Six years ago, Paul Newby, a Supreme Court justice seeking reelection to the state’s highest court, became lodged in the public’s mind via a political action committee ad with a catchy banjo tune.
“Paul Newby. Justice tough but fair. Paul Newby. Criminals best beware,” the banjo player repeated with a twang.
Kitsch aside, the ad summed up what has been the traditional judicial campaign message: experience, firmness, and an even hand.
Not this year—at least in Durham. With elections coming up in November, judicial challengers are emphasizing their experience and pledging to be fair and hold people accountable. But they’re also talking about things like bail reform, diverting people from the courts to begin with, and helping people who do go through the system emerge productive and healthy.
Thomas Mills, a longtime political consultant whose father was a judge, says the ideological messaging is certainly “out of the mainstream” for a job typically associated with impartiality and restraint.
“Normally the topics are not issue-oriented,” he says. “They’re more about the personal character that people bring to the job, experience, integrity, fairness, impartiality—those types of things. I think it’s reflective of the times. We’ve created really what’s an activist society in some ways. There’s a desire for change in the way government works top to bottom, and the activists are on both sides of the aisle.”
Perry Woods, another local political consultant, isn’t surprised that such reform-minded candidates would come out of Durham.
“It’s not something they necessarily often do, but in this environment, it doesn’t necessarily surprise me,” he says, pointing to the rise of movements like Black Lives Matter.
Last year, legislators voted to again make races for District and Superior Court seats partisan. They also canceled judicial primaries over the objections of Democrats. District Court judges are elected to four-year terms, while Superior Court judges are in office for eight years.
The race for one Superior Court seat in Durham’s district—currently held by Elaine O’Neal, who isn’t seeking re-election after being named interim dean of N.C. Central’s law school—is contested. In that race, assistant district attorney Josephine Kerr Davis faces Dawn Baxton, senior assistant public defender for the county. Incumbents are unopposed for two other Superior Court seats. Chief Superior Court Judge Orlando Hudson is not up for reelection this year.
Six District Court seats are on the ballot, with incumbents unopposed in four of them. Clayton Jones, an assistant district attorney and former public defender, is taking on Chief District Court Judge James Hill, the only Republican out of the Durham candidates and a sixteen-year incumbent. Dave Hall, a civil rights attorney, is challenging Judge Fred Battaglia, who was elected in 2014. (Battaglia was in the spotlight earlier this year after acquitting three people accused of toppling a Confederate monument. He later suggested to members of the county Republican Party that the prosecution had dropped the ball.)
Their candidacies come after Durham voters elected an avowedly progressive city council made up of mostly women of color, a new sheriff pledging to cut ties with Immigration and Customs Enforcement and rebuild trust with communities of color, and a new district attorney who most recently ran an affordable housing advocacy organization and campaigned on many of the same values echoed by this crop of judicial candidates.
A Durham native, Davis has practiced law for more than fifteen years, including as an assistant public defender in Fayetteville and an assistant attorney general with the state Department of Justice. Through her work, she’s seen firsthand how “justice is rendered upon what you have.”
“As a mother of two children, two African-American boys, I don’t want them to have to deal with a system that’s based on chance and what type of opportunities they have,” she says. She realized she had become part of that “fragmented system” as an ADA by treating everyone equally, rather than accounting for their different circumstances.
Davis wants to bring her perspective as a black woman and working mother not only to the bench in Durham, but also to other counties where Superior Court judges rotate.
“What I recognize is there are mothers who are aching because they lost their son or daughter to violent offenses,” she says. “But also there are mothers who are aching because their sons are looking at twenty, twenty-five [years], maybe even life sentences.”
If elected, Davis says she would seek a revision of Durham County’s bond guidelines—which were written in 2011 by the chief Superior and District Court judges—in an effort to see secured bonds set for fewer nonviolent crimes. She would also like to set up a diversion court to deal solely with crimes driven by poverty.
“I don’t have a platform where I’m tough on crime,” she says. “I have a platform about accountability and mercy.”
Baxton grew up in the tiny coastal town of Roper, North Carolina. She knew from a young age—about thirteen—that she wanted to be an attorney. With few models around, she looked to Thurgood Marshall, the first African-American U.S. Supreme Court justice who as a lawyer helped undo Jim Crow.
Her ideas about what it means to be a “fair” judge are rooted in her experience being raised by grandparents with limited means, being a first-generation college graduate, and representing indigent clients.
“A lot of judges say they’re going to be fair, but they don’t tell you exactly what fair means to them. Fair for me always means being forthright,” she says. “Also for me, fair means making sure everybody has the same access to justice, because that’s the only way the system works.”
Baxton has worked as an assistant public defender in Durham County since 1999 and has been second to the chief defender since 2006. She says she and her colleagues at the public defender’s office have long seen bond as an issue of fairness for their clients.
“It’s important because, in order for them to actually realize their right to fair trial, they need the ability to be out and help their lawyer prepare a fair trial,” she says. “We understand the need to have a bond set that’s going to protect the community, but we also believe you’re innocent until proven guilty.”
Jones spent thirteen years with the public defender’s office in Durham before becoming an assistant district attorney in 2016. As a judge, he says he would be “proactive” in trying to reduce the burden of fines and fees on the accused.
“Fines, fees, and costs shouldn’t be a hindrance for working people who are trying to live their life and survive,” he says.
He would also like to see drug court and mental health court programs expanded—giving people more opportunities to avoid jail—more interpreters at the courthouse, and the bail system overhauled to assign secured bonds in fewer nonviolent cases.
“Depriving someone’s liberty should be the remedy of last resort,” he says. “It seems like, in the system we have now, we incarcerate first. We incarcerate over mental health issues. We incarcerate for substance abuse issues. We incarcerate if you don’t have money.”
Jones is taking on a longtime incumbent who has campaigned in the past with the tried-and-true message of impartiality. Jones says Durham’s judges can be more actively involved in achieving the kind of reform voters signaled they wanted in recent elections.
“I’m not saying everything has to be completely overhauled, but for me, I’ve seen inequalities I feel I could address better,” he says. “I think we could have a better bench going in the direction of change we in Durham have envisioned.”
Hall is the least conventional of the four challengers. Most recently, he was a civil rights attorney with the Southern Coalition for Social Justice, working on issues like bail reform, expungements, and racially disparate policing. That work has helped him understand the impact of courts on people’s lives. Now, he says, he wants to change the system from within.
“We certainly, in the election for DA, embraced a whole new set of values around criminal justice reform, and I think I certainly played a role in shaping the narrative of criminal justice reform in Durham,” he says.
His own ideas about safety evolved when, in 2013, he was struck by a stray bullet in a shootout on his street, and he started thinking about why those shots were fired in the first place.
“Safety for me looks like stopping punishing folks for having been through the system,” he says. “We have a societal addiction to punishment, and we need to have some culture shift around that mindset.”
To that end, Hall says as a judge he would look for opportunities to use restorative justice in sentencing and divert people from the system. He also believes the bail system is inequitable and needs to take into account what people can afford.
“A lot of damage can be done by District Court holding people in jail so that by the end of the month, when their rent is due, a two- or three-day dip could mean everything to somebody,” he says. “It could mean the loss of their work, their place to live, their children in some cases. The court needs to be flexible, and the court needs to understand what really happens in folks lives after they leave that courtroom.”