he was
finally released and he returned with some difficulty to his home, suffering intense
pain and agony. The record of the testimony shows that the signs of the rope on
his neck were plainly visible during the so- called trial.14
The authorities persisted until a confession was obtained:
A day or two thereafter the said deputy, accompanied by another, returned to
the home of the said defendant and arrested him, and departed with the prisoner
towards the jail in an adjoining county, but went by a route which led into the State
of Alabama; and while on the way, in that state, the deputy stopped and again
severely whipped the defendant, declaring that he would continue the whipping
until he confessed, and the defendant then agreed to confess to such a statement as
the deputy would dictate, and he did so, after which he was delivered to jail.15
The same techniques were used to extract confessions from the other two defendants:
The other two defendants, Ed Brown and Henry Shields, were also arrested and
taken to the same jail. On Sunday night, April 1, 1934, the same deputy,
accompanied by a number of white men, one of whom was also an officer, and by
the jailer, came to the jail, and the two last named defendants were made to strip
and they were laid over chairs and their backs were cut to pieces with a leather
strap with buckles on it, and they were likewise made by the said deputy definitely
to understand that the whipping would be continued unless and until they
confessed, and not only confessed, but confessed in every matter of detail as
demanded by those present; and in this manner the defendants confessed the crime,
and as the whippings progressed and were repeated, they changed or adjusted their
confession in all particulars of detail so as to conform to the demands of their
torturers. When the confessions had been obtained in the exact form and contents
as desired by the mob, they left with the parting admonition and warning that, if
the defendants changed their story at any time in any respect from that last stated,
the perpetrators of the outrage would administer the same or equally effective
While this passed for justice in Mississippi, the U.S. Supreme Court found that "the transcript reads
more like pages torn from some medieval account, than a record made within the confines of a
modern civilization which aspires to an enlightened constitutional government."17
In Chambers v. Florida,18 the Court reversed a decision of the Florida Supreme Court
upholding death sentences for several "ignorant young colored tenant farmers" who were put in
prison, beaten, threatened, and questioned almost continuously until they "confessed."19 Twice the
Court reversed the convictions and death sentences of the "Scottsboro Boys," the African-American
youths sentenced to death for rape in Scottsboro, Alabama.20 But, the Court did not review many
other cases, such as the conviction of Linnie Jackson, a black woman who was sentenced in the early
1950s to five years in an Alabama penitentiary for marrying a white man.21 It was not until 1967 that

the Court held state miscegenation laws to be unconstitutional.22 The trial and execution of John
Downer, an African-American man who was probably innocent of the rape for which he was put to
death,23 was one of many instances in which the state courts acquiesced to popular passions and
prejudices instead of enforcing the law.24
African-Americans were denied participation in the southern legal systems that had such an
impact on their lives. Although the Supreme Court struck down in 1879 a West Virginia statute that
limited jury service to white people,25 states continued to exclude blacks or provide only token
representation in jury pools.26
The Georgia Supreme Court in 1955 openly defied the United States Supreme Court with
regard to the exclusion of black people from jury service in the case of Aubrey Williams, an AfricanAmerican man sentenced to death.27 Williams, like the defendant in Avery v. Georgia,28 was tried by
a jury in Fulton County selected by drawing tickets which were one color for whites and another
color for blacks. In Avery, the Court found that this system unconstitutionally excluded AfricanAmericans and reversed the conviction and death sentence.29 However, instead of reversing Williams'
conviction, the Court held that "orderly procedure requires a remand to the State Supreme Court for
reconsideration of the case,"30 and expressed its confidence that "the courts of Georgia would [not]
allow this man to go to his death as the result of a conviction secured from a jury which the State
admits was unconstitutionally impaneled."31
The Court's confidence was misplaced. Two days after receiving the opinion, Georgia Chief
Justice W. Henry Duckworth, writing for a unanimous court – without the benefit of briefs or
arguments – issued an opinion quoting the full text of the Tenth Amendment "followed by a brief and
contemptuous dismissal of the U.S. Supreme Court's judgment."32 Duckworth held that the U.S.
Supreme Court had issued an unconstitutional judgment that the Georgia Supreme Court was not
bound to respect.33 The Georgia Supreme Court's opinion was widely reported and praised by
newspaper columnists, legislators, justices of other state supreme courts and by the Georgia Bar,
which passed a resolution congratulating the court.34
Remarkably, the U.S. Supreme Court denied certiorari and Williams was put to death.35 One
scholar has thoroughly documented the developments in the case and argued that the U.S. Supreme
Court's refusal to reverse Williams' conviction was part of an "informal strategy" of the Court to
"avoid unnecessary confrontations with Southern governments over ancillary racial issues"36 in hope
of gaining compliance with Brown v. Board of Education.37 However – in addition to costing a man
his life – the Court's retreat in Williams had the opposite result of encouraging further defiance.38
The Florida Supreme Court engaged in similar defiance of the U.S. Supreme Court in
preventing the admission of an African-American to the University of Florida College of Law in the
1950s.39 In Alabama, George C. Wallace, as a young circuit judge, defied the federal courts to
advance his political career. Upon learning that federal officials were investigating
underrepresentation of African-Americans in jury pools in a Georgia county, Wallace proclaimed to
an all-white grand jury in Bullock County, Alabama, that he would not allow the federal lawenforcement officials to inspect his records.40 Wallace then called the Associated Press to report this
"news."41 Wallace later defied an order by U.S. District Court Judge Frank Johnson to produce voting

records and sought to be held in contempt in order to benefit politically from a confrontation with the
federal court.42
Defiance of federal law at the local level did not always receive as much attention, but it had
the same effect of denying African-Americans participation in the justice system. For example, black
citizens in Columbus, Muscogee County, Georgia were excluded for years and then underrepresented
in the jury pools. In 1966, the Fifth Circuit Court of Appeals held that this discrimination violated the
Constitution.43 In 1972, the Supreme Court reached the same conclusion in another case from the
county,44 and three justices pointed out that the way in which juries were being selected in the county
violated 18 U.S.C. § 243, which makes it a criminal offense to exclude persons from jury service on
the basis of race.45
Despite these federal court decisions, the unconstitutional, systematic underrepresentation
continued throughout the 1970s. Continued underrepresentation was made possible in part because
the judges appointed a lawyer to defend indigents who would not, as a matter of "policy," file
challenges to the underrepresentation of blacks in the jury pool for fear of incurring hostility from the
As a result, at the capital trial of a black man in Columbus, Georgia in 1977 – eleven years
after the Fifth Circuit decision and five years after the Supreme Court warned that the exclusion of
black citizens violated federal criminal statutes – there were only eight black citizens in a venire of
160 persons.47 A venire that fairly represented the community would have included fifty black
citizens. The case was tried by an all-white jury,48 which imposed the death penalty.49
The few African-Americans who made it into jury pools and were called for possible jury
service, were usually sent back home by the prosecutor's use of peremptory challenges. The U.S.
Supreme Court was presented with evidence in 1965 that no African-American had ever sat on a trial
jury in Talladega County, Alabama, even though the population of the county was twenty-six percent
African-American.50 Over fifteen years later, the "standard operating procedure" of the District
Attorney's Office in Tuscaloosa County, Alabama was "to use the peremptory challenges to strike as
many blacks as possible from the venires in cases involving serious crimes."51 A federal court found
that prosecutors in Tuscaloosa also "manipulated the trial docket in their effort to preserve the racial
purity of criminal juries. Inasmuch as they actually set the criminal trial dockets until 1982, they
implemented a scheme in which juries with fewer black venirepersons would be called for the serious
There has been defiance in other areas as well. The most significant has been the failure of
state courts to implement the Supreme Court's decision in Gideon v. Wainwright,53 requiring the
states to provide lawyers for poor people accused of crimes. Poor people facing a loss of life or
liberty in many states are routinely assigned--usually by a judge – a lawyer who lacks the knowledge,
skills, resources, and often even the inclination to defend a case properly.54
Georgia's Superior Court judges, along with the state's prosecutors, opposed the Georgia
Bar's efforts after Gideon to establish a state-wide system of indigent defense.55 That opposition
delayed any state funding for years and has prevented to this day the establishment of a

comprehensive indigent defense system. Many state courts, including the one in Sumter County,
Georgia, still do not provide lawyers to poor people who can be jailed for minor offenses,56 in
defiance of the Supreme Court's 1972 decision in Argersinger v. Hamlin,57 which requires the
appointment of counsel in such cases.
Usually, this history is simply ignored. It is nothing to be proud of and it is tempting to
believe it no longer has an impact on courts today. But in the South, as Faulkner said, "The past is
never dead. It's not even past."58 Practices and attitudes developed over centuries become part of the
legal culture and are not easily erased. The Confederate battle flag, part of the Georgia state flag,59 is
still displayed in Georgia's courtrooms. Some of the other more overt manifestations of racism have
been replaced by more covert or unconscious racism.60
The relationship of this history to what happens in criminal courts today is illustrated by the
Texas case of Clarence Lee Brandley. A police officer charged Brandley, a janitor, with the rape and
murder of a white high school student instead of white suspects because "the nigger," as the officer
referred to Brandley, "was big enough to have committed the crime; therefore, 'the nigger [is]
elected.' "61 Brandley was tried twice. On both occasions, the prosecutors used all their peremptory
strikes against blacks to get all-white juries, as was the normal practice of the Montgomery County
prosecutor's office.62 Although "a powerful feeling of prejudice and racial tension pervaded the
courtroom" at the first trial,63 the jury was unable to agree on a verdict. At a second trial, where a
reviewing judge found that a " 'project like' mentality" on the part of the judge, prosecutor and court
clerk "overbore any sense of justice and decency,"64 the all-white jury sentenced Brandley to death.
Brandley was freed after the CBS News program 60 Minutes publicized his innocence,65 and
the Texas Court of Criminal Appeals was forced to acknowledge the unfairness of his trial.66 The
treatment of Brandley was consistent with the treatment that black people had long received in
Montgomery County:
The story of Clarence Brandley rang with echoes from [the lynching of a black
man a few days before Christmas in 1885]: the rules of law that had been
abandoned; the judge who had fallen in with the mob; the press that had relished
his fate; the "leading citizens of the county" who had committed the crime; the
bodyguard of new civil rights that had turned and deserted him; the whole town
that had stood by and let it happen. And that was the loudest echo of all.
It was part of the corruption that had become a way of life. . . . Not only had the
whites always got away with it, but they had also always been able to justify it.
Killing one black man was a means of disciplining the whole of his community. Just
as a secret police force tries to quell the courage of a whole people by arresting its
figureheads, just as terrorists try to frighten a whole society by throwing fear into
the lives of each of its members, so the white people of Montgomery County had
for years ruled black people with fear by picking off their young men. Murder was
disguised as a necessary social task.

