The People v. Judge Persky
The effort to recall a California judge is more complicated than it first appears.
If the name of Judge Aaron Persky doesn’t ring a bell for you, the name of Brock Turner might. Turner was convicted of sexually assaulting a woman behind a dumpster on the campus of Stanford University, and was only stopped after two passersby saw him and intervened. The case received international attention, but the reason the controversy has continued is primarily due to the sentence that Judge Persky handed down: a mere 6 months in county jail. The ensuing outrage sparked an initiative to have Judge Persky recalled from office, and the recall vote will be on the ballot for June 2018.
This recall vote comes at a unique time, which is one of the reasons why I was drawn to learn more about it. As a supporter of both the #MeToo movement and the criminal justice reform movement, what on earth am I supposed to think about a judge who gives a short sentence for a violent sexual assault? Are these two causes in conflict here? Of equal importance, what are the larger implications if the recall vote succeeds?
To answer these questions, I want to first look at the underlying case itself. We’ll then take a quick detour into judicial discipline in California before diving back into the specific arguments both for and against the recall of Judge Persky, and what they could mean over the long term. American law is built on precedent — in other words, decisions made in the past can and do impact decisions made in the future.
Whichever side you end up on, this is about much more than one judge and one case.
A quick refresher on the Brock Turner case
In March 2016, Brock Turner was convicted on 3 counts of sexual assault. In any type of criminal case, there are a lot of steps between the actual criminal act occurring, and the resulting punishment. First, a prosecutor must decide whether or not the evidence can prove beyond a reasonable doubt that (a) a crime occurred and (b) the person being charged actually committed the crime. This is what makes sexual assault cases a lot trickier to handle in our legal system than, say, homicide. The act of killing someone is unambiguous: either they’re dead, or they’re not. The difference between rape and non-criminal sex is consent: the act itself doesn’t change, so the prosecutor typically has to rely on more circumstantial evidence to prove their case.
Here, though, the facts were clear enough that a 12-member jury unanimously convicted Brock Turner. Once a defendant has been convicted of a crime, the case goes back to the judge for sentencing (in general, juries don’t decide the punishment for a crime unless the death penalty is involved). How does a judge decide the sentence? Well, there are a few factors are involved.
First, there may be mandatory sentences: that is, the legislature decided that if you violate Law X, you will receive Punishment Y. No exceptions.
Second, there may be sentencing ranges: these typically prescribe the maximum punishment (and sometimes the minimum punishment) for a particular statutory violation. These typically read something like “a person who commits a violation of this law shall be sentenced to not less than 6 months and not more than 6 years in prison.” Under California sentencing laws, judges may sentence someone to parole instead of prison, even if the text of the statute says the punishment is X number of years in prison.
Given that there’s a certain amount of discretion granted to judges, the local Probation Department will generally write up a sentencing recommendation that factors in the nature of the crime, the specific circumstances of the case, and so forth. The judge isn’t required to to follow this recommendation, however.
In this case, the Santa Clara County Probation Department recommended a short period of time in the county jail, and a period of probation. Ultimately, Judge Persky followed the department’s recommendations (rather than the 6 years in prison requested by the prosecutor) and sentenced Turner to 6 months in county jail, plus 3 years of probation, random alcohol testing, and registration as a sex offender.
In other words, while people can disagree about whether the sentence was appropriate, there’s no question that it was legal. Judge Persky didn’t bypass the law or create an exception for Turner — he acted precisely within the boundaries of what the law allows.
A theory of justice
Why are judges given such a wide latitude to determine sentences? Wouldn’t it be more fair and just if everyone was automatically given the same punishment for a violation of the law? Maybe, and maybe not — it depends on how you define “justice.” Our system of laws (generally) tries to punish people in proportion to their moral culpability. As a simple example of that, the sentence for murder (intentionally killing someone else) is a lot harsher than the sentence for manslaughter (unintentionally killing someone else). We want to punish people based on their intentions.
Secondly, there’s the question of why we punish people in the first place. Is it to specifically deter that one person from committing a crime in the future? Is it to generally deter everyone from committing that crime? Do we just want to punish people in proportion to the pain they’ve caused (an eye for an eye, the “retributive” theory of justice), or do we want to try to make them better people who can be productive members of society in the future (the “utilitarian” theory of justice)?
There’s no right answer to this, of course. Most people will lean more towards one end of the spectrum or the other, and that will influence what you think the correct punishment should be. Typically, conservatives favor retributive/general deterrence models, while progressives favor utilitarian/specific deterrence models.
Do we automatically want to give out harsh penalties without considering individual circumstances? Personally, I don’t think so. That sort of mentality is what led to the creation of California’s 3-strikes sentencing law, and the disproportionate number of minorities serving life sentences for minor crimes like possession of marijuana.
The truth is, as usual, complicated
In researching the facts around Judge Persky’s recall (and I’ll link to everything I read so you can do it too, if you’d like), the one thing I kept running up against was this feeling of “yes, but…”
Is it true that Turner’s sentence was lighter than other sexual assault cases that Persky has presided over? Yes, but…
Is it true that the California Council on Judicial Performance, which cleared Judge Persky of wrongdoing, has an “F” grade for judicial accountability? Yes, but…
So I decided to walk through the main points put forward by the Recall Persky campaign to see how strongly the data supported them.
