Judge Who Sentenced Brock Turner Recalled by Voters

Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his writing website Yonder and Home. Andrew is the host of Heard Tell podcast.

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35 Responses

  1. Oscar Gordon says:

    Hammon said there is a “special danger” in punishing a judge for being lenient because it sends a message to other judges, exacerbating over-incarceration and precluding “a thoughtful consideration of individualized circumstances.”

    I understand the concern, but if you are worried about judges being too lenient or not lenient enough, then don’t make them run for election. Also, there is a difference between letting a person walk and throwing the book at them. Perhaps judges could, you know, exercise that legal mind to find ways to strike a balance.

    I think Persky, was trying to strike a balance, but he related a bit too well to the defendant and lost that impartiality he is supposed to have, and that bit him in the ass.Report

    • Morat20 in reply to Oscar Gordon says:

      I suspect if the defendant had been even slightly repentant, and the judge had restricted himself to “In lieu of this being a first time offense”, there wouldn’t have been much of an outcry beyond the family and victim.

      But the Judge’s remarks had a real “won’t anyone think of the poor boy here?” vibe to it, and excessive sympathy to the plight of a rapist during sentencing is kinda…eyebrow raising.

      Of course, I don’t think we should be electing judges (or prosecutors) anyways, because I’ve seen that system up close my whole life, and it sucks.Report

  2. veronica d says:


  3. Em Carpenter says:

    Hammon said there is a “special danger” in punishing a judge for being lenient because it sends a message to other judges, exacerbating over-incarceration and precluding “a thoughtful consideration of individualized circumstances.”

    This is why the correct response was the law passed by California which increased the minimum sentence for this crime. The sentence was abhorrent, in my opinion, but within the bounds of the law.

    I saw someone on Twitter make this point by comparing the new law to mandatory minimums on federal drug crimes which are so often unjust and disproportionate. That thinking says to me that these crimes (like Turner’s) are STILL not appreciated for the horrific acts they are.Report

  4. PD Shaw says:

    Shouldn’t the probation officer be fired as well? She’s the one that recommended the sentence.Report

    • Oscar Gordon in reply to PD Shaw says:

      If the judge is obligated to follow the officers recommendation, then yes.Report

      • Em Carpenter in reply to Oscar Gordon says:

        The judge has no obligation to follow any recommendation but has full discretion in sentencing.
        Sometimes, a plea agreement stipulates a “binding” sentencing agreement, but that just means that if the judge doesn’t go along with it the defendant may withdraw the plea.Report

      • PD Shaw in reply to Oscar Gordon says:

        The judge is required to read and consider it. If one were trying to responsibly evaluate a judge’s sentencing decision, you would start by looking at the probation officer’s report, not the prosecutor’s request.Report

  5. Saul Degraw says:

    I am generally opposed to the idea of judicial elections and recall. Though retention elections are better than straight-up election but not much better.

    SF voted to retain four judges yesterday. They are all Democrats who had the misfortune to be appointed by Republicans and this made them targets to further left parts of SF. 2 of the Justices were Asian, I think the two white guys are Jewish (one said he was and the other I think is based on names and origin of his parents).

    Judicial elections are madness. People generally don’t have enough information to make decisions this way. This decision might have been bad but sometimes really unpopular decisions are just ones and judges need to feel safe to make those decisions without backlash.Report

  6. Jaybird says:

    This is sweet on the tongue but it will be bitter in the belly.

    “Wait, I just wanted Brock Turner to have been appropriately punished! I wasn’t trying to signal that we needed more Law And Order Judges!”Report

    • Aaron David in reply to Jaybird says:

      Rose Bird was pilloried because she generally voted to find some defect in death penalty convictions and to reverse them. I probably don’t like the death penalty any more than she does. As a matter of fact, I think the death penalty is wrong, that a person has no right to kill, and the state has no right to kill. But the difference is that I took an oath to support the law as it is and not as I might prefer it to be, and therefore, I’ve written my share of opinions upholding capital judgments

      -Stanley MoskReport

      • Jaybird in reply to Aaron David says:

        To the Googles!


        Rose Elizabeth Bird (November 2, 1936 – December 4, 1999) served for 10 years as the 25th Chief Justice of California. She was the first female justice, and first female chief justice, of that court, appointed by then Governor Jerry Brown. In the November 1986 state election she also became the only Chief Justice in California history to be removed from office by the voters.

        Two ways to look at this.