The ordeal Clarence Brandley suffered was an attempt at a legal lynching. It was
the law, not an old rope, that was twisted into a deadly weapon, but the intention
of those who attacked him was just as surely to kill him, as their predecessors had
killed young black men in the past.67
Other vestiges of discrimination that occurred years ago still infect the courts and affect their
decisions. One of the most significant is that African-Americans and other minorities remain largely
excluded from the justice system. The history of legalized oppression has resulted in very few people
of color sitting as judges. Of Alabama's 381 district, circuit, probate and appellate judges only
eighteen are black.68 Of Florida's 456 circuit judges,69 only sixteen are black70 and eighteen are
Hispanic.71 Of Georgia's 152 Superior Court judges,72 only nineteen are black.73 Of South Carolina's
forty-three circuit judges,74 only four are black.75 Of Texas' 396 district court judges,76 only twelve
are black77 and forty-two are Hispanic.78 There is little likelihood that the bench will become more
representative in the next several decades since states are allowed to elect judges from districts in
which the voting power of black citizens is diluted.79 Members of racial minorities continue to be
underrepresented in jury pools and excluded in the jury selection process.80
The absence of the perspectives of people who have had different life experiences has an
adverse impact on the quality of decision making, which often is detrimental to the excluded
minorities. An African-American member of the Georgia Supreme Court has observed that, "[w]hen it
comes to grappling with racial issues in the criminal justice system today, often white Americans find
one reality while African-Americans see another."81 Today, African-Americans and other minorities
are more likely than white people to be arrested,82 put in chokeholds,83 denied bail,84 denied
probation,85 and given harsher sentences.86
The past continues to resonate particularly in the criminal justice system when the legacy of
racial oppression so often intersects with continued indifference to justice for the poor. The resistance
to Gideon v. Wainwright in many states has resulted in representation of indigent defendants that is
often a disgrace and trials that, on some occasions, are no different from the "legal lynchings" of the
1930s and 1940s.
Many jurisdictions award contracts to provide representation to indigent defendants to the
lawyer who submits the lowest bid, without any regard to the quality of services provided.87 Many
states pay lawyers appointed to defend the poor such low rates that attorneys may make less than the
minimum wage in some cases.88 In Virginia, for example, lawyers are limited to $100 for defending
someone in a misdemeanor case in district court, $132 for defending a misdemeanor case in circuit
court, $265 for defending a felony case when the punishment is less than twenty years, and $575
when punishment is more than twenty years.89
These fees were set by the legislature, but when state circuit judges in Henrico County were
presented with a challenge to the limits as interfering with the right to counsel, they removed the
lawyer making the challenge and refused to appoint any lawyer who would raise the issue.90 The

challenge was not a frivolous one. The attorney argued that once he exceeded the limit and was
forced to work uncompensated, it created a conflict between his pecuniary interests and his duty to
provide zealous representation.91 After the challenge had been made, one circuit judge announced at
calendar call that any attorney raising the conflict of interest issue would be removed from the list of
appointed counsel, and before appointing any lawyer to a case, the judge asked the attorney whether
he or she intended to raise the issue.92
Judges in Houston, Texas repeatedly appointed a lawyer known for hurrying through trials
like "greased lightening," to defend indigent defendants in the last forty-five years.93 Houston judges,
who have taken an oath to uphold the Constitution, including the Sixth Amendment's guarantee of
counsel, presided over two capital trials in which the lawyer slept during trial, and Texas courts
upheld the convictions and death sentences on appeal.94 After the capital defender program in Texas
closed because its federal funding was eliminated, the Court of Criminal Appeals appointed two of its
former law clerks to fourteen capital post-conviction cases and paid them $265,000.95 The two
former clerks had no experience in representing capital crime defendants.96 It would be impossible for
even the most experienced lawyers to take on so many cases and provide adequate representation in
all of them.
An Alabama judge presided over a capital case in which the attorney was so intoxicated that
the trial had to be suspended for a day and the lawyer was sent to jail to sober up.97 The Alabama
Supreme Court had no hesitation in deciding a capital case on direct appeal even though the courtappointed lawyer filed a one-page brief and failed to show up for oral argument.98 A court concerned
about justice and the rule of law would have appointed lawyers to file a proper brief and insisted on
oral argument so that the court could do its job properly in deciding the case.
It is hard to fathom how judges could preside over trials in which grossly incompetent
attorneys represented the accused, especially in cases involving the death penalty.99 But the judges
not only tolerated the incompetence; in most instances, they appointed the lawyers to the case. In
doing so, they breached their constitutional responsibility under Gideon and the Sixth Amendment.
History lives in other areas as well. In Alabama, state Judge Roy S. Moore has become
"something of a celebrity for fighting, both in court and in the news, to keep a tablet of the Ten
Commandments hanging behind his bench" despite a court order to remove it.100 After a federal court
prohibited state officials from permitting any officially sanctioned religious activity in the schools,
Judge Moore declared that the federal order was not the law of Etowah County, where he presides,
and constituted an "unconstitutional abuse of power" by the federal judiciary.101 Judge Moore
apparently believes that defiance of the law remains as popular in Alabama today as it was in George
Wallace's time.
B. The Role of the Federal Courts
The progress that has been made in the South to end racial discrimination in education,
voting, housing, public accommodations, and other areas is largely attributable to the federal courts
and the extraordinary persistence of federal judges when faced with resistance and outright defiance
by the states.102 On the great legal and moral issue of racial equality, the state courts stood in the way
of justice instead of ordering it.103

After the Supreme Court held that schools must be integrated in Brown v. Board of Education,104 it
was only because a group of extraordinary men that Jack Bass described as "unlikely heroes"
happened to be on the Court of Appeals for the Fifth Circuit that schools in the southern states were
integrated after years of resistance.105 Judge A. Leon Higginbotham, Jr. described the role that the
judges of the Fifth Circuit played:
In the 1950's and 1960's, many Southern officials, white citizens' councils and
vigilante groups urged total defiance of the Federal courts' civil rights decrees.
Despite the persistent hostility, virtually every Fifth Circuit judge – all appointed by
President Eisenhower – repeatedly affirmed the constitutional rights of black
citizens, among them Rosa Parks and Martin Luther King Jr.106
Courageous federal district judges like Frank Johnson and J. Skelly Wright repeatedly ordered the
states to meet their constitutional responsibilities to black citizens in education and other areas.107 As
Judge Johnson once observed:
[F]ederal courts in Alabama – in addition to ordering hundreds of public schools
to desegregate – have ordered the desegregation of mental institutions, penal
facilities, public parks, city buses, bus terminals, airport terminals, and public
libraries and museums.
Each case stood as a warning to state officials that the limits of their discretion to
proceed at all deliberate speed had long since been exceeded. Yet, in reckless
disregard of these repeated warnings, the state invested its time and energy in
attempts to circumvent the responsibilities constitutionally required and spelled out
in prior court orders.108
Federal courts also ordered the end to the shameful, barbaric practices in southern prisons
and mental institutions. Those who today complain about "judicial activism" and "micromanagement"
of prisons by federal courts, fail to mention the practices and conditions in Alabama, Arkansas,
Mississippi, and other states that prompted prisoners to seek protection from the federal courts:
lashing prisoners with leather straps until their skin was bloody,109 giving prisoners electrical shocks
to sensitive parts of their body from a hand-cranked device,110 placing as many as six inmates "in four
foot by eight foot cells with no beds, no lights, no running water, and a hole in the floor for a toilet
which could only be flushed from the outside,"111 and crowding prisoners into barracks where
"[h]omosexual rape was so common and uncontrolled that some potential victims dared not sleep;
instead they would leave their beds and spend the night clinging to the bars nearest the guards'
Mississippi replaced convict leasing with a huge plantation prison known as Parchman Farm. State
judges sentenced convicts to go to Parchman and did nothing about the conditions there. A federal
lawsuit resulted in an examination of conditions at the prison by a federal judge, William C. Keady.
His visits were described as follows:

Keady visited Parchman on four occasions, once taking his minister along.
Wandering through the cages, talking privately to the inmates, he discovered an
institution in shambles, marked by violence and neglect. The camps were laced
with open ditches, holding raw sewage and medical waste. Rats scurried along the
floors. . . . At one camp, Keady found "three wash basins for 80 men which consist
of oil drums cut in half." At all camps, he saw filthy bathrooms, rotting mattresses,
polluted water supplies, and kitchens overrun with insects, rodents, and the stench
of decay.
The convicts told him stories that supported [the claims made in the suit].
Parchman was a dangerous, deadly place. Shootings and beatings were common;
murders went unreported; the maximum security unit was a torture chamber.
Trusties brutalized inmates, who, in turn, brutalized each other. "One part of me
had always suspected such things," the judge recalled. "The rest of me was angry
and ashamed."113
Judge Keady required prison officials to protect inmates from physical assaults by other inmates, stop
housing them in barracks unfit for human habitation, end racial discrimination against inmates,
provide medical care, and end other barbaric and patently unconstitutional practices.114
Judge Frank Johnson found in Alabama prisons that violence was "rampant" 115 and
"robbery, rape, extortion, theft and assault [were] everyday occurrences among the general inmate
population."116 Mentally disturbed inmates were "dispersed throughout the prison population without
receiving treatment."117 The prisons were "horrendously overcrowded,"118 and "woefully
understaffed."119 Inmates in punitive isolation were placed in a building locked from the outside with
no guard stationed inside, given "only one meal per day, frequently without utensils," and "were
permitted no exercise or reading material and could shower only every 11 days."120
Judge Johnson also found that conditions in Alabama's mental hospitals, which served only
to keep mentally ill people out of public view by warehousing them, were unconstitutional.121 He
found, "[t]here can be no legal (or moral) justification for the State of Alabama's failing to afford
treatment – and adequate treatment from a medical standpoint – to the several thousand patients who
have been civilly committed to [the state's mental hospital] for treatment purposes."122 Judge Johnson
reserved his ruling to allow state officials the opportunity to promulgate and implement proper
standards, but the State failed to comply, and Judge Johnson then ordered them to do so.123 So great
was Alabama's resistance to properly treating its mentally ill, that the litigation has continued for over
twenty-six years and has produced at least thirty-nine reported decisions.124 Alabama's practice of
resistance and forcing federal authorities to order needed reforms occurred with such frequency that
Judge Johnson termed it "The Alabama Punting Syndrome."125
Unfortunately, abuses in correctional institutions have not ended. State prisons and jails are
again overcrowded as courts send more people to prison than ever before even as crime rates
decline.126 The "war on crime" being waged by politicians competing to show how tough they are has
led to a return to primitive practices and mistreatment of prisoners.127 For example, Georgia's
commissioner of corrections, an undertaker, after announcing that "one-third of [state prison] inmates

'ain't fit to kill,' "128 fired academic and vocational teachers, recreation directors and counselors,129
eliminated hot lunches for prisoners,130 placed inmates in ninety-day boot camp programs on a diet of
sandwiches and water,131 and requires inmates to walk miles a day.132 The commissioner also led raids
on the prisons in purported searches for drugs and contraband, in which unresisting inmates were
beaten and degraded.133 A lieutenant who heads one of the squads that participated in one of the raids
described the brutal assault on inmates as a "dad-gum shark frenzy."134 Another correctional officer
described seeing an unresisting inmate's face shoved into a wall: "Blood went up the wall. Blood went
all over the ground, all over the inmate. I heard it. I heard a sickening cracking sound."135 Prisoners
will continue to be treated in this manner unless courts enforce constitutional protections and provide
remedies when rights are violated.
The federal courts also played an important role in vindicating constitutional rights that
continued to be denied by the state courts in criminal trials. After Supreme Court decisions regarding
the power of federal courts to hold hearings and review state court convictions in habeas corpus
actions,136 federal courts set aside a number of convictions obtained in state courts in violation of the
Constitution. In two recent examples, habeas corpus relief was granted where constitutional
violations may have resulted in innocent people being sentenced to death.137 One person was released
after eleven years on Louisiana's death row in February, 1998.138 There are many other cases in which
federal courts granted habeas corpus relief after state courts had refused to recognize or correct
glaring constitutional errors.139
Federal courts had to enforce the Constitution in these and other areas because the state
courts simply were not independent and did not enforce the law. A Georgia Supreme Court justice
acknowledged that the elected justices of that court may have overlooked errors, leaving federal
courts to remedy them via habeas corpus, because "[federal judges] have lifetime appointments. Let
them make the hard decisions."140 The consequences of an unpopular decision by an elected judge is
illustrated by the experience of Alabama Circuit Judge James Edwin Horton, who, convinced that the
"Scottsboro Boys" were innocent, granted them a new trial in 1933.141 Horton was voted out of office
the next year, ending his judicial and political career.142 Horton had encountered no opposition when
he ran for judge four years earlier.143 Horton was replaced on the case by a judge who railroaded the
defendants through trials that resulted in convictions and death sentences that satisfied Alabama's
voters.144 Today, state court judges are haunted not by the memory of Edwin Horton, but by the more
recent experiences of Rose Bird, James Robertson, Charles Campbell, Penny White and other judges
who have been voted out of office because of unpopular decisions.145
But the federal courts no longer play the role described by Justice Hugo Black as "havens of
refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or
because they are . . . victims of prejudice and public excitement."146 Part of the Court of Appeals for
the Fifth Circuit, which once played such a heroic role in ending segregation, is now the Eleventh
Circuit.147 Both courts, now dominated by Reagan-Bush appointees, have followed the Supreme
Court's retreat from protecting the rights of racial minorities, the poor and other disadvantaged
groups. The Fifth Circuit has taken the lead in eliminating programs to increase minority enrollment in
education,148 and restricting the scope of the Voting Rights Act.149 It gives very short shrift to habeas
corpus cases, even those in which the death penalty has been imposed, once allowing an execution to
be carried out after spending less than one day to review the first and only appeal of a condemned

