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June 18, 2016

Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort

Jeannie Suk has this notable New Yorker commentary headlined "The Unintended Consequences Of The Stanford Rape-Case Recall." Here are excerpts:

Federal judges at least have lifetime tenure to insulate them from public pressure.  For the vast majority of state judges in America, who are elected and who must fund-raise and campaign to get and retain their jobs, ignoring public opinion is impossible.  The phenomenon of electing judges strikes many as antithetical to the ideals of an independent judiciary.  Pamela Karlan, a Stanford Law School professor, has suggested that “fear of future electoral retaliation” may cause pernicious judicial bias.  In fact, studies show that the prospect of a reëlection or retention campaign makes judges more punitive toward criminal defendants, and high-court judges more likely to affirm death sentences. Even more troubling, eight states provide a recall process for the public to remove a sitting judge before he or she stands for reëlection or retention.  In California, all that is necessary for a recall election is a petition that follows a certain format and has enough signatures.

We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California.  More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list....

Judge Persky’s explanation of his departure from the state guidelines included the statement that “a prison sentence would have a severe impact” on Turner.  To many, this remark appeared to discount both the harm to the victim and the effects of imprisonment on people who were not formerly élite college students.  Michele Dauber, a Stanford law professor and a family friend of the victim, is leading the campaign to force a recall election to replace Persky, stating, “We need judges who understand violence against women.”...

It is remarkable, to say the least, that sharp disagreement over a particular decision has ballooned into a widespread social movement to oust a judge.  But as the historian Estelle B. Freedman noted in the Times, earlier this week, American feminists have twice succeeded in recalling state judges because of their handling of rape cases: in San Francisco in 1913 and in Madison, Wisconsin, in 1977.  Those recall efforts coincided with the first- and second-wave feminist movements, while the current decade has brought intense student activism and government action to force schools to take campus sexual assault more seriously.  The movement to recall Persky is an expression of outrage, not just about one case but about a broader failure to acknowledge violence against young women and about the class and race privilege afforded to white male defendants.  Turner’s case is extraordinary not only because of the severity of the assault but because it occurred in public and was observed and stopped by two reliable witnesses.  Without the two students who happened upon the crime, it is unlikely that the case would even have made it to the police, given that an estimated two-thirds of sexual assaults go unreported, and that the victim here had no memory of the event.

The petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky. And because Persky is elected, and his electorate is empowered to recall him if it is unhappy with his job performance, a recall effort is a reasonable form for their protest to take.  But the fact that it is a valid form of protest does not mean that we should be directing serious concerns about rape into a campaign to fire a judge in retaliation for an overly lenient criminal sentence.  The current recall movement 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.

Nonwhite men are more likely than white men to be perceived as violent, predatory, or acting without consent, by complainants, police, prosecutors, witnesses, juries, and judges — particularly if a complainant is white.  That bias translates into inequality at all levels of the criminal system, from reporting and arrest to conviction and sentencing. Of course, that bias is precisely what Turner’s victim’s allies intend to protest with their recall efforts.  But as Paul Butler, a Georgetown law professor, wrote last week, in the Times, that effort could easily lead to harsher sentences all around, even in cases where giving someone a break is the right thing for a judge to do.  “The people who would suffer most from this punitiveness would not be white boys at frat parties,” Butler argued, but rather black and Latino men, who make up a disproportionate sixty per cent of the country’s prisons and jails.

The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society.  It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties. This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures.  In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment?  The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn.

Prior related posts:

June 18, 2016 at 11:16 AM | Permalink


One thing that troubles me about the accounts is there was often lack of context. What was the "going rate" for similar crimes? I know someone at Volokh Conspiracy, e.g., did this but the general comment from what I can tell was he didn't get enough, but without much context to compare.

Like one NYT article, how many accounts [at least the average person who talked about the case] noted the (woman) probation officer report also counseled a mild sentence? This in no way meant it wasn't open to debate -- http://www.cbsnews.com/news/probation-official-called-brock-turner-crime-less-serious/ -- but it suggests emphasis on the judge might have been overdone.

