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Stanford Rape Judge Demonstrates Need for Judicial Independence

The opinions expressed by columnists are their own and do not necessarily represent the views of
When Santa Clara Superior Court Judge Aaron Persky sentenced Brock Turner, a Stanford freshman convicted of sexually assaulting an unconscious woman behind a dumpster, to six months in jail, three years' probation and lifetime sex-offender registration in June, it was a national story. Legal insiders knew Turner would serve three months -- not six -- for a felony assault, which he conveniently blamed on Stanford's booze-fueled "party culture" rather than his own brutish behavior.

Americans looked at the mug shot of Turner and saw the face of arrogance and privilege.

Thousands of outraged citizens accused the judge of misconduct as they lodged complaints with California's Commission on Judicial Performance. Some said that Persky was lenient because Turner was white and privileged, others that the judge was insensitive to female victims. Some said Persky should have recused himself because his experience as a Stanford athlete made him biased in Turner's favor. Feminists created the hashtag #PerskyMustGo in reaction to the judge's assertion that "justice would best be served" if Turner was spared serving time in a state prison.

Monday, the judicial panel cleared Persky. I think the commission got it right. But Stanford law professor Michele Dauber, who has become a spokesperson for victim "Emily Doe" and is heading the effort to recall Persky, took issue with the finding. Dauber also asserted the recall effort would go forward.

Dauber has this going for her effort. Three months does seem like an absurdly light sentence for the sexual assault of a an unconscious woman. When two Swedish graduate students saw Turner digitally penetrating a woman too inebriated to consent, Turner fled -- which demonstrates that he knew he was guilty. Turner's decision to blame alcohol for his crime shows Turner has not taken responsibility for his actions.

But there's more to the story. Critics mocked the judge for suggesting that if freed from jail, Turner "will not be a danger to others." But the probation Department, using a Static-99R assessment metric, believed Turner had a "low-moderate risk" of reoffending. Another assessment suggested that Turner get drug and alcohol treatment and therapy -- all of which could be done while Turner was on probation.

While prosecutors sought a six-year sentence, the Probation Department recommended a term of a year or less in jail (not prison), followed by three years of probation and lifetime sex offender registry. Persky's sentence effectively reduced Turner's jail time from the Probation Department's suggested six months (given the state credit of two days deducted for every four days spent in jail) to three months. I doubt six months would have mollified Persky's critics.

I think Turner's jail time was too short, but the rest of his sentence -- registering as a sex offender -- will last a lifetime. Turner, who returned to Ohio after his release, won't be able to get a professional license -- he won't be able to work as commercial driver, life insurance agent or realtor -- and he'll have to abide by rigid residence reporting requirements. For the rest of his life, Turner's status will be marginalized.

You may think Turner deserves that fate, but if he had killed someone, he wouldn't have to sign onto a murder registry. When you add lifetime sex offender registration to the three months in jail and three years' probation, Turner's sentence hardly can be seen as light.

Critics also went after Persky for considering Turner's youth and lack of a significant record. That is, Persky did what judges are supposed to do: He gave a lighter sentence because he saw no proof that Turner was a habitual serious offender.

The public's reaction to Turner is understandable. His father didn't help when he wrote to the court that his son, who is no longer an "easy-going" young man, must pay "a steep price... for 20 minutes of action out of his 20 plus years of life." Add his defense lawyer's decision to grill the victim on her drinking, and it's no surprise Turner became the subject of universal scorn.

Victim Emily Doe's righteous letter to the court shredded the defendant's excuses.

The outrage at Turner's mistreatment of Doe led to a lynch mob mentality that targeted a judge for meting out a sentence in line with Probation Department recommendations. If three months seem too lenient -- I would agree with that assessment -- a lifetime on the sex offender registry is harsh. It is wrong to see Turner's sentence as a slap on the wrist. Also, the notion that a judge should recuse himself if the accused went to the same college is risible. After all, if a judge cannot separate himself from his college days, he should not be a judge.

In finding no malpractice on Perksy's part, the Commission on Judicial Performance cited the judicial code of ethics: "An independent, impartial, and honorable judiciary is indispensable to justice in our society." Yes, Persky's decision generated bad headlines, but that is the nature of public opinion, and the price to be paid for judicial independence.

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