person, supposedly reviewing the state court record in the process.150
The judges of the Eleventh Circuit, sitting en banc, have made clear in overruling decisions
of panels of the court, that the court is no haven for the victims of sexual harassment,151
discrimination because of sexual orientation,152 or those who received incompetent representation at
capital trials.153 The court had previously shown it was not a haven for refugees,154 or AfricanAmericans seeking meaningful participation in elections under the Voting Rights Act.155 The court has
also frequently found those accused of racial discrimination or other constitutional violations to be
immune from suit.156
Members of Congress, ignoring history, have created and exploited resentment of the federal
courts for enforcing the Constitution in cases involving prisoners and vindicating constitutional rights
through habeas corpus. They have enacted legislation restricting the power of the federal courts.
Those most in need of the protections of the Bill of Rights – the poor, racial minorities, and the
mentally ill – have no political action committee or access to legislators or governors to remind
legislators of this history or to lobby against this return to states' rights.
In the Prison Litigation Reform Act, Congress stripped the federal courts of much of their
power to remedy unconstitutional conditions or practices in prisons and jails.157 Congress also has
prohibited legal services programs from representing prisoners in any kind of case,158 and limited the
attorney fees recoverable in a successful prison suit to discourage lawyers in private practice from
taking those cases.159 Even before Congress acted, the Supreme Court had made it very difficult for
inmates to prevail in challenges to cruel and inhuman conditions and, as a result, all sorts of abuses
and degradation have been found not to violate the Constitution.160
The Antiterrorism and Effective Death Penalty Act of 1996161 placed new, unprecedented
restrictions on the power of the federal courts to vindicate, in habeas corpus cases, the constitutional
rights of people convicted in state courts.162 Even before passage of the Act, the Supreme Court
adopted and rigorously enforced strict rules of procedural default,163 excluded Fourth Amendment
claims from habeas corpus review,164 made it more difficult for a habeas petitioner to obtain an
evidentiary hearing to prove a constitutional violation,165 adopted an extremely restrictive doctrine
regarding the retroactivity of constitutional decisions,166 reduced the burden on the states to establish
harmless error once a constitutional violation was found,167 and erected barriers to the filing of a
second habeas petition.168
This diminished role of the federal courts ushers in a new era of states' rights. States are free
to revert to practices that existed before federal court intervention or to take on the responsibility of
enforcing the law equally for all citizens. In order to prevent a return to the discrimination and human
rights abuses of the past, achieving independent state courts that will base their decisions on the law,
not political expediency, is a matter of great urgency.

Judges are not independent when they are beholden to special interest groups that finance

their elections or know that an unpopular decision in the case before them may cost them their jobs.
The rule of law is not served when judges must violate the Code of Judicial Conduct by promising
certain results in order to get elected or stay on the bench.169
The rapidly growing role of special interest groups – from oil and tobacco companies, the
insurance defense bar, prosecutors, and the religious right, to labor unions, the plaintiffs personal
injury bar and other litigants – seeking to secure the election of judges who will decide in their favor
has been documented elsewhere,170 as have the enormous political pressures placed on elected judges
due to the threat of being voted out of office for unpopular decisions.171
Everyone who cares about judicial independence and the rule of law should be alarmed when
the president of a large state's bar comments, "[t]he people with money to spend who are affected by
Court decisions have reached the conclusion that it's a lot cheaper to buy a judge than a governor or
an entire legislature and [the judge] can probably do a lot more for you."172 The comment was made
after a candidate spent $1 million to defeat the incumbent Chief Justice of Ohio who spent $1.7
million. The newly-elected chief justice then voted to rehear thirty cases that had been decided in the
final weeks of the incumbent's term.173 Equally disturbing is the comment made by the director of the
Christian Coalition of Florida that judicial elections are the next "hot-button" issue for his group.174
The "buying" of judges by special interest groups is not consistent with judicial independence.
The impact of race, politics and judicial elections on judicial decisionmaking is illustrated by
the Georgia Supreme Court's about face in a case involving gross racial disparities in sentencing for
drug offenses.175 The court first held by a four-to-three vote that a prima facie case of racial
discrimination was established by evidence that 98.4% of those serving sentences of life imprisonment
for certain narcotics offenses were black. Statistics from the Georgia Department of Corrections
established that less than one percent of the whites eligible for life sentences for narcotics offenses –
just one in 168 – received a life sentence, while 16.6% of African-Americans – 202 of 1219 –
received a life sentence.176
However, just thirteen days after finding that these remarkable disparities raised a question
of racial discrimination, the court reversed itself177 in response to a petition for rehearing filed by the
Attorney General of Georgia and all the forty-six district attorneys in the state, arguing that the
court's decision took a "substantial step toward invalidating" the state's death penalty law and would
"paralyze the criminal justice system."178 One justice changed his vote and the court held that the
racial disparities did not even raise a question of discrimination.
Two recent examples show the dangers posed to judicial independence by both direct
elections and retention elections. In Texas, candidates for judicial office run with a political party
affiliation. In 1994, a former chairman of the state Republican Party called for Republicans to take
over the Texas Court of Criminal Appeals after the court reversed the conviction in a capital case.179
Stephen W. Mansfield ran as the Republican candidate against the author of the decision, a
conservative former prosecutor, Charles Campbell, who had served twelve years on the court and had
been supported by both sides of the criminal bar.180 Mansfield ran on promises of greater use of the
death penalty, greater use of the harmless-error doctrine, and sanctions for attorneys who file
"frivolous appeals especially in death penalty cases."181 Before the election, it came to light that

Mansfield had misrepresented his prior background, experience, and record,182 that he had been fined
for practicing law without a license in Florida,183 and that – contrary to his assertions that he had
experience in criminal cases and had "written extensively on criminal and civil justice issues" – he had
virtually no experience in criminal law.184 Nevertheless, Mansfield received fifty-four percent of the
votes and now sits on the Court.185 After his election, the Texas Lawyer declared Mansfield an
"unqualified success."186
Retention elections provide no greater guarantee of judicial independence. Justice Penny
White was voted off the Tennessee Supreme Court in a retention election after a surprise attack
shortly before the election by the Republican Party and right-wing groups. The attack was based
primarily on a single case, State v. Odum,187 the only capital case decided by the court during Justice
White's nineteen-month tenure on the court. Justice White did not write the majority opinion, a
concurring opinion or a dissenting opinion in the case. Odum's death sentence was reversed and the
case was remanded for a new sentencing hearing because all five members of the Tennessee Supreme
Court agreed that there had been at least one legal error which required a new sentencing hearing.188
However, Tennessee voters were told that Justice White had personally overturned the
conviction in the case,189 even though the conviction was upheld and the sentence was reversed by the
entire court. Voters were also given a graphic description of Odum's crime and told than Odum
"won't be getting the punishment that he deserves [t]hanks to Penny White,"190 even though the entire
court remanded the case for a new sentencing trial at which Odum could well be sentenced to death
again or life imprisonment. Voters were also told than unless they voted White off the bench, she
would "free more and more criminals and laugh at their victims."191 Justice White was unable to
respond to these distortions of Odum before the election because a motion for rehearing was pending
in the case until the election and the Canons of Judicial Conduct prohibited her from commenting on a
pending case.
Tennessee's governor and both its United States Senators, all Republicans, opposed the
retention of Justice White.192 The Republican Party mailed a brochure to voters titled, "Just Say NO!"
with the slogan, "Vote for Capital Punishment by Voting NO on August 1 for Supreme Court Justice
Penny White."193 Immediately after the retention election, the Governor of Tennessee, Don
Sundquist, said: "Should a judge look over his shoulder [in making decisions] about whether they're
going to be thrown out of office? I hope so."194 Another justice, who had been targeted for defeat by
the groups that opposed White, announced that he would not seek to stay on the court in retention
elections in 1998.195
The campaigns waged to win a seat on the bench often produce judges whose independence
and impartiality are subject to question by any observer and certainly by litigants who come before the
courts. For example, in his campaign for reelection to the Nevada Supreme Court, Justice Cliff Young
"formed a highly-visible political alliance with the State's attorney general, who in numerous campaign
advertisements publicly 'urged all Nevadans' to vote for Justice Young."196 Justice Young ran
campaign advertisements proclaiming that he had a "record of fighting crime" which included voting
to uphold the death penalty seventy-six times.197 Young was reelected. A condemned man whose case
came before the court moved to recuse Judge Young because the state was represented by the
attorney general. During the pendency of the case, Justice Young had "repeatedly published his

appreciation for the attorney general's support and how much he 'welcomed' her support . . . because
of the attorney general's 'role as the State's top law enforcement officer.' "198
Nevertheless, the Nevada Supreme Court denied the motion to disqualify Justice Young.199
Justice Springer dissented saying:
"Tough on crime" claims made by judges in election campaigns are so common
in Nevada as to go almost unnoticed. Our judicial discipline authorities customarily
ignore this kind of judicial misconduct once the judge becomes elected or
reelected. It goes beyond "tough on crime" for a judge to claim that he is a "crime
fighter," especially when, on top of this, the judge identifies his principal election
supporter as being the State's attorney general. Judges are supposed to be judging
crime not fighting it.200
A Missouri trial judge who was seeking reelection issued a press release announcing his
decision to switch parties from Democrat to Republican just six days before the capital trial of Brian
Kinder, an indigent African-American.201 The press release stated:
The truth is that I have noticed in recent years that the Democrat party places far
too much emphasis on representing minorities such as homosexuals, people who
don't want to work, and people with a skin that's any color but white. Their
reverse-discriminatory quotas and affirmative action, in the work place as well as
in schools and colleges, are repugnant to me . . . . I believe that a person should be
advanced and promoted, in this life, on the basis of initiative, qualifications, and
willingness to work, not simply on the color of his or her skin, or sexual
While minorities need to be represented, or [sic] course, I believe the time has
come for us to place much more emphasis and concern on the hard-working
taxpayers in this country. . . . That majority group of our citizens seems to have
been virtually forgotten by the Democrat party.202
The Missouri Supreme Court upheld the judge's refusal to disqualify himself from the case.203 Justice
White, the only African-American on the Court, dissented saying:
The slur is not ambiguous or complex (nor, unfortunately, original): "While
minorities need to be represented . . ., I believe the time has come for us to place
much more emphasis and concern on the hard-working taxpayers in this country. .
. ." No honest reading of this sentence can show that it says anything other than
what it says: that minorities are not hard-working taxpayers. . . . The mere fact that
a judge who issues a racially derogatory press release a week later claims to treat
equally people who are "white, black, red, yellow, or whatever," hardly "set[s] to
rest any concern" about his impartiality. I would feel much more comfortable with
the judge's decision not to recuse if he had used his press release to trumpet his
"prejudice toward upholding each individual's constitutional rights [,]" rather than

filling it with race-baiting nonsense.204
The influence of political pressures on the decisions of elected judges in high profile cases,
such as death penalty cases, is undeniable. The American Bar Association's Commission on
Professionalism found that "judges are far less likely to . . . take . . . tough action if they must run for
reelection or retention every few years."205 Supreme Court Justice John Paul Stevens has pointed out
that in states that allow judges to override jury sentences in capital cases, judges frequently override
sentences of life imprisonment and impose death, but seldom override death sentences.206 He
observed that:
[E]lected judges too often appear to listen [to] the many voters who generally
favor capital punishment but who have far less information about a particular trial
than the jurors who have sifted patiently through the details of the relevant and
admissible evidence. How else do we account for the disturbing propensity of
elected judges to impose the death sentence time after time notwithstanding a jury's
recommendation of life?207
In Harris v. Alabama, Justice Stevens warned:
The "higher authority" to whom present-day capital judges may be "too
responsive" is a political climate in which judges who covet higher office – or who
merely wish to remain judges – must constantly profess their fealty to the death
penalty . . . . The danger that they will bend to political pressures when
pronouncing sentence in highly publicized capital cases is the same danger
confronted by judges beholden to King George III.208
The independence and impartiality of judges is also called into question when they preside
over cases in which a party or lawyer has contributed to the judge's campaign.209 The perceived
results of such interest-group domination over judicial elections were described by one observer as
The Texas Supreme Court in a virtuoso performance of judicial activism has, in
recent years, ignored precedent, invalidated on Texas constitutional grounds longaccepted legislative enactments, interpreted Texas statutes so as to render them
meaningless, and glossed over and misinterpreted fact findings of trial courts, all in
pursuit of desired results.
Case by case results-oriented decisions have replaced the rule of law. 210
This is no way to run a system of justice. Judicial elections, whether direct elections or
retention elections, discourage good lawyers from becoming judges and result in untenable pressures
on judges once in office to ignore the law and satisfy their financial supporters or public sentiment to
avoid being voted out of office.

