California voters have recalled Aaron Persky, the judge who presided over the Brock Turner sexual assault case. “Good,” you might think. I certainly did at first. But is it, really?
The reasoning behind the recall effort was certainly compelling. The campaign for Persky’s removal unfolded in the months after Brock Turner, a Stanford University student, was convicted of three felonies in connection with the sexual assault of a woman after a fraternity party in 2015. The case, publicly buoyed by the woman’s powerful — and viral — victim-impact statement, horrified those who followed it: Turner had assaulted his victim while she lay unconscious behind a dumpster, stopping only when two good Samaritans intervened.
Prosecutors argued for a six-year prison sentence, but Persky sentenced Turner to six months. His reasoning: “A prison sentence would have a severe impact on him. I think he will not be a danger to others.” Turner served only three months of that time, registering as a sex offender afterwards.
The light sentence was outrageous. Thus, pulling Persky from the bench seems like a victory for justice. It’s a statement that sexual assault should be taken seriously, that penetrating someone while drunk is not a slap-on-the-wrist offense. It’s a repudiation of the sort of bias that makes the recommended sentence too “severe” for a white, male, upper-middle-class swim star, even when it would have been accepted for anyone else.
But consider the follow-on effects Persky’s recall might have. Judicial election is already a suspect practice, one that makes the justice system less trustworthy by injecting political calculation into what should be impartial proceedings. Elected judges are prone to levying longer and harsher sentences, especially as elections near, because they generally believe that’s what their voters want. In Chicago, impending elections upped the rate of death sentences by 15 percent. In Pennsylvania, elections resulted in nearly 3,000 additional years of incarceration over a 10 year period.
The threat of recall will only heighten these effects. What will happen when the rest of California’s elected judges, worried about mob scrutiny, decide that lenient sentencing is a one-way path to joblessness and begin to sentence even more harshly? The people most affected by that calculation won’t be the ones who look like Turner. They’ll be those who most often fall victim to harsh sentencing overall — minorities and the poor.
We want judges to make rulings and levy sentences based on what is appropriate to the crime, not based on public opinion. Judicial independence is what allows those judgments to be made. We may not agree with how each case is resolved. But making each decision subject to majority rule may cause new problems even as it solves for others.