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Mass incarceration will worsen because of mob calling for judge’s head over Brock Turner rape sentence

Judge Aaron Persky handed down a criminal sentence for Stanford swimmer Brock Turner, convicted of sexual assault, that people unfamiliar with California sentencing guidelines found grossly lenient.

The campaign to recall him from Santa Clara County Superior Court has been widely denounced by the local bar association, Stanford law grads, defense attorneys and even Turner’s accuser, but it will probably be on the ballot in June.

The effort got an assist last week from a widely expected 2020 presidential candidate, Democratic Sen. Kirsten Gillibrand, who asked her followers to donate to the recall’s fundraising effort.

But the end result of these efforts will actually be a deeply illiberal sentencing shift that reinforces mass incarceration and targets poor people of color, according to Slate legal writer Mark Joseph Stern.

Not only is Persky known as a “progressive” who prefers rehabilitation to brutalization and has handed down similar sentences “across racial and class lines,” but he “routinely follows” the recommendations of the probation department.

That contradicts the mob’s claim that he favors white men, as Stern notes:

His comments during Turner’s sentencing were tone-deaf, and his reliance on the probation office in this case was plainly unsound. … But the recall campaign seems unlikely to infuse the judiciary with the feminist values that Gillibrand espouses. Instead, it seems poised to send a ripple of fear through judges who might favor holistic sentencing and rehabilitation over lengthy incarceration.

Persky’s most voluble critics – Gillibrand and Stanford Law Prof. Michele Dauber – certainly know of the Brennan Center’s research that found judges “hand out longer sentences the closer they are to re-election” and “rule less frequently in favor of criminal defendants during election cycles that feature more television ads.”

That’s often the entire point of elections – to punish judges who are seen as “soft on crime,” according to Stern:

There is not yet data on the specific impact of recall campaigns, in part because only eight states permit judicial recalls, while 39 elect their judges. But many legal experts agree a high-profile recall campaign against a judge who imposed a light sentence would have a similar effect as a contested judicial election, driving up sentencing across the board.

He cites Georgetown Law Prof. Paul Butler, who has said “white boys at frat parties” would suffer little under this brutalization campaign by Dauber and Gillibrand: “Almost 70 percent of the people in prison in California are Latino and African-American.”

Stern concludes:

If Gillibrand plans to campaign against mass incarceration, she should withdraw her support for the recall immediately. Penalizing Persky will only send a message to members of the judiciary that their job security depends upon being as harsh as possible to every defendant.

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