Misperceptions about the judicial role are a major barrier to attaining an independent
judiciary that makes decisions based on the law. Because of the increasing dominance of special
interest groups in judicial elections, the promises that the selection or removal of particular judges will
produce certain results, and the attacks made on both the state and federal judiciary, many citizens
perceive judges as no different from other politicians who make decisions heavily influenced by the
wishes of their constituents or, more likely in today's world, the major contributors to their
campaigns. However, judges, unlike legislators or governors, are not expected to gauge public
opinion before making their decisions.
There are few voices reminding citizens of the role of judges described by Judge William
Cranch as interpreting and applying the law "undisturbed by the clamor of the multitude."211 Those
voices are being drowned out by others urging that judges who do not heed the clamor of the
multitude should be removed from office either in elections or by impeachment.212
Few point out the importance of the rule of law. Particularly disturbing is the denigration of
the Bill of Rights by politicians as nothing more than a collection of technicalities that frustrate a
whole range of popular activities from prayer in schools to convicting and executing criminals. People
need to be reminded of the importance of the Bill of Rights in protecting the individual from the
government, as described by Justice Robert Jackson:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections.213
However, Alabama Governor Fob James argued to a federal judge as recently as 1997 that
the Bill of Rights did not apply in Alabama.214 While as a matter of law this should not be true, all too
often the Bill of Rights does not apply to the citizens of Alabama who most need its protections
because they either have no access to the courts or the state courts will not enforce the Bill of Rights
and the federal courts will do nothing to protect their rights.
Governor James has also said that the state legislature and governor should be able to
override decisions of his state's highest court215 and, on the federal level, that the President and
Congress should simply ignore court decisions they believe are wrong.216 Former judge and rejected
Supreme Court nominee Robert Bork has proposed that Congress should be given the power to
override court decisions.217
Others also suggest that judges should be compliant to the will of the majority and not let the
law get in their way. Presidential candidates and members of Congress tell the public that federal

judges should be impeached for unpopular decisions.218 The politicians who criticized federal judge
Harold Baer for suppressing cocaine evidence, later bragged when he reversed himself219 that "they
bullied federal judge Harold Baer into reversing his controversial ruling. . . ."220
Right wing groups in Tennessee, emboldened by their successful campaign to oust Justice
Penny White from the state supreme court, set their sights on federal district judge John Nixon,
urging his impeachment because he granted habeas corpus relief in several capital cases.221 They
collected over 27,000 signatures on petitions urging impeachment.222 The Tennessee Senate passed a
resolution by a vote of twenty-eight to five, urging the United States Congress to begin impeachment
proceedings against Nixon.223 The state House of Representatives voted eighty-seven to eight in favor
of a resolution calling for Nixon not to hear any more death cases.224 However, Judge Nixon's
decisions in capital cases have been upheld by the Court of Appeals.225 As one Tennessee lawyer
noted, "If the 6th Circuit U.S. Court of Appeals says that Judge Nixon is right . . . do we then
impeach those three judges? . . . At what point do you stop this?"226
The attacks on judges to remove them from office for unpopular rulings make no allowance
for the fact that judges are circumscribed in their decisions by the law. Instead, they suggest to the
public that a judicial ruling is no different than a vote by a legislator. Attacks on judges almost never
deal with the legal basis for their ruling, but are based entirely on the facts of the crime and the result,
such as whether a death sentence was upheld or reversed. Often there is not even the recognition that
the defendant will be tried again and is still subject to the same punishment. Instead, the public is led
to believe that the judge let a murderer go free. The results are perceptions and expectations on the
part of voters, which put even greater pressures on state court judges to avoid unpopular decisions in
order to stay in office.

Any honest assessment of the situation must recognize that the prospects for obtaining
judicial independence in the states of the Old Confederacy are not good. There are many indicators
from the symbolic to the substantive that many state judges are not independent and committed to the
rule of law.
An Alabama judge makes a public spectacle of displaying the Ten Commandments in his
courtroom and defying a federal court order regarding prayer in schools. Georgia judges display the
Confederate battle flag, part of the state's flag, in their courtrooms, even though the flag represents
racial oppression and defiance of the law to some of the citizens who come before the courts.
State court judges continue to tolerate indigent defense systems which are a disgrace to the
legal profession and their states. Such systems cannot possibly assure fairness to the thousands of
people – mostly black and mostly poor – processed through the criminal courts. Nor can they assure
that judges make informed decisions in imposing sentences, which range from probation to prison to
death. Many state court judges still dispose of capital and other important cases by signing off on onesided orders prepared by state attorneys.227 State courts still fail in too many instances to protect
racial minorities from discrimination and to protect the rights of poor people accused of crimes. No

one seriously thinks that state courts in the South will correct constitutional violations in the prisons,
jails and juvenile facilities in the region. State court judges show little concern for the fact that
increasingly only the wealthy have meaningful access to the courts.
Indeed, there is a strong possibility that things will get worse. Judicial decisions are
becoming the new "hot button" issues for politicians and special interest groups who will distort both
the facts and the role of courts to advance their goals. The amounts spent on judicial elections are
escalating at an alarming rate. Only the most naive doubt that the purpose and effect of this spending
is to influence judicial decisionmaking. There is grave danger that the number of people of color in the
legal profession will be reduced rather than increased in the future as law schools deny admission to
minority applicants.228 Nevertheless, there is tremendous resistance to replacing elections with a
different system of judicial selection and to taking affirmative steps to include in the system of justice
those who have been traditionally excluded.
It is remarkable that, in light of these developments, so little concern has been shown by
those who should care greatly about the independence of the judiciary, including members of the legal
profession. States will develop an independent judiciary and adherence to the rule of law only if
responsible leaders realize the urgency of the situation, come forward, and speak over the clamor of
those who mislead the public about the judicial role. They must educate the public about the role of
the courts and the importance of an independent judiciary, and secure the adoption of new selection
procedures that insulate judges from the influence of money and other improper pressures. Many of
those leaders will not be lawyers, but lawyers, as trustees of our system of justice, have a special role
to play in educating leaders and the public about the proper role of the judiciary.
It will be possible to overcome history only when we acknowledge it and its influence on the
present. As Justice William Brennan observed:
[I]t has been scarcely a generation since this Court's first decision striking down
racial segregation, and barely two decades since the legislative prohibition of racial
discrimination in major domains of national life. These have been honorable steps,
but we cannot pretend that in three decades we have completely escaped the grip
of a historical legacy spanning centuries. . . . [W]e remain imprisoned by the past
as long as we deny its influence in the present.229
Ignoring the past and engaging in wishful thinking that the state courts are independent will
not make independence a reality. Citizens, judges, lawyers, and public officials must recognize the
lack of independence, acknowledge the historic role the courts have played in defiance of the law,
explore the influence of that history on the present, and realize how far the courts have to go to reach
independence. States must take major, serious steps – not minor, token gestures – to increase the
participation in the justice system of racial minorities who have been historically excluded as judges,
jurors, and attorneys. As the population of the United States becomes more diverse, courts should
reflect that diversity if they are to understand and provide equal justice to all who come before them.
Conscientious state court judges must begin a process of serious self examination in
response to the new responsibilities they have as a result of the diminished role of the federal courts in

protecting individual rights. They must ask themselves to what extent they have been influenced, even
subconsciously, in making their decisions by the need for public approval to stay in office,230 and
whether that influence is compatible with their constitutional responsibilities as judges. Are they
politicians or judges? Do they base their decisions on what will get them elected or the dictates of
Supreme Court opinions, which may, in a particular case, be very unpopular?
State court judges must also question whether they should continue long-standing practices.
For example, should appointments to defend poor people accused of crimes continue to be the source
of employment of last resort for lawyers who cannot do anything else? Should judges, who are
supposed to be fair and impartial referees, even be appointing lawyers to defend the poor? Should
judges and prosecutors continue to work as a team, as occurs in so many jurisdictions today? Should
judges delegate writing of orders to lawyers for the state and then rubber stamp those orders without
even reading them? Should the judge be independent of the lawyers for both sides?
To overcome misperceptions about the role of the judiciary which are a major barrier to
reform, the bar and other leaders must engage in public education efforts with a seriousness that has
been lacking thus far. This task is not insurmountable. Most people want the protections of the law
for themselves, but they have been convinced by those calling for an all-out war on crime that
constitutional protections should not apply to those accused of crimes.231 It should not be impossible
to convince people that laws which are applied only when convenient protect no one and that judges
must be independent in order to enforce the laws. But prominent members of the legal profession,
who have the wealth and power to be heard, must take time off from the relentless pursuit of money,
get off the golf courses and out of the skyboxes and take up these efforts.
Educating the public about the role of the judiciary is essential to replacing judicial elections
with merit selection systems. Candidates for a judicial position should be nominated on the basis of
qualifications by a committee chosen to assure diverse citizen input and not controlled by any one
person or political party. The District of Columbia, Hawaii, and other jurisdictions have such systems
that serve as models.232 These systems foster judicial independence by isolating judges from political
pressures. Judicial tenure commissions should periodically review the performance of judges to decide
whether they should be reappointed.
Neither retention elections nor allowing judges to respond to attacks will produce an
independent judiciary. Retention elections have the same potential for intimidation and a chilling effect
on judicial decisionmaking as direct elections, as demonstrated by the removal of Justice White from
the Tennessee Supreme Court and Governor Sundquist's comment afterwards that judges should be
looking over their shoulder in making decisions. Allowing judges to respond to attacks only creates
the questions of impartiality that arose in Nevada when Justice Young, "responding to an assertion,
based on one case, that he was soft on the death penalty,"233 campaigned as a crime fighter who had
affirmed seventy-six capital cases.
Does a merit selection system completely eliminate politics and always produce perfect
judges and perfect decisionmaking? Of course not. No system can do that. Any selection process,
from awarding the Nobel prize to the selection of the Pope by the College of Cardinals, involves some
politics. And, unfortunately, some individuals, no matter how selected, will bring to the bench an

agenda or become arrogant, self righteous, erratic, overbearing, and rude upon becoming judges. That
is why a system of periodic review by a judicial qualifications commission may be preferable to life
tenure for judges.
However, a merit selection system along the lines previously described is more likely to
produce good judges than elections and to insulate judges from the influence of money and the
passions of the moment so that they can make decisions based on the law. Unless the southern states
adopt such systems in the near future, those most in need of protections of the courts and the law will
be left unprotected, and the new era of states' rights will be little more than a less blatant form of the
Jim Crow justice and legal lynchings of the recent past.

