Judges Will Not End Mass Incarceration

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UPDATE: Judge Persky has come under increasing fire, especially from anti-racism activists, for giving a 3 year sentence to Salvadoran immigrant man who committed a similar crime as Brock Turner. #RecallPersky takes off in response.

This post is inspired by the recent petition by Deputy Public Defender Sajid A. Khan and signed by an impressive roster of other public defenders. The petition seeks to defend Judge Aaron Persky, who handed down the six month county jail sentence to Brock Turner for three sexual assault offenses. Because judges are given wide discretion in sentencing, many feminists have gone after Judge Persky for what they see as patriarchal leniency. Others have noted the treatment of Brock Turner differs from what happens to many Black men charged with similar crimes, a dark reminder that the legacy of stereotyping Black men as sexually dangerous remains.

After reading over Attorney Khan’s petition a few times, I understand and sympathize with her argument. As a prison abolitionist, I too am concerned over how our criminal justice system goes after people of color and the poor. And from the perspective of public defenders who have worked with Judge Persky, it must be frustrating to see one of the few judges that is lenient in their sentencing have their career jeopardized. But public defenders, like all lawyers, are primarily responsible to the best interests of their clients, and this focus can sometimes interfere with what is best politically and socially.

I respectfully disagree with Attorney Khan’s argument for the following reasons:

  1. Attorney Khan attempts to reframe Judge Persky’s decision on the sentence of Brock Turner by explaining step-by-step how it happened, showing it involved multiple sources of input including from the survivor of Turner’s attack. While I always appreciate bringing legal processes to light, this counter argument assumes that those who criticize Judge Persky believe he did not spend a lot of time on the process or that it was simple or straightforward. It obfuscates that, aside from the sentence itself, many of Judge Persky’s critics are so upset precisely by his reasoning. Judge Persky said the following in court:

    “I mean, I take him at his word that, subjectively, that’s his version of events. The jury, obviously, found it not to be the sequence of events…there is less moral culpability attached to the defendant who is legally intoxicated.”

    This quote is pretty difficult to defend, and seems to undermine the assertion that Judge Persky’s decision was holistic when he takes Turner “at his word.” And saying that there is less moral culpability for intoxicated defendants is a dangerous justification of date rape. My prison abolition politics stem from believing that prisons are an ineffective, as well as inhumane, means of holding people accountable for their actions. Judge Persky is not taking a stand against carceral solutions to social problems here: rather, he is saying that Turner’s actual moral culpability is less. It is more The Red Pill than The New Jim Crow.

  2. Judicial independence is not a measure that protects the marginalized people in our society. While I will assume that Attorney Khan is correct in her assertion that this was how Judge Persky treated all his defendants, not just white male athletes charged with sex crimes, he is the exception rather than the rule. The judges of Cook County, Illinois demonstrated an 18 percent disparity in sentencing between white and Black defendants. Example after example after example after example after example after example has shown that gender bias can also be a product of judicial independence. More often than not, when judges are given an opportunity to use their power to prevent an obvious injustice, they fail to do so. I was surprised by the effusive praise for judicial power when more often than not it is public defenders I hear complaining about it.

Marx knew that the choice of individuals in the bourgeois classes, like judges, would never improve life for the most marginalized people. In The Eighteenth Brumaire, he wrote:

The entire class creates and forms [choices] out of its material foundations and out of the corresponding social relations. The single individual, who derives them through tradition and upbringing, may imagine that they form the real motives and the starting point of his activity.

Lenin also despised individualism, writing a scathing critique of anarchists who advocated for it:

The philosophy of the anarchists is bourgeois philosophy turned inside out. Their individualistic theories and their individualistic ideal are the very opposite of socialism. Their views express, not the future of bourgeois society, which is striding with irresistible force towards the socialisation of labour, but the present and even the past of that society, the domination of blind chance over the scattered and isolated small, producer. Their tactics, which amount to a repudiation of the political struggle, disunite the proletarians and convert them in fact into passive participators in one bourgeois policy or another, since it is impossible and unrealisable for the workers really to dissociate themselves from politics.

I share Attorney Khan’s desire for a world where a person’s crimes are considered holistically, and I would add to that a desire for focusing punishment on holding a person accountable rather than punitively harming them. But, aside from the media attention, Judge Aaron Persky and Brock Turner are not where a stand must be taken. We will only have a fairer world when the judges who abuse their power are removed from office and privileged white men are not able to get special treatment when they have committed a heinous act of sexual assault against someone.

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