Jurisprudence

This Is How Mass Incarceration Happens

The campaign to recall the judge who went easy on Brock Turner is well-intentioned. It’s also incredibly dangerous.

New York Sen. Kirsten Gillibrand listens during a Dec. 12 news conference on Capitol Hill in Washington.
New York Sen. Kirsten Gillibrand listens during a Dec. 12 news conference on Capitol Hill in Washington.
Alex Wong/Getty Images

On Saturday, Democratic New York Sen. Kirsten Gillibrand provided a pertinent reminder that the road to mass incarceration is paved with good intentions. In a trio of tweets, Gillibrand, a likely contender in the 2020 presidential race, expressed her support for the campaign to recall Aaron Persky, the judge who sentenced Brock Turner to just six months in jail for violent sexual assault. She even included a fundraising link to the campaign. “Can you give to help make sure justice wins?” Gillibrand asked, imploring her supporters to “stand with survivors” by financing the recall effort, which has already received enough signatures to go on the ballot in June.

Turner’s crime is, indeed, an outrage. But the recall campaign against his sentencing judge will not ensure that “justice wins.” Instead, the crusade against Persky threatens to exacerbate injustice by frightening other judges into imposing longer sentences across the board. Gillibrand is right to question whether Turner got off easy on account of his race and class. But her attempt to punish Persky via recall is a dangerously misguided mistake, one that will mostly harm lower-income racial minorities.

Turner was a 19-year-old swimmer at Stanford when he sexually assaulted an unconscious woman outside a fraternity party. A jury convicted him of three felony sex offenses. The victim wrote an eloquent impact statement, while Turner’s father wrote a grotesque defense of his son that dismissed the assault as “20 minutes of action.” Under state guidelines, Persky, who sits on the superior court of Santa Clara County, California, should have sentenced Turner to a prison sentence of two to 14 years. Instead, he gave Turner six months, justifying this lenient (though still lawful) punishment by explaining that “a prison sentence would have a severe impact” on Turner.

That reasoning, taken together with the bare facts of the case, paints a picture of a sexist, retrograde judge with little sympathy for rape victims and excess empathy for their assailants, particularly white and privileged ones. The recall campaign has seized upon that impression, asserting that Persky reduced Turner’s sentence because he was “an elite athlete at a top university and that alcohol was involved.”

The truth is more complicated. While explaining his decision from the bench, Persky did note that Turner was drunk during the crime, stating that his inebriation may slightly mitigate his “moral culpability.” The judge added, though, that he didn’t “attach very much weight” to that sentiment. Instead, Persky focused on three factors that judges must evaluate under California law: age, remorse, and criminal history. The judge noted that Turner is “youthful,” “has no significant record of prior criminal offenses,” and has expressed “a genuine feeling of remorse.” All of those factors weigh against a lengthy prison sentence. Thus, Persky sentenced Turner to six months in jail, as well as three years’ probation, requiring him to register as a sex offender for life.

To be clear, Persky erred badly. He should not have mentioned Turner’s intoxication given that he did not ultimately view it as a major mitigating factor. (Especially when taken out of context, the reference to alcohol has a victim-blaming undertone.) Nor should he have given so much credence to Turner’s hollow contrition; in a statement to the court, Turner blamed his crime on the “party culture and risk taking behavior” at Stanford, claiming that it “shattered” him. Moreover, regardless of his age and record, Turner clearly deserved several years in prison for his heinous assault, as California guidelines indicated.

But Persky does not seem to have handed out a light sentence because of a personal bias toward young white men. Rather, he appears to have followed the recommendation of the Santa Clara County Probation Department, which suggested six months’ jail time for Turner. An Associated Press analysis found Persky routinely follows the probation office’s sentencing recommendations, imposing relatively lenient sentences across racial and class lines. Palo Alto deputy public defender Gary Goodman told the AP that Persky often issues lighter sentences because he has “progressive ideas” about the potential rehabilitation of first-time offenders.

