A Blow To Judicial Independence

California held its primary election last week, and among the results was a successful recall of Judge Aaron Persky.

Persky was the judge who gave a six-month sentence to Brock Turner, a Stanford athlete convicted of sexually assaulting a woman who had passed out. The sentence was seen as a slap on the wrist, and in the #MeToo era, it aroused enormous anger.

I’m not arguing that the sentence was appropriate, or the anger unjustified. But recalling a judge whose decision in a case angers the general public is a serious and damaging assault on judicial independence. The Constitution gave us three branches of government–two of which are answerable to voters. Judges are supposed to be answerable to the Constitution and the rule of law.

As a public defender wrote in a column for Vox, 

This was the first successful recall in California in almost 90 years. Though the recall only involved one judge, its impact will be felt nationwide.

It sends a dangerous message to judges everywhere: If we don’t like one decision you make, you’re out. That represents a terrible threat to judicial independence and highlights the problems with electing judges — or subjecting appointed judges to reelection. They need the protection to think independently, even if they sometimes make decisions we don’t like.

I am not arguing that Turner’s sentence was the right one. Indeed, as a public defender, I am all too aware of the racial and class disparities in sentencing that redounded to Turner’s benefit. I have previously written about the ways privileged criminal defendants often are rewarded precisely because of their privileges. (One need look no further than Harvey Weinstein, who easily posted bail and did not spend a day in jail after his arrest.) But allowing an uninformed public to punish a judge for one unpopular decision jeopardizes the integrity of our entire system.

I was living in Indianapolis when a federal court judge ruled that the city’s public schools must be desegregated. It was not a popular decision, to put it mildly–in fact, it was so unpopular that the Judge required police protection for a prolonged period. If he could have been recalled, the schools might still be segregated.

One of the reasons I oppose judicial elections is that a judge who knows he must face voters is likely to weigh the merits of a case against the probable public reaction. If you are a judge with a mortgage and a couple of kids in college, how willing will you be to buck public opinion in a high-profile case?

Ironically, as the Vox article notes, the effects of this recall are more likely to be felt by the disadvantaged than by the privileged.

Given that the criminal justice system disproportionately targets and prosecutes the poor and people of color, the ones who suffer from judges feeling pressured to sentence harshly are not people with privilege like Turner, but those without privilege.

Judges have always had more incentives to punish harshly than leniently, and elections only increase these pressures. A Brennan Center for Justice study found that when judges are approaching reelection, they are more likely to impose harsher penalties. This is common sense, given that judges who have sentenced a defendant harshly rarely make the news….

When judges are looking over their shoulders, worried about losing their jobs if they enrage the public, the fairness of our system is compromised. Judicial independence is especially important because the public is often wrong, particularly on a local level.

Lawyers who actually practice in Judge Persky’s court–including the head prosecutor– report that he is a thoughtful, fair judge, and not known for leniency. In the Turner case, Persky had followed the probation department’s sentencing recommendation.

When we allow public outrage to  trump respect for judicial independence, we throw the baby out with the bathwater.

32 thoughts on “A Blow To Judicial Independence

  1. “One monkey don’t stop no show!”

    Sorry but; there are a number of judges who should NOT be sitting on the bench, not unlike the violent police officers who kill unarmed victims who should NOT be on the force. If removing one judge throws the judicial system into a turmoil; it obviously isn’t a stable system to begin with.

    We have one president, CHOSEN by the Electoral College, a small number of voters among millions of voters nation-wide; most of us are in agreement that system needs to be changed. I have watched from the position of being the one in front of the bench to the position in the Probation Department dealing with the results of those those who received unfair sentences and even more who received plea agreements approved by judges, letting child molesters and rapists agree to misdemeanor charges to clear caseloads and keep their names from being added to the sex offender lists. Are Judges above the law as our current president appears to be? If so; the judicial system is in worse condition than the public is aware.

  2. Where to start? Oh, where to start?

    First, the people of California did use the rule of law to remove the judge. It isn’t like they stormed the courthouse and drag the man out into the streets for a tar and feathering. They used the LEGAL method at hand to deal out some justice of their own.

    Second, whether elected or appointed, judges owe the public or they owe the shared ideology of he who appoints them… the point is that they are not independent of a debt to someone or some group.

