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August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 at 12:39 PM | Permalink


"In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class."

There has been a lot of focus on the judge; less so on the probation recommendation. Written as I recall by a woman, which is likely to matter to some people for good or ill.

Posted by: Joe | Aug 22, 2016 2:45:59 PM

From her Standford Law School page, it appears that Professor Dauber has never defended a disadvantaged person in a court of law. It shows. If she succeeds in striking a blow against this judge, the people who pay the price for fear of judicial recall won't be white and middle class. Professor Dauber's victims will be mostly poor and non-white.

We practicing lawyers shouldn't pretend that we automatically know how to teach law. And non-clinical law professors should be careful about dabbling in the real world of real cases.

I understand that Professor Dauber wants to decrease the class disparity in the criminal justice system, but if successful, she will likely do the opposite.

Posted by: Stephen Hardwick | Aug 22, 2016 3:02:13 PM

Regardless of the substantive merits of the underlying claim I think that those who oppose this recall are ill served by the word games this essay engages in. The judge has the ability to reject plea deals. Claiming that the judge isn't biased because he only accepted a biased plea deal ignores the reality that the judge has an /independent/ duty to evaluate the merits of the plea. Maybe the bias wasn't initially his but in approving a biased deal he took ownership of that bias for himself and in doing so has made that bias judicial.

Posted by: Daniel | Aug 22, 2016 4:25:37 PM

Daniel, re-read the article. It's not a biased plea deal. They're different charges. Thanks.

Posted by: NotDaniel | Aug 22, 2016 4:31:36 PM

@NotDaniel.... "but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney. Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.”

Where are the "different charges"? I don't get it. The author says the judge has not shown bias, his critics say he has shown bias. I agree with the critics. If the underlying plea deal is biased then when a judge adopts that plea deal he is showing bias.

Now, maybe the underlying plea deal doesn't show bias. But the author of the article does not make that claim. She only claims that the result doesn't show "judicial bias" and attempt at a qualification that I think is highly misleading; one doesn't get to part and parcel out bias and say that the prosecutor is biased or the judge is biased or the system is biased. If a person plays a crooked game, they suffer the taint of being associated with crooks.

Posted by: Daniel | Aug 22, 2016 7:44:06 PM

If the Judge just always accepts plea agreements (or, apparently, recommendations from probation), I don't think any bias can be fairly attributed to the Judge. That doesn't mean there isn't bias somewhere, just that it isn't with the Judge.

Posted by: Erik M | Aug 22, 2016 10:23:27 PM

Funny how this case generates more outrage than the Olu Stevens' sentencing of two armed home invaders to probation.

I am not crazy about the sentence here--but, from what I read it's consistent with the victim's wishes and the lifetime on the registry is a very harsh punishment.

Check out all the lenient sentences handed down in the District of Columbia.

Posted by: federalist | Aug 23, 2016 8:24:40 AM

A few anecdotes tell us almost nothing useful about a judge's bias or leanings. Individual defendants get more or less favorable deals for all sorts of reasons--immigration consequences, strength of witnesses, chance of evidence suppression, perceived quality of defense counsel (which affects the prosecutor's view of the likelihood and possible results of trial), the individual prosecutor's caseload, a crime lab's workload, etc., etc., etc.

Any sample of just a few cases simply can't account for all these factors, and the existence of some of the factors will never be made public. For example, no prosecutor is going to publicly announce, "My victim told the police she wasn't drinking, but she was, and this affects her credibility on other matters, so I offered a better deal." (This is a hypothetical, not an account of one of this judge's cases.)

Judges rarely turn down plea deals in part to avoid all sorts of potential unintended consequences. For example, forcing a sexual assault case to trial could force prosecutors to clear up their schedules by offering more lenient deals in other serious cases. And if the case is weak, the judge risks an acquittal where the deal would have resulted in at least a conviction for something. Forcing a prosecutor to take a case to trial in which the victim has lied about some detail of the case (drinking, for example), can also result in needless embarrassment to the alleged victim, as well as an acquittal.

I also note that none of the professor's defenders here have even tried to refute the authors' main point--that recalling this judge will mostly disadvantage poor and minority defendants, and will thereby increase the disparity in how rich and poor defendants are treated.

Posted by: Stephen Hardwick | Aug 23, 2016 8:34:21 AM

@Erick M.

The Nuremberg trials would disagree with you. Indeed, Nazi prison guards have a better stake to the claim than judge do that they were just following orders because judges have a legal duty to be independent, the Nazi prison guards just had a more abstract duty to humanity.

Posted by: Daniel | Aug 23, 2016 11:01:20 AM


Click the link and read the whole article. Read out loud to yourself, perhaps repeating it a few times, until you understand it. You can save yourself some time by focusing on the following paragraph, which comes right after the picture::

"These legal distinctions reflect an important factual difference between Ramirez and Turner’s cases, one that should be clear to anyone familiar with criminal law. (To confirm our analysis, we spoke with the experienced public defender who represented Ramirez, who has “emphatically disagreed” with the false comparison to Turner’s case.) Ramirez was convicted and sentenced for forcibly assaulting his roommate — but he did so after breaking into the victim’s bedroom. This could have been charged as first-degree burglary, which means unlawfully entering an inhabited dwelling with the intent to commit a crime. Under Penal Code section 220(b), “any person who, in the commission of a burglary of the first degree, assaults another with intent to commit rape . . . shall be punished by imprisonment in the state prison for life[.]” This means that if Ramirez had insisted on going to trial, the prosecution could have sought a life sentence — and the jury would have heard testimony from a victim who could narrate every detail of the crime."

Posted by: NotDaniel | Aug 23, 2016 3:05:47 PM

Daniel, glad to see Godwin's Law is still in effect. Your point in no way refutes what I was saying, which is about bias, not about morality of the actions. But good try.

Posted by: Erik M | Aug 24, 2016 8:29:47 AM

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