Judicial discipline in California
First, let’s talk about the Council on Judicial Performance. After Judge Persky handed down Brock Turner’s sentence, the council was flooded with ethics complaints, leading to an investigation and report by the CJP that ultimately found no wrongdoing on Judge Persky’s part. The recall campaign cited the CJP’s “record of protecting judges and lack of transparency” as a reason to initiate a recall vote vs. filing a formal complaint.
And this is where I started to become concerned about cherrypicked facts. While it’s absolutely true that the Center for Public Integrity gave California’s judiciary an overall “F” grade, it still awarded the state a 100/100 score for its judicial discipline process.
By the same token, when you look at the types of actions that get judges sanctioned, everything from “misuse of a court credit card” to “Bias/appearance of bias toward a particular class” have gotten judges disciplined. (In one instance, a judge was censured because he told a Hispanic public defender that he “loved her accent” and “wasn’t planning on having her deported.”)
After getting a flavor for the types of offenses that get judges disciplined, I tend to agree that the CJP isn’t the right venue for handling concerns about Judge Persky’s decision here. That said, it’s not because I think the CJP is corrupt, just that we can’t really address “privilege bias” — the primary complaint of the recall campaign — through our existing judicial discipline process.
Is Judge Persky really bad enough to recall?
If Judge Persky had said “I’m sentencing Brock Turner to 6 months in jail because he comes from a respectable white family,” this would be a pretty cut-and-dried case. But that’s really not what happened. If Judge Persky had a long-running history of giving minority defendants the maximum possible sentence (regardless of Probation Department recommendations) and white defendants the minimum possible sentence, that would also be a clear example of bias. But we also don’t see that here either.
In a review of Judge Persky’s other cases, the Associated Press found plenty of examples of lenient sentences for minorities, strict sentences for white defendants, and a general pattern of Persky following the Probation Department’s recommendations.
You can disagree with Judge Persky’s decision, but I believe his words deserve consideration: “As a prosecutor, I fought vigorously for victims. As a judge, my role is to consider both sides. California law requires every judge to consider rehabilitation and probation for first-time offenders. It’s not always popular, but it’s the law, and I took an oath to follow it without regard to public opinion.”
At the end of the day, what I see is a judge who is generally pushing in a direction of leniency, not “throwing the book” at defendants, and in general evoking a utilitarian theory of justice. Maybe you look at those same facts and come down on the opposite side, but hopefully you’ll at least concede that it’s not as black and white as a single “yes/no” recall vote.
What are the implications of a recall vote succeeding?
As I said at the beginning of this post, a recall vote isn’t just about one judge in one case. Recalling Judge Persky sends a message to the rest of the California judiciary that “we need to be harsher in our sentencing in general.”
To me, this feels like a very blunt and un-nuanced way to address a highly complex and nuanced issue. If we don’t like what the law allows, we should change the law — and in fact, legislators have already started doing that in response to this case.
Popular override of judicial rule can swing both ways, too. Let’s not forget the sham “justice” that was dispensed to black defendants in the American south not too long ago. For every case where we might want a judge to give a longer sentence, I’m confident we can find another where we think it’s ridiculous that someone would be convicted of laughing at Jeff Sessions. Do we really want that judge to feel like they have to give a democratic protester the maximum possible sentence?
Some additional thoughts and questions
Socioeconomic inequality in sentencing: When the Probation Department assesses the risk and sentencing of a particular offender, one of the things they take into account are the community resources and family support that a defendant has available to them. It’s pretty easy to see how systematic bias would creep into sentencing here. Obviously a Stanford student from a well-to-do family will have more support and resources than an indigent homeless person. And we know that, due to socioeconomic inequality, that Stanford student is more likely to be white. So the real question (which I don’t have an answer to) is, how do we address that issue more generally?
US sentencing is pretty harsh already, too: When we look at prison sentences and how harsh they’ve gotten (in no small part due to the War on Drugs), we sometimes forget that the US has significantly longer sentences and higher incarceration rates than just about any other country in the developed world already. And let’s not forget that that the time spent in prison is often just the start of a lifetime of punishment — for a registered sex offender and convicted felon, Brock Turner will have difficulty finding work (or even just existing in society) for the rest of his life. Do I say that to generate sympathy for him? Certainly not. I just raise the point to say that, whether he’s in jail or not, he’s going to have to live with the stigma for the years to come. Again, it’s one of those things that raises larger social questions like “given how difficult life is for anyone getting out of jail, regardless of the nature of the offense, how should we be thinking about sentencing?
Where can I learn more?
I don’t think I’ve more than scratched the surface with this blog post — this case highlights the complicated interactions between criminal justice reform and addressing rape culture. Not all of the underlying social issues can be addressed by the law, and our legal system is woefully unequipped to handle sexual assault cases. So I’ve put together all the source documents and articles I used here: http://notes.mattmuller.info/post/172220787231/notes-from-the-people-v-judge-persky-on-medium