    Third, the people were not angry over an overly harsh sentence; they were angry over an overly lenient sentence. The sentence was unfair… incredibly unfair and reflected favoritism to those who are privileged which in the public’s eye is just as egregious as hammering the poor and people of color.

    Finally, if the public is often wrong, why have jury trials at all? Why have elections?

  3. Wayne, you have good reasons to worry about your grandkids, educated or not. We are entering a very dark period at a rapid pace. All will be discomforted.

    Two striking quotes from the Vox article:

    1) “But allowing an uninformed public to punish a judge for one unpopular decision jeopardizes the integrity of our entire system.”

    2) “Judicial independence is especially important because the public is often wrong, particularly on a local level.”

    Don’t forget, a very large percent of our corrupt politicians are also lawyers or have law degrees. We talk daily about how corrupt our political system is so why are lawyers and judges exempt? And since when do they have so much “integrity”? LOL

    Also, the comment about the public being wrong on the local level flies in the face of our entire representative republic and local rule. I don’t think anyone in CA was “uninformed” about the Persky case. Had it not been so egregiously unfair, the national news wouldn’t have infiltrated CA and dissected the case for well over a month.

    Apparently, Persky didn’t do a good job of representing his constituents so he was removed. Too bad more states don’t exercise recalls, but we all know why they don’t and when attempted, why they mostly fail.

    As for “uninformed local citizens”… I mostly agree with this remark because the role of our free press has dwindled to carrying advertisements to consumers–NOT serving the people by holding the government accountable.

    The #MeToo movement was unfortunately bad timing for Persky because the press actually did its job! 😉

  4. Theresa,

    Absolutely correct in my humble opinion! Folks were also rejecting male dominance and female subjugation in its most brutal form.

  5. Since I don’t know anything about Persky’s record as a judge, save that one case, I won’t comment on the recall. Isn’t it nice that everybody seems to be in agreement today?

  6. A judge was held accountable for having the audacity to give out an extremely lenient sentence to a privileged individual. Oh my,the horror. He has been recalled. Will he be relegated to dumpster-diving for his sustenance? The good guys and gals won this one. Good for the citizens and good on them for having a successful recall. Hell,there’s a couple of judges who have been disciplined in the past here in Marion County that deserve to be recalled if it were possible. Instead,they receive a sternly worded letter and continue their work as judges as if they had never been disciplined. It’s a veritable Animal Farm.

    The dismissive contempt of the people by the professor is duly noted.

  7. We have awful judges in Indiana too.
    A man can be executed in his own home and the murderer can get out in short order —
    IF the victim is a gay man.
    I wish THAT Judge could be removed.
    The Victim was William Schumacher – Indianapolis IN
    Gay Panic style defense WORKS in Indiana it seems

  8. Google Grant Hawkins. Then Google Grant Hawkins and Paula Willoughby.

    It’s my opinion Grant Hawkins should be working at greeting customers at Walmart. But knowing his background,he’d probably let selected people walk out with the merchandise.

  9. It seems to me that the issue of late is that the electorate in much of the U.S. are too stupid and uneducated to sustain self government. Untouchable judges will yield more corruption but more elitism in the sense that elitism in this environment of know-nothingism represents relative wisdom.

  10. A Gallup poll revealed that local office holders and lawyers rank near the bottom of respected – trusted professions. https://www.statista.com/chart/12420/americas-most-and-least-trusted-professions/

    I read an article once that took exception to our reverence for judges, the article said in effect a judge is a politically connected lawyer and that putting a black robe on that person does not change who they are or what they represent.

    The Rabid Right Wing Reactionaries for years could have figuratively bit through alloy steel in their anger at the Warren Court.

    Elected or appointed judges, which is the best solution, an elected judge or one appointed by Mike Pence???

  11. Where is Marv?

    Monotonous; does anyone have any idea exactly which christian denomination Pence claims? Not even Wikipedia could answer the question as to how many Christian denominations are active at any given time.

  12. JoAnn,

    “Where is Marv?

    Like most who value this blog, I’m now just an old, every day, listener who no longer wishes to be a participant which, at this point, is probably best for all concerned.