*. Director, Southern Center for Human Rights, Atlanta, Georgia; Visiting Lecturer in Law,
Yale, Harvard, and Emory Law Schools; B.A. 1971, J.D. 1975, University of Kentucky. The author is
most grateful to his research assistants at Yale Law School, Fiona Doherty and Jean Giles, for their
assistance in preparing this Article.
1. See Derrick Bell, Race, Racism and American Law (3d ed. 1992); A. Leon Higginbotham,
Jr., In the Matter of Color: Race and the American Legal Process (1978).
2. See David M. Oshinsky, "Worse than Slavery": Parchman Farm and the Ordeal of Jim
Crow Justice 35-37, 40-50, 55-81 (1996).
3. Id. at 41.
4. See id. at 74.
5. Id. at 72 (quoting J. C. Powell, The American Siberia, Or Fourteen Years' Experience in a
Southern Convict Camp 332 (1881)).
6. See id. at 46 (mortality rate of Mississippi's conviction population ranged from 9% to
16% in the 1880s).
7. Id. at 60.
8. These numbers come from the archives at Tuskegee University, where lynchings have
been documented since 1882. Mark Curriden, The Legacy of Lynching, Atlanta J. & Const., Jan. 15,
1995, at M1; see also W. Fitzhugh Brundage, Lynching in the New South: Georgia and Virginia,
1880-1930 (1993); George C. Wright, Racial Violence in Kentucky 1865-1940: Lynchings, Mob
Rule, and "Legal Lynchings" (1990).
9. See Curriden, supra note 8, at M1.
10. Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition

Against the Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1, 80 (1990) (quoting Michael
Belknap, Federal Law and Southern Order 22- 26 (1987)).
11. Dan T. Carter, Scottsboro: A Tragedy of the American South 115 (rev. ed. 1992).
12. Oshinsky, supra note 2, at 124.
13. 297 U.S. 278 (1936).
14. Id. at 281 (quoting Brown v. State, 161 So. 465, 470 (Miss. 1935) (Griffith, J.,
15. Id. at 281-82 (quoting Brown, 161 So. at 470).
16. Id. at 282 (quoting Brown, 161 So. at 470).
17. Id. (quoting Brown, 161 So. at 470).
18. 309 U.S. 227 (1940).
19. Id. at 238-39.
20. See Norris v. Alabama, 294 U.S. 587 (1935) (reversing because of racial discrimination
in jury selection); Powell v. Alabama, 287 U.S. 45 (1932) (reversing because of denial of counsel to
the accused); Carter, supra note 11, at 161-63, 322-24.
21. See Jackson v. State, 72 So.2d 114 (Ala. Ct. App.) cert. denied, 348 U.S. 888 (1954).
22. See Loving v. Virginia, 388 U.S. 1 (1967).
23. See Anne S. Emanuel, Lynching and the Law in Georgia Circa 1931: A Chapter in the
Legal Career of Judge Elbert Tuttle, 5 Wm. & Mary Bill of Rts. J. 215 (1996).
24. See, e.g., Carter, supra note 11, at 104-36.
25. See Strauder v. West Va., 100 U.S. 303 (1879).
26. See, e.g., Whitus v. Georgia, 385 U.S. 545 (1967) (describing repeated efforts of jury
commissioners in Mitchell County, Georgia to exclude blacks from jury service); Reece v. Georgia,
350 U.S. 85, 88 (1955) (finding that no black person had ever served on a grand jury in Cobb County,
Georgia; that of 534 names on the grand jury list, there were only six blacks, one did not reside in the
county, two were over 80, and one was partially deaf and the other in poor health, the other three
were 62); Akins v. Texas, 325 U.S. 398, 406-07 (1945) (finding no equal protection violation even
though jury commissioners in Dallas County, Texas admitted they "had no intention of placing more
than one negro on the panel"); id. at 408-09 (Murphy, J., dissenting) (noting that no black person had
ever served on a grand jury in Dallas County until the court's decision in Hill v. Texas, 316 U.S. 400

(1942), and expressing view that equal protection requires consideration of black citizens for jury
service "without numerical or proportional limitation"); Cassell v. Texas, 339 U.S. 282 (1950)
(finding that since Akins, Dallas County jury commissioners had limited number of blacks on grand
jury to not more than one and holding this limitation unconstitutional); Norris v. Alabama, 294 U.S.
587 (1935) (reversing because of total exclusion of blacks from jury pool); Carter, supra note 11, at
326-27 (describing resistance to decision in Norris in South). See generally Morris B. Hoffman,
Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, 64 U. Chi. L. Rev. 809,
827-32 (1997) (discussing history of exclusion of blacks from juries).
27. Williams v. State, 210 Ga. 207, 78 S.E.2d 521 (1953), extraordinary motion denied, 210
Ga. 665, 82 S.E.2d 217 (1954), remanded sub nom. Williams v. Georgia, 349 U.S. 375 (1955),
reaffirmed, 211 Ga. 763, 88 S.E.2d 376 (1955), cert. denied, 350 U.S. 950 (1956); Del Dickson,
State Court Defiance and the Limits of Supreme Court Authority: Williams v. Georgia Revisited, 103
Yale L.J. 1423 (1994).
28. 345 U.S. 559 (1953).
29. See id.
30. Williams v. Georgia, 349 U.S. 375, 391 (1955).
31. Id.
32. Dickson, supra note 27, at 1457. Another writer characterized the Georgia court's
response as telling the U.S. Supreme Court to go to hell. See Barrett Prettyman, Jr., Death and the
Supreme Court 290 (1961).
33. See Williams v. State, 211 Ga. 763, 763-64, 88 S.E.2d 376, 376-77 (1955).
34. See Dickson, supra note 27, at 1468-71.
35. See id. at 1465; Williams v. Georgia, 350 U.S. 950 (1956).
36. Dickson, supra note 27, at 1472.
37. 347 U.S. 483 (1954).
38. See Dickson, supra note 27, at 1472.
39. See Robert Jerome Glennon, The Jurisdictional Legacy of the Civil Rights Movement,
61 Tenn. L. Rev. 869, 879-84 (1994).
40. See Jack Bass, Taming the Storm: The Life and Times of Judge Frank M. Johnson, Jr.,
and the South's Fight over Civil Rights 185 (1993).
41. See id.; Dan T. Carter, The Politics of Rage 84 (1995).

42. See Bass, supra note 40, at 187-92.
43. See Vanleeward v. Rutledge, 369 F.2d 584 (5th Cir. 1966).
44. See Peters v. Kiff, 407 U.S. 493 (1972).
45. See id. at 505-07 (White, J., concurring).
46. See Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir.), reh'g denied, 880 F.2d 293, 293-97
(Clark, J., dissenting from denial of rehearing), cert. denied, 493 U.S. 945 (1989).
47. See Challenge to the Petit Jury Array filed in State v. Brooks, Indictment No. 3888
(Nov. 1977), on appeal, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated and remanded, 446 U.S. 961
(1980), on remand, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921 (1981)
(conviction and death sentence vacated on other grounds sub nom.); Brooks v. Kemp, 762 F.2d 1383
(11th Cir. 1985) (en banc), vacated and remanded, 478 U.S. 1016 (1986), decision adhered to on
remand, 809 F.2d 700 (11th Cir.) (en banc), cert. denied, 483 U.S. 1010 (1987).
48. See Trial Judge's Report to the Georgia Supreme Court in State v. Brooks, Indictment
No. 3888, at 6, § E(4).
49. See id.
50. See Swain v. Alabama, 380 U.S. 202, 205, 223 (1965). Nevertheless, the Court found
that the defendant had not established a violation of equal protection because he had not
demonstrated that prosecutors were responsible for the systemic exclusion of blacks from the juries.
See id. at 224-26. The standard of proof established in Swain was later modified in Batson v.
Kentucky, 476 U.S. 79 (1986).
51. Jackson v. Thigpen, 752 F. Supp. 1551, 1554 (N.D. Ala. 1990), rev'd in part and aff'd in
part, sub nom., Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995).
52. Id. at 1555.
53. 372 U.S. 335 (1963); see also Anthony Lewis, Gideon's Trumpet (1964).
54. See William S. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical
Undermining of the Right to Counsel, 4 Wm. & Mary Bill of Rts. J. 91 (1995); Richard Klein, The
Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective
Assistance of Counsel, 13 Hastings Const. L.Q. 625 (1986); Poor Man's Justice, Am. Lawyer, Jan.Feb. 1993, at 45- 87 (compromising 13 articles describing inadequacy of representation for indigent
defendants in various parts of country). States still do not even provide adequate counsel in capital
cases. See Ira P. Robbins, Toward a More Just and Effective System of Review in State Death
Penalty Cases, 40 Am. U. L. Rev. 1 (1990) (finding after an exhaustive study that "the inadequacy

and inadequate compensation of counsel at trial" was one of the "principal failings of the capital
punishment systems in the states today"); Stephen B. Bright, Counsel for the Poor: The Death
Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835 (1994); Bruce A.
Green, Lethal Fiction: The Meaning of "Counsel" in the Sixth Amendment, 78 Iowa L. Rev. 433
(1993); Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary
Death Sentences, 43 Buff. L. Rev. 329 (1995).
55. See Mike Mears, A Brief History of the Georgia Indigent Defense Act (1996) (available
from the Georgia Indigent Defense Council, Atlanta, Georgia).
56. See Ann Woolner, Guilty in Americus? Forget Lawyers, Just Plead Guilty, Fulton
County Daily Rep., Sept. 23, 1996, at 1 (describing failure to provide lawyers in Sumter County,
Georgia); Klein, supra note 54, at 659 (collecting studies showing that defense systems throughout
country are violating Argersinger).
57. 407 U.S. 25 (1972).
58. William Faulkner, Requiem for a Nun 92 (1950).
59. See Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997) (upholding Confederate battle flag
as part of Georgia's state flag).
60. See Turner v. Murray, 476 U.S. 28, 35 (1986) (acknowledging possible influence of
unconscious racism on sentencing decision in capital cases). The way in which such racial prejudice
may come into play in decisionmaking has been described in detail by many scholars. See, e.g., Peggy
C. Davis, Law as Microaggression, 98 Yale L.J. 1559, 1571 (1989) (describing tendency of people to
make decisions based on "racial stereotypes and assumptions"); Sheri Lynn Johnson, Black Innocence
and the White Jury, 83 Mich. L. Rev. 1611 (1985) (documenting tendency among whites to convict
black defendants in instances when white defendants would be acquitted); Charles R. Lawrence, III,
The ID, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317
(1987); Gary Peller, Race Consciousness, 1990 Duke L.J. 758; Samuel H. Pillsbury, Emotional
Justice: Moralizing the Passions of Criminal Punishment, 74 Cornell L. Rev. 655, 708 (1989)
(describing psychological tendency of predominantly white decisionmakers to sympathize more with
whites than with blacks).
61. Ex parte Brandley, 781 S.W.2d 886, 890 (Tx. Crim. App. 1989).
62. See id. at 926 (Campbell, J., dissenting) (quoting from findings of trial judge in postconviction proceedings).
63. Id. at 927.
64. Id. at 928.
65. See Nick Davies, White Lies: Rape, Murder, and Justice Texas Style 307- 09 (1991).

66. See Ex parte Brandley, 781 S.W.2d at 894-95.
67. Davies, supra note 65, at 395-96, 402.
68. See Associated Press, Blacks Trying for Judgeships Have Tough Time, Montgomery
Adv., Jan. 13, 1998, at A3.
69. See Directory of State Court Clerks & County Courthouses 46 (Robert S. Want ed.,
1997) (hereinafter Directory).
70. American Bar Association, Directory of Minority Judges of the United States 29-30
(1997) (hereinafter ABA Directory).
71. See id. at 164-65.
72. See Directory, supra note 69, at 52.
73. See ABA Directory, supra note 70, at 34.
74. See Directory, supra note 69, at 232.
75. See ABA Directory, supra note 70, at 100.
76. See Directory, supra note 69, at 250.
77. See ABA Directory, supra note 70, at 106-07.
78. See id. at 209-12.
79. See Brooks v. State Board of Elections, 173 F.R.D. 547 (S.D. Ga. 1997) (dismissing
challenge to Georgia's system of electing judges after settlement, which would have increased number
of minority judges); White v. Alabama, 74 F.3d 1058 (11th Cir. 1996) (rejecting a settlement that
would have resulted in an increase in number of minority judges on appellate courts in Alabama);
Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc) (rejecting challenge based on dilution of
black vote in judicial elections in Florida); League of United Latin Am. Citizens v. Clements, 999 F.2d
831 (5th Cir. 1993) (en banc), cert. denied, 510 U.S. 1071 (1994) (upholding Texas' single-district
system of electing state trial judges).
80. See American Bar Association Task Force on Minorities and the Justice System,
Achieving Justice in a Diverse America 15 (1992).
81. Lingo v. State, 263 Ga. 663, 665, 437 S.E.2d 463, 468 (1993) (Sears-Collins, J.,

