On Feb. 28, 1991, 17-year-old Robert Saleem Holbrook sat before a judge in a Philadelphia courtroom waiting to learn if he would spend the rest of his life behind bars.
Thirteen months earlier, on the night of his 16th birthday, Holbrook had served as a lookout for a drug deal gone wrong that ended in the murder of one of the participants. Despite never laying a hand on the victim, Holbrook was charged with first-degree murder, a capital offense in Pennsylvania. Facing the death sentence, he entered a plea deal for general murder, hoping that the judge overseeing his case would settle on a third-degree murder charge, which carried a penalty of 10-20 years in prison. Instead, claiming that his hands were tied by mandatory sentencing guidelines, the judge found Holbrook guilty of murder in the first degree. Under Pennsylvania law, the conviction carried a punishment of life in prison without the possibility of parole.
Thirty years later, Holbrook is, to use the lingo of the criminal justice system, “decarcerated,” thanks to a 2012 decision by the United States Supreme Court that found that life sentences without the possibility of parole for minors violated the Eighth Amendment. Although Holbrook’s days as an inmate are behind him, the lessons he learned while sitting in the courtroom as a 17-year-old criminal defendant are still very much with him. One particular insight has stuck with him: The judges who preside over America’s courtrooms are as much participants in contested political battles as they are executors of blind justice.
“What I saw in the courtroom, and what many other people like me saw — we don’t see justice in courtrooms. We see politics being expressed in the courtroom,” Holbrook said. “The judge in my courtroom — as a juvenile facing the death sentence for being a lookout to a drug-related homicide that I didn’t see, or even have any idea that was going to happen — he was not pursuing justice. In my case, he was pursuing politics. … It was politics that had me sitting in that courtroom facing the death sentence at the age of 16.”
Now the executive director of the Straight Ahead, the political action wing of the Abolitionist Law Center in Philadelphia, Holbrook has decided that if judges cannot be arbiters of pure justice, they can at least be representatives of a new type of politics — one that is more attuned to the injustices of America’s criminal justice system. And Holbrook is not alone. In a handful of cities around the country, criminal justice reformers are organizing to get reform-minded judges elected to local benches, setting in motion a movement to “flip the bench” in favor of more progressive judges. At a moment when politicians at the national level are cautiously backing away from more aggressive proposals to reform the nation’s criminal justice system, the movement to flip the bench offers an alternative forward path for reform — albeit one that most challenges the left’s conventional view of elected judges as instruments of tough-on-crime policies.
Holbrook and his fellow reformers face an uphill battle. In the vast majority of counties around the country, tough-on-crime messaging continues to dominate judicial races, and voters remain largely in the dark about the function and responsibilities of their local magistrates — let alone the role that progressive judges could play in a broader criminal justice reform agenda. On top of that, reformers are having to contend with the complexity of the different systems that states and local counties use to select judges, a dynamic that makes it difficult to scale grassroot movements up beyond the local level.
Yet despite these less-than-optimal political circumstances, the movement has shown some early signs of success. In early 2021, Holbrook’s organization formed a coalition with four other criminal justice reform groups to endorse a slate of eight candidates running in the Democratic primary for spots on the court of common pleas in Allegheny County, the county in western Pennsylvania that includes Pittsburgh. In the May primary election, five of the coalition’s candidates won. In neighboring Philadelphia, the criminal justice reform group Reclaim Philadelphia put forward its own slate of eight candidates for their county’s court of common pleas, seven of whom won. Both counties lean heavily Democratic, and the reformist candidates are expected to prevail in the November general elections.
These recent results out of Pennsylvania bolstered a broader movement for judicial reform that has picked up momentum over the past three years. In 2018, activists in Harris County, Texas, successfully unseated 59 Republican judges and replaced them with a slew of more reform-friendly candidates, including at least one self-proclaimed democratic socialist. Since then, activists in a growing number of counties around the country have repeated their success. In Clarke County, Nevada, which includes Las Vegas, seven former public defenders won seats on local benches in 2020. Judicial candidates with similarly progressive credentials also secured seats in New Orleans and Cincinnati.
The judges come from different professional backgrounds — many previously worked as public defenders or as civil rights attorneys — and they have not rallied behind a unified platform or a clearly-defined judicial philosophy. Yet they share a common goal: to use the discretion that is afforded to judges to remake America’s justice system from the inside out. To Holbrook, their effort is symbolic as well as pragmatic.