There is always going to be some emphasis on emotionally tinged one-offs when it comes with human stories like this. The average person is not going to research the big picture and this includes those who are willing to spend a bit more time than glancing at news stories and such. I myself sometimes try to look into the big picture & have some difficulty finding enough details to see the whole picture. I therefore rely on experts like Prof. Berman and others as do many do.

But, it does trouble me some that the big picture is not adequately provided though case studies like this do hopefully provide some opportunity to learn as much of it as we reasonably can.

Posted by: Joe | Jun 18, 2016 11:51:51 AM

According to attorney Norm Pattis, this author is inflating the "severity" of the criminal act(s) the defendant was convicted of. Despite the fact both were extremely drunk,and the defendant claimed there was indeed consent, his action to try and flee the scene doomed him to a guilty verdict. The idea that a victim has absolutely no agency is one of the most dangerous and repugnant aspects of third wave feminism. A judgment that comes with sex offender mandatory life time registration is severe in and of itself. The judge should not be prone to recall by the mob.

Posted by: Stephen | Jun 18, 2016 4:34:01 PM

One account of her letter was read in congress.

"I was pummeled with narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who didn’t even take the time to ask me for my name, who had me naked a handful of minutes after seeing me" (bold added).

The usual quote as pointed out here by "Anon" in the previous Juror post is the correct quote according to to Google:

“I was pummeled with narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name" (bold added and Google the bold for verification).

Wait, I thought you were unconscious?

Posted by: Anon | Jun 16, 2016 3:57:13 AM

Why the edit in the letter read before Congress? In the actual quote it appears the woman was aware of the passage of time and knew the situation at least up until he had her "half naked before even bothering to ask for [her] name."

In the letter read before congress, that awareness is edited out. In that version there is no awareness of what was happening when he asked her name or even that he asked her.

How can that be? First of all, how can someone know the sequence in time before what was asked (her name) if unconscious? Second, and of equally vital importance, who edited what was read into the official record of the United States Congress? Someone asked about witness tampering, this would be closer.

Now, it is possible that whoever inserted the letter in the independent.co.uk website is the one that edited it, but if so, why? For the same reason. It appears her victim impact statement directly contradicts the jury verdicts, or at least the "unconscious" verdict. I think everyone is afraid to point this out, and for good reason. There is the risk of death threats. However, this potential contradiction does not subtract from the validity of any charges that could be brought even if she was conscious. I suspect the judge saw this.

I don't think Congress should be tampering with evidence in any case. Something is mighty fishy.

Posted by: George | Jun 18, 2016 5:39:48 PM

Oh, no. It looks like I could be terribly wrong. A Google of the bold in the congress letter turns up 6 hits, dated June 4 or thereabouts. Without the actual record from the court, it cannot be certain which version is the actual one. Just because the second version has almost a million hits doesn't make it the most accurate.

My apologies. I should have checked this before opening my big mouth. There is still the question of how congress got the letter it used though. From the court? Why are there different versions? The buzzfeed.com version is dated June 3. Mysterious.

Posted by: George | Jun 19, 2016 2:13:52 AM

Strangier and Strangier. A Google cache of the letter at from Congressman POE of Texas used the popular letter with the "had me half naked" quote.

That is gone and the link is broken now according to a Google search hit:

ZERO TOLERANCE FOR RAPE - Press Releases - Congressman Ted Poe Jun 10, 2016 - ... excuse for this guy who had me half naked before even bothering to ask for my name. ''My damage was internal, unseen, I carry it with me.

This entire letter was posted by Congressman Poe on Jun 10. When was it taken down? At some point congress was well aware of the different versions before it was read into the congressional record. It would seem that rather than taking it down, there would be an acknowledgement it was the invalid version and it was replaced by the actual court version. Instead, that page is dead with "The page you have requested does not exist or is undergoing routine maintenance."

Isn't there something in the rules of evidence about changing appearance and the consciousness of guilt?

This can be tested. Do a Google of this (no need for quotes):

Poe this guy who had me half naked before even bothering to ask for my name

and try to click on his link. If you hurry, it will still be a broken link with "The page you have requested does not exist or is undergoing routine maintenance." But the cached version is there.

What is going on?

Posted by: George | Jun 19, 2016 2:43:42 AM

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