Recalling Judge Persky is horrible for criminal justice

Every criminal law and justice person I follow on twitter is in accord that recalling the California judge who sentenced Brock Turner is just plain horrible for our criminal justice system.  Public Defender, Rachel Marshall, with a great essay in Vox nicely explaining why:

Many people were outraged by the light sentence given to Brock Turner, the former Stanford swimmer, after his sexual assault conviction: a mere six months (of which he served three). The sentence inspired a national debate. On Tuesday, voters in Santa Clara County voted to recall Judge Aaron Persky, who imposed that sentence.

That is a terrible mistake, whether or not you agree with the sentence.

This was the first successful recall in California in almost 90 years. Though the recall only involved one judge, its impact will be felt nationwide.

It sends a dangerous message to judges everywhere: If we don’t like one decision you make, you’re out. That represents a terrible threat to judicial independence and highlights the problems with electing judges — or subjecting appointed judges to reelection. They need the protection to think independently, even if they sometimes make decisions we don’t like. [emphases mine]

I am not arguing that Turner’s sentence was the right one. Indeed, as a public defender, I am all too aware of the racial and class disparities in sentencing that redounded to Turner’s benefit. I have previously written about the ways privileged criminal defendants often are rewarded precisely because of their privileges. (One need look no further than Harvey Weinstein, who easily posted bail and did not spend a day in jail after his arrest.) But allowing an uninformed public to punish a judge for one unpopular decision jeopardizes the integrity of our entire system.

Long before this week’s vote, the recall campaign’s impact had been felt in courtrooms across the country, where judges became increasingly cautious about exercising discretion, worried that they might be punished for leniency. In my work as a public defender in Oakland, California, I have observed how the recall effort has changed judges, whether consciously or not, making them more timid about taking risks on defendants who deserve mercy…

I have also heard stories from other lawyers. One told me that after earning an acquittal for a young client with no criminal record, he was told by the judge how relieved he was by the decision, which meant the judge would not have to sentence him. The judge clearly felt the young man did not deserve a harsh sentence, had he been convicted, but he was worried about creating a “Brock Turner problem” for himself, he said.

Given that the criminal justice system disproportionately targets and prosecutes the poor and people of color, the ones who suffer from judges feeling pressured to sentence harshly are not people with privilege like Turner, but those without privilege.

Judges have always had more incentives to punish harshly than leniently, and elections only increase these pressures.Brennan Center for Justice study found that when judges are approaching reelection, they are more likely to impose harsher penalties. This is common sense, given that judges who have sentenced a defendant harshly rarely make the news.

That is no small thing; in this country, we have an epidemic of wrongful convictions, yet never have I heard of a public outcry to recall or vote against a judge who presided over a case in which an innocent client was convicted or sentenced. In contrast, as we have just seen, a sentence perceived as too light not only will make headlines but could cost a judge his job.

Damn it.  More reason to lament the failure of American criminal justice.

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It’s Party Time

After three straight weeks of teaching every day for 2:45, I’m finally done my Maymester class and have more time to blog.  Whoo-hoo.

But, actually, I’m referring to the important role that Parties played in yesterday’s primaries.  As much as many on both sides like to knock them, parties play an essential role in structuring and making coherent democratic politics.  And, yes, sometimes this means encouraging some people not to run or to drop out of primaries so that the party can win those seats in November.  Here’s Nate Silver on the role of the Parties yesterday:

It’s important to remember, however, that even if the parties’ power over their voters has declined to some extent, they’re still extremely powerful institutions that get their way most of the time. [emphases mine] And in Tuesday’s primaries in California, New Jersey and six other states, the parties had a really good night.

That’s not to say that the parties pitched a perfect game. In the U.S. House primary in California’s 50th Congressional District, for example, the Democratic Congressional Campaign Committee’s preferred candidate, Josh Butner, projects to finish only in third or fourth place, behind Republican incumbent Duncan Hunter and another Democrat, Ammar Campa-Najjar. But by luck or design — undoubtedly a bit of both since there were a number of close calls — it looks as though Democrats may avoid having any districts in California where there are no Democrats on the November U.S. House ballot. (In California, the top two finishers advance to the general election regardless of political party, potentially leading to one of the parties being shut out of the November ballot.) That’s a real boon to the Democrats’ prospects in a state where at least nine Republican-held U.S. House seats are potentially in play…

The Republican establishment also had a good night, including the strong second-place finish for Cox in California. Cox got more of the vote than polls projected after receiving the endorsement of President Trump. Thus, California Republicans will avoid the potential turnout-depressing nightmare of having neither a gubernatorial nor U.S. Senate candidate on the ballot in November.

In Montana, the establishment-backed Matt Rosendale, the state auditor, won the Republican Senate nomination; he’ll face a slightly uphill but by no means unwinnable race against Democratic incumbent Jon Tester. And in South Dakota, the moderate Republican Dusty Johnson, a former chief of staff to Gov. Dennis Daugaard, won the Republican nomination for the at-large U.S. House seat; he’ll probably avoid putting the seat at risk against Democrat Tim Bjorkman, whereas a further-right nominee might have made things more interesting. These results come on the heels of last month’s primaries in West Virginia, which were another fairly successful night for the Republican establishment. Insurgent Don Blankenship finished in a distant third place behind state Attorney General Patrick Morrisey in the U.S. Senate primary.

Again, this is not to suggest that the political parties bat 1.000. Keep in mind, for instance, that there is currently a Democratic senator from Alabama because the state’s Republican Party could not figure out how to prevent its voters from backing an accused child molester, Roy Moore. But these cases are still more the exceptions than the rule, even if the exceptions have become more frequent.

Party on, dudes.

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