Even before the news broke that Judge Aaron Persky had approved a sentence of three years in prison for Raul Ramirez, a Latino man who had pleaded guilty to a very similar sexual assault to the one committed by white former Stanford athlete Brock Turner, the issue of race and sentencing had surrounded the Turner case and the movement to recall Persky.
One can expect further outcry now that Persky’s lenient sentence in one case involving an elite white athlete from Stanford – only six months in a county jail for three felony counts of sexual assault on an unconscious woman – can be contrasted with the relatively harsh sentence he imposed on a person of color: three years in state prison.
The Guardian’s coverage of the Ramirez case contains a telling quote from Alexander Cross, a defense attorney who briefly represented Ramirez: “What’s happened with Mr Ramirez is standard. The anomaly is the Stanford case.”
Some critics of the recall campaign had asserted that replacing Persky with another judge would hurt minority and poor defendants because Persky is scrupulously fair to all defendants. This latest revelation undermines that defense – the differential suggests something very unfair is going on. If Cross is right, and Ramirez’s punishment is “standard”, this only increases the suspicion that Persky, himself a former Stanford athlete, might have been too inclined to “take [Turner] at his word” due to bias.
If Turner and other defendants sharing his racial and class profile are treated more leniently, there is clearly a second “standard”.
But besides the particular case of Persky (and Turner), a larger issue has come into focus.
Several public defenders, including Sajid Khan of Santa Clara County, have portrayed the attack on Persky as an argument in favor of mass incarceration. How is that? Khan writes:
Mass incarceration is largely a result of judges who have either not utilized discretion in sentencing or who have been deprived by state legislatures of discretion. This lack of discretion has manifested in draconian sentences and overfilled prisons. Rather than using robotic, one-size-fits-all punishment schemes, we want judges, like Judge Persky, to engage in thoughtful, case by case, individualized determinations of the appropriate sentence for a particular crime and particular offender.
In other words, judges should have wide discretion in sentencing, otherwise “one-size-fits-all” punishments will result in longer sentences in cases that merit “individualized determinations”.
I don’t quarrel with Khan’s argument for “individualized determinations” of sentences. But those determinations must be free of bias, including racial bias, if they are to result in just sentences. Judicial discretion can only be entrusted to judges who will exercise it fairly in all cases.
A commitment to judicial discretion has to be coupled with a willingness to remove judges who do not use it wisely, but instead reinforce existing discrimination.
The waters get even murkier with the argument that removing a biased judge will somehow wind up hurting poor and minority defendants. This is a common defense of Persky, probably because it doesn’t require defending him as fair – it grants that he is probably biased but holds that it is too dangerous to remove him from office for it.
One example of this is a recent article in the New Yorker by Jeannie Suk, a professor at Harvard Law School. Suk calls the six-month jail sentence “incongruously short for crimes of this severity” and agrees that the “petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky”.
So far, so good. But then Suk reaches the conclusion that fighting this bias based on race and class “could have the effect of pressuring judges to play it safe by sentencing more harshly – and there is no reason to believe that will be true only in cases with white male rape defendants”.
There is a reason to believe this, though – the entire reason for the recall is this judge’s bias towards this white male defendant. I agree wholeheartedly with critics of the prison industrial complex and the mass incarceration of black and brown men. But victims of sexual assault need to be able to bring their complaints forward, and not somehow then be portrayed as willing agents for mass incarceration or anti-black racism.
In fact, Suk and other critics fail to recognize that many of the victims of sexual assault are themselves poor and minority women and men, and that they labor under their own burden of bias in the judicial system. They are less likely to be believed in the trial, and more likely to see their assailants treated lightly in sentencing. Shouldn’t they get justice too?
The road to reform that protects the rights of all of those caught up in the criminal justice system – men and women, white and nonwhite, poor and privileged – has to be a willingness to root out bias wherever it exists. Turning aside from a commitment to fair enforcement of the law does not make sense. What is needed is a careful attention to where it goes astray and transparency in the process. In this, Persky failed and should be recalled. We need to learn from this, and be willing to play our part through enforcing accountability through democratic processes. We should recall Judge Persky and should replace him with a judge who is not biased.