It’s easy to understand why people campaigned to recall Santa Clara County Superior Court Judge Aaron Persky after he handed down a six-month sentence for an appalling sexual assault of an unconscious woman. What’s less easy to see is the unintended consequences of that campaign’s success, which are likely to make our nation’s mass incarceration problem worse.
Discussion of mass incarceration often offers a simple narrative: A racist society, unhappy with the end of Jim Crow, substituted prison terms for segregated lunch counters through the manic logic of the war on drugs. This narrative doesn’t hold up to the data; outside of the federal system, which prosecutes only a small number of crimes and accounts for roughly a quarter of total prisoners, drug laws are responsible for only a modest fraction of the prison population. Less than 5 percent of state inmates are there for drug possession, and all drug crimes together only make up about 15 percent of inmates. Another minority is there for burglary, theft or fraud. But the majority of the state prison population is incarcerated for violent crime, which of course includes rapists, who make up about 12 percent of the total population.
I share these statistics to show that mass incarceration isn’t mostly about unjustly incarcerating people who didn’t really do anything wrong, but about overpunishing people who have invaded the homes and assaulted the persons of their fellow citizens. We should want to get them out of jail not because they don’t deserve to be punished, but because this form of punishment is expensive and inhumane and does a poor job of either deterring or rehabilitating criminals.
This is well known to experts who study crime. So why do we overpunish? John Pfaff has compellingly argued that it’s because of the incentives we set up for prosecutors and judges. And not just mandatory minimum sentences, which are a small part of the problem but get most of the press. Fundamentally, prosecutors overcharge and judges oversentence because voters reward them for doing so.
In that context, you have to think about the asymmetrical incentives that recalls such as this give judges in an already badly skewed system.
Remember that judges impose sentences only after someone has been convicted of something. They aren’t the ones who impose sentences on innocent people; those are juries, who aren’t subject to recall. And looking at the statistics above, we have to keep in mind that, usually, that “something” they’re imposing a sentence for isn’t a victimless crime.
The whole reason that we got into this mass incarceration mess in the first place is that the public has limited sympathy for criminals; people tend to imagine themselves in the place of the victim, not the perpetrator. This asymmetry means that it will be relatively easy to rally a recall effort when a judge imposes a sentence that the public deems insufficiently harsh, and relatively hard to do so when a judge errs on the side of the draconian.
Moreover, those recalls will tend to follow the same depressing path as the rest of the criminal-justice system: Affluent or middle-class victims will get the most attention, partly because more voters will look at them and think, “That could have happened to me,” and partly because their social networks have the resources and political clout to mount a successful campaign. The recall effort against Persky was led by Stanford law professor Michele Dauber, a close friend of the victim’s family. Other rape victims without such august acquaintance are less likely to see their cause successfully prosecuted in the public arena.
The end result will be something that none of us should want: judges who are terrified to be seen as going easy on any defendant, and particularly defendants who attacked the well-off, the well-bred, the well-connected. And thus more prisons stuffed to bursting with disadvantaged young men, even if this particular case is about a young man with substantial privilege.
As with our criminal-justice system, the problem with this judicial recall isn’t that the people involved are mistaken about the gravity of the offense. It’s that they aren’t adequately accounting for the costs of avenging it.
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