  13. Reconsider, Marv. We miss your no holds barred commentary. As for today’s sticky conundrum, I think judges should not stand for election but rather should be chosen from a group by a bipartisan commission and appointed by the governor or other executive authority. As for judicial independence, if once lost it will be difficult to regain, and while I would have given a harsher sentence than the one given by the California judge on a finding of guilt whatever the recommendation of those which conformed to sentencing guidelines, I look upon judicial recall as a dangerous weapon in the destruction of judicial independence and, once destroyed, I greatly fear (and for good reason) politicians would run courtrooms and independence would be lost to mob and/or money rule and those angry with the penalty exacted in this one case (including me) would be sorry we did not look to the greater and proven good of judicial independence.

    As a for instance, the Supreme Court is Brown vs. Board angered millions with its holding that the Constitution required an end to race in education; that same court angered millions (including me) with its holding in Citizens United, but would we remove the court’s independence to constitutionally decide such matters and hand them over to ward heelers and those of means? I hope not. Recall is rare, and for good reason, whatever our anger quotient.

  14. JoAnn – Monotonous; does anyone have any idea exactly which christian denomination Pence claims?

    The answer is provided by Ann Lamott: You can safely assume that you’ve created God in your own image when it turns out that God hates all the same people you do.

    Perfectionism is the voice of the oppressor.
    Not forgiving is like drinking rat poison and then waiting for the rat to die.
    =================================================================
    This does not answer your question directly. However, Lamott does provide the guidelines for pastor Pence’s beliefs.

  15. After reading all these comments, it struck me between the eyes why Mitch McConnell is trying so hard to seat as many non-elected Federal judges as possible before Republicans are voted out of the majority.

    This evil Republican is trying to load the judiciary to serve the masters of mammon. THIS is the real issue concerning the integrity of the judiciary in our nation. Republicanizing the legal system is a sure way to finish creating the banana republic despotic dictatorship headed our way.

  16. JoAnn Green @10:24 am wrote, “…does anyone have any idea exactly which christian denomination Pence claims?”

    Your question piqued my innate curiosity and subsequently led me to some Internet sleuthing, aka investigative research in professional jargon.

    From this Washington Post article, 3/28/17, I got my first lead…Vicki Lake, wife of the Pence’s former pastor, is quoted which led to my finding a local church where Charles Lake was the founding pastor. The Community Church of Greenwood, obviously a non-denominational protestant church, seems to be the Pence’s chosen place of worship in the Indy area.

    A quick look at this church’s website validated my earlier thoughts…Belief #1 – The Bible is infallible and is the final authority in all manners of faith and conduct, the perfect foundation for any evangelical/fundamentalistic independent Christian organization. No room for discussion with these folks, the Bible is their rulebook and is not open for questioning.

    https://www.washingtonpost.com/politics/karen-pence-is-the-vice-presidents-prayer-warrior-gut-check-and-shield/2017/03/28/3d7a26ce-0a01-11e7-8884-96e6a6713f4b_story.html?utm_term=.2b21bb9677ec

  17. Democracy has had a remarkable run in the US and history has generally attributed that to a brilliant design from a handful of men who where luckily very well prepared for their positions at the time when their positions demanded it. We in our material comfort have always attributed that good fortune to our God given superiority as a race.

    Then Lord Acton stepped in with his pesky revelations about power and curruption and our bubble burst. We are dumbfounded. We thought that we were by the Grace of God immune from that realty.

    Now we know that corruption is insideous. It is like all crime half of an arms race and we have been fortunate enough for a couple of centuries for the cops to have stayed one step ahead of the robbers.

    We need to separate the baby and the bath water and resume our remarkable journey.

    It’s a wake up call that we can lose. We can allow what most other countries in modern history have gone through and struggled to recovery from.

    Or we can win our freedom back starting in November.

  18. Gerald,

    “Reconsider, Marv. We miss your no holds barred commentary.”

    I need to direct my “no holds barred commentary” through my own new PLATFORM: PEISweb. world. I agree with the majority of the participants on this blog that the Democratic Party must prevail in November. However, I see the attainment of that goal, much more difficult than what is being proposed on this blog at the present time.

    A good example is yesterday’s byline from the Detroit Free Press: “Donald Trump is wooing back voters and Killing the Democratic party.”