“In America, the courtroom is the ultimate expression of law, because it is the courtroom that takes you into the carceral state and that leads you into the prison,” Holbrook said. “It is an area that must be contested as hard as any other area.”
Unless you’ve spent a significant amount of time in a trial courtroom, your understanding of judges’ power likely remains little more than a vague set of impressions drawn from episodes of “Judge Judy” and “Law & Order.” But for those who have spent time in a courtroom — especially as a criminal defendant — that power is all too real.
“The thing with judges’ power — it’s like oxygen, right? You’re not really conscious of oxygen until you’re deprived of it,” Holbrook said. “And with judges, you’re not conscious of their power until you’re in their courtroom or you see them obstructing your interest through the judicial system.”
When it comes to many criminal proceedings, it is not an exaggeration to say that judges’ decisions can be a matter of life and death. In some jurisdictions, state legislatures have adopted mandatory minimum sentencing guidelines and other provisions to constrain judges’ discretion. But in many cases, judges are afforded fairly broad discretion to apply a state’s rules of criminal procedure, rules of evidence, and sentencing guidelines. In practice, that means that judges frequently have the power to decide whether a defendant is held on pre-trial bail, what sort of plea bargain prosecutors can negotiate between defendants and victims, what the ultimate terms of a sentencing agreement look like, and how long a person must remain on parole or probation after serving his sentence. In family and housing courts, judges can steer cases toward less punitive outcomes by opting against lengthy probation periods for minors convicted of nonviolent offenses, for example, or by granting more lenient stays in eviction disputes between tenants and landlords.
In part because of the wide array of judge’s responsibilities, Americans have never agreed on the best way to select judges to the bench, and our collective indecision is reflected in the complex patchwork of state laws that govern judicial selection. Although public debates surrounding the optimal method of judicial selection tend to divide the approaches into two distinct categories — those that rely on popular election versus those that rely on some sort of appointment — the reality of judicial selection defies simple categorization.
In practice, most states deploy hybrid models that mix and match different selection methodologies, often depending on the type of court in question. In Kansas, for example, some judicial districts empower a commission to appoint judges to the district court — a system known as “merit selection” — while others use partisan elections, where candidates are required to list their party affiliation. Meanwhile, judges on the Kansas Court of Appeal are appointed by the governor, confirmed by the state senate, and then subject to face a yes-no retention election after one year — at which point they are allowed to serve a four-year term before facing another retention election. In the case of the state Supreme Court, Kansas uses a commission-based appointment without legislative confirmation, followed by retention elections. By contrast, Alabama selects all state judges across all levels of the judiciary through partisan elections. Multiply this complexity across all fifty states and the truly byzantine nature of judicial selection in America begins to come into focus.
Notwithstanding this complexity, nearly all state judges face some sort of electoral scrutiny. According to a 2015 study by the Brennan Center, roughly 87 percent of judges will face at least one election during their careers on the bench. The nature of this scrutiny varies from race to race — some judges run in hotly-contested partisan elections, while others merely face up-down retention votes — but historically, one dynamic has united most judicial elections: They favor hard-line, tough-on-crime candidates.
“Tough on crime messaging has been overwhelmingly the dominant message in judicial elections across the country,” said Alicia Bannon, the managing director of the Democracy Program at the Brennan Center for Justice. “That’s true both in terms of professional backgrounds, where it is very unusual, for example, to see judges come from public defender backgrounds or civil rights backgrounds, as well as in the kind of messaging you see in campaigns, where it’s so much more common for judicial candidates to be targeted [for being] soft on crime and praised as tough on crime.”
Elected judges’ reputation for stringency has historically inspired a deep-seated skepticism of judicial elections among progressives, for whom the mere mention of an elected judge conjures up visions of Wild West hanging judges and Hollywood hard-liners. As a result, reformers have traditionally not contested these elections, assuming they would favor tough-on-crime candidates by default.
“Among people who were involved in criminal justice reform, decarceration, or even abolition, the prosecutor’s office and the judicial elections were traditionally viewed as areas that we just weren’t going to contest,” Holbrook said.