82. See Charles J. Ogletree, Does Race Matter in Criminal Prosecutions?, Champion, July
1991, at 7, 10-12 (describing discriminatory practices by police against racial minorities); Mary
Maxwell Thomas, The African American Male: Communication Gap Converts Justice Into "Just Us"
System, 13 Harv. BlackLetter J. 1, 5 (1997).
83. See Los Angeles v. Lyons, 461 U.S. 95, 116 n.3 (1983) (Marshall, J., dissenting) (noting
that although only 9% of residents of Los Angeles are black males, they have accounted for 75% of
deaths resulting from chokeholds by police).
84. See Ian Ayres & Joel Waldfogel, A Market Test for Race Discrimination in Bail Setting,
46 Stan. L. Rev. 987 (1994) (documenting discrimination in the setting of bail rates for AfricanAmericans); Mary Maxwell Thomas, supra note 82, at 5.
85. Bill Rankin, Unequal Justice: Whites More Apt to Get Probation, Atlanta J. & Const.,
Feb. 8, 1998, at A1 (reporting that since 1990 white people convicted in Georgia were 30% to 60%
more likely than blacks to get probation for various crimes even though prior criminal records were
about same among blacks and whites); Keith W. Watters, Law Without Justice, Nat'l B. Ass'n Mag.,
Mar.-Apr. 1996 at 1, 23 (reporting that whites are more likely to be placed on probation than
African-Americans, and that African-Americans make up only 12% of population and 13% of drug
users, but comprise 55% of drug convictions).
86. See, e.g., Stephens v. State, 265 Ga. 356, 456 S.E.2d 560 (1995) (stating, of 375
persons serving life sentences for a second conviction for sale or possession with intent to distribute
certain narcotics, 98.4% are African-Americans); State v. Russell, 477 N.W.2d 886 (Minn. 1991)
(finding equal protection violation under state constitution due to more severe sentences imposed for
possession of crack cocaine than for powdered cocaine when 96.6% of those charged with possession
of crack cocaine are black and 79.6% of those charged with possession of powdered cocaine are
white); U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of
Racial Disparities (Feb. 1990) (reporting a "remarkably consistent" pattern of racial disparities in
death penalty sentencing throughout country); Gerald W. Heaney, The Reality of Guidelines
Sentencing: No End to Disparity, 28 Am. Crim. L. Rev. 161, 165 (1991) (arguing that "most
disturbing systemic disparity is the apparent disparate treatment of young, black males, who on the
average receive guidelines sentences significantly longer than those received by their white
counterparts for similar offenses"); see also Jerome G. Miller, Search and Destroy: African-American
Males in the Criminal Justice System (1996); The Real War on Crime: The Report of the National
Criminal Justice Commission (Stephen R. Donziger ed., 1996); Samuel L. Myers, Jr., Racial
Disparities in Sentencing: Can Sentencing Reforms Reduce Discrimination in Punishment?, 64 U.
Colo. L. Rev. 781 (1993).
87. See, e.g., Clay Hall, Public Defender is Hired, Thompson (Ga.) Times, Feb. 24, 1993, at
3A (describing how McDuffie County, Georgia, saved $21,000 on amount it had paid the year before
by awarding contract to a lawyer whose bid was almost $20,000 lower than other two bids).
88. For example, in Alabama, lawyers are paid $20 an hour for out-of-court preparation up
to a limit of $1000 to defend a non-capital case and $2000 to defend a capital case. See Ala. Code §

15-12-21(a) (Supp. 1992); Lawyers can be reimbursed for their overhead expenses. See May v. State,
672 So.2d 1307 (Ala. Crim. App. 1993). In some rural areas in Texas, lawyers receive no more than
$800 to handle a capital case. See Marianne Lavelle, Strong Law Thwarts Lone Star Counsel, Nat'l
L.J., June 11, 1990, at 34. Generally, the hourly rate is $50 or less. The Spangenberg Group, A Study
of Representation in Capital Cases in Texas 157 (1993) (prepared for State Bar of Texas). In
Mississippi, lawyers are paid $1000 and reimbursed for their overhead expenses for defending a
capital case. See Wilson v. State, 574 So. 2d 1338 (Miss. 1990). In Louisiana, some lawyers are not
paid at all. See State v. Wigley, 624 So. 2d 425 (La. 1993) (holding that fees for lawyer's services
need not be paid, but that lawyers were entitled to recover their reasonable out-of-pocket expenses
and overhead costs). Louisiana had previously required the lawyer to pay all expenses and made no
provision for overhead costs. See State v. Clifton, 172 So. 2d 657 (La. 1965).
89. See Va. Code Ann. § 19.2-163 (WESTLAW 1998). The statute provides that on July 1,
1998, lawyers can receive up to $735 in felony cases punishable by more than 20 years, but the other
rates remain the same. The statute provides for a "reasonable amount" for the defense of a capital
case. Id.
90. See Laura LaFay, Virginia's Poor Receive Justice on the Cheap, Virginian- Pilot, Feb.
15, 1998 at A1; Felony Murder: Soup to Nuts-$575, Cr. Practice Rep., Jan. 28, 1998, at 25, 27
(hereinafter Felony Murder).
91. See Lafay, supra note 90, at A1.
92. See id. at A10 (reporting that Judge James E. Kulp announced that he would remove any
lawyer who raised issue from list of attorneys eligible for court appointments); Felony Murder, supra
note 90, at 27.
93. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System,
Wall St. J., Sept. 7, 1994, at A1.
94. See Ex parte Burdine, 901 S.W.2d 456, 457 & n.1 (Tex. Crim. App. 1995) (Maloney, J.,
dissenting) (quoting testimony of clerk of court that "defense counsel was asleep on several occasions
on several days over the course of the proceedings" and "was asleep for long periods of time during
the questioning of witnesses"); David R. Dow, The State, the Death Penalty, and Carl Johnson, 37
B.C. L. Rev. 691, 694-95 (1996) (describing case of Carl Johnson, who was executed by Texas even
though his lawyer slept through much of proceedings).
95. See Kathy Walt, Lawyers Who Aid Condemned Paid $265,000, Hou. Chron., Oct. 3,
1997, at A33.
96. See id. at A33, A35.
97. See Bright, supra note 54, at 1835-36 (describing capital trial of Judy Haney).
98. See id. at 1860-61 n.154 (setting out in full, one-page brief filed in case of Larry Gene

Heath, whose death sentence was affirmed by Alabama Supreme Court on basis of brief; Heath was
executed); see also id. at 1843 n.55 (describing other grossly deficient briefs filed in capital cases).
99. See id. at 1862.
100. Kevin Sack, In South, Prayer is a Form of Protest, N.Y. Times, Nov. 8, 1997, at A7.
101. Id.
102. See, e.g., Jack Bass, Unlikely Heroes (1981); Bass, supra note 40, at 159-60
(describing necessity for federal court intervention in civil rights cases because of failure of elected
state court judges to enforce constitutional guarantees); see also, Taylor Branch, Parting the Waters:
American in the King Years 1954-63 (1988); Taylor Branch, Pillar of Fire: American in the King
Years 1963-65 (1998).
103. See Robert Jerome Glennon, The Jurisdictional Legacy of the Civil Rights Movement,
61 Tenn. L. Rev. 869, 870 (1994) ("Southern state judges were unmistakably hostile to constitutional
claims of African-American litigants.").
104. 347 U.S. 483 (1954) (holding that racial segregation in public schools violates Equal
Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that
desegregation of public schools proceed "with all deliberate speed").
105. Bass, supra note 102.
106. A. Leon Higginbotham, Jr., Breaking Thurgood Marshall's Promise, N.Y. Times
Magazine, Jan. 8, 1998, § 6, at 28, 29.
107. See Frank Sikora, The Judge: The Life and Opinions of Alabama's Frank M. Johnson,
Jr. (1992); Liva Baker, The Second Battle of New Orleans: The Hundred- Year Struggle to Integrate
the Schools (1996) (describing Judge J. Skelly Wright's role in integration of New Orleans schools);
Bass, Taming the Storm, supra note 40.
108. Frank M. Johnson, Jr., The Alabama Punting Syndrome, Judges' J., Spring 1979, at 4,
109. See Hutto v. Finney, 437 U.S. 678, 682 n.4 (1978) (describing whipping of Arkansas
prisoners with wooden-handled leather strap five feet long for minor infractions); Oshinsky, supra
note 2, at 149-51 (describing whipping of prisoners in Mississippi with three-foot leather strap,
known as "Black Annie").
110. See Hutto, 437 U.S. at 682 n.5 (describing use of "Tucker telephone").
111. Pugh v. Locke, 406 F. Supp. 318, 327 (M.D. Ala. 1976), aff'd as modified, 559 F.2d
283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).

112. Hutto, 437 U.S. at 681-82 n.3.
113. See Oshinsky, supra note 2, at 245.
114. Id. at 246-48; see also Gates v. Collier, 349 F. Supp. 881, 881- 905 (N.D. Miss. 1972),
aff'd, 501 F.2d 1291 (5th Cir. 1974).
115. Pugh, 406 F. Supp. at 325.
116. Id. at 324.
117. Id.
118. Id. at 322.
119. Id. at 325.
120. Id. at 327.
121. See Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971).
122. Id. at 785.
123. See Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971).
124. See Wyatt v. Rogers, No. CIV.A. 3195-N, 1998 WL 13830 (M.D. Ala. Jan. 6, 1998);
Wyatt v. Rogers, No. CIV.A. 3195-N, 1997 WL 784491 (M.D. Ala. Dec. 15, 1997); Wyatt v.
Rogers, 92 F.3d 1074 (11th Cir. 1996); Wyatt v. Rogers, 942 F. Supp. 518 (M.D. Ala. 1996); Wyatt
v. Poundstone, 941 F. Supp. 1100 (M.D. Ala. 1996); Wyatt v. Hanan, 77 F.3d 498 (11th Cir. 1996);
cert. denied, 117 S. Ct. 84 (1996); Wyatt v. Poundstone, No. CIV.A. 3195-N, 1995 WL 938444
(M.D. Ala. Dec. 5, 1995); Wyatt v. Hanan, No. CIV.A. 3195-N, 1995 WL 699616 (M.D. Ala. Nov.
8, 1995); Wyatt v. Poundstone, No. CIV.A. 3195-N, 1995 WL 569121 (M.D. Ala. Apr. 18, 1995);
Wyatt v. Poundstone, No. CIV.A. 3195-N, 1995 WL 430939 (M.D. Ala. July 11, 1995); Wyatt v.
Poundstone, 892 F. Supp. 1410 (M.D. Ala. 1995); Wyatt v. Hanan, 170 F.R.D. 189 (M.D. Ala.
1995); Wyatt v. Poundstone, 169 F.R.D. 155 (M.D. Ala. 1995); Wyatt v. Hanan, 871 F. Supp. 415
(M.D. Ala. 1994); Wyatt v. Hanan, 868 F. Supp. 1356 (M.D. Ala. 1994); Wyatt v. King, 985 F.2d
579 (11th Cir. 1993); Wyatt v. King, 811 F. Supp. 1533 (M.D. Ala. 1993); Wyatt v. King, 803 F.
Supp. 377 (M.D. Ala. 1992); Wyatt v. King, 793 F. Supp. 1058 (M.D. Ala. 1992); Wyatt v. Horsley,
793 F. Supp. 1053 (M.D. Ala. 1991); Wyatt v. King, No. CIV.A. 3195-N, 1991 WL 640065 (M.D.
Ala. Dec. 17, 1991); Wyatt v. King, No. CIV.A. 3195-N, 1991 WL 365043 (M.D. Ala. Oct. 28,
1991); Wyatt v. King, 781 F. Supp. 750 (M.D. Ala. 1991); Wyatt v. Horsley, 773 F. Supp. 1508
(M.D. Ala. 1991); Wyatt v. Wallis, No. CIV.A. 3195-N, 1986 WL 69194 (M.D. Ala. Sept. 22,
1986); Wyatt v. Ireland, 515 F. Supp. 888 (M.D. Ala. 1981); Wyatt v. Ireland, No. CIV.A. 3195-N,
1979 WL 48254 (M.D. Ala. Oct. 25, 1979); Wyatt v. Ireland, No. CIV.A. 3195-N, 1979 WL 48253
(M.D. Ala. Oct. 25, 1979); Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Wyatt v. Stickney, 344

