J'Accuse Encore, 2016

Harvard law professor Jeannie Suk offers a rejection of the efforts to recall California judge Aaron Perksy for the light-handed verdict in the recent California sexual assault case and the justification for the light penalties imposed because of the probation officer's report to the judge [PDF]. Compare that document with the Victim Impact Statement which the complainant read to the court in the presence of the defendant. As far as a defense of Judge Persky by Professor Jeannie Suk, that dog won
t hunt in this blog. If this is a (fair & balanced) rejection of those who give aid & comfort to perpetrators of sexual assault, so be it.

[x New Yorker]
The Unintended Consequences of the Stanford Rape-Case Recall
By Jeannie Suk

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When the Supreme Court refused to overturn Roe v. Wade, in Planned Parenthood v. Casey, in 1992, a plurality of the Justices famously explained that doing otherwise would look like surrender to the intense political protests directed at the Court. If it appeared that the Justices were bending to pressure, the plurality opinion argued, the public’s view of the legitimacy of the Court itself would be damaged. And undermining the Court’s legitimacy would ultimately harm the country, which needs to have confidence that the Court can decide legal cases independent of political causes. “The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible,” Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter wrote.

Of course, with this opinion, the Justices only confirmed that they are sensitive to the push and pull of public objection and approval. More recently, Justice Ruth Bader Ginsburg lamented that the Roe decision gave “opponents of access to abortion a target to aim at relentlessly.” On a more personal level, Justice Kennedy would have to be superhuman to be unmoved by his lionization as a hero of the gay-rights movement, after decades of authoring opinions leading to marriage equality. Our competing desires to have Justices who are impartial and who, more often than not, agree with us only makes their position more complicated. Back in February, Hillary Clinton made news when she claimed that she has “a bunch of litmus tests” for prospective Supreme Court nominees.

Federal judges at least have lifetime tenure to insulate them from public pressure. For the vast majority of state judges in America, who are elected and who must fund-raise and campaign to get and retain their jobs, ignoring public opinion is impossible. The phenomenon of electing judges strikes many as antithetical to the ideals of an independent judiciary. Pamela Karlan, a Stanford Law School professor, has suggested [PDF] that “fear of future electoral retaliation” may cause pernicious judicial bias. In fact, studies show that the prospect of a reëlection or retention campaign makes judges more punitive toward criminal defendants, and high-court judges more likely to affirm death sentences. Even more troubling, eight states provide a recall process for the public to remove a sitting judge before he or she stands for reëlection or retention. In California, all that is necessary for a recall election is a petition that follows a certain format and has enough signatures.

We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California. More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list. Turner, who was nineteen at the time of the assault, told the police that he met the twenty-two-year-old victim at a fraternity party, and, lying on the ground outside, kissed her, touched her breast, and digitally penetrated her vagina. According to the police report, two graduate students came across Turner on top of the unconscious victim next to a dumpster, restrained him when he tried to run, and called the police. The report indicates that, when police arrived, the victim still lay unconscious, her dress pulled up and her underwear removed, and that she later had no memory of even meeting Turner. A six-month sentence is incongruously short for crimes of this severity. His convictions, according to state guidelines, should have resulted in two to fourteen years in prison.

Judge Persky’s explanation of his departure from the state guidelines included the statement that “a prison sentence would have a severe impact” on Turner. To many, this remark appeared to discount both the harm to the victim and the effects of imprisonment on people who were not formerly élite college students. Michele Dauber, a Stanford law professor and a family friend of the victim, is leading the campaign to force a recall election to replace Persky, stating, “We need judges who understand violence against women.” Dauber’s petition to remove Persky—one of several that are circulating online—states that Persky’s ruling sends a message that campus rape is not real rape, privileges an élite athlete, and discourages reporting of rape. Another petition demands that Stanford publicly apologize to the victim and increase resources to address sexual assault. Yet another calls for Persky’s impeachment, accusing him of “appearance of bias toward a particular class,” presumably because Persky, too, was a Stanford athlete. This week, alleging bias, the Santa Clara County prosecutor disqualified Persky from presiding over a new sexual-assault case.

It is remarkable, to say the least, that sharp disagreement over a particular decision has ballooned into a widespread social movement to oust a judge. But as the historian Estelle B. Freedman noted in the Times, earlier this week, American feminists have twice succeeded in recalling state judges because of their handling of rape cases: in San Francisco in 1913 and in Madison, Wisconsin, in 1977. Those recall efforts coincided with the first- and second-wave feminist movements, while the current decade has brought intense student activism and government action to force schools to take campus sexual assault more seriously. The movement to recall Persky is an expression of outrage, not just about one case but about a broader failure to acknowledge violence against young women and about the class and race privilege afforded to white male defendants. Turner’s case is extraordinary not only because of the severity of the assault but because it occurred in public and was observed and stopped by two reliable witnesses. Without the two students who happened upon the crime, it is unlikely that the case would even have made it to the police, given that an estimated two-thirds of sexual assaults go unreported, and that the victim here had no memory of the event.

The petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky. And because Persky is elected, and his electorate is empowered to recall him if it is unhappy with his job performance, a recall effort is a reasonable form for their protest to take. But the fact that it is a valid form of protest does not mean that we should be directing serious concerns about rape into a campaign to fire a judge in retaliation for an overly lenient criminal sentence. The current recall movement could have the effect of pressuring judges to play it safe by sentencing more harshly—and there is no reason to believe that will be true only in cases with white male rape defendants.

Nonwhite men are more likely than white men to be perceived as violent, predatory, or acting without consent, by complainants, police, prosecutors, witnesses, juries, and judges—particularly if a complainant is white. That bias translates into inequality at all levels of the criminal system, from reporting and arrest to conviction and sentencing. Of course, that bias is precisely what Turner’s victim’s allies intend to protest with their recall efforts. But as Paul Butler, a Georgetown law professor, wrote last week, in the Times, that effort could easily lead to harsher sentences all around, even in cases where giving someone a break is the right thing for a judge to do. “The people who would suffer most from this punitiveness would not be white boys at frat parties,” Butler argued, but rather black and Latino men, who make up a disproportionate sixty per cent of the country’s prisons and jails.

The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society. It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties. This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures. In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment? The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn. Ω

[eannie Suk is a contributing writer for The New Yorker (online), and Professor of Law at Harvard Law School where she has taught criminal law and procedure, family law, and the law of art, fashion, and the performing arts. Before joining the faculty in 2006, she served as a law clerk to Justice David Souter on the United States Supreme Court, and to Judge Harry Edwards on the US Court of Appeals for the DC Circuit. Suk received BA (literatture) from Yale University, a DPhil (modern Languages) from Oxford University as a Marshall Scholar, and a JD from the School of Law of Harvard University.Suk has written At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (2011) and A Light Inside: An Oddyssey of Art, Life and Law 2013).]

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