Wednesday, August 10, 2016

Judicial Discretion and the Left

The story of mandatory sentencing in this country -- both how it came into being and the disastrous impact it has had in the years since -- should be familiar to us all by now. As Richard Beck aptly summarizes it, in a book I recently reviewed on this blog:
"Beginning in the 1970s [...] the series of policy reforms comprising what is known today as the War on Crime permanently altered judges' position within the legal system. Where the public had previously tended to see judges as impartial arbiters of the law, many -- especially conservatives -- now saw a group of unelected, unaccountable officials who frequently used their powers of discretion to let dangerous criminals off the hook. And if those powers of discretion were now a problem, the solution was to take them away from judges and hand them over to prosecutors. [...] The introduction of mandatory minimum sentences of those convicted in court [...] eroded the judiciary's discretionary powers, making the prosecutor's decision to bring charges -- rather than the judge's assessment of the circumstances surrounding the case -- the key factor in determining the length of a convict's prison term. These incremental shifts were soon reflected [...] in the country's incarceration rates, which increased dramatically[.]"
Beck is no less critical of the creation of sex offender registries in this country -- another byproduct of this same punitive era -- as well he should be. Alone in its harshness among peer nations, the U.S.'s approach to punishing sexual offenses essentially creates a class of social pariahs, whose rights to live and work where they please are permanently restricted. By these means, crimes that no court or legislature has ever deemed to merit a life sentence are nevertheless punished in this country with lifelong debilitations. Human Rights Watch has documented cases of children as young as 11 years old who have been placed on these registries for juvenile offenses, and thereby stigmatized for life.

Such criticisms of mandatory sentencing, sex offender registries, and the regime of mass incarceration to which both contribute are considerably less controversial today than they would have been ten years ago, and especially so on the academic Left, where restorative justice and prison abolitionism have attained something of the status of buzzwords. America's criminal justice system -- or injustice system, as it has not inaptly been dubbed -- has been delegitimized in educated liberal and left-wing opinion to an extent unprecedented in recent history.

It is therefore more than a little strange and troubling that the Left has, in the last few months, mounted a national campaign (a "calculated frenzy," to borrow a phrase from Philip Roth) to recall a judge who exercised his discretion to pass a lenient sentence for a sex crime -- a campaign that has since escalated into a demand to introduce mandatory sentences that would eliminate such discretion for similar cases in future. For months now, I have received periodic updates in my inbox from calling for the ouster of Aaron Persky -- the judge in this case. The Guardian and similar outlets have made a prolonged effort to smear his sentencing record in tendentious ways. The voices on the Left that have taken a different view are few and far between -- though they do exist. In the midst of the furor, a handful of public defenders have spoken up for Persky. They point out that his sentencing in the Turner case was made in line with considerations that any conscientious judge might have invoked -- the youth of the offender and his lack of any prior criminal record being chief among them. Writes Sajid Khan, a public defender in San José who is virtually the only public figure anywhere to defend Persky's decision at length:
"The sentence Judge Persky imposed upon Mr. Turner is exactly what I would want for a public defender client of mine under similar circumstances. [...] County jail coupled with probation supervision provides a first time offender the opportunity to rehabilitate in the community and prove themselves worthy of avoiding prison.  It is the sentence we would want for our brothers, our sons, and our friends if they were convicted of crimes, even sexual assault, for the first time like Mr. Turner.  The lack of empathy for him is astounding."
He ends by pointing out that the alleged leniency of the sentence has been greatly exaggerated, given that we reside in a society that attaches permanent records to convicted felons and sex offenders. Carrying the convictions he does, Turner will now be doubly marked for life -- from the age of 20 on.
"There are many punitive, harsh layers of the sentencing that the headlines don’t capture.  [...] Anyone questioning the severity of six months jail should spend one night in jail and then tell me Mr. Turner got off light. [...]  Mr. Turner is now a convicted felon, a branding he cannot shake for the remainder of his being. He must register as a sex offender for the rest of his life. [...] A probation officer will vigorously supervise him  and require that he participate in various programs like substance abuse counseling and sex offender treatment. If he violates his probation by failing to comply or by committing a new crime, he can still be sentenced to up to 14 years in state prison."
Occasionally one reads something that reassures one that one is not insane -- or if one is, that one is at least not the only one. Khan has managed to say more crispy and bravely something that I have only been gesturing toward in recent posts that touched on this case.

