Fault Lines
19 October 2017

Eliminating The Sentencing Judge’s Bias

June 10, 2016 (Mimesis Law) — Ken White’s post on the Brock Turner sentence raised some important points. Unlike Mr. White, however, I do not comment specifically on other judges’ decisions I read about in the media. Without reading the transcript and reviewing ALL the evidence a judge reviewed, one may have an opinion, but it’s not a fully informed one.

My experience teaches me that’s it’s unwise to offer an opinion without knowing all the facts. Having sentenced thousands of defendants from probation to the death penalty (which a jury decided but I imposed it) I know that a specific sentence can often turn on a single piece of evidence or by the testimony on a single point by a witness or victim.  

Assuming, without knowing, that the media reported all the relevant facts of this sentencing – something I have never observed in the press coverage of my cases – the public outcry that this sentence is inexcusably lenient  is understandable. 

 Mr. White’s main point that empathy in judges is a blessing, but that it is not applied evenhandedly, is right on the money.  Cognitive psychologists have extensively studied “in group favoritism ” and “out group hostility” and have concluded that both lead to discrimination in decision making. Recent scholarly study points more to “in group favoritism” as a culprit in biased discretionary decision making.

Judges are human, too, and can easily succumb to both “in group favoritism” and “out group hostility” unless they are extremely conscious of how these twin biases can affect their decisions. And simply being aware is not enough. One needs to thoroughly examine the objective facts and precisely identify their own motivation to help ensure that theses cognitive biases are not at work in their decision making. As Justice Kennedy noted in today’s opinion in Williams v. Pennsylvania: “Bias is easy to attribute to others and difficult to discern in oneself.”

Judge Persky recognized, and rightly so, that imprisonment would have a “severe impact” on this privileged felon’s life. Of course, that is one of the important purposes of sentencing, specific deterrence for committing a very serious crime and general deterrence to let other would be felony sex offenders know that there are severe consequences for crimes like this one. While the probation office recommended the sentence Judge Persky imposed, they are subject to these same cognitive biases. 

One way to roughly approximate the legitimacy or illegitimacy of this sentence is to asked if a much less privileged (socially and economically) male person of color would have received the same sentence?  If so, at least we would know the sentence was not tainted with in group favoritism or out group hostility. Of course, there are still plenty of other reasons for folks to legitimately question such a clearly lenient sentence.  

On a personal note, I did find the father’s letter totally disgusting and strong evidence of a sense of privilege, unearned entitlement to leniency, and a disgusting lack of empathy for the real victim – who clearly is not his son.  I know I would have reacted extremely negatively to the letter and said so on the record.  If Judge Persky was motivated towards leniency by the letter, a strong argument can be made that this is further evidence of in group favoritism.

Public scrutiny of judicial decisions is a good thing and helps our branch of government become more transparent.  However, I question whether a judge or members of the other two branches of government should be removed from office for a single decision, even a very poor one. Isn’t it wiser to judge a public servant on their whole body of work rather than a single decision one disagrees with?  I am surprised that a law professor is leading the charge. If a tenured law professor could be removed for one poor decision no one would be left on law school faculties —  or anywhere else.

15 Comments on this post.

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  • Ken White
    10 June 2016 at 10:16 am - Reply

    The sentence disturbed me — because it seemed disproportionate to the crime, because the judge’s comments seemed to suggest a mindset that makes privileged people entitled to shorter sentences, and because of the horrific support-the-defendant letters that the judge let pass without comment.

    But a move to recall or impeach a judge disturbs me more. Recalling or impeaching judges for lenient sentences is an ugly precedent that will not, in the long term, promote justice or help the un-privileged — it is more likely to be used as a weapon against them.

  • Lokiwi
    10 June 2016 at 11:13 am - Reply

    To the people outraged enough to participate in the recall, I have been pointing to the three justices in Iowa that were voted out after they ruled in favor of same-sex marriage. Public scrutiny of judicial decisions is a double edged sword, and I have never seen public outcry seeking to remove a judge for being too harsh.

  • Burbunbacon
    10 June 2016 at 11:45 am - Reply

    I can’t find a link to the actual study, but here is a link to a report which indicates that judges in juvenile courts in Louisiana are more likely to sentence members of their own race more harshly. http://www.npr.org/2016/06/01/480247291/study-judges-treat-juveniles-of-the-same-race-as-themselves-more-harshly

    Here’s a quote from the author of the study:

    MOCAN: So if a defendant is facing a judge of the same race, that defendant is about 20 percent more likely to receive incarceration instead of being placed on probation. And also, that defendant is receiving sentences that are about, like, 14 percent longer, which is about three months longer than otherwise.

    Just food for thought.

  • Jeff
    10 June 2016 at 11:52 am - Reply

    You write: “Assuming, without knowing, that the media reported all the relevant facts of this sentencing – something I have never observed in the press coverage of my cases – the public outcry that this sentence is inexcusably lenient is understandable.”

    Here is the huge problem in this Brock Turner case: the media, online petition forums (MoveOn, etc.), newspapers (NYT, etc.), webpages, bloggers, social media, everybody sharing on their Facebook page, etc, ARE NOT reporting “all the relevant facts.” Everybody keeps reporting this as the Stanford Rape case, calls Judge Persky the rape judge, and labels Brock Turner a “rapist.”

    Well, here is the inconvenient truth: Brock Turner did not rape his victim, and he was not charged, tried, or convicted of rape.

    His crime was digital penetration of an intoxicated and unconscious woman, and as disgusting and criminal as that was here, it isn’t rape. Rape is defined by California Penal Code (and the penal code of a lot of other states) as sexual intercourse. It is certainly lacking in sensationalism, and seems too boring or tedious for everybody to accurately type “sexual assault” or “sexual assailant.”

