Criminal Law

Move to Recall Stanford Sex Assault Judge is Wrong

California Judge Adam Persky sentenced convicted sex offender Brock Turner to six months in jail and a period of probation. A jury had convicted Turner of sexually assaulting the victim behind the dumpster after the two met at a party. Two passersby intervened when they came upon Turner, atop the passed out woman. He tried to run away but was apprehended. The victim did not regain consciousness until she was in the hospital hours later. She had several signs of physical assault but no recall of the incident as she had been drinking at a frat party earlier.

Turner went to trial arguing that the victim had consented, but the jury was not buying it as all the evidence pointed to Turner attacking the woman when she was incapable of consent. All types of folks, (myself included) felt the sentence was very light and that the only reason Turner got it was because he was a blond-haired blue-eyed Stanford student with a swimming scholarship who appeared headed to the Olympics. The judge based his decision on the negative impact a prison sentence would have on Turner and on the fact that Turner was himself intoxicated. That only further outraged people (myself included) for two reasons (1) that type of consideration about the impact of a harsh prison sentence on a young person’s future is rarely given to most criminal defendants. Rather the severity of the crime and the need to protect the community from “a predator” has usually overridden a previously clean background and the concern for the youth’s future; and (2) College date rape is a serious problem in this country and to allow the defendant’s alleged intoxication to be a factor in decision-making on sentence sends the wrong message. In this particular case, how drunk do you have to be to not understand that you are sexually assaulting a comatose person?

Brock Turner - Stanford University
Brock Turner – Stanford University
The outrage has led to a movement to recall Judge Persky. Crowd-funding sites have sprouted up and a petition currently has some 500,000 signatures on it to recall the judge from office. This kind of instant mob mentality is a powerful tool and weapon of the internet where people can click to support or decry something without giving it any thought whatsoever. Its a way to feel we are participating and lending a voice to an issue without having to think too much or get too involved. But sometimes issues need more than just clicks and likes. Actions have consequences. Recalling a judge is a serious thing and doing so for one decision is dangerous. Judicial independence is a cornerstone of the US legal system. Judges need to feel that they can apply the law independently without fear that the electorate will rise up with the electronic version of torches and pitchforks at their chambers’ door. The crime for which Turner was convicted had a permissible sentence of range of zero to 14 years in prison. The Probation Department’s pre-sentence report (on which many judges’ rely heavily) favored a lighter sentence. The victim was permitted to read a powerful and lengthy statement in open court (which everyone should read by the way). The judge then put his reasons on the record which included the “severe impact” prison would have on the defendant. In short, he followed the law. He did not go outside the statute’s permissible sentence range; he considered the probation report; the victim’s impact statement; and the defendant’s prior criminal history and likelihood to re-offend. Now, if you found several cases where the judge favored white defendants or did not give the same due consideration for black defendants then you might have a basis to seek a recall. But this appears to be the only questionable decision in the Judge’s tenure and the DA’s office is not joining the request for a recall. Recalling a judge for one decision is not just wrong, its impulsive and dangerous. It will lead to harsher sentences and it will make judges fearful of public opinion every time they sentence a defendant. And trust me, disproportionately, the impact will fall upon minorities. You want to get rid of this judge? When he’s up for re-election put a candidate to oppose him.

After all, where was the equivalent outrage when a “tough-on-crime” judge sentenced a young black kid to 10 years for a drug sale? Our jails are full of young men and women – mostly minorities- who are sentenced to ridiculously long jail sentences for drug crimes. Until we start a recall petition to take off the bench all those judges who filled all those jail cells, this petition is wrong and ill-advised.

Follw me on Twitter @oscarmichelen

One reply on “Move to Recall Stanford Sex Assault Judge is Wrong”

Did Dauber ghost-write the victim’s eloquent long letter? It sounds just like her cadence in the book Lauder wrote, “The Sympathetic State”.

Leave a Reply

Your email address will not be published.