        One: “Dude. Removing justices is bad and we shouldn’t do it.”
        Two: “Dude. We’ve *BEEN* removing justices. Now we’re just removing the ones who are awful in addition to the ones that are good.”Report

        • Aaron David in reply to Jaybird says:

          I think one of the problems is we want our laws to… mature as we do. But not everyone travels at the same rate. Nor arrives at the same destination.Report

  7. pillsy says:

    I think this is not a good outcome, but one which became more or less inevitable when nobody (least of all Judge Persky) was able to offer anything even resembling a substantive defense of Turner’s sentenceReport

    • Jaybird in reply to pillsy says:

      more or less inevitable

      Yeah. Thinking about this in terms of “is this good?” or “is this bad?” is probably the wrong way to look at it on any level.

      “Was any other outcome possible?”

      Given that the answer is pretty much “no”, here we are.Report

  8. LeeEsq says:

    I’m seconding Saul. Judges should not be subject to the electoral process regardless of how high or low they are in the judicial hierarchy. They should be appointed in some manner so that they have real judicial independence. The decision in this particular case was really bad but judges can also be recalled for going too soft on other types of crime like drug use or not going hard enough on other types of crime.Report

    • Chip Daniels in reply to LeeEsq says:

      Yeah, this and I just finished voting yesterday for a bunch of judges I knew nothing about.
      The electing of judges doesn’t seem to make sense to me.

      The passion of the mob will always be stronger than their reason.Report

  9. Mark Kruger says:

    I’m conflicted here. The sentence is a tragedy and I can understand why the judge was recalled. But I’m of the opinion that most sentences in the US are too long for most crimes.

    Punishment beyond a certain point, simply doesn’t work to deter crime and it often makes things worse. Men who commit crimes will inevitably return to society. Our system seems designed to provide for the highest level of feels about criminals “getting what’s coming to them” and some of the worst outcomes if we care about deterring criminal behavior.

    Still, this case isn’t much of a hill to die on. It’s more like a poster child for how we do not take sexual assault seriously. And there is a subversive racial element here as well.

    But recalling the judge, as understandable as that is, will result in future decisions being necessarily more draconian as judge fear the label of being soft. It’s a cure that is, perhaps worse than the disease.Report

    • Oscar Gordon in reply to Mark Kruger says:

      If recalling judges becomes frequent, it will be an issue. I would think that most judges would see this as an anomaly and not the new normal that must be taken into account.Report

      • Mark Kruger in reply to Oscar Gordon says:

        Maybe. I hope you are right. This case received a great deal of negative press however. That sort of coverage tends to have an outsized impact. Still, we can hope judges have enough independence and circumspection to not overreact. Fingers crossed.Report

      • InMD in reply to Oscar Gordon says:

        There are already a lot of reasons the system errs on the side of harshness. This will be one more.Report

      • PD Shaw in reply to Oscar Gordon says:

        That’s only a legitimate argument if you think over-sentencing is not currently a problem, that you agree with the status quo.

        How this is seen by judges and defenders is that judges risk losing their job based upon the quality of media coverage of crimes. To quote Saul, “People generally don’t have enough information to make decisions this way.”

        Twice in the OP, this crime is described as a rape case, even though the rape charges were dropped before trial. A lawyer in a concurrent thread, twice describes the conviction as one for rape as well. To be judged by one’s decisions is one thing, to be judged by decisions not presented is quite another.Report

      • Dark Matter in reply to Oscar Gordon says:

        My impression is what the Judge said about his reasoning aggravated the situation more than the actual sentence.Report

        • Oscar Gordon in reply to Dark Matter says:

          This. This is what turns it from a dangerous precedent to a curious anomaly.

          Want to give out a lenient sentence? Don’t make statements in court records that suggest the accused is getting a pass because ‘boys will be boys’, or ‘he’s got such a bright future’, or anything that strongly suggests you left impartiality in your other robe.Report

  10. Alan Scott says:

    I’m entirely unpersuaded by the arguments that this will lead to unduly harsh sentences for more vulnerable defendants.

    Because any judge whose decisions are going to be influenced by the results of this recall are going to be influenced by the results of this recall, context and all. What judge is gonna look at the outcome of this situation and have the takeaway of “better just give harsh sentences all round” rather than “better not treat rich white boys nicer than everyone else”?

    And I’m not a fan of an elected judiciary and would be happy if California judges were appointed for their twelve-year terms and not subject to retention or recall votes. But given that we have the system we have, this is the exact sort of situation where we should be using it.Report

    • PD Shaw in reply to Alan Scott says:

      I don’t think that’s the argument though. Studies show that criminal cases average higher conviction rates and longer sentences in the period before a judge’s re-election. The publicity and controversy around this recall would be expected to expand on this effect.

      Judges don’t pick who comes into their courtroom, they are selected be the police. Most of the people in the Santa Clara county jail are not white, that’s the group most impacted by hardening judges from exercising discretion favorable to the accused.Report

      • Oscar Gordon in reply to PD Shaw says:

        Considering all the conservative high-fiving over Johnson’s commutation because of the injustice of her sentence, I still think most judges will weather this without having to impose harsher sentences overall.

