The sentencing of Brock Turner, the Stanford student found guilty of sexually assaulting a woman at a fraternity party last year, to six months in county jail (plus three years probation and, as is mandatory, a lifetime on the sex offender registry) has sparked national and international outcry, and activists infuriated by what they see as a grave miscarriage of justice have set their sights on the judge, Aaron Persky, who presided over the case. A petition to have Persky recalled now has over 350,000 signatures.Based on the news reports, the sentence (which followed the recommendations of the Santa Clara County probation office) does indeed seem short. The California penal code recommends a prison sentence of between 2 and 8 years for the crimes Turner committed. And while Turner’s youth (he was 19 at the time of the offense), lack of a criminal record, and expressions of remorse are reasonable grounds for leniency, it seems like the judge would have been on firmer ground issuing a sentence on the low end of the official guidelines, rather than declaring this case to be exceptional because of the intense media coverage and undershooting the recommended minimum by eighteen months.That said, it’s not clear that the progressive activists pushing to have Persky removed from the bench have fully thought through the implications of such a campaign. Recall elections have a strong effect on the entire judiciary, pressuring justices to issue far harsher sentences to all kinds of defendants. Here’s how the Brennan Center (a liberal-leaning legal think tank) summarized its research on the subject:
Pressures of upcoming re-election and retention election campaigns make judges more punitive toward defendants in criminal cases, according to a new analysis of social science research by the Brennan Center for Justice at NYU School of Law.How Judicial Elections Impact Criminal Cases looked at 10 empirical studies examining whether and how judicial elections impact criminal justice outcomes. These studies, conducted across states, court levels, and type of elections, all found that proximity to re-election made judges more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty. […]“The research is clear: Judges are more likely to hand out harsh sentences, including death, the closer they get to a re-election or retention election campaign,” said Kate Berry, counsel in the Brennan Center’s Democracy Program and author of How Judicial Elections Impact Criminal Cases. “As long as judges worry about what the next 30-second campaign ad will look like, there is a risk that re-election pressures will continue to impact their decision-making. This threatens the promise of fair and impartial justice in America.”
So if you believe—as some prominent people clearly do—that the U.S. ought to incarcerate more people, then popular campaigns against individual judges for specific unpopular sentences are almost certainly productive. But in the context of a newly-achieved bipartisan consensus that America in fact incarcerates too many people, and that judges and prosecutors’ post-1970s tough-on-crime posture has done a great deal of harm, especially to poor and minority communities, then this seems like the wrong approach for progressive activists to take.It’s easy to see why this case has prompted such a furious outcry among journalists and activists: It seems to vindicate many of the most long-running progressive critiques of American society—namely, that people who are affluent, white, and male enjoy special advantages, and more leeway to break the rules without facing consequences. It’s not entirely clear to us that the light sentence for Turner reflects “white privilege,” as some have suggested—after all, a nonwhite Baylor student received a comparable sentence (but far less media coverage) last summer for an arguably more egregious assault.But even if it does, mobilizing the public to unseat this particular judge will probably do more harm than good on this front in the long run. The judiciary is supposed to be the bulwark between specific criminal cases and the politics of the moment. And as the Brennan study shows, a political climate where judges are subject to intense political pressure often has the effect of promoting mass incarceration and reinforcing many of the privileges that liberal justice reformers are most concerned about. Minorities (racial or otherwise) have rarely been well-served by mob-driven justice. As progressives have acknowledged in other contexts, a de-politicized judiciary is a great achievement for the underprivileged. Better to hold on to that achievement than to blow it up because an otherwise well-respected judge got a case wrong.