If judges are following the law, even if you don’t like it, then blame the law.
If we had something close to a just and fair system and society, I’d be with you. But I think we’re in such a fundamentally broken place that society needs to use these sorts of tools, in some circumstances, to try and prevent things from getting even worse.
If a judge is in a position in which the “legal” or “strict” (or whatever) decision is profoundly and deeply immoral, then they should either resign or make an “illegal” fucking decision, which might help move the law towards the side of morality. Of course there’s a slippery slope and a ton of danger here, since that can go wrong in so many ways… but our system is so fundamentally unfair and broken that I’m even more worried about the status quo than such possible dangers.
I’m not so interested in this personal side of it as what is going to work for society. People are people, and some of them will fuck up. In some circumstances, society will work better for everyone when they get 2nd and 3rd (or whatever) chances… in some cases it may not. In some cases it’s very grey. I think society clearly puts these consequences on the poor and disadvantaged – poor people face terrible consequences for bad decisions… rich people are much less likely to. Rich kids get 2nd and 3rd (and 10th and 20th) chances when they screw up… poor kids might become institutionalized and permanent ex-cons with no likelihood of getting honest and decent-paying work after a single bad decision. I think that’s bad for society as a whole, and I favor approaching it from both sides. The rich have it too easy, and the poor (and otherwise disadvantaged) have it too tough, to sum it up very broadly.
Well said. Too bad nobody here is listening.
If there is no marginal punishment between rape and murder, there is no marginal deterrence.
This actually increases the incentive to murder, on that margin. “I’d rather be hanged for a sheep than a lamb.” No reason to leave a witness alive if the penalty for murder is the same as the penalty for rape. The same worry exists for three-strikes laws in the US. Criminals on their second strike might increase the severity of their third crime, in order to lessen the chance of getting caught.
But even on top of that, to punish the perpetrators of two different crime in the same way is an open statement of belief that the severity of the two crimes is the same. Both are seen as equally bad, which is why they receive the same punishment. I can see why a radical conservative might see the rape of a woman as equivalent to the murder of that woman. The radical could think: “What possible value could she have after being raped?” But I earnestly hope that that is not a common opinion. Rape is a terrible crime, but it is not equivalent to murder. People are not robbed of their entire dignity and respect as human beings from having been raped. At least, not in the opinions of civilized people.
Blunt instruments will not change culture in this way.
Non-parallels because it’s really a matter of ‘reading the room’.
Persky, in the case in question, was literally terrible at knowing the tone of the society in which he was functioning. He made some astonishingly stupid statements and then has suffered some social consequences because of it. Bang. That’s the long and short of it.
Someone who confronts the opioid addiction crisis with ‘Choices have consequences’ is speaking truth. Absolutely. But would also be really misreading the room given the current state of the culture.
Wait, wait… is leaving someone dying on the sidewalk from an opioid overdose even as drugs could be made readily available to save them wrong because it’s wrong, or is it wrong because it’s “misreading the room,” as in “exposes one to excessive criticism, and so prudent to avoid”?
Likewise, was Persky’s decision to sentence Turner to less than the statutory minimum wrong because justice demanded a stiffer sentence (which of course would lead us into a discussion of "what do you mean by “justice” or, more specifically, what should be the aim of the justice system) or was it wrong because he “misread the room” and failed to take into account mob justice?
I agree.
And I’d like to add that there’s often a lot of legal sausage-making that goes on that the general public does not see- a judge’s ruling or sentencing decision may not just be the product of his own personal whims; it may be influenced by something else- a desire to avoid appeals, for example, might influence a judge not to throw the book at a defendant. Or other sorts of deals and hijinks with charging and sentencing might have gone on.
But sometimes the “room” is wrong.
If a judge is in a highly racist society, and rules in favor of a black defendant, is he “misreading the room/society” and therefore deserves harassment or social penalties for his ruling?
Not saying that the Brock Turner case is comparable to racism, just saying that penalizing a judge because he/she doesn’t act in accordance with what society wants can be a recipe for injustice. Sometimes society wants what is wrong.
That is really silly. The judge was under a duty to give reasons for his sentence. He absolutely was under a duty to consider both mitigating and aggravating circumstances in reaching his conclusion.
Wanting judicial decisions to be handed down on the basis of whims is a recipe for disaster.
This is a horrible position. The judiciary system should dispassionately operate according to the laws passed by the legislature. The idea that a judge should substitute their own morality for the law means an end to the rule of law.
Persky followed the usual procedure and is being punished because the case caught the attention of the public and a bunch of people got outraged out of ignorance and decided to act like a mob.
The inevitable result will be harsher sentences for everyone. The result of removing discretion from judges when it comes to sentencing means that either awful crimes will be under punished or relatively less egregious crimes will be over punished. Which is the more likely outcome, that politicians will be more willing to face outcry over why horrible criminals are being coddled or that they are too harsh on the occasional sympathetic defendant. Especially, in the light of this case.
