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Chris June 12, 2016

My last post was about the jury process. Criminal defendants have the right to trial by jury or a bench trial, in which a judge or panel of judges decides the facts of the case. In almost all circumstances, judges decide sentences after a conviction. The exceptions are capital cases wherein juries decide to impose the death penalty and certain other offenses and sentences that vary state by state. One of the biggest legal stories in the news and on social media in recent days is California Judge Aaron Persky’s sentence of Brock Turner, who was convicted of sexual assault. Judge Persky gave Mr. Turner just six months of imprisonment which is light for convictions of that magnitude. For that reason many people are outraged. The victim certainly is. So is the District Attorney who asked for a six-year sentence. There are claims of “white privilege” (would a black defendant have received a similar sentence), athlete privilege (Turner was a collegiate swimmer), bias (Persky is a Stanford alum and former athlete) and the list goes on. These are all good points.

I admit that if I defended a client for the same charges and he received the same amount of time, I’d be surprised, but also pretty happy with my advocacy. Most people know that attorneys represent their clients and must do so as zealously as possible within the bounds of the law and rules of professional conduct, so the criticism is falling on the judge. There is already an effort to recall the judge through the electoral process. In California judges are elected–or appointed by the governor to fill a vacancy. Similar to many other elected positions (notably governships of California and Wisconsin which had high profile recall races), judges in California could be recalled; voters can petition a special election that they judge must survive in order to retain his seat. I am against this for Judge Persky and in general. Judges should not be elected nor recalled. Even if they could be, one decision should not be what causes it.

Judges make difficult decisions all the time. Even seemingly small decisions, such as setting bail, can have a major impact on a defendant’s life and liberty. Trials have a multitude of evidentiary and procedural decisions. Sentences are among the most difficult decisions. In many cases sentences are plea bargained with the defendant accepting an offer by the State or judge (in Connecticut it is typical in most criminal courts for the judge to weigh in on a plea offer) . After trial there usually is not a plea agreement so the judge listens to arguments and sometimes a recommendation by probation or some other judicial agency (in Connecticut, probation may prepare a presentence investigation–PSI–report for felony sentencing). Sentences are probably, next to deciding guilt or innocence, the most difficult decision a criminal judge must make. That is why it is judges who make them. But consider this: would there be as much outrage if the judge jacked up a defendant by maxing out sentences on individual charges and then stacking them consecutively. Defendants facing drug charges often are exposed to high amounts of jail time due to harsh possible sentences and enhancers as well as being overcharged. If a drug dealer were sentenced to thirty years for two bags of cocaine (not at all impossible), there would certainly be criticism and outrage but probably not enough for any kind of serious challenge. A judge should be judged by his or her record and not one case, barring corruption or some other oustide influence which would be another ground for removal.

I also do not support recalls because I do not support electing judges. Most states however have judicial elections for at least some courts. Connecticut, aside from the probate courts, does not. Prospective judges must first be approved by the legislature before being appointed by our governor and then must be reappointed by the legislature. The judiciary should not be political. Judges should decide cases on the law and facts, not the will of voters. If voters want harsher or lighter punishments, they should contact their lawmakers. Judges should not be considering how a decision will affect their next election. The framers of the Constitution considered this and decided on life appointments for federal judges. In many judicial races, one candidate says he or she will be tough on crime. The opponent will respond with, “I’ll be tougher.” The electoral process also allows special interests (corporations, unions, professional assocaitions, community groups, etc.) choose and back candidates in order to get a greater edge in cases involving them. This has been documented (medical malpractice laws and caps are just one example). The same could happen with a recall. Our congressional, state and presidential elections are awash in enough money and political favors.

The last point is that Judge Persky’s sentence, while not popular or fair, was legal. Recalls should be left to illegal acts or patterns of unfair decisions. Even without recalls, judges can be impeached or otherwise disciplined and removed dependin gon the state. The judge is just one judge in a huge system. The criminal justice system needs to function fairly and the recall process and this use of it will undermine that. There are better ways to ensure sentencing fairness. Perhaps California could develop sentencing guidelines similar to those in use in federal criminal courts. Making judges fear ouster is not a good way to do it. While sex offenders are the least popular defendants, they still have their rights. Jacking up the next defendant to avoid criticism for being lenient will be an injustice to that defendant. And probably not one that would lead to national news and a recall campaign.