F. Supp. 387 (M.D. Ala. 1972); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972); Wyatt v.
Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971); Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala.
125. Johnson, supra note 108.
126. See Fox Butterfield, "Defying Gravity," Inmate Population Climbs, N.Y. Times, Jan.
19, 1998, at A10 (reporting that despite decline in crime rate over past five years, number of inmates
has continued to rise each year, that over 1,700,000 inmates are in prisons and jails and that national
incarceration rate of 645 inmates per 100,000 people is more than double rate in 1985).
127. See, e.g., Seth Mydans, Taking No Prisoners, In Manner of Speaking, N.Y. Times,
Mar. 4, 1995, at 6 (describing how sheriff in Maricopa County, Arizona substituted bologna
sandwiches for hot lunches, discontinued all movies, banned cigarettes and coffee, and housed some
prisoners in tents); Adam Nossiter, Making Hard Time Harder, States Cut Jail TV and Sports, N.Y.
Times, Sept. 17, 1994, at 1 (describing efforts to take away television and exercise for prisoners in
many states); Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995,
at 16 (describing return of chain gangs to Alabama).
128. Rhonda Cook, A Tough Chief of Prisons, Atlanta J. & Const., Dec. 15, 1996, at G1.
129. See Rhonda Cook, 235 Prison Teachers Fired in $8 Million Cost-Cutting Move,
Atlanta J. & Const., Dec. 7, 1996, at A1.
130. See Cook, supra note 128.
131. See id.
132. See id.
133. See Rhonda Cook, Prison Officials Recall Blood Bath, Atlanta J. & Const., May 17,
1997, at D2 (hereinafter Cook, Blood Bath) (reporting on deposition testimony by prison officials
taken in lawsuit filed in connection with case); Rhonda Cook, Depositions Detail Abuse of Inmates,
Atlanta J. & Const., Sept. 9, 1997, at C1 (reporting that latest revelations suggest a system-wide
belief that beating prisoners is acceptable).
134. Rhonda Cook, Guard Recalls Beatings as Payback Time, Atlanta J. & Const., June 29,
1997, at C1.
135. Cook, Blood Bath, supra note 133 (quoting from deposition of guard Phyllis Tucker).
136. See Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963).
137. See Schlup v. Delo, 513 U.S. 298 (1995); Schlup v. Bowersox, No. 4:92CV433-JCH,
Memorandum Opinion and Order of May 2, 1996 (D. Mo. 1996) (granting habeas relief based on

finding that constitutional violation led to conviction of Schlup even though he was probably
innocent); Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by prosecution
due to failure to turn over exculpatory evidence).
138. See Pamela Coyle, Jubilant Family Welcomes Kyles, Times Picayune, Feb. 19, 1998, at
A1, A13 (describing release of Curtis Lee Kyles after fourth hung jury on whether he was guilty of
crime; prosecution declined to try case again).
139. See, e.g., Amadeo v. Zant, 486 U.S. 214 (1988) (ordering habeas corpus relief because
prosecutor had secretly directed jury commissioners to under-represent African-Americans in jury
pools); Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 503 U.S. 952 (1992) (granting
relief in capital case because of racial discrimination and other constitutional violations); Tiller v.
Esposito, 911 F.2d 575 (11th Cir. 1990) (granting writ when state court failed to hold hearing to
establish petitioner's competency to plead guilty); Horace v. Wainwright, 781 F.2d 1558 (11th Cir.
1986) (granting relief because petitioner was mentally incompetent at time of guilty plea); Jordan v.
Lippman, 763 F.2d 1265 (11th Cir. 1985) (granting relief when trial court's failure to allow inquiries
to jury panel violated defendant's constitutional rights to an impartial jury and due process); Grant v.
Wainwright, 496 F.2d 1043 (5th Cir. 1974) (granting writ when conviction based on an involuntary
confession); Collins v. Beto, 348 F.2d 823 (5th Cir. 1965) (granting writ when conviction based on
involuntary confession). Federal courts found constitutional error in 40% of the first 361 capital
judgments reviewed in habeas corpus proceedings between the restoration of the death penalty in
1976 and mid-1991. James S. Liebman, More Than "Slightly Retro:" The Rehnquist Court's Rout of
Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537, 541 n.15
(1991); see also Ronald J. Tabak, Habeas Corpus as a Crucial Protector of Constitutional Rights: A
Tribute Which May Also be a Eulogy, 26 Seton Hall L. Rev. 1477 (1996).
140. Katie Wood, Not Just a Rubber Stamp Anymore, Fulton County Daily Rep., Jan. 25,
1993, at 1, 4.
141. See Carter, supra note 11, at 262-73.
142. See id.
143. See id. at 273. In the same election that saw Judge Horton voted out of office, the
state's attorney general, who had personally prosecuted the Scottsboro defendants, was elected
lieutenant governor. See id.
144. See Carter, supra note 11, at 279-302.
145. See Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid
Efforts to Intimidate and Remove Judges From Office for Unpopular Decisions? 72 NYU L. Rev.
308, 313-15, 331-36 (1997) (hereinafter Political Attacks) (describing defeat of Penny White);
Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill
of Rights and the Next Election in Capital Cases, 75 Bos. U. L. Rev. 759, 760-66 (1995) (describing
removal of judges in Texas, California, and Mississippi).

146. Chambers v. Florida, 309 U.S. 227, 241 (1940).
147. The Fifth Circuit now includes Louisiana, Mississippi, and Texas. The Eleventh Circuit
includes Alabama, Florida, and Georgia.
148. See Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996).
149. See League of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en
banc), cert. denied, 510 U.S. 1071 (1994) (overruling district court's ruling that single-district system
of electing state trial judges in Texas violated Voting Rights Act; refusing to remand for entry of a
consent decree agreed to by plaintiffs and Attorney General but opposed by judges; and holding that
Texas had a substantial interest in maintaining linkage between electoral and jurisdictional bases of its
trial court judges); League of United Latin Am. Citizens v. Roscoe Ind. Sch. Dist., 123 F.3d 843 (5th
Cir. 1997) (finding no violation of Voting Rights Act in a school district's at-large system for electing
trustees); Rollins v. Fort Bend Ind. Sch. Dist., 89 F.3d 1205 (5th Cir. 1996) (holding that at-large
voting system used in school district did not violate Voting Rights Act and Fourteenth Amendment
despite history of racial discrimination in area and fact that only three minority candidates had been
elected in twenty years). But see Teague v. Attala County, 92 F.3d 283 (5th Cir. 1996), cert. denied,
118 S. Ct. 45 (1997) (holding that Mississippi district court's findings that black voters were not
politically cohesive, that there was no racial block voting, and that black voters had just as much
opportunity as white voters to participate in political process and elect candidates of their own
choosing were clearly erroneous).
150. See Gosch v. Johnson, No. 97-7521, 1998 WL 19660 (U.S. Feb. 23, 1998) (Souter, J.,
concurring in denial of certiorari).
151. See Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 (11th Cir. 1997) (en banc)
(holding suit based on school officials' failure to remedy students' sexual harassment of student did
not state a claim), overruling, 74 F.3d 1186 (11th Cir. 1996). The dissent noted that the majority
opinion held that "no matter how egregious--or even criminal--the harassing discriminatory conduct
may be, and no matter how cognizant of it supervisors may become – a teacher could observe it
directly and regularly – there would be no obligation to take any action to prevent it under the very
law which was passed to eliminate sexual discrimination in our public schools." Id. at 1412 (Barkett,
J., dissenting).
152. See Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc) (holding that Georgia
Attorney General's withdrawal of offer of employment because of prospective employee's lesbian
marriage did not violate prospective employee's right of association), overruling 70 F.3d 1218 (11th
Cir. 1995).
153. See Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (finding that defense counsel's
presentation of damaging evidence and failure to present mitigating evidence did not constitute
ineffective assistance of counsel), overruling 979 F.2d 1473 (11th Cir. 1992).

154. See, e.g., Haitian Refugee Ctr. v. Baker, 953 F.2d 1498 (11th Cir. 1992) (finding
Haitian refugees interdicted on high seas had no right to judicial review over a dissent that argued that
majority accepted "a pure legal fiction when it holds that these refugees are in a different class from
every other 'excludable alien' "); Borden v. Meese, 803 F.2d 1530 (11th Cir. 1986) (reversing district
court's grant of release to alien from federal penitentiary); Garcia-Mir v. Meese, 788 F.2d 1446 (11th
Cir. 1986) (reversing district court and holding that Cuban refugees who came to United States on
Mariel boatlift were not entitled to parole revocation hearings); Perez-Perez v. Hanberry, 781 F.2d
1477 (11th Cir. 1986) (reversing district court and holding that Cuban detainees were not entitled to
counsel and had not exhausted administrative remedies); Garcia-Mir v. Smith, 766 F.2d 1478 (11th
Cir. 1985) (reversing district court and holding that court lacked subject matter jurisdiction to take
any action with regard to Cuban refugees' eligibility for asylum on basis of newly presented evidence
when they had not exhausted their administrative remedies).
155. See, e.g., White v. Alabama, 74 F.3d 1058 (11th Cir. 1996) (rejecting a settlement that
resulted in increasing number of minority judges on appellate courts in Alabama); Johnson v. DeSoto
County Bd. of Comm'r, 72 F.3d 1556 (11th Cir. 1996) (reversing decision of district court that
electing school board members through an at-large voting scheme violated the Voting Rights Act);
Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc) (finding that Florida's interest in
maintaining its judicial election scheme precluded implementation of remedies for the dilution of the
black vote in judicial elections), overruling 1 F.3d 1171, cert. denied, 514 U.S. 1083 (1995).
156. See, e.g., Mencer v. Hammonds, 134 F.3d 1066 (11th Cir. 1998) (reversing district
court and finding qualified immunity for Board of Education and Superintendent of Schools after they
were sued for discrimination on basis of race and gender in failing to appoint a teacher principal of an
elementary school); Woods v. Gamel, 132 F.3d 1417 (11th Cir. 1998) (reversing district court and
finding absolute legislative immunity for county commissioners sued for jail conditions); Johnson v.
City of Fort Lauderdale, 126 F.3d 1372 (11th Cir. 1997) (reversing district court and finding qualified
immunity for claims made under 42 U.S.C. §§ 1981, 1983, but not § 1985 for fire department officials
sued for race discrimination, harassment, and retaliation); Gold v. City of Miami, 121 F.3d 1442 (11th
Cir. 1997) (reversing district court and finding qualified immunity for police officers sued by an
157. See Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 802-803 (amending 18
U.S.C. § 3626 (1996) and other statutes); Kristin L. Burns, Return to Hard Time: The Prison
Litigation Reform Act of 1995, 31 Ga. L. Rev. 879 (1997).
158. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No.
104-134, § 4504(a)(15), 110 Stat. 1312.
159. See Prison Litigation Reform Act, Pub. L. No. 104-134, § 803(d) (1996) (amending 42
U.S.C. § 1988 (1996)).
160. See, e.g., Hosna v. Groose, 80 F.3d 298 (8th Cir. 1996) (holding that denial of exercise
may be a constitutional violation only when inmate's muscles atrophy or if inmate's health is
threatened); Crowder v. True, 74 F.3d 812 (7th Cir. 1996) (rejecting claims of paraplegic inmate that
he was denied wheelchair, physical therapy sessions, exercise, recreation, hygienic care, and medical

care because of inability to meet the Supreme Court's standard of "deliberate indifference" on the part
of prison officials); Shakka v. Smith, 71 F.3d 162, (4th Cir. 1995) (holding refusal to allow prisoner
to take shower for three days after human excrement and urine were thrown on him by other inmates
did not violate Eighth Amendment when inmate was provided with "water and cleaning materials" to
clean himself and cell); Hedieh Nasheri, A Spirit of Meanness: Courts, Prisons and Prisoners, 27
Cumb. L. Rev. 1173, 1188-99 (1996-97).
161. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (amending scattered sections of 28 U.S.C.).
162. The Act established a one-year statute of limitations of general applicability, see id. §§
101, 105 (amending 28 U.S.C. § 2244(d)(1) (1996)), and a statute of limitations of 180 days for
states which meet certain standards of providing counsel in capital post-conviction proceedings, see
id. § 107 (codified at 28 U.S.C. § 2263 (1996)). It prohibits federal courts from granting habeas
corpus relief unless the decision of the state court "was contrary to, or involved an unreasonable
application of, clearly established Federal law," id. § 104(3)(1) (codified at 28 U.S.C. § 2254(d)(1)
(1996)); severely limits when a federal court may conduct an evidentiary hearing, see id. § 104(4)
(codified at 28 U.S.C. § 2254(3)(2) (1996)); and prohibits second or "successive" petitions for habeas
corpus relief except in very narrow circumstances. See id. §§ 105, 106 (codified at 28 U.S.C. §§
2255, 2244(b) (1996)).
163. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991); Dugger v. Adams, 489 U.S.
401 (1989); Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaac, 456 U.S. 107, 130-34
(1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness:
Procedural Default of Federal Habeas Corpus Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193
164. See Stone v. Powell, 428 U.S. 465 (1976).
165. See Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
166. See Teague v. Lane, 489 U.S. 288 (1989); Liebman, supra note 139.
167. See Brecht v. Abrahamson, 507 U.S. 619 (1993).
168. See McCleskey v. Zant, 499 U.S. 467 (1991).
169. See Model Code of Judicial Conduct, Canon 5A(3)(d)(i), (ii) (1990) (stating a judge
"shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial
performance of the duties of the office; (or) (ii) make statements that commit or appear to commit the
candidate with respect to cases, controversies or issues that are likely to come before the court").
170. See John Cornyn, Ruminations on the Nature of Texas Judging, 25 St. Mary's L.J. 367,
378 (1993). Cornyn, a justice of the Texas Supreme Court, states that "(t)he gravest concern that
inheres in the elective system . . . is that judicial candidates are compelled to raise campaign funds:
money and judges simply do not mix." See also Orrin W. Johnson & Laura Johnson Urbis, Judicial

