In the midst of the #MeToo movement, California voters recalled a judge for being lenient on sexual assault. As a new documentary argues, that recall campaign had unintended results.
In 2016, Brock Turner, a former swimmer at Stanford University, was convicted of sexually assaulting an unconscious woman outside of a fraternity party. Two passersby saw the nineteen-year-old freshman thrusting upon an immobile, partially unclothed woman, next to a dumpster, and restrained him while they called the police. At Turner’s sentencing hearing, the woman, known in court proceedings as Emily Doe, read a victim-impact statement that addressed him directly: “You don’t know me, but you’ve been inside of me, and that’s why we’re here today.” BuzzFeed published the entire statement, which went viral.
The Santa Clara County Superior Court judge, Aaron Persky, sentenced Turner to six months in jail, three years of probation, and lifetime sex-offender registration, saying that a longer prison term “would have a severe impact on him.” (The maximum sentence that Turner could have received was fourteen years in prison.) The leniency of the sentence, along with Doe’s viral statement, ignited widespread fury. Soon afterward, Michele Dauber, a professor at Stanford Law School, launched a campaign to remove Persky, an elected trial judge, from his job, through a recall election.
No attempt to recall a trial judge had even made it on the ballot anywhere in the country since 1982, and no California judge had been recalled since 1932. But the emergence of the #MeToo movement spelled doom for Judge Persky. He was successfully recalled, in 2018, by a wide margin. Dauber said, at the time, “We voted that sexual violence, including campus sexual violence, must be taken seriously by our elected officials, and by the justice system.” The precepts of Black Lives Matter, too, seemed to support the campaign, insofar as mercy shown to a privileged, white male Stanford student appeared to be an instance of racially disparate treatment. As Dauber wrote in the Washington Post, “It is the very fact that judges like Persky often exercise ‘discretion’ in favor of defendants like Brock Turner that preserves a system in which poor and minority defendants receive long sentences.” In an e-mail to me, Dauber added, “The fact that Turner’s victim was an Asian-American woman of color made refuting the Persky campaign’s spreading of rape myths and falsehoods even more important, given that research indicates survivors of color may be less likely to be believed.”
The anti-Persky campaign also drew liberal critics, who anticipated that a movement to remove a judge for being insufficiently punitive in a criminal case would bring troubling unintended consequences. The retired judge LaDoris Cordell, a feminist who, in the nineteen-eighties, became the first Black woman judge appointed in Northern California and, later, an elected superior-court judge in the same county as Persky, participated in a campaign against the recall. She said, at the time, “I’m opposed to it because I believe this recall is terrible for racial justice.” She and others believed that it would make judges less independent and, in particular, more afraid to be lenient. Such reluctance would breed more punitiveness and harm Black and Latino defendants, who are severely overrepresented in the criminal-justice system.
That debate inspired two political scientists, Sanford C. Gordon of New York University and Sidak Yntiso of the University of Chicago, to study the impact of the Persky-recall campaign on criminal sentencing. They set out to determine whether the recall campaign changed judges’ behavior, and how it affected racial disparities in the sentences that judges imposed. This past October, the two scholars published their study, which relied on data from nearly twenty thousand sentences issued by more than a hundred and fifty California judges, between 2015 and 2018. They found that, immediately after the public announcement of the Persky-recall campaign, judges began imposing sentences that were roughly thirty per cent longer on average, across the board. Those increases maintained preëxisting racial disparities. In other words, even though the Persky-recall campaign aimed to raise consciousness about white privilege, the additional years in prison were disproportionately imposed on Black and Hispanic people. And, even though the campaign focussed on sexual assault, the study found that the increased sentence lengths were primarily driven by nonsexual crimes, and possibly by nonviolent crimes.
These findings lend support to a sober new documentary, “The Recall: Reframed,” by Rebecca Richman Cohen, which aired on MSNBC on March 19th, and is streaming on NBC. It takes a critical look at the Persky recall, through the lens of mass incarceration. Richman Cohen, who teaches at Harvard Law School, began researching and shooting “The Recall: Reframed” before the pandemic, but she told me that the racial-justice uprisings of 2020 “opened the doors to having a much more nuanced conversation”—one that would not necessarily pit advocacy for sexual-assault survivors against the movement to end mass incarceration. “It really made space to see how you could care deeply about both of those things and frame them in a way where they didn’t work against one another,” she said.
So much for the metoo movement being liberal. I always knew it was authoritarian in nature.
I used to subscribe to this mag. I’m not sure what exactly their identifying here. High profile cases seem to be sorted by media to fit an agenda. Given the amount of coverage this case received it makes a good case for the lack of fair trial problem, especially in sex cases. Did Turner get a fair trial? If so did those who followed get a fair trial- not influenced by the Turner case?
Yes, Turner’s sentence was ” light” but comparing it to other defendants in scenarios with different facts, race or background, victim type is an overreach because those cases weren’t selected for extreme high profile coverage.
I can only chuckle knowing a case like FTX was selected for high profile coverage and impacted far more people, however conveniently the media blitz didn’t last nearly as long as the Turner – Persky saga. I wonder if the New Yorker will revisit the Cosby case. The battle against mass incarceration begins with providing fair trials.
“It is the very fact that judges like Persky often exercise ‘discretion’ in favor of defendants like Brock Turner that preserves a system in which poor and minority defendants receive long sentences.”
Correction: Defendants receive longer sentences unless their victims are also poor and minority–in particular black
Um…It appears to be glossed over from the reporter to the contributors and here but let’s not forget (light reminder) he did receive “Lifetime registration” from the Judge. Regardless of how much “light” time he got in the clink and supervision, he (and his family) still has lifetime registration hanging on him like a oxen under a yoke. So while those who want to opine he did not wear the orange jumpsuit long enough, unless he has a superior support network which will be helping him the rest of his life, it won’t be easy for him in Ohio where he allegedly went back to (if you believe what is written online and woman are already spreading the word he is there). The punishment is not light for him in the end even if he can get back to some sort of balance in life. I know we all know this.
I feel for those who were sentenced after the recall because of the ripple effect it had on them but they will get the chance to possibly have their conviction expunged, sealed, moved on from without the public given two cents about it down the road. The dynamics did change and not for the better. This is the outcome of emotional irrational actions instead of overall big picture thinking.
About time someone got to looking at this case and outcome 7 years later to determine it was not for the best in how it played out.
BTW, Alaleh Kianerci is the prosecutor who secured Turner’s conviction (it is in the article).