I played 4 years of high school tennis and the subject of rape never came up, I guess times have changed.
I would ascribe to this sentiment if I thought we lived in a mostly functional and fair society with a mostly functional and fair criminal justice system. But I think our society and institutions are profoundly broken, and until they’re fixed, I have no problem with society making these sorts of judgments, and I have no problem with public officials doing what is morally correct (by my morals, of course!), when following the law would result in great evil. And of course this is dangerous and a slippery slope… but not as dangerous as the status quo.
I’d be at least as concerned about his being in a position of counseling and providing a role model for boys and young men.
I haven’t followed this whole thing in detail. But it’s my impression that contrary to what you’re saying, part of what caused the outrage was exactly that the rich white kid was being let off because the judge thought he had a bright future, whereas someone from a marginalized background would very likely have gotten a harsher sentence.
I don’t think people should be following the judge around forever trying to prevent him from getting any job at all. But I don’t see why his previous history in general, including his work history, can’t be taken into consideration in deciding whether he should be working with teenagers.
(bolding mine)
It’s been more than three years since this case; has that happened?
Aye; it has. I’m surprised you hadn’t noticed sooner.
No matter how bad things are now they can always get worse. Making judges answerable to the whims of online mobs instead of the law is almost guaranteed to make things worse.
In terms of social consequences, judges (and everyone else) already is “answerable to the whims of online mobs”. This is just the way the world is now. What you say, and what you do, if it’s in public, is available for everyone else to see. And if they don’t like it, they might tell you.
So if this is “guaranteed to make things worse”, then things are going to get worse, since there’s no way to prevent it.
I’ve seen much worse happen to a judge as a result of his ruling. When Judge Garrity desegregated the Boston schools, he received death threats and his home was vandalized.
In general, it’s a bad idea for judges to be punished for their legal, proper actions as judges.
But that’s not what happened here.
What’s happening here is that future employers are taking his work-history into account, just as they would for any other employee. In particular, his actions suggest that he isn’t fit to counsel or mentor teenage girls, which is a critical component to this job.
I don’t think the citizens would have made a stink if he’d been hired to issue building permits or plow the streets. But he does seem to have shown himself to be unfit for this particlar job.
right
This, too.
I understand that, but here outrage politics make strange bedfellows. You have the social justice/end rape culture crowd on the one hand, and the “tough on crime” crowd on the other, which I would posit roughly correspond to being segments of the democratic and republican parties respectively. In the Turner case they are aligned in their outrage, but when there is a person of color or from some other marginalized background being hauled before the justice system on “heinous charges” (I mean, my god, can you get any more heinous charge than a black man sexually assaulting—nay, raping!—a white woman?) and suddenly one group has mixed feelings about upping the sentence to “50 years,” do you think that whoever happens to be sitting on the bench is going to take notice of the subtle change in public outcry? Or, more to my point, should the judiciary EVER be swayed by the mere potential for public outcry, regardless of the law and the interests of justice?
Because the rich white kid already got off. The next marginalized defendant maybe won’t get it so easy, and quite probably never would have had it so easy to begin with. With that in mind, I think people need to ask themselves, is it that the judge went too easy on the rich white kid, that they go too hard on minorities and the poor, or is it not quite right for either cohort? And if you find yourself in one of the latter two categories, is how you’ve framed your reaction to the Turner case properly conveying your nuanced/in-between position? Because the “women are white men’s property, and we’ve got to protect their virtue, and most of all from the brown people” crowd is happy to have your voices added to theirs when it suits them, and to obfuscate when it doesn’t.
If you believe my position silly, you don’t understand it.
I wholly understand that Persky was obliged to explain his decision. I entirely agree that in explaining his decision, he was doing his job. His reasoning, nevertheless, strongly suggests that he does not take the threat of sexual assault as seriously as I believe an adult should. He expressed sympathy and respect for an unsympathetic and disrespectful criminal. Were I in a position to determine if he should be in a position to supervise teenage girls, I would find him wanting. That is a perfectly reasonable position.
I’m not arguing he failed in his job as a judge. I am saying his attitude means I would not want him to have a job as a girls’ tennis coach.
I wouldn’t trust the former judge’s decision making to clean my toilet. He deserves whatever legal shunning he gets. I would not allow a child of mine to interact with this person in any capacity.
Exactly.
Mores change, his attitude is in my opinion of the same era that held that there is no such thing as marital rape … and as I said before, I would not want him in charge of caring for young women who might have to come to him to report sexual assault … because he obviously does not care that a girl has the right to say no, or if she is incapacitated by drink or drugs to not be abused when she can’t say no … Even if you are in the middle of foreplay or sex, if someone says 'I changed my mind, no" then the activity is ended.