White-Collar Crime

The Brock Turner Recall: Who Needs Judicial Independence, Anyway?

Striking back against a judge for going too soft on a defendant will only hurt more people in the end.

By  
on

Brock Turner

In the early 1960s, two black men and one white man appeared before the legendary Alabama judge Frank Johnson, Jr., for trial. The charge? Stealing peanuts — yes, literally, peanuts — from a federal warehouse.

Before the trial could start, the two black men pled guilty, telling Judge Johnson that the white man put them up to it. The white man decided to take his chances at trial, and the all-white jury acquitted him. (I know, I know, it’s hard to believe.)

As Judge Johnson would later write, something didn’t seem quite fair about the situation. So, yet to sentence the two black men, he told the jurors to stay in their seats after the verdict was announced. He called the two black men back out in front of the jury and sentenced them to 30 minutes in custody. (When one of the U.S. Marshals asked Johnson what to do with the men for 30 minutes, Judge Johnson replied, “Go get them a cup of coffee or something.”)

This is how the system should work. Judges should be able to impose sentences that they believe are just, without fearing that mercy — even when that mercy might be hated by most people in their community — will cost them their jobs.

That kind of independence is why we have three branches of government, not two.

It’s also why judicial elections are idiotic.

Sponsored

A fantastic lesson in this idiocy was on full display last week when Santa Clara voters recalled Superior Court Judge Aaron Persky, following public outrage over his controversial six-month sentence for former Stanford student Brock Turner.

“Yay!” said the recall crowd, “We showed him!” Yes, you brilliant, right-minded progressives, you sure did! You successfully mobilized a mob for going too easy on a criminal defendant. Surely… that couldn’t backfire down the road, could it?

You see, here’s the rub: Persky’s recall will only pressure judges to be harsher on all criminal defendants. Recalling Persky won’t undo the racial disparities in prisons or inspire judges to start being more merciful in sentencing low-level drug offenders. It will do precisely the opposite. The recall sends elected judges across the country a message — leniency could lose you your job, but severity is safe. And severity is the last thing our criminal justice system needs more of.

Public pressure on judges to issue punitive sentences is already enormous. The Brennan Center found in a 2015 study that “the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases.”

Toughness sells — especially in an election year.

Sponsored

For judges, then, imposing long sentences is almost always the safest option. Judges simply don’t face attack ads (or recall votes) for imposing maximum penalties on criminal defendants. And as a result, criminal defendants suffer.

And you know who’s going to suffer a lot more than privileged white people when this kind of pressure intensifies post-Persky? Poor black and brown people. But hey, better one hundred poor black men go not-free for years than one privileged white kid suffer too little.  Amirite?

Plus, Persky didn’t exactly go off the reservation with this sentence, nor was he later found to have committed misconduct. In fact, he acted on the recommendation of the probation department, and the California Commission on Judicial Performance found that his sentencing was within the “parameters set by law and was therefore within the judge’s discretion.”

Persky was recalled simply because his sentence pissed a lot of people off. Anyone who doesn’t think that will send a chilling effect through the judiciary is willfully blind.

In an op-ed published before the vote, retired California judge LaDoris Cordell described the harms Persky’s recall would have on the administration of justice. “The exercise of judicial discretion is critical,” Cordell wrote, “especially when it comes to sentencing. Without discretion, we are left with cookie-cutter justice that imposes mandatory sentences without any regard to defendants’ circumstances. We’ve been there before, and the results are far more damaging than the occasional ill-advised sentence.”

Which brings me back to Judge Johnson in Alabama. What he did in the peanuts case shows why judicial independence is so important and why attacks on it are so dangerous.

Surely, in these upside-down times, in which the independence of our institutions is under severe attack, it’s not hard to see why it might — just maybe — be a good idea to defend judicial independence. And the next person a judge feels public pressure to hammer probably won’t look like Brock Turner.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is [email protected]..

Topics

, , , , ,