    Once you remove “rape” from the equation (and dispel the popular notion that Brock Turner was fornicating with the unconscious body of his victim for a period of twenty minutes), the sentencing decision of Judge Persky is seen in a whole different light. Facts do matter, don’t they?

    If you can accept that this wasn’t rape, that the viral vigilante venom is based on falsehoods, and Judge Persky just may have made an appropriate decision, the judicial interference is suddenly an alarming proposition.

    • Bill H
      10 June 2016 at 1:00 pm - Reply

      Jeff:

      The penal code definition is irrelevant to the public’s reaction to the case. To argue that the victim was not raped because Brock only used his fingers to penetrate the victim’s vagina is obscuring the harm by way of defining it away with the penal codes. For anyone who is not a lawyer, which is a great many, the legal definition doesn’t fully reflect how we experience life.

      Or, to put another way: lawyers, by training and professional habit, defer to legal definitions of words, whereas non-lawyers, lacking in both training and interest for same, do not. To castigate the public for not being lawyerly enough in their outrage is both banal and misguided.

      Further, I think it’s odd that you seem to honestly believe that the outrage people have about the sentence that the convicted felon received would have significantly diminished or entirely dissipated if only the general public knew that what she had suffered was not considered rape by the penal code. That might have been possible, had the victim not been so eloquent and so exemplary in relaying how the experience has traumatized her. After that, no penal code definition is going to help the public’s reaction.

    • rcurrier
      10 June 2016 at 6:55 pm - Reply

      Jeff, you are splitting hairs. If someone takes an unconscious women into an alley behind some dumpsters, takes her clothes off and stick something into her vagina, that is rape in the popular mindset. The fact that the state of California makes a distinction between sticking his fingers or a beer bottle in her vs sticking his penis in her is as wrong-headed as the sentence was. The laws that he convicted under (even if not “rape”) carry a maximum penalty of 12 years, the prosecution asked for 6 years and the judge gave 6 months (knowing it really meant 3 months) in county jail (not prison). There are no set of circumstances, excuses, missing facts, etc that could possibly justify that sentence.

      There were 2 pieces of good news for those of us who find this sentence reprehensible: Brock has been banned for life from any national or international swimming competitions and the judge is likely to be forced to quit as prospective jurors are refusing to serve on his trials. He is currently excusing them from service, but he stops doing that there will be nothing but mistrials and successful appeals for his cases due to jury members refusing to participate. Sometimes karma’s a bitch.

  • Michael Nolan
    10 June 2016 at 12:18 pm - Reply

    Is not the justice system the arena of judgments of ones single poor decision? The dichotomy that those on the bench should not be as accountable, as they sit in judgement of the same, is beyond insane.

    • shg
      10 June 2016 at 12:25 pm - Reply

      You’re confusing decisions with which you disagree with criminal conduct. No. They’re not the same. Not at all.

      • Mark W. Bennett
        10 June 2016 at 12:31 pm - Reply

        Excellent point shg!!!! I am not saying a judge should not be accountable but if a judge was removed every time a majority disagreed with an opinion — no judge would be left.

        • Greg Prickett
          10 June 2016 at 2:15 pm - Reply

          Which is why judges in a state, elected system will never achieve the independence of the federal judiciary.

          This is a rabbit trail that Scott dislikes, but it illustrates why state judges should be selected differently, say appointed and confirmed for a 10-year term, and not subject to recall elections.

        • losingtrader
          13 June 2016 at 11:08 am - Reply

          Can you judges please stop applauding each other?

          Now that I’ve insulted both of you, does the victim’s desire to not see the defendant end up in prison carry any weight in your sentencing?

    • Mark W. Bennett
      10 June 2016 at 12:33 pm - Reply

      The irony of your statement, Mr. Nolan, is this judge considered way more than “a single poor decision.”

  • Christopher
    10 June 2016 at 1:08 pm - Reply

    Er, a tenured law professor can be removed for “one poor decision” – like, say, they raped someone! In any job, you can be removed for a bad enough “one poor decision”, be you a janitor or a public servant. Not all poor decisions are equal.

    Now, I’m not equating this judge’s decision to rape, but it does rise well above my threshold of a “poor” decision to a “spectacularly bad” decision. Is it enough to remove him? You make a persuasive argument that without full trial transcripts and some history of this judge’s other decisions, it’s a rush to judgment. But I think this decision clearly warrants objectively looking into this trial and his other decisions to see if this is the kind of judge we the people want on the bench. If he’s made a few spectacularly bad decisions, and a host of other “poor” ones, then in my opinion, yes, he should be removed.

  • calwatch
    11 June 2016 at 12:53 am - Reply

    Here’s an interesting idea – do we expand the sentencing phase to include jurors, similar to that the practice in states like Texas and Virginia? Maybe we should, for certain categories of crime, or for offenses that are not stipulated/plead down. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1185&context=dlj In Texas, jury sentencing is subject to appellate review, which I think is the appropriate level should it be reviewed or need to be made consistent.

    I agree that some Silicon Valley executive will glom onto the Persky recall as a trial run for bouncing judges, much like how Peter Thiel’s actions against Gawker are now a blueprint for taking down underfunded tabloid media. So I am not a big fan of the recall.

  • TMM
    13 June 2016 at 11:24 am - Reply

    What are the recall rules in California. Persky is almost at the end of his current term (and apparently has been re-elected for a new term beginning in January). If he can only be recalled for the last two months of his current term, it seems like much ado about nothing.