On witch hunts (in defence of Judge Persky)

Today, Brock Turner, the Stanford University swimmer convicted of multiple counts of sexual assault, was released from prison after serving three months of a six month sentence. 

Widespread outrage has been expressed over this early release, much in the same way that widespread outrage was expressed when the sentence was first handed down. This prompted Reid Hoffman, Silicon Valley entrepreneur and founder of LinkedIn, to post the following on Medium

From the post:

The low impact of this lenient sentence has been lowered even further because Turner is getting time off for good behavior. For casually assaulting a passed-out woman he’d crossed paths with at a party, Turner spent 92 days in jail.

This woefully unjust sentence sends a powerful message about how our culture systematically discounts and excuses sexual violence against women. To counteract that message, we must send equally powerful messages that signal our demand for reform.

That’s why I’m supporting a campaign on Crowdpac.com to recall Judge Aaron Persky and donating $25,000 to this cause.

Hoffman is by no means alone in this regard. It’s a noble cause… rather, at least it sounds noble in 140 characters. It’s a popular one too: one change.org petition, with 1.4 million signatures, calls on the state house to impeach Judge Persky – an effort which assumes that he has committed an impeachable offence (which, to my knowledge, he has not). 

But just because a position will get you a lot of retweets on Twitter, and is popular on the Internet, doesn’t make it right. 

Publicly shaming Turner is one thing. Going after the judge who sentenced him is quite another. Considering the facts, what is unfolding is starting to look a lot like a modern-day witch hunt. 

Lawyers must not be intimidated. It is in the interests of the administration of justice and the rule of law that practitioners everywhere speak up in defence of Judge Persky, instead of leaving him to be torn apart by a baying mob. 

Here’s why:

1. The main charge levelled by recall campaigners against Judge Persky is that he is biased

 2. But Judge Persky is respected by California’s criminal bar, who regard him as unbiased

fairly large chunk of California’s criminal bar – no less than 400 practitioners, including dozens of public defenders – has written in his defence.

From the AP:

“He is an absolutely solid and respected judge,” said Santa Clara County deputy public defender Gary Goodman. “Persky made the right decision.”

Barbara Muller, a criminal defense attorney who works two weeks a month in Persky’s court, says he “is definitely one of the fairest judges” in the county.

“He considers all facts and is very thorough,” Muller said. “He plays it right down the middle.”

Advantage: Persky.

3. Judge Persky is similarly respected by Californian legal academics, who also regard him as unbiased

Which 46 law professors from California felt the need to put in writing, in an open letter:

It is possible to imagine a sentence so patently lawless or corrupt, or proving a pattern of bias, that it justifies the conclusion that a judge is unfit. The question is whether this is such a sentence. Although the sentence may be lenient, there is nothing so far to establish that it is lawless, corrupt, or the product of a pattern of bias on the part of Judge Persky.

4. Judges in California, much as elsewhere, are given broad latitude to sentence within the boundaries of sentencing guidelines and practices – which Judge Persky followed

Criminal court judges are constrained by – and granted broad latitude to –  sentence a defendant within the guidelines set by the state.

If the guidelines are seen as too lenient, it is the state-houses or Parliament we should petition to stiffen them – not judges, whose independence should be vigorously protected from the whims of public opinion (my personal view is that judgeships should be appointments for life, not elected positions). 

As to whether Judge Persky fulfilled his legal duties and followed standard procedures, I’m not qualified in California (England and Wales, if you’re interested), so it wouldn’t be appropriate for me to opine on the issue.

However, according to a lot of people who are qualified to answer that question (43 law school professors and deans), apparently he did so to the letter:

The sentence departed downward because the judge followed the recommendation of the probation report. Reliance on the recommendation of a probation report is a standard practice in criminal sentencing, and an independent review of Judge Persky’s sentencing decisions conducted by the Associated Press reveals no evidence of a pattern of bias.