        Now violent and sex offenders might see less leniency from the courts, but I would expect that to be the extent of it.

        But it will be easy to check during the next election cycle. How many sitting judges get attacked for being soft and lose to someone promising to be harder? If that is a largely effective strategy for unseating a judge next cycle, I’ll walk this back.Report

        • Maribou in reply to Oscar Gordon says:

          @pd-shaw I would argue that the status quo message – the one being received by judges at least – was “if you want to get re-elected, you had better be easier on white people than brown people, who are the people we really mean when we say we want you to be ‘tough on crime'” and that this message equates to “if you want to get re-elected,” *signal lost, static static static*. What judges then do in reaction to it is thus probably more about them than about the message.

          (Having watched my abuser go through Santa Clara county jail a few years back, I did quite a bit of research into exactly how and why that particular system is ‘passing people through’ – his treatment IMO – vs ‘locking them up and throwing away the key’ which seemed largely confined to young black men. But it was personal research, and I know your information in this area is professional.)Report

  11. mike shupp says:

    Interesting post here (https://highline.huffingtonpost.com/articles/en/brock-turner-michele-dauber/) on the Stanford professor behind the campaign that brought down Judge Persky. And this is the killing paragraph:

    To convince voters that Persky was unfit for the bench, Dauber knew she needed to demonstrate that Turner’s sentence was not an isolated bad decision. Her teaching assistant, a graduate student named Emma Tsurkov, was also working on the recall. Dauber asked her to dig into the previous 18 months in which Persky had been hearing criminal cases. Tsurkov found some cases that appalled them both. In 2015, Ikaika Gunderson, an aspiring 21-year-old football player, had beaten and choked his girlfriend, then pushed her out of a parked car. Gunderson pleaded no contest to a felony count of domestic violence. Persky agreed to delay Gunderson’s sentencing for a year so he could attend school at the University of Hawaii and try out for the football team, provided he took a domestic violence class and attended weekly AA meetings. Robert Chain had been caught with child pornography, including an image of an infant being penetrated. Chain had expressed remorse and pleaded guilty. He got off with time served: two days in jail. In 2016, Keenan Smith, a football player at the College of San Mateo, was convicted of domestic violence after hitting his girlfriend and punching a bystander who tried to defend her. After he pleaded guilty to misdemeanors as part of a plea deal, he was sentenced to 120 days in a weekend work program.

    So thst’s three additional cases in 18 months where male defendents seem to have gotten off with lighter sentences than might have been expected, We’re not talking about one case, in other words, but a pattern of behavior.Report

    • Dark Matter in reply to mike shupp says:

      a pattern of behavior.

      Judging is supposed to be a profession where you spend hours making up your mind and evaluating evidence, the total opposite of “heat of the moment with no time for perfect choices”.

      (Speculation) He’s presumably doing this because he relates to them… which implies if we turned over every rock in his own life (lifestyle?) we’d find something pretty nasty.Report

    • PD Shaw in reply to mike shupp says:

      Dauber is a friend of the victim, and is the source of pretty much all disinformation about the case. She is a law professor, so the media feels it can quote her and except for organizations like the A.P. which did some fact-checking. She cherry-picked and mischaracterized other cases, makes claims inconsistent with Constitutional protections and appears to know basic criminal procedures.

      I also am very troubled by the tactics of the campaign to recall Persky. Michele Dauber, the Chair of the Committee to Recall Judge Persky, began her letter encouraging voters to sign a petition to have the recall on the ballot by declaring: “This week, we saw rape culture in action when Brock Turner filed an appeal.”

      But every criminal defendant has the right to appeal a conviction. To use that against the judge is unfair and just wrong.

      On January 11, Dauber stated at a press conference that the California Constitution Center, a non-partisan academic research institution at Berkeley Law, concluded that this recall will not harm judicial independence. This is flatly incorrect.

      Erwin Chemerinsky, Dean and Professor of Law at UC Berkeley School of LawReport

    • PD Shaw in reply to mike shupp says:

      The cases highlighted in that quote involved plea deals negotiated btw/ the prosecutor and the accused. The descriptions are all misleading.

      Here is the Associated Press report on the Judge’s record, including this discussion:

      In the Stanford case, the judge was blasted for going too easy on a well-heeled, white defendant. But a review of Persky’s other rulings gives no indication of racial bias in the cases where a defendant’s race is listed in court papers

      Michael Lee Simpson, 32 and white, faced life in prison for raping a stranger when he pleaded guilty in exchange for a nearly 31-year sentence. Persky told Simpson’s public defender he would not approve a sentence any lower.