Pro-Prosecution Judges: “Tough on Crime,” Soft on Strategy, Ripe for Disqualification

The U. S. justice system is rife with an overexposed, understudied avenger, the tough-on-crime judge. Under the pressure of elective systems, pro-prosecution judges announce that they are “tough on crime” and that their opponents are “soft on crime” to gain votes, and all judges are effectively forced either to adjudicate tough(er) on crime or risk losing office. This phenomenon has become engrained, albeit begrudgingly, in state court culture. The problem is that tough-on-crime judges are antithetical to the American concept of judge; these judges offend, in varying degrees, the three most commonly recognized judicial values: impartiality, integrity, and independence. The Supreme Court opinion in *Caperton v. A.T. Massey Coal Co.* has reinforced due process disqualification of apparently biased judges, arguably including tough-on-crime judges presiding over criminal cases. And, moreover, tough-on-crime judges seemingly stand opposed to the rules of judicial ethics and even ethics in general. For these reasons, they are ripe for disqualification in all criminal cases. This Article provides the first comprehensive study of the pro-prosecution judge and evaluates the systemic (e.g., public funding) and case-specific (e.g., disqualification) remedies to this perplexing phenomenon.