5. “Social Justice” is not “Criminal Justice” 

Lawyers know this. Most people don’t. So when I see Reid Hoffman say something like this:

As the Sacramento Bee noted in June 2016, Judge Persky promised citizens in 2002 that he would be “fair, honest, and dedicated to justice for all” if they elected him.

But in what way was he being dedicated to justice for the woman whom Turner assaulted, and sexual assault victims in general, when he clearly showed greater concern for Turner’s wellbeing than he did for the incident’s victim?

I see someone who does not understand why the criminal justice system exists. Hoffman adds:

If we truly want to create a legal system that brings justice to all — a system that recognizes that physically assaulting an unconscious human being is not some form of sexual shoplifting, a petty misdemeanor where a 90-day sentence is adequate — then we must not quietly excuse Judge Persky.

This view of criminal justice is too simplistic, as will be known by virtually every first-year law student anywhere in the world. 

Criminal justice is not “social justice.” Criminal justice should not be political, nor should it be about revenge. Nor is it merely a vehicle for punishment. 

The criminal justice system exists to prevent harm, an aim it achieves through a variety of methods and approaches – including deterrence, punishment, and rehabilitation. It is also about the prevention of recidivism, or re-offending. 

A key part of avoiding re-offending is staying out of prisons – because, as Michel Foucault put it,

The prison system cannot fail to produce delinquents.

The reasons for this are so obvious that they should not require restatement. Seeing as those hounding Judge Persky seem not to be aware of this, I will do so here: prison is not a cure-all. In many cases, it does more harm than good – and the longer a criminal remains in prison, the more likely it becomes that he will be irreversibly shaped by the experience into serial criminal who cannot be unmade.

Once formed, such a prisoner will invariably return to prison after committing further crimes and imposing great personal costs on new victims, as well as additional costs (both quantifiable and intangible) on the rest of society. 

My guess is that Judge Persky knows this, as well as that the notoriety of the case and the legal formalities surrounding Turner’s release mean that a punishment far more severe than any he can impose will be meted out on Turner for the rest of his natural life. Adding an extended custodial sentence adds little to the punishment while significantly decreasing the likelihood that Turner would be able to be a productive (and ideally harmless) member of society from this point onward.

He knows also, as we all do if we are willing to be honest with ourselves, that not all convicted felons are alike. A twenty-year-old who possesses the discipline to be a varsity athlete while also being clever enough to study electrical engineering at Stanford, with zero priors, despite his crimes, is someone who, among the many different defendants Judge Persky may have seen over the course of his career, stands a good chance (on the balance of probabilities) to be scared straight for the remainder of his time on this planet, on account of this one rather serious interaction with the judicial system.

This is what Judge Persky meant when he (in)famously ruled:

“A prison sentence would have a severe impact on him. I think he will not be a danger to others.”

The victim responded:

If a first-time offender from an underprivileged background was accused of three felonies and displayed no accountability for his actions other than drinking, what would his sentence be?

Following which the Internet went ballistic.

Without justification. The answer to her question, of course, is that the sentence would likely be exactly the same. Judge Persky applied the law in accordance with the sentencing guidelines and the recommendation of the probation report. Which, as leading law professors in California point out, is absolutely standard operating procedure. As far as I can tell from this vantage point, he treated this defendant exactly like he would have treated any other defendant. 

Criminal law deals with uncomfortable subject matter. So while this is an uncomfortable truth, it’s still the truth. 

Unfortunately, the truth has not stopped the culture warriors in whose sights Judge Persky now finds himself. They know he is an easy mark: an appeal of this case is pending, and he is bound to remain silent and impartial as a member of the judiciary, so he is quite unable to discuss the case at all, much less clarify his words in public or defend himself from accusations of gender, class, or racial bias.

The task therefore falls on the profession to do so for him. Judge Persky took the interests of justice into account here, in their many-faceted fullness – anyone familiar with how the criminal justice system works would have understood, and did understand, that he was simply saying that he wished to avoid producing yet another lifelong delinquent out of Brock Turner. 

