Buried in a little-noticed Feb. 22 decision by the Supreme Court is an illuminating statistic. It speaks volumes-although the Court pretended otherwise-about the incapacity of many elected state judges, in the current climate, to do justice to persons accused of (capital crimes.

"Alabama’s sentencing scheme has yielded some ostensibly surprising statistics," as Justice Sandra Day O’Connor delicately broached the matter in her majority opinion in Harris v. Alabama. "According to the Alabama Prison Project, there have been only 5 cases in which the [trial] judge rejected an advisory [Jury] verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life."

These numbers are more than "ostensibly surprising." They are stunning. Alabama’s trial judges override jury recommendations to spare the lives of convicted murderers almost 10 times as often as they override jury recommendations of death.

And it’s not just a one-state phenomenon. The same pattern holds in the other two states that allow elected judges to override jury sentences in death penalty cases-although it is especially pronounced in Alabama, perhaps because judges there have more discretion and face partisan elections every six years. In Florida, trial judges opted for death in 134, and life in only 51, of the 185 death penalty cases in which they overrode jury sentences between 1972 and. early 1992. In Indiana, the ratio was eight judicial overrides for death to four for life between 1980 and early 1994.

Why are elected judges dramatically more likely than juries to favor executions? After all, the same citizens who elect the judges sit on the juries- except that juries in capital cases, from which death penalty opponents have been systematically removed (for cause) by prosecutors, are likely to be less sympathetic to defendants than the typical voter.

Something seems backward. The lone dissenter in Harris, which upheld the broad discretion of Alabama’s trial judges to override advisory jury verdicts of life, offered an explanation:

"Not surprisingly," wrote Justice John Paul Stevens, "given the political pressures they face, judges are far more likely than juries to impose the death penalty…. [This results] in the execution of defendants whom the community would spare."

Stevens got to the heart of the matter when he explained why citizens sitting on criminal juries are both more merciful and more wise than those same citizens sitting in voting booths and the judges whom they elect:

Voting for a political candidate who vows to be "tough on crime" differs vastly from voting at the conclusion of an actual trial to condemn a specific individual to death. Jurors’ responsibilities terminate when their case ends; they answer only to their own consciences; they rarely have any concern about possible reprisals after their work is done. More importantly, they focus their attention on a particular case involving the fate of one fellow citizen, rather than on a generalized remedy for a global category of faceless violent criminals who, in the abstract, may appear unworthy of life. A jury verdict expresses a collective judgment that we may fairly presume to reflect the considered view of the community.

The considered view of the community is not, on the other hand, what influences judges in the 32 capital punishment states that have some form of judicial elections. They face "a political climate in which judges who covet higher office-or who merely wish to remain judges-most constantly profess their fealty to the death penalty," as Justice Stevens wrote. And more and more, they risk their jobs if they let constitutional rights get in the way.

In Texas, for example, after the Court of Criminal Appeals reversed the conviction in a brutal capital murder case, the voters in 1994 swept Judge Charles Campbell off the court, despite his credentials as a conservative former prosecutor with 12 years on the bench, and elected an obscure lawyer named Stephen Mansfield, who had been caught rampantly lying about his background.

Mansfield had misrepresented matters including his political experience (he had twice run for Congress), his criminal law experience (minimal), and his birthplace (Massachusetts, not Texas). These and other lies had been exposed in the press before the election. But all the voters seemed to care about was that Mansfield was a Republican non-incumbent who had vowed to uphold more death sentences.

In California, in a 1986 campaign focused on Chief Justice Rose Bird’s record of 61 reversal votes in 61 death cases, the voters ditched not only Bird but also two of her more sensible colleagues. And now the reconstituted California Supreme Court has gone to the opposite extreme, by affirming almost 97 percent of the death sentences it has reviewed in recent years, often in sloppy opinions that strain to find lower court errors harmless or to avoid finding error at all.

By comparison, life-tenured federal judges find constitutional error in fully 40 percent of habeas corpus appeals by death row prisoners, reversing convictions and sentences previously upheld by state trial and appellate courts. "It is remarkable," in the words of veteran death penalty defense lawyer Stephen Bright, "that with such a dismal track record, it would be seriously contended that the elected state court judges will enforce the Constitution in such controversial cases."

Bright, director of the Southern Center for Human Rights in Atlanta, makes this and other telling points in "Judges and the Politics of Death: Deciding Between the Bill of rights and the Next Election in Capital Cases," an article in the current issue of the Boston University Law Review. The article was co-written by Patrick Keenan, a 1995 graduate of Yale Law School.

"When presiding over a highly publicized capital case," Bright and Keenan stress, "a judge who declines to hand down a sentence of death, or who insists on upholding the Bill of Rights, may thereby sign his political death warrant."

As their article details, elected trial judges very rarely grant even the most meritorious motions to suppress evidence, to change venue, or to protect other constitutional rights of the accused. In many states, they "routinely dispose of complex legal and factual issues in capital postconviction proceedings by adopting ‘orders’ ghostwritten by state attorneys general" and they "have failed miserably to enforce the most fundamental right of all, the Sixth Amendment right to counsel, in capital cases," by appointing "inexperienced, uncaring, incompetent, or inadequately compensated attorneys."

The political potency of capital punishment has long been evident on the campaign trial: Governors trumpet their alacrity in signing death warrants. U.S. Senate candidates trash incumbents for any votes to elevate judges who have reversed death sentences. President Bill Clinton, having jazzed up his 1992 campaign by scheduling the execution of a brain-damaged killer, now in ads seeking re-election boasts of expanding the death penalty.

But the focus on judicial elections is a fairly new phenomenon. Until the Bird rout in California, judges rarely had to be concerned about losing their jobs as a result of being tarred as soft on crime. Now they have to worry big time-not only those who (like Bird) really are crime-coddling liberals, but any judge who has ever ruled in favor of a defendant accused of a notorious crime, on any issue, no matter how clearly the result was required by law.

The successful challengers are likely to be prosecutors who come to prominence by clamoring for death in highly publicized murder cases. One flamboyant example of the prosecutor-on-the-bench mind-set is Harris County District Judge William Harmon, who in one case fold the defendant that he was doing "God’s work" in trying to get him executed and trashed the (then) judges of the Texas Court of Criminal Appeals as "liberal bastards" and "idiots." We also have the spectacle of state judges asking to be assigned to criminal cases in hopes of getting their names in the press as elections approach, and of campaign advertisements like this one for Alabama Circuit Judge Mike McCormick: "Some complain that he’s too tough on criminals, AND HE IS …We need him now more than ever."

The due process clause enjoins judges to "hold the balance nice, clear and true between the state and the accused," as the Supreme Court put it in Tumey v. Ohio (1927). And the American Bar Association’s Model Code of Judicial Conduct asserts that judges "should not be swayed by … public clamor or fear of criticism," and that those seeking election as judges should not "make statements that commit or appear to commit the candidate with respect to … issues that are likely to come before the court."

But despite such rules, all too many elected state judges act as prosecutors on the bench. There is little immediate hope for remedying this bias. Getting rid of judicial elections would make sense. But there is no broad move toward merit selection on the horizon. More vigorous federal habeas review would make sense. But the great writ is instead being eviscerated by the Supreme Court, with Congress preparing the coup de grace.

Perhaps, at least, the Court could bring itself to acknowledge the reality staring it in the face. As retired Justice William Brennan Jr. put it in Stone v. Powell (1976), in a dissent that rings even truer now than it did then, there is "a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States."