    No major daily newspaper understands the African-American better than the Detroit Free Press. As the article stated: “Donald Trump is performing his biggest trick. Convincing people that he cares more about black people than the Democratic Party.”

    That wouldn’t take much. In my judgment, the Democratic Party has a big problem of winning in November without a SOUL, and, PRESENTLY , it doesn’t have one. And I don’t see the possibility of that changing anytime soon. However, no one can foretell what will happen in the next five months.

    So I’m concentrating on attacking the POLITICAL VIRUS that’s behind this fast moving PANDEMIC. This type of endeavor doesn’t mix well with PARTISAN POLITICS. You have to make a choice. I’ve made mine, and so has the majority of this blog. But maybe, just maybe, both endeavors will successfully mesh in November with a resounding defeat for TRUMPISM and the Republican Party.

  19. Marv,
    C’mon back in here! Don’t leave us alone to try to get out of this mess. You’re one of so very few who make much sense day in and day out. You know perfectly well that we Dems will shoot ourselves in the foot again, but we still need you! You use correct grammar and punctuation, too! 😉

  20. Betty,

    “You know perfectly well that we Dems will shoot ourselves in the foot again, but we still need you.”

    You’re right again. “……we Dems will shoot ourselves in the foot again.” I can’t stop that. I’ve been trying to prevent that for almost three years on this blog to no avail. A significant reason for my failure is that this blog is primarily a Midwestern blog. I’ve spent my life, except when I was a student at Penn, in the DEEP SOUTH, living in the two cities that anchor the BIBLE BELT RACISM, Jacksonville and Dallas.

    Indiana has been called the “Alabama of the Midwest,” but the racism is not the same as in the Deep South, and I have failed time and time again to get that vital point across. There are significant SYSTEMIC differences. Consequently, the virus of hatred, the new strain of what might be called: THE HITLER VIRUS, continues to go UNCHECKED. I warned five years ago to a very important European diplomat that it would cross the Atlantic. I was right, but my WARNING INTELLIGENCE was to no avail.

    Nevertheless, unlike in the U.S., liberal democracy is still the accepted form of governance within the European Union. I need to concentrate my energies in that direction. We need help from the OUTSIDE. America is too infected right now to go it alone.

  21. I am a strong supporter of the idea that judges need to be aware of public perception. They must rule as the law states, but they must also consider their impact on both parties.

    There is a severe lack of integrity among judges everywhere. Far too many cases are decided by who can buy the best attorney(s), who has community influence on the judge or who has the closest personal connection to a judge.

    I see this recall as a strong statement to judges everywhere that they had better start being fair in their decisions. Unfortunately, I was the victim of a biased judge and it cost me everything that I had worked very hard to build. I will never forget what went on in that courtroom or the extreme bias of a judge who went against Indiana law three times in order to rule in my ex’s favor.

  22. To All,

    I’m not giving up on America, but I realize that it is terribly wounded and must receive help from the outside. German Military Intelligence asked for it in 1938, but the British failed to help out.

    Maybe, those who have a deep understanding of history will not make that same mistake again.

  23. Marv, you are the last person in the world who I would expect ever to give up on America.

    The good news is that our problems are so numerous and our solutions so diverse that all are necessary and none are sufficient.

    The only organizing ideas we need are well expressed in a remarkably concise Constitution, formal or informal education in world history and American civics (there’s no better informal place for that than right here) and respect for all humanity.

    Like all warriors we have no guarantee of success and the only thing sure is that our odds go up with unwavering commitment.

    Your unwavering commitment has never been in doubt.

    We don’t have to agree on anything else but remarkably this entire forum agrees on way more than we disagree on.

    America’s hope is in places like here and times like now and people like these.

  24. Pete,

    “We don’t have to agree on anything else but remarkably this entire forum agrees on way more than we disagree on.

    America’s hope is in places like here and times like now and people like these.”

    I couldn’t agree more. But, as you so well stated, ” our problems are so numerous and our solutions so diverse that all are necessary and none are sufficient.” Unfortunately, the LEADERSHIP in other vital areas in the U. S. do not match-up, favorably, with Sheila either in competence or ethics. They’ve capitulated and in some instances have even collaborated with our domestic enemies.

