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 Slate, highlighting 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.