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June 14, 2018

Lamenting the ripples of Judge Persky's recall

John Pfaff has authored this recent Washington Post commentary under the full headline "California ousts an elected judge. Everybody loses. The recall of Aaron Persky in the Stanford swimmer sexual assault case will make judges harsher, and thwart progress on perils of mass incarceration."  Here are excerpts (and readers should click through to the original for the multitude of links supporting the various points presented):

California voters last week recalled a judge for the first time in more than 85 years.  The politics of punishment are already pathological; the recall will make them worse.... As an academic who studies criminal justice, I have opposed the recall effort since I first heard about it because of potential consequences that reach well past Persky’s now-former courtroom: The recall will make judges more punitive, thwart progress toward scaling back mass incarceration and — though Turner and Persky are both white — hurt minorities disproportionately.

A central reason the United States punishes its citizens more than any other country is that actors in our criminal justice system face more political pressure than they do elsewhere.  Only this country allows judges to be elected, which 39 states choose to do. It’s a consistent theme: We are also the only country that elects its prosecutors. While a concern in the Andrew Jackson era about corrupt appointment processes drove the decision to elect judges, more recent concerns about the costs of a politicized judiciary have led to increasing calls to return to appointing them.

In criminal justice, the costs of politicization are unambiguous: They make judges more punitive.  The empirical studies on judges and crime tell a consistent story.  Judges sentence more aggressively as their election dates near and as their elections become more contested.  Elections make judges nervous, and nervous judges are harsh judges.

This harshness is entirely logical.  Judges are harsh because the costs of mistakes are asymmetric.  There is little downside to harsh sanctions, because the error costs are invisible: How do you show that someone would not have reoffended had they left prison sooner?  The costs of being overly lenient, however, are inescapable.  That sort of failure produces an identifiable victim for political opponents to capitalize upon.

The recall turned on a slightly different asymmetry but one that equally pushes judges toward severity. An overly lenient sentence will be seen as insulting the victim, while an overly harsh one will be seen as unfair to the defendant.  The former error, as the Persky recall demonstrates, is costlier (unless, perhaps, the defendant is politically powerful).

Defenders of the recall dismiss this concern by pointing out that recalls are rare. But the lesson here isn’t only about recalls.  The Persky case makes clear to judges and their detractors alike that judges can lose their jobs — in a recall, in a primary, in a general election — if just one or two decisions anger someone with sufficient political capital to oppose them.  The Persky recall campaign highlighted only five decisions out of thousands that the judge handed down.  Persky was cleared of any wrongdoing by California’s Commission on Judicial Performance, and public defenders in Santa Clara were quick to argue that he was a fair judge.  Even the prosecutor in Santa Clara opposed the recall. [Professor Michele] Dauber, however, is a politically well-connected professor at a nationally acclaimed law school with strong media ties.  The success of her campaign tells judges, and the politically powerful who are unhappy with their decisions, that these campaigns can work even with little evidence, as long as there are one or two bad cases to point to.

The recall’s political costs are already apparent.  Not only did Democratic legislators pass new mandatory minimum sentences for sex offenses in response to the recall to make sure they looked tough enough on crime, but public defenders in California also report that judges seem harsher now, out of fear of being targeted next.

Some defenders of the recall concede that it may make judges harsher, but only regarding sex crimes.  The judges, they say, are smart enough to limit what they have learned to the facts of the recall. But this is overly optimistic. Judges have no idea what issue will trigger the next recall or primary challenge, only that such campaigns can work....

The recall will make judges more aggressive, and in ways that will never be neatly confined to the issues in the Turner and Persky cases.  More people will be sent to prison, and that increase won’t make us safer. And since a majority of people in prison are black or Hispanic, the impact of this toughness will fall disproportionately on minorities.  For those hoping to see the United States become a less punitive place, the recall’s success is disappointing.

A few of many prior posts on the Persky recall:

June 14, 2018 at 08:22 AM | Permalink


No one —who is not trying to reduce criminal penalties across the board — would accuse the judges of Santa Clara County of being particularly aggressive or harsh in sentencing. Fifteen years ago, things were different, but times have changed. The Persky recall will have an effect, but it will be quite muted, and the effect will be localized to the crimes du jour, DV, sexual assault and human trafficking.

I practice criminal law at ground zero of the Persky recall. If ithe effect is seriously muted here, I question whether it will have the broader impact implied by professor Pfaff.

Posted by: Eric | Jun 14, 2018 9:48:02 AM

Bad facts make bad law. Add in some politics and agendas and you get an unholy mess. Misguided and ill-informed popular opinion has had too large an adverse effect on the criminal justice system already. This represents a fairly substantial step backward.

Posted by: Fat Bastard | Jun 14, 2018 10:38:43 AM

To Eric:
The question is; Does this recall increase or decrease the politicization of our judiciary system?
I have yet to see a tempered, reasoned approach to our sentencing schemes throughout our country.
As citizens, we still have to ask ourselves why we incarcerate more our citizens then any nation on earth.

Posted by: tommyc | Jun 14, 2018 10:50:30 AM

Love it. Nazi Feminism vs libtard decarceration.

Judge Persky was totally biased against males when it came to false allegations of domestic abuse in the case of a friend.

I support the firing of judges for their awful decisions.

I support the replacement of all judges by sentencing robots, running algorithms written and owned by the legislature. These should be revised very two years as reliable and validated crime data come in.

Posted by: David Behar | Jun 14, 2018 1:35:09 PM

"[Professor Michele] Dauber, however, is a politically well-connected professor at a nationally acclaimed law school with strong media ties."

And that is the problem. The problem here isn't the recall because as a general principle I support recalls as a legitimate expression of democratic will. The problem is the power asymmetries: thanks to tenure she had nothing to lose and everything to gain; he had everything to lose and nothing to gain. Once upon a time this would have been recognized as tyranny. Now, it is justice. To be precise any abuse of power is justified so long as it flatters the whims of the zeitgeist.

Unlike Eric I don't see this as a sentencing story but as a political story. The recall was a political act and its consequences over the long run will be mostly political.

Posted by: Daniel | Jun 14, 2018 2:18:15 PM

David Behar | Jun 14, 2018 1:35:09 PM:

I don't know what the answer is but we can't leave sentencing up to legislators. We know they are criminals. They have to be controlled.

We must shrink Nanny Big Government to a tiny fraction of its current size. We should try to make America an actual free country.

Death to all people that support $EX Offender Registries! War is the answer.

Posted by: FRegistryTerrorists | Jun 15, 2018 5:49:41 PM

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