    That’s why we need help, AS SOON AS POSSIBLE, from other venues, especially Europe [media and pro-democracy NGO’s], to help fill in the GAPS before the political situation in the U.S. becomes UNTENABLE..

  25. Elizabeth Warren: Democrats Will Keep Losing Until the Entire Party Is ‘Willing to Take on the Billionaire Class’

    Warren said she agrees with Sen. Bernie Sanders (I-Vt.) that too many Democrats lack the “guts” to take on Wall Street and argued that her party will keep suffering electoral losses until all of its members are “willing to take on the billionaire class.”

    “Until we have all of the Democrats who are willing to fight for the American people and not for a handful of billionaires and giant corporations, then it’s going to stay an uphill fight,” Warren argued.

    The Massachusetts senator went on to note that Democrats’ refusal to take on Wall Street greed and criminality is part of a broader, systemic crisis that has infected the entire American political system.

    “I get it that it’s hard. But we can’t give up on it, because money is going to drown our democracy. And if we don’t start fighting back and fighting back more aggressively, then we are part of the problem as well.”
    https://www.commondreams.org/news/2018/06/10/elizabeth-warren-democrats-will-keep-losing-until-entire-party-willing-take
    =======================================================
    Once again Bernie Sanders and Elizabeth Warren chart out a path of courage to save the Democratic Party, instead of being impotent opposition.

  26. I live in near Palo Alto, where Judge Persky presided. He didn’t stand a chance in this election. The community was horrified by the crime and appalled at the sentence. The opposition – led by a Stanford Law professor who is a friend of the victim’s family – was organized, financed and highly vocal. Every Farmer’s Market (at least all the ones that I go to!) had petition gatherers prior to ballot qualification and information tables thereafter. There were Recall Persky yard signs in residential neighborhoods, as well as some large signs along highly trafficked streets.

    Support by the prosecutors and other local legal organizations received nominal press. And, frankly, that support was highly discounted. Should he have survived the recall, can you imagine being an attorney in Judge Pensky’s courtroom after supporting his ouster?

  27. As my fellow commentators know, Elizabeth Warren is currently my favorite candidate for president, and her view of taking on the superrich is only one reason for my choice. I also like her ideas like the consumers protection agency (being systematically dismantled at this time by one of Trump’s henchmen), her insistence on protecting our economy by strict regulation of big bank buying and selling of credit derivatives and other esoteric paper, the fundamental reason for Bush’s Great Recession following his credit card war (one not yet over), and her willingness to go for the jugular of power and money in general. Unregulated big money (read Kochs, Mercers, Adelson et al.) and democracy in the medium or even short run cannot coexist and our democracy is and will be in danger so long as we allow this libertarian wild west corruption of money and voting to be our political modus operandi. The obvious answer, of course, in addition to protection of our electoral process, is public financing of elections which, unfortunately, will probably require the reversal or language in limitation of the holding in Citizens United, an unlikely event given the court’s present composition but one I think a President Warren could go for in probing weaknesses in Citizens, and parenthetically, it seems providential with a national debt of over 21 trillion dollars recently augmented by another 2 trillion or so thanks to the Trump-Ryan tax cuts for the rich that Senator Warren as a Harvard law professor is the world’s foremost authority on bankruptcy, i.e., we may need such expertise.

  28. I am still waiting for a response to my lengthy E-mail to my City Councilor after receiving his lengthy, empty, self-serving reply to my comments on his Facebook post asking for support. He appears to be a political novice. I asked where he had been since the last time I voted for him. I was surprised to learn how much responsibility the City-County Council has here; whether that reaches input in the the judicial systems I do not know. I let him know that I voted for him before because he was the only Democratic candidate and will do so again for the same reason. I put several specific questions to him regarding conditions throughout this area which reflect on him as a City Councilor and suggested he check out this blog for information. I told him there are many of us asking what, if anything, the entire Democratic party is doing because we get no information; I asked if any of them had a foundation to put forward in November and beyond. He may be a little fish in a little puddle but he and other Democrats are not meeting his responsibilities and I, among other Democratic voters, want some answers. Starting at the bottom after getting no response from a few higher up the political chain will probably get me nowhere but he now knows someone is watching him personally and the party in general and want answers.

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