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Crime and Punishment
Sanity Sets In On Stanford Sexual Assault Case

For nearly a week, the entire internet has been calling for the head of the Santa Clara County judge who gave Brock Turner, the former Stanford swimmer convicted of sexual assault, an unexpectedly light sentence of six months in county jail plus three years probation (and lifetime registration as a sex offender). Nearly half-a-million people have signed a petition calling for Judge Persky’s ouster, and his office has apparently been inundated with threatening phone calls. On Twitter and on Facebook, it became an article of faith that this judge was the devil incarnate who hated women and abetted white privilege, and that anything short of his swift removal from office would be a travesty of justice.

Two days ago, we meekly pointed out that the social media mob leading the crusade against Judge Persky had not, to put it lightly, considered the implications of its crusade. “The judiciary is supposed to be the bulwark between specific criminal cases and the politics of the moment,” we wrote. Even if Turner’s sentence was too light (it seems to us that a two-year sentence—the low end of the California Penal Code parameters for Turner’s crimes—would have been more appropriate) ousting judges for unpopular sentences threatens to undermine the integrity of the criminal justice system. It also pressures judges to be more punitive overall—a burden that will ultimately fall disproportionately on poor people and minorities.

This was an unpopular—even solitary—opinion forty-eight hours ago. But now that the mob has dominated discussion for several days, rationality appears to be setting in, at least in some quarters. Three other media outlets have now pushed back on the torches-and-pitchforks groupthink.

First, here’s Mark Joseph Stern in Slatehighlighting the hypocrisy inherent in liberals’ response to the Turner sentence:

Judicial elections are already a travesty of justice. Recall efforts compound the problem: They blatantly put pressure on judges to follow public opinion—or mob mentality—rather than maintaining judicial independence. […]

Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence.

And here’s the Los Angeles Times editorial board with a level-headed assessment of the dangers of mob justice:

Justice in any individual case isn’t put to a public vote. The electorate, the Twitterverse, the mob, newspaper editorial pages — none would be any better, and all would likely be much worse, at tailoring an emotion-free, just and balanced sentence than an imperfect but trained and experienced judge with the evidence and the probation report before him.

Finally, legal scholar Paul Butler, writing in the New York Times, reminds readers that a successful campaign against Judge Persky would ultimately perpetuate mass incarceration:

The message sent by a recall would be that before an elected judge hands down a sentence, she should think about how popular her decision will be with the public.

This would inevitably lead to harsher punishment because, politically, it’s always safer for a judge to throw the book at a convicted criminal rather than give him a break – even when giving him a break is the right thing to do.

As the recall campaign against Judge Persky demonstrates, social media mobs feeding off moral outrage temporarily undermine peoples’ ability to think clearly about substantive public policy questions. And that is precisely why sentencing in criminal cases should be left up to independent judges, as imperfect as they may be.

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  • WigWag

    So what percentage of the mob that you’re referring to are Bernie Sanders or Hillary Clinton voters? My guess is most of them.

  • Jim__L

    Atticus Finch v. The Mob — I guess a lot of Leftists have switched sides on that one.

    That was related to a sexual assault case too, if I recall correctly.

    • Jason Gardner

      In “Mockingbird” the mob was seeking to inflict injustice. In the Stanford case, the public is reacting to clear and obvious judicial injustice. Big difference, Jim. Though perhaps not to a Rightist.

      • Jim__L

        No. No difference. Either we have people tried by Law, or tried by Public Opinion.

        The jury box is the place where regular people get to weigh in on these things, so there’s already a solution in place.

        • Jason Gardner

          No surprise you cannot discern the difference between justice and injustice. Laws are an expression of the public will. Under California law, the crime of which Stanford student Turner was convicted carries a minimum prison sentence of 2 years (and maximum of 14). When a judge issues a sentence that is in fact a clear violation and travesty of the law, the public has every right to take the legal recourse of seeking their removal.

  • WV_NYC_2015

    Columbia University Judge Sat on Cases Against Columbia University Professors Accused Of Sex Assault and Harassment

    Beginning Same Month/Year his/Judge’s wife started no show assistant/associate dean job at Columbia U paying her spot over $100k

    What will the Stanford Judge get, Or did he just do this out of some dumb sophomoric-suburban Friday Night Lights sense of loyalty?

    You aren’t wrong about the intended character and function of the US judiciary but when it comes to these Title IX related sex assault and harassment cases the separation between US legislative, judicial and executive becomes a real Charlie Foxtrot.

    Too many instances – Columbia University and now Stanford to name just a couple – of judges with too close of ties to the schools taking these cases/not letting other judges with less of relationship with the schools take them and then rendering poor judgements or not rendering any judgement at all but rather sitting on the cases so that they are never adjudicated. Thankfully the media is recognizing this Abuse of the legal system by these members of the judiciary.

    In regard to Columbia University, the judge actually eventually 8+ years after 1st being assigned case against Columbia University professors acknowledged in letter to the court that he himself wrote and signed that he had been sitting on case against Columbia U because when he was 1st assigned the case/same month and year he was 1st assigned the complaints his wife was given a no show job of assistant/associate dean at the college within Columbia University that the accused sex assault-professor had his offie and institute and so for that reason – 8+ years later – he was acknowledgeing that maybe he ought to recuse himself.

  • Anthony

    “The standard of good behavior for the continuance in office of the official magistracy is certainly one of the most valuable of the modern improvements in the practice of government….The complete independence of the courts of justice is peculiarly essential in a limited Constitution….” (No. 78: Hamilton)

  • Jason Gardner

    In other words, we unwashed proles are supposed to just shut up, put down our electronic torches and pitchforks, allow obvious class and gender-based injustices to occur in courtrooms and do absolutely nothing about it – including taking the quite legal and legitimate step of petitioning for a recall. “Stop making all the that noise outside the clubroom, little people. You’re disturbing your robe-wearing betters.” Perhaps what the elitists at the American Interest (and elsewhere) airily dismiss as The Mob might more accurately be characterized as The Public Will. Last time I looked, as American citizens we have every right to petition for the redress of grievances.

    • Enemy Leopard

      I’m tired of reading people brag about how dirty they are. It won’t hurt your class solidarity if you take a shower – I promise, you can still be an ornery plain-spoken embodiment of We The People.

      • Jason Gardner

        What a pathetic attempt at an insult.

        • Enemy Leopard

          It’s not an insult. It’s a response to cheap rhetoric.

          • Jason Gardner

            “Not an insult” -? Osculate my gluteals, “Leopard.”

          • Enemy Leopard

            Repent of calling yourself an unwashed prole, which is just transparent posturing, and I’ll forgive the rest of your invective.

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