However, that reflexive skepticism has begun to erode in the past three years, as criminal justice reformers have begun to grapple with the implications — and the limitations — of their movement’s success. In particular, activists are learning from the early experiences of progressive prosecutors including Larry Krasner in Philadelphia, Chesa Boudin in San Francisco, Kim Foxx in Chicago and Rachael Rollins in Boston, all of whom have assumed office since 2017. Now in power, many of these prosecutors are being met with fierce resistance from local judges, who object either to the substance or the method of their reforms. In Philadelphia, for example, local judges have repeatedly stymied Krasner’s efforts to reform the city’s parole and probation systems, arguing that Krasner’s reforms prioritize the needs of criminals over those of victims and the public.
“We are seeing that when you elect someone like Krasner, then immediately the judiciary starts pushing back against him,” said John Pfaff, a professor of law at Fordham University who studies the role of prosecutorial discretion in driving high prison populations. “Historically speaking, judges seem to be fairly deferential to prosecutors … but that in some way reflects the fact that those judges were former prosecutors for the same office that was still asking for bail, and therefore had a fair amount in common ideologically. When you change who the D.A. is, it’s become clear that judges will resist.”
Reform-minded prosecutors have run into resistance from the bench on a slew of other issues, as well. Local judges have also refused to sign off on more lenient plea deals and resentencing bargains that progressive prosecutors have negotiated, declined requests for retrials in cases of past prosecutorial misconduct, and even stood in the way of prosecutors’ efforts to dismiss low-level nonviolent charges during the height of the COVID-19 pandemic.
The response to such forceful judicial pushback, reformers have realized, is not to fall back on conventional left-wing criticism of elected judges, or even to advocate for more judicial appointments. The more expedient approach is simple: begin seriously contesting judicial elections.
“We had the whole [movement] around progressive D.A.s that took off after Larry Krasner’s campaign back in 2017, because there are more cities where people have realized, ‘Hey, wait, we can do this,’” Holbrook said. “And when it comes to what can be done with district races across the country in places where you can elect the judge, I think it’s also [the case], too. People are just saying, ‘Wait, we can also have an effect on this — we should be involved in this.’”
Encouraged by their recent victories in Pennsylvania, Nevada, New Orleans and Ohio, judicial reformers are hoping to translate these early wins into a broader movement to flip state and local benches around the country. As a model for the future of the movement, they look to the way that Krasner’s victory in 2017 inspired reformers around the country to rally behind other progressive prosecutors — which is not surprising, given that many of the same activists who are organizing around judicial elections are the same ones who helped orchestrate Krasner’s victory four years ago.
“I think we’re at the beginning of a wave, just like 2017 was the beginning of the wave of progressive prosecutor reform,” said Amanda McIllmurray, the political director of Reclaim Philadelphia. “I think this cycle is really the beginning of a progressive judicial reform.”
But whether these early ripples of reform can grow into a full-blown wave will depend on how reformers navigate a complex matrix of political dynamics surrounding judicial elections.
For one, judicial elections tend to be what political scientists call “low-information, low-visibility” elections — in other words, voters tend to know next to nothing about the judicial candidates they’re asked to vote for.
“I’m a law professor who takes voting for judges very, very seriously, and I struggle to learn anything about these judges beyond, at best, where they went to law school and what their job was before they became a judge,” said Pfaff, who noted that even local outlets don’t tend to publish detailed information on judicial candidates during busy during election cycles. “Even if you want to be a high-information voter, you can’t be, outside of sending emails to each individual judge to find out what they think.”
Facing the dearth of public information about judicial candidates, organizers are devising novel ways to collect and disseminate information to voters. In 2018, for example, a coalition of criminal justice reform groups based in Philadelphia joined forces to organize the Judge Accountability Table, an organization dedicated to educating Philadelphians about candidates in the city’s judicial races. Ahead of the Democratic primaries this past year, the group held a series of virtual public forums with candidates running for the city’s municipal and common pleas court and invited candidates to answer a public questionnaire about their judicial philosophy and approach to key issues facing the judiciary. The questionnaire included questions such as, “Do you feel that implicit bias plays a role in our courts? If so, how do you think it should be addressed?” and “What role should judges play in making courts more transparent and accessible to members of the community? What will you commit to do if elected judge?”