Selection in Texas: A Gathering Storm?, 23 Tex. Tech L. Rev. 525, 545-52 (1992) (discussing rising
campaign costs in Texas judicial elections); Sheila Kaplan & Zoe Davidson, The Buying of the Bench,
Nation, Jan. 26, 1998, at 11 (describing amounts spend for judicial races around country); Jason
Miles Levien & Stacie L. Fatka, Cleaning Up Judicial Elections: Examining the First Amendment
Limitations on Judicial Campaign Regulation, 2 Mich. L. & Pol'y Rev. 71, 76 (1997) (noting that
contributions by lawyers and their law firms represent largest share of contributions to judicial
elections and that these contributions understandably create the perception that attorneys who
practice before a judge by day are same attorneys who host expensive fundraisers for them by night);
Maura Anne Schoshinski, Towards and Independent, Fair, and Competent Judiciary: An Argument
for Improving Judicial Elections, 7 Geo. J. Legal Ethics 839, 840 (1994) (arguing that judicial
elections, due to their requirements of political and financial support, erode "public's confidence in an
independent judiciary and put jurists in an ethically compromising position"); Gerald F. Uelman,
Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in the Era of
Judicial Politicization, 72 Notre Dame L. Rev. 1133, 1151-54 (1997) (describing campaigns in Ohio,
Kentucky, and Texas).
171. See Uelman, supra note 170, at 1133 (describing judges who must face an election to
keep their jobs as "tadpole(s) in a pond full of crocodiles"); Bright, Political Attacks, supra note 145;
Bright & Keenan, supra note 145.
172. Uelman, supra note 170, at 1151 (quoting Robert Kaplan, Justice for Sale, Common
Cause Mag., May-June, 1987, at 29-30).
173. See id.
174. Kaplan & Davidson, supra note 170.
175. See Stephens v. State, 265 Ga. 356, 456 S.E.2d 560 (1995).
176. See id. at 357, 456 S.E.2d at 561.
177. See Emily Heller, Stevens v. State: Second Thoughts on Second-Offense Law, Fulton
County Daily Rep., Apr. 3, 1995, at 1, 10.
178. Emily Heller, Racial Test Put to the Test, Fulton County Daily Rep., Mar. 30, 1995, at
1, 4.
179. See Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't
What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.
180. See Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes a Case for
Merit Selection, Tex. Law., Nov. 14, 1994, at 1.
181. Elliott & Connelly, supra note 179.
182. See id.; Elliot, supra note 180, at 1 (reporting that Mansfield was unable to verify

campaign claims regarding number of criminal cases he had handled and had portrayed himself as
political novice despite having twice unsuccessfully run for Congress); see also Do It Now, Ft. Worth
Star-Telegram, Nov. 12, 1994, at 32 (editorial calling for an immediate challenge to Mansfield's
election because he had "shaded the truth of virtually every aspect of his career").
183. John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston
Chron., Nov. 10, 1994, at A29.
184. Elliott & Connelly, supra note 179, at 32.
185. See Elliot, supra note 180, at 1.
186. Id.
187. State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
188. In an opinion by Justice Birch three members of the court held that there were three
errors requiring reversal. See id. at 32-33. The remaining two members of the court concurred with
regard to one error, but dissented with regard to the other two. See id. at 33 (Anderson, C.J.,
concurring in part and dissenting in part).
189. See Letter to Voters by John M. Davies, President of the Tennessee Conservative
Union, at 2, in Bright, Political Attacks, supra note 145, at 331- 34 (reproducing letter in full). The
letter twice says that the conviction was overturned. See id. at 332.
190. Id. at 331.
191. Id. at 332.
192. See Jeff Woods, Public Outrage Nails a Judge, Nashville Banner, Aug. 2, 1996, at A1,
A2 (reporting that Gov. Sundquist and Sens. Fred Thompson and Bill Frist all announced their
opposition to White); Jeff Woods, Sundquist Admits Early Ballot to Boot White, Nashville Banner,
July 26, 1996, at B2 (reporting that "White's foes are casting the election as a referendum on the
death penalty").
193. Bright, Political Attacks, supra note 145, at 335-36 (reproducing brochure in full).
194. Paula Wade, White's Defeat Poses Legal Dilemma; How is a Replacement Justice
Picked?, Memphis Com. Appeal, Aug. 3, 1996, at A1.
195. See Tom Humphrey, Justice Will Not Seek New Term, Knoxville News- Sentinel, Nov.
26, 1997, at A6 (reporting that Justice Lyle Reid, "listed as a top target of some who worked for the
1996 ouster of former Supreme Court Justice Penny White," announced that he would not seek
another eight-year term).

196. Nevius v. Warden, 944 P.2d 858, 860 (1997) (Springer, J., dissenting), reh'g denied
with opinion, 1998 WL 341017 (Nev. 1998).
197. Id.
198. Id.
199. See id. at 859.
200. Id. at 860 (Springer, J., dissenting).
201. See State v. Kinder, 942 S.W.2d 313 (Mo. 1996), cert. denied, 118 S. Ct. 149 (1997).
202. Id. at 340 (White, J., dissenting).
203. See id. at 321.
204. Id. at 340 (White, J., dissenting).
205. American Bar Ass'n, Report of Commission on Professionalism (1986).
206. See Harris v. Alabama, 513 U.S. 504, 521-22 (1995) (Stevens, J., dissenting); Walton
v. Arizona, 497 U.S. 639, 713 n.4 (1990) (Stevens, J., dissenting); Spaziano v. Florida, 468 U.S. 447,
486-87 (1984) (Stevens, J., concurring in part and dissenting in part) (arguing that juries make
decisions based on community values more reliably than judges because juries more accurately reflect
composition and experiences of a community as a whole).
207. Walton, 497 U.S. at 713 n.4 (Stevens, J., dissenting).
208. Harris v. Alabama, 115 S. Ct. at 1039 (1995) (Stevens, J., dissenting) (quoting Duncan
v. Louisiana, 391 U.S. 145, 156 (1968)).
209. See, e.g., Collier v. Griffith, 1992 WL 44893, *6-*7 (Tenn. Ct. App. 1992) (holding
trial judge should have recused himself in case in which one party's attorney was the finance chairman
for the judge's ongoing election campaign); Robert F. Utter, Selection and Retention--A Judge's
Perspective, 48 Wash. L. Rev. 839, 843-45 (1973) (observing that lawyers who support victors or
losers in political campaign subsequently have reason to question legitimacy of judgments made by
210. Robert D'Agostino, The Decline of the Law in the Texas Supreme Court, 2 Benchmark
171, 171 (1986). See generally Stephen J. Adler, The Texas Bench: Anything Goes, Am. Law., Apr.
1986, at 11.
211. 1 Charles Warren, The Supreme Court in United States History 303 (1947).
212. See Bright, Political Attacks, supra note 145.

213. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
214. See Sack, supra note 100, at A7.
215. See Adam Cohen, A Governor With a Mission, Time, Sept. 4, 1995, at 32 (reporting
that James had introduced bill that would allow legislature and governor to overturn rulings of
Alabama Supreme Court from which three or more judges dissent); James Pushes Restructuring of
State's Judicial Branch, Columbus (Ga.) Ledger-Enquirer, May 3, 1995, at B2 (describing proposal
and reporting that Gov. James "sees Alabama judges acting like schoolyard bullies").
216. See James: President, Congress Should Ignore Supreme Court, Columbus LedgerEnquirer, June 17, 1996, at B2; James Apologizes for Kowtowing to Judiciary, Columbus LedgerEnquirer, Aug. 12, 1995, at B2.
217. See Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American
Decline 117 (1996).
218. See, e.g., Linda Greenhouse, Judges as Political Issues; Clinton Move in New York
Case Imperils Judicial Independence, Bar Leaders Say, N.Y. Times, Mar. 23, 1996, at A1 (reporting
that federal judge Harold Baer had been criticized by the White House, Presidential candidate Robert
Dole and other politicians for suppressing cocaine in a case); Don Van Natta, Jr., Judges Defend A
Colleague From Attacks, N.Y. Times, Mar. 29, 1996, at B1, B4 (reporting that "(o)n the Presidential
campaign trail in California on Saturday, Senator Dole called for Judge Baer's impeachment").
219. See United States v. Bayless, 921 F. Supp. 211 (S.D.N.Y.) (finding that police officers
had "reasonable suspicion" of criminal activity sufficient to support their stop of defendant), vacating
913 F. Supp. 232 (S.D.N.Y. 1996) (finding that cocaine and heroin was seized in violation of Fourth
220. Paul M. Barrett, Dole Campaign May be on Shaky Ground in Bid to Brand Another Clinton
Judge as Soft on Crime, Wall St. J., Apr. 3, 1996, at A16.
221. See Kirk Loggins, Law on His Side Against Impeachment, They Say, Tennessean, May
25, 1997, at 1A.
222. See id.
223. See Paula Wade, Impeach Nixon, Senate Urges, Memphis Com. Appeal, May 20, 1997,
at A7 (reporting on Tennessee Senate resolution calling for Judge Nixon's impeachment).
224. Loggins, supra note 221.
225. See, e.g., Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997) (upholding Nixon's grant of
relief because counsel's repeated expressions of hostility to petitioner amounted to constructive denial
of his right to assistance of counsel); Groseclose v. Bell, 130 F.3d 1161 (6th Cir. 1997) (upholding

Nixon's ruling that trial counsel's ineffectiveness warranted habeas corpus relief); Austin v. Bell, 126
F.3d 843 (6th Cir. 1997) (upholding Nixon's grant of relief because trial counsel ineffective during the
penalty phase); Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995) (upholding Nixon's grant of relief
because "heinous, atrocious, or cruel" jury instruction was unconstitutionally vague and
226. Loggins, supra note 221.
227. See Bright & Keenan, supra note 145, at 803-11.
228. See Higginbotham, supra note 106, at 28, 29 (documenting decline in minority
enrollment at law schools in wake of Fifth Circuit's opinion in Hopwood v. State of Texas, 78 F.3d
932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996)).
229. McCleskey v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, J., dissenting).
230. See Joseph R. Grodin, Developing a Consensus of Constraint: A Judge's Perspective on
Judicial Retention Elections, 61 S. Cal. L. Rev. 1969, 1980 (1988) (discussion by Grodin, a former
justice of the California Supreme Court, about whether votes of justices in critical cases may have
been subconsciously influenced by the awareness that the outcomes could affect upcoming judicial
elections and his efforts to assure himself that his vote had been entirely on the merits of the case).
231. See Stephen B. Bright, The Politics of Crime and the Death Penalty: Not "Soft on
Crime," But Hard on the Bill of Rights, 39 St. Louis U. L.J. 479 (1995).
232. See D.C. Code Ann. §§ 11-1501 to 11-1502 (1995) (President selects judges from
names that a commission recommends, with advice and consent of the Senate, for 15-year terms;
judicial qualification commission reviews performance); Haw. Const. art. VI, § 3 (governor appoints
judges, from a judicial selection commission's list of nominees and with consent of the senate, for 10year terms; judicial selection commission determines retention). For further discussion of desirable
features of merit selection systems, see Bright & Keenan, supra note 145, at 817-21.
233. Nevius v. Warden, 944 P.2d 858, 859 (1997), reh'g denied with opinion, 1998 WL
341017 (Nev. 1998).