It is a lonely position to take, however, and Khan's petition in defense of Judge Persky and judicial discretion on is garnering few signatures, by comparison to its rivals, though my signature is one of them. Few people will want to open themselves to the charge of minimizing the seriousness of sexual assault, which, however spuriously, is sure to be lodged against anyone who speaks up for Persky's position. To argue, as I and the petitioners are doing, that 1) Brock Turner should not have been sentenced differently than he was, and 2) even if he should have been, it is still critically important that we not allow a judge to be recalled simply because of a light sentence that outraged public opinion, lest it encourage other justices to stiffen their sentences in fear of the same fate-- is inevitably to place oneself in an uneasy position. It requires on the one hand that we sincerely condemn what Brock Turner did. The crime was certainly abhorrent, and it should not in the least surprise us that -- combined with the victim impact statement that was released to the public -- it should have provoked strong feelings of moral revulsion and outrage. It also requires, however, that we recognize the humanity even of the person who did this terrible thing, and that we regard this sentence, which allows for Turner to be reintegrated into society -- albeit with two permanent stigmas now hanging over him -- as more than sufficient penalty.

Many will not be willing or able to see the humanity in Brock Turner, and that, too, is not surprising. When one's conservative acquaintances tell you that they "actually see eye-to-eye with the feminists on this one," one should contain one's shock. Yet the Left, at least, must recognize that this is nothing more than the most basic moral requirement imposed on us by all our talk of "restorative justice." It's easy to condemn mass incarceration in the abstract, after all; and it would prove no challenge at all to be a critic of the prison system if everyone in prison were innocent. The real test comes when there is a high-profile crime that is genuinely revolting to the conscience. Can we face it squarely -- not minimize or hide from the suffering and damage it has inflicted -- and yet still ask for relatively merciful ways of responding to it -- ways that protect future victims, to be sure, but that also allow the perpetrator to retain his or her membership in the human community? Maybe we'll decide we can't. Perhaps we will not be able to stand the heat and will have to get out of the kitchen. But if so, we are not proponents of restorative justice and shouldn't pretend to be.

Mass incarceration and mandatory sentencing laws weren't created by demons who set out to torment innocent people for racist and classist reasons, after all. They were at least in some measure implemented by people who were genuinely outraged by the prevalence of violent crime in this society, and thought that a harsher sentencing regime would help to eradicate it. So too, I do not doubt the motives of the people arguing for Aaron Persky's removal from the bench and a new set of mandatory minimums for sexual assaults committed against unconscious victims. I'm sure they believe that this is simply what it will take to end sexual violence, and that is justification enough. But their argument, however well intentioned, is the same one that created the system we have inherited -- a system that  -- if not quite proving -- has at least rendered increasingly plausible a line first penned by Oscar Wilde: "[A] community is infinitely more brutalised by the habitual employment of punishment, than it is by the occurrence of crime."

It will be argued that Turner doesn't deserve our empathy. Where was his empathy for the victim? people will ask. Did he recognize her humanity, when he was committing the rape? How can Khan and the others be calling for mercy for him when he didn't show any mercy to her?

The reason why Khan is calling for mercy is the same reason that Donald Trump is wrong to suggest that the United States should drown people in cages and cut off people's heads since that's what ISIS does. "They're playing by different rules!" says Trump, suggesting we ought to try on some of those new rules ourselves.

It's true; they are playing by different rules. So are people who commit violent crimes like sexual assault in a civilized society. We as an organized community do have a different set of rules from those of criminals and terrorists. They are the rules by which we demonstrate that we are not a criminal or terrorist society.

These rules are quixotic and strange, to be sure. They do not always satisfy the desire for retribution, let alone that for vengeance. But they happen to be our rules, as people with liberal values.

If you do not want to be a liberal, of course, no one can force you. But do not speak as one unless you are willing to apply those values to the Brock Turners of the world as well as everyone else. Mercy is painless, it is cost-free, when extended to people whom one doesn't actually think have done anything wrong. It is easy to speak of the "inherent worth of all people," as my own religious denomination does, when one has in mind only the obviously worthy.

The truly radical implication of liberalism, though, is that everyone means everyone. A terrifying thought -- an astonishing thought -- no more likely to be realized by flawed mortals such as us than any other astringent moral code. As Ortega y Gasset writes:
Liberalism [...] is the supreme form of generosity [...] it is the noblest cry that has ever resounded in this planet. It announces the determination to share existence with the enemy; [...] It was incredible that the human species should have arrived at so noble an attitude, so paradoxical, so refined, so acrobatic, so anti-natural. Hence, it is not to be wondered at that this same humanity should soon appear anxious to get rid of it. It is a discipline too difficult and complex to take firm root on earth.
Certainly too difficult and complex to take root in that amorphous thing that is my ideological family, and that therefore has the power to infuriate me as no other can -- the political Left.

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