“One of the largest parts of this work is educating people [about] who these candidates are — not just telling them who to vote for, but educating them on how to vote based on their values and if their values are aligning with these individuals who are running,” said Brandi Fisher, the president of the Alliance for Police Accountability and one of the main organizers behind the Slate of Eight campaign in Allegheny County. “People are ready to make more informed decisions, but with these judicial races, you can’t just expect everyone to be aware of who these people are when they decide to run, or even what their job is.”
But changing voters’ ingrained indifference toward judicial elections requires regular and sustained engagement, not just election-year canvassing — a difficult task for even the most organized local activist groups.
“This work is all year round, not election per election,” Fisher said. “You have to keep people engaged all year round, and you have to keep people educated all year round.”
Activists are also having to contend with skepticism from would-be judicial candidates. Many attractive candidates are current or past public defenders who have spent the majority of their careers facing off with judges, and few even considered that their careers could lead them to the other side of the bench.
“Running for judge one day is not something talked about between people who are public defenders,” said Katia Perez, an organizer with Reclaim Philadelphia and the lead coordinator of the Judge Accountability Table. “Most people that run for judge have either been folks that have been in the private sector, and maybe they made a lot of money and this was like a seat they can get, or they have worked as prosecutors before or in the D.A.’s office. So it’s difficult [to recruit candidates] because it doesn’t really seem to be a career path that’s established within circles of public defenders.”
To overcome these deficits, reformers have been working to win the backing of local Democratic Party organizations, whose endorsements have historically been the decisive factor in partisan judicial elections. In some cities, the party has endorsed reformist candidates even without significant pressure from activist groups, part of the party’s broader shift to the left on criminal justice reform issues. But in large cities such as Philadelphia and New Orleans that have long been run by entrenched political machines, winning over local Democratic Party organizations hasn’t been easy.
“There’s definitely been pushback from the Democratic establishment,” Perez said. “There is a lot of [pressure] to continue to do politics the same way they’ve been done in Philly … but the problem with that is that the system prioritizes ‘How many favors have been done?’ and ‘When do I get my payback for the favors that I’ve done?’”
There are some preliminary signs that activists have been able to counteract the influence of local Democratic Party organizations where they have not been able to benefit from it. During the Democratic primary for the court of common pleas in Philadelphia, for example, all six candidates endorsed by both the Democratic City Council and Reclaim Philadelphia advanced to the general election, in addition to one candidate who was endorsed only by the DCC and one candidate who was endorsed only by Reclaim. But more notably, the only candidate endorsed by Reclaim who didn’t advance to the general election, the former public defender Caroline Turner, beat out the party-backed incumbent Mark Moore by about 8,500 votes, suggesting that reformers successfully convinced voters to support their preferred candidates over the candidates endorsed by the DCC.
Finally, there is the stubborn fact that tough-on-crime rhetoric continues to play extremely well in the vast majority of judicial elections outside of major metropolitan areas. The solution, Pfaff says, is for reformers to focus their attention on specific counties that are demographically predisposed to support criminal justice reform.
“[The places] where we have our most progressive D.A.s are not just a random collection of more liberal cities,” Pfaff said. “They’re almost all elected in liberal cities where the city and the county are the exact same jurisdiction” — cities such as San Francisco, where the city is coterminous with the county, or Boston, where the population of urban Boston makes up over 85 percent of the total population of Suffolk County. The key, Pfaff explained, is that this quirk of geography effectively neutralizes the electoral influence of suburban voters, who tend to support tough-on-crime candidates over their more reform-minded challengers.
Although this dynamic automatically limits the possible scope of a broader judicial reform movement, it also presents a potential strategic benefit: Reformers can concentrate their efforts on the areas where they are most likely to find receptive voters. And fortunately for reformers, these areas tend to have relatively high rates of crime, and therefore account for a disproportionately high percentage of criminal cases that wind up in courts.
“Crime is really, really concentrated, and therefore the costs of both punishment and the cost of good or bad responses to crime are all born in very geographically dense places … and those places we see came to be the areas that most favor reform,” Pfaff said. “[People from these areas] understand that tough-on-crime [policy] doesn’t work well, because it’s their families that are being needlessly arrested and detained in harmful kinds of ways.”
Ultimately, Holbrook said, the success of the movement will have to be measured not only by its scope but also by the longevity of its impact.
“The next step is to realize that what we’re trying to build are legacy prosecutors and legacy judges that will last the next 20, 30 or 40 years,” Holbrook said. “We want to build legacies.”