None of this means Persky should be immune from criticism. His comments during Turner’s sentencing were tone-deaf, and his reliance on the probation office in this case was plainly unsound. (Perhaps in recognition of these facts, Persky transferred himself to civil court.) But the recall campaign seems unlikely to infuse the judiciary with the feminist values that Gillibrand espouses. Instead, it seems poised to send a ripple of fear through judges who might favor holistic sentencing and rehabilitation over lengthy incarceration.

We already know that judicial elections have pernicious effects on the administration of justice. A famous Brennan Center study found that trial judges in Washington and Pennsylvania hand out longer sentences the closer they are to re-election. It also found that state supreme court justices rule less frequently in favor of criminal defendants during election cycles that feature more television ads, and that Alabama judges are more likely to override a jury’s recommendation of life in prison and impose the death penalty during election years.

This data comes as little surprise, since a majority of judicial election ads focus on criminal justice. These ads typically tout a candidate’s “tough on crime” approach or attack an opponent as “soft on crime” by citing rulings that favored criminal defendants. Elected judges know a single “soft on crime” decision can end their careers, so they tend to become more stringent as a re-election fight looms.

There is not yet data on the specific impact of recall campaigns, in part because only eight states permit judicial recalls, while 39 elect their judges. But many legal experts agree a high-profile recall campaign against a judge who imposed a light sentence would have a similar effect as a contested judicial election, driving up sentencing across the board.

“The current recall movement,” Harvard Law professor Jeannie Suk Gersen wrote in the New Yorker, “could have the effect of pressuring judges to play it safe by sentencing more harshly—and there is no reason to believe that will be true only in cases with white male rape defendants.” University of San Francisco School of Law professor and Slate contributor Lara Bazelon agreed, writing that the recall campaign would lead to other judges “looking over their shoulders at an image of Judge Persky burning in effigy and factoring in considerations designed to save their jobs.” Georgetown Law professor Paul Butler put it best in the New York Times:

[Persky’s recall] would inevitably lead to harsher punishment because, politically, it’s always safer for a judge to throw the book at a convicted criminal rather than give him a break—even when giving him a break is the right thing to do. The people who would suffer most from this punitiveness would not be white boys at frat parties. Almost 70 percent of the people in prison in California are Latino and African-American. Those are the groups that would bear the brunt of zealous punishment.

Many local attorneys have also leapt to Persky’s defense. Santa Clara County public defender Molly O’Neal said she was “alarmed by the hysteria” regarding Turner’s sentence. “We need to be very careful we’re not hanging judges out to dry based on one decision,” O’Neal noted, “especially because he is considered to be a fair and even-tempered judge.” Santa Clara County District Attorney Jeff Rosen, who tried Turner, also opposes Persky’s recall. The Santa Clara County Bar Association issued a statement condemning the recall effort as a “threat to judicial independence,” and pointed out that there were no other “allegations of impropriety” during Persky’s tenure. And California public defender Sajid A. Khan wrote that the recall would “have a chilling effect on judicial courage and compassion” and “deter other judges from extending mercy,” instead encouraging them “to issue unfairly harsh sentences for fear of reprisal.”

“I fear,” Khan concluded, “that this shift will disproportionately impact the underprivileged and minorities in our communities and perpetuate mass incarceration.”

Khan is right to worry. Backlash to Turner’s sentence has already spurred California to pass a new mandatory minimum law. As Cornell Law professor Joseph Margulies has noted, this measure will primarily burden racial minorities since so many white defendants have the means “to avoid the most draconian consequences of the carceral state.”

Persky’s opponents have a noble goal in wanting to stamp out sexism from the criminal justice system. Their chosen tactic, however, will have tragic unintended consequences. If Gillibrand plans to campaign against mass incarceration, she should withdraw her support for the recall immediately. Penalizing Persky will only send a message to members of the judiciary that their job security depends upon being as harsh as possible to every defendant.

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Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.