Last one out of the Kinjaverse, turn out the lights.

LLB: Judicial Incentives, or why Kristen Gillibrand is Wrong

Greeting, fellow fans of laws, flaws, and tacos, It’s another day, another #slatetake. But this one ... isn’t so bad.

Go on, take a gander-


And then, for bonus fun, check out this-

So let me start by saying this- I fully support the right of people, even politicians, to tweet without knowing all the facts and without thinking through the full impact of their statements and positions; after all, I am almost positive that the entire raison d’etre of twitter is to allow people to publish half- and quarter-baked ideas. Or, in the case of our current President, non-baked.

Moreover, I also understand that politicians need to stay on-brand. And Senator Gillibrand, a politician that I agree with far more often than I disagree with, has certainly branded herself well when it comes to supporting progressive women’s issues. Finally, the extensive coverage of Brock Turner case (the Stanford Rape case) is correct in the generalities; it was a horrific crime, and while Brock Turner will forever be on the sex registry, he will only serve six months in prison (plus another three years of probation, which isn’t nothing, but it’s also not, um, something). So I can understand the genesis of Senator Gillibrand’s tweets supporting the recall efforts of the judge in the Brock Turner case.


But I want to discuss what the judicial recall effort really means, and why it is a terrible, terrible idea both from the standpoint of this particular case, and from the general standpoint of judicial incentives, and why this should matter if you support what most people believe to be progressive causes (such as reforming our prison-industrial complex).

To understand how the error in sentencing occurred in this case, you have to first know that the judge did not create the six-month sentence out of whole cloth. Instead, this was a recommendation of the Santa Clara County Probation Department - in other words, an independent body assessed the factors, and determined this was a reasonable sentence. Did the judge have to follow it? No. But while the judge had a limited sample size of criminal cases (20 cases) since taking the bench, it appears that he tended to follow those recommendations, and that racial and class issues didn’t influence his decisions so much as prior criminal history; notably, this judge would not accept a plea bargain of less than 31 years in another rape case (involving a white defendant). Finally, since the fallout of this action (which affected jury pools due to the coverage) the judge requested, and was permitted, the ability to transfer back to the civil division.


So what we have is not a pattern of poor judging, but a judge who made a single sentencing error that was, in the minds of many, too lenient. And that judge is no longer overseeing criminal trial. And that’s the judge we wish to recall.

So why is this problematic? Well, if I had 5 cents for every time someone told me that the REAL PROBLEM in ‘Murika is that the sentences are just too darn lenient nowadays, well, I’d still be waiting for my first nickel. Yes, there are issues with mandatory minimums, with the loss of judicial discretion, and with countless other factors that force so much of our population into the prison-industrial complex. But it also helps to look at the ways in which we, the people, are culpable. Because we create these perverse incentives. The judicial system theoretically has a lot of play- from judicial discretion in sentencing, to the pardon power of governors. But these are people, and they understand something very simple-


People complain, in the abstract, about long sentences. But they get riled up and do things, concrete things, about specific cases where a sentence was “too light” or a pardoned prisoner commits another crime. Simply put, it’s our selective outrage that makes this problem worse. No judge has ever been recalled, or lost an election (in state with elections) for handing out tough, or even crazy-long, sentences. But if you’re “lenient” to the wrong person, you can go down. All it takes is that one mistake.

If you’re older, you might remember Michael “Tank Boy” Dukakis. What were the two things every person remembers about that campaign? First, the Willie Horton ad. That’s right- Massachusetts allowed a weekend furlough program, and a convicted murderer used it to commit more crimes. Regardless of the merits of the program, two lessons were quickly learned- don’t be soft on crime, ever. And racist attacks work in national politics. Well, that lesson seems to be continually “learned.”


The second moment was during the debates, when candidate Dukakis was asked how what he would do about the rape and murder of his wife (in relation to capital punishment). Dukakis made the principled answer (he opposed the death penalty his entire life) without engaging with the pathos implied in the question. But when it comes to crime, the particulars always matter more than the principles.

So it is here. Judicial independence and integrity are principles that should matter a great deal. If we want a judiciary that is more understanding, that is more likely to try and give a break to criminal defendants, then we also need to be more understanding of a judiciary that will error on the side of giving out sentences that don’t satiate our desire for retribution.


Don’t get me wrong. The judge in this case did error; but errors happen. I would rather have a judge that sometimes errors in giving out sentences to first-time offenders with no criminal history that are a little low, than a judge that consistently hammers criminal defendants so that they don’t have to worry about bad press.

And I hope that progressive politicians do not adopt the tactics of the modern GOP in attacking the judiciary when it is politically convenient to do so.


FINAL NOTE- And while this post might seem to be as dispassionate a take as that of Michael Dukakis answering a debate question, it carries resonance with me. A long time ago I was privileged to know a judge (since passed) who had his own election issue. See, the problem that he had was that there was a case, in a particular area, where a white woman was murdered. Long story short, the police picked up the first available black guy and charged him with murder. The jury voted to convict him despite there being no evidence whatsoever, and this judge did the correct thing and set aside the verdict (JNOV). Anyway, for doing the right thing, this judge nearly lost the next election- the only time in his distinguished career that it was even an issue. Which is why I feel strongly about the principle involved here, because more often that not, it is used to whip up people that don’t know very much. Just think to yourself- how many judges in your local jurisdiction can you name, and can you identify whether they are “good” or “bad” judges, and what metric do you use? So I get somewhat annoyed when a politician, even one I normally agree with, uses a local judge as whipping post for their aspirations.

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