Why Removing the Judge Who Gave Stanford Swimmer a Tap on Wrist Is a Terrible Idea

Judge Aaron Persky let Brock Turner off way too easy, but we can't fire judges for being wrong

Santa Clara County Superior Court Judge Aaron Persky, who drew criticism for sentencing former Stanford University swimmer Brock Turner to only six months in jail for sexually assaulting an unconscious woman. The swimmer's father, Dan Turner, ignited more outrage by writing in a letter to the judge that his son already has paid a steep price for "20 minutes of action." (Jason Doiy/The Recorder via AP)
Santa Clara County Superior Court Judge Aaron Persky, who drew criticism for sentencing former Stanford University swimmer Brock Turner to only six months in jail for sexually assaulting an unconscious woman. The swimmer's father, Dan Turner, ignited more outrage by writing in a letter to the judge that his son already has paid a steep price for "20 minutes of action." (Jason Doiy/The Recorder via AP)
Posted June 10, 2016 at 9:32am

When Rep. Ted Poe , of Humble, Texas, was a judge himself, back in Harris County, he made national news by not only sentencing an abusive husband to jail but also making him apologize to his wife on the courthouse steps. He forced shoplifters to wear placards marked “CONVICTED THIEF” outside the stores they’d stolen from, and sent out cleanup crews doing community service clearly marked as criminals, too.  

“Public punishments,” they called it. In a 1998 interview , Poe explained that he’d seen way too many perps with excellent self-esteem, and found humiliating them an effective way to curb their criminal impulses.  

On Thursday, the Republican congressman said there’s a judge in California who needs to be taught a lesson, too — by removing him from the bench. Of course, I refer to Aaron Persky, who last week sentenced a 20-year-old former Stanford swimmer, Brock Turner, to only six months in jail and three months of probation after he was found guilty of sexually assaulting an unconscious woman behind a dumpster outside a campus frat party.

Though convicted on three felony counts of assault with intent to commit rape of an intoxicated or unconscious person, penetrating an intoxicated person with a foreign object, and penetrating an unconscious person with a foreign object, Persky worried aloud in court that a longer sentence might have a “severe impact” on the high-achieving Turner, who had hoped to compete in the Olympics.

“Mr. Speaker, the punishment for rape should be longer than a semester in college,” Poe said on the House floor on Thursday. Amen to that, sir, and thank you for your righteous anger; there isn’t such an over-abundance of people who give two hoots, or even one, about sexual assault that we can take that kind of concern for granted.  

After the long, searing letter  the victim read to Turner in court went viral, though, more than a million people have signed petitions demanding that Persky be thrown off the bench. Suddenly, he’s having some trouble getting jurors to serve in his courtroom, too; one prospective juror told him, “I can’t be here, I’m so upset,” and another rose to say, “I can’t believe what you did.”  

According to his defenders, they’re just trying to weasel out of jury duty.  

Of course, few sex offenders violate unconscious women in full view of passing good Samaritans — two students from Sweden who were riding past on their bikes scared him off, chased him down, and got her help — and there aren’t a lot of sexual assault convictions to begin with. For every 1,000 rapes, according to statistics compiled by the Rape, Abuse & Incest National Network, only six perpetrators  go to jail.  

Yet in this rare case that even the most predator-coddling can’t pass off as a fabrication or a misunderstanding, the judge still finds a way to cushion the cruelty of being held responsible.  

As much as I agree with the outcry that the sentence didn’t begin to match the brutal crime that the rapist’s father dismissed in his letter to Persky as “twenty minutes of action,” I’m afraid I can’t agree with the push to recall him for getting it wrong.  

The judiciary is supposed to be insulated from politics, and to some degree from democracy itself. And even if I would love to see both Persky and Turner bedecked with some Poe-style signage, like “Rapist,” and “Rapist Sympathizer,” do we really want to start recalling every judge who rules in a way we don’t like?  

Appeal the ruling, in other words, rather than appealing to our sense of cowboy justice in a world in which the rule of law seems both more fragile and more important than ever.  

That’s easier to see, I have to admit, against the backdrop of presumptive Republican nominee, Donald Trump, claiming on and off that Judge Gonzalo Curiel, the Indiana-born Mexican-American federal judge presiding over the class-action fraud case against Trump University, can’t be fair to him on account of his ethnicity.

“I am getting railroaded by a legal system, and frankly they should be ashamed,” Trump has said. “But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?” Will Trumpkins demand that Curiel be recalled, too?

Or maybe opponents of gay marriage could muster the local support to oust the Kentucky judge who upheld the ruling that forced county clerks to grant marriage licenses to gay couples after Kim Davis briefly went to jail rather than comply.  

The point is that judges have to be able to rule against public opinion. Yes, even when it’s the people who as right as they are this time. Stanford professor Michele Dauber, who is leading one of the recall efforts, said on Twitter that “We need women judges who understand rape is not ‘a mistake’ and the law applies to athletes.”  

Sure we do, and let’s hope all of these efforts send the message that rape is a serious crime, that pimply white boys with obsequious fathers can be monsters, and that public awareness of a case like this isn’t the “poison” that Persky said it was. On the contrary, it’s the antidote. Yet if we start treating judges just like the congressmen we can vote out of office for any reason, we’ll come to regret taking away their right to be wrong.


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