Which is, at the end of the day, the reason we give judges broad discretion in sentencing. So they can make those kinds of decisions. If you don’t like that approach to justice – with mercy and flexibility at its core – you should try a country like North Korea on for size. 

6. Summing up: be careful what you wish for

Virtue signalling one’s objections to Judge Persky’s sentencing decision by crowd-funding a recall campaign may be a hip thing to do on Twitter. But inserting oneself into judicial process as a third-party observer like this is not a responsible thing to do.

Where lawyers and legal academics are concerned, inserting oneself into someone else’s case – which is pending appeal – is a mind-blowingly unprofessional thing to do. They should know better.

They should also have known, during the trial, that the calls for Turner’s scalp in the lead-up to his sentencing likely had the opposite of the desired impact – it may have caused Judge Persky to err on the side of leniency, rather than the other way, in order to avoid the appearance of being inappropriately influenced.

Judge Persky almost certainly knows that his job as a judge is to not to be swayed one whit in his decisionmaking (or give the appearance of being swayed) where these cases are receiving substantial media attention. 

What the “social justice” set must now understand as a matter of urgency is this: criminal justice is not all about you and your feelings. A judge must do justice to everyone involved in the process, including the defendant. That means rendering the defendant due process. 

Due process’ centrality to justice has long triggered convulsions of rage among the moralistic and self-righteous who do not understand law’s function.

Due process means treating the defendant no differently than any other defendant in the same position, no matter whether a bloodthirsty mob of academics and activists, pitchforks in hand, is queuing outside of the courthouse or not.

Which, as we’ve seen, is exactly what happened here. Repeating the words of the forty-six legal academics:

The sentence departed downward because the judge followed the recommendation of the probation report. Reliance on the recommendation of a probation report is a standard practice in criminal sentencing.

These two sentences should be the beginning, middle and end of the recall debate.

All indications from Californian legal professionals are that this judge did his job, he did it well, and he did it in an unbiased fashion with no regard for public opinion and total regard for the facts in front of him. This is exactly the manner an impartial, objective, common-law judicial system is designed to work.  

If there is a problem here, it runs deeper than one judge – and scapegoating him for doing his job will do little to solve it.

Is criminal justice overdue some reform, perhaps by decriminalising low-level/”victimless” crimes such as marijuana possession and re-examining the definitions used in sexual assault laws to bring them into the 21st century? Absolutely. Would another six to twelve months in prison have made a difference? We don’t know.   

Would I have sentenced Brock Turner to more time? Probably, but then (a) I didn’t see all the evidence and (b) I haven’t spent 13 years on the bench, as Judge Persky has, so it’s hard to say. Who’s to say he hasn’t seen young men who avoid prison rehabilitate successfully, while he has seen young men who he threw the book at return before him for second offences, third offences, or more?

Remember this always: although we may not like the decision Judge Persky made, there is no evidence whatsoever that he arrived at that decision in an improper way. 

Legislators write the laws, judges apply them. The recall effort is addressing a symptom of a social ill they hate, and not its cause. Going after the judge because the penal code is “unjust” is like applying a band-aid to cure cancer: it’s a superficial fix for a systemic problem, one which calls for expert advice and careful thinking, not an auto-da-fé, to fix.

After reading this, my hope is that you will understand why Judge Persky should not be recalled. The question then turns to whether you should march on the state house, pitchforks in hand, to enact stiffer laws, mandatory minimum sentencing, or other reforms for the sake of “social justice.” That is your right.

Given the valuable function that sentencing leniency serves in the administration of criminal justice, however, including the many well-known problems with mandatory minimum sentencing, you should be careful what “social justice” you wish for

The punishment or removal of Judge Persky in response to his exercise of discretion could lead to policies that limit that discretion, will deter other judges from extending mercy and instead encourage them to issue unfairly harsh sentences for fear of reprisal.  We fear that this shift will disproportionately impact the underprivileged and minorities in our communities and perpetuate mass incarceration.

…you might just get it.