Fulfilling the lofty ideals of a just law enforcement and judicial system that treats people fairly and equally, that is firm but not overly harsh, efficient but adequately resourced, and independent yet accountable, is a daunting challenge. Meeting these challenges is especially difficult in Texas because of the state's unique constellation of institutions and political culture and their interaction with broader social transformations in the state.
Perhaps the most critical challenges to achieving both a secure and just society in Texas are the contradictions created between the broad reliance on democratic elections to fill positions in judicial and law enforcement institutions and the generally weak and improvisational nature of these institutions.
Texans are asked to select officials for every office from county Sheriff all the way up to the state Attorney General and the Texas Supreme Court. The system fundamentally requires an active and informed citizenry. Yet, the sprawling growth of the system of justice over the decades has made this requirement increasingly difficult to meet. Worse, the patchwork nature of this institutional growth, particularly in the judiciary, compounds the difficulties citizens face in fulfilling their critical role. The result is that we rely on a method for selecting justice system officials that is democratic in spirit but often less inclusive in practice.
The reliance on popular elections to fill most of the senior law enforcement ranks on the local and state levels and virtually all of the judicial positions in the court system creates considerable potential for miscarriages of justice, inefficient use of public resources and inappropriate influence of powerful economic interests. Running for elected office in law enforcement and the judiciary often involves appealing to - and exacerbating - public fears related to crime and security. No candidate for public office in law enforcement or the judiciary, particularly in Texas, wants to go on the record as saying we need to be less tough on crime, or that crime isn't such a big problem, even if crime rates are declining.
Running for elected office also requires raising campaign funds through political contributions. In general, the higher the office, the more money is needed to run a successful campaign. So candidates for Texas District courts and Courts of Appeals, and the statewide offices of the Texas Supreme Court, Texas Court of Criminal Appeals, and Texas Attorney General, are especially dependent on big-money contributors. In most cases, such contributions play no role in the actions and decision-making of elected officials. However, there is some evidence that private campaign finance in judicial elections has influenced judicial decisions and outcomes.
The state has begun to see some moderation of the trends that encouraged many of the excesses of the 1980s and 1990s. Overall, crime rates are falling in Texas and across the country. In the area of law enforcement and criminal corrections, the public has become less concerned with crime, partly as a result of falling crime rates and partly because other issues like education have surged in importance. Increasing numbers of voters, elected officials and policy experts have come to recognize that long sentences in high security prisons are extremely expensive. Meanwhile, the fallout from high profile cases of injustice like the drug arrests in Tulia have eased some of the aggressiveness of local law enforcement.
In the area of campaign finance in judicial elections two trends may have an impact. First, the dominance over all the statewide and many local judicial posts achieved by Republicans in the past decade may have the effect of reducing the intensity of partisan competition for these posts. As a result, officeholders may feel somewhat greater independence from their campaign contributors.
More broadly, we have witnessed a much more vigorous and public debate in Texas over the best method for selecting our judges. This debate may not lead to substantial change in judicial selection procedures, but at least it calls attention to judicial institutions and behavior. In turn, these debates invite citizens to be more engaged in the dynamics and challenges confronted by the state's justice system.
Together, these trends provide new opportunities for rebalancing our justice system. Our institutions do indeed respond to public opinion and citizen action, but only imperfectly. The design of judicial institutions places a continuing and substantial burden on Texans to know the law, understand the organization and procedures of the justice system, and exercise their right to hold elected officials accountable through elections.