Tag Archives: recall

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.

On Wisconsin

In the movies, the righteous “little guy” usually prevails over the moneyed forces seeking to enrich themselves further at the expense of the public. In real life, not so much.

Today is the Wisconsin recall election. As the media has endlessly intoned, this is only the third time in American history that a sitting Governor has been subject to a recall. (The last time was in California, where we expect such shenanigans.)

Whatever else is at stake in Wisconsin, today’s election is first and foremost about the power of money. Scott Walker, the Governor, is so obviously a pawn of the plutocrats who own him body and–if he has one–soul that he barely matters. For those who’ve been hiding out on another planet (actually, a wise decision) the facts are simple: Walker narrowly won the Governor’s race, and immediately began bargaining with Wisconsin’s public-sector unions for “givebacks,” citing the state’s fiscal woes. The unions largely acceded, agreeing to wage and benefit cuts. After getting what they wanted, Walker and the GOP legislature nevertheless proceeded to strip the unions of their bargaining rights.

In the ensuing furor, it became pretty clear that this had been Walker’s game plan all along, despite the fact that his anti-bargaining position never surfaced during his campaign for office.

Walker’s hard-right ideology–fueled by huge donations by the infamous Koch brothers and other wealthy backers–hasn’t been limited to union-busting. He also signed a bill repealing Wisconsin’s equal pay law, rolling back the principle that men and women doing the same job should be paid the same wage.

In the wake of Walker’s betrayal of the unions that had bargained with him in good faith, there were weeks of demonstrations. Working women were furious at his assault on the principle of equal pay. His closest advisors are under investigation for criminal activities. A former college girlfriend has gone public with a story about how the “pro life” Walker deserted her when she got pregnant and refused to have an abortion. Wisconsin’s job numbers are dismal–dead last, according to one report.

With all this, you’d think this recall would be a slam-dunk. You’d be wrong.

I am not a fan of recalls as a policy matter, but Wisconsin law allows them, and this Governor has been a disaster for Wisconsin. Nevertheless, polls show him slightly ahead going into today’s election, and that shouldn’t surprise anyone who has followed the money trail. The wealthy backers who have actually been deciding Wisconsin’s policies have poured millions of dollars into the campaign,  burying Tom Barrett, his opponent, in a blizzard of radio, television and internet ads. Campaign contributions are running 8-1 in Walker’s favor, and in our post Citizens United world, Wisconsin voters have little idea where that money is coming from.

The real question Wisconsin voters will answer today is: can money buy democracy?

This isn’t a movie, and I’m very much afraid the answer will be yes.