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Wednesday, June 08, 2016

Stern on liberals, sexual violence, and the justice system

I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his  light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases,  the right to confront witnesses, and general abandonment of due process in campus sexual assault.

To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.

Posted by Howard Wasserman on June 8, 2016 at 04:38 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink


gdanning provides the basic concern but here the victim herself gave a statement, which provides a window into specifically what harm the person did. I think giving it "some" weight, especially regarding the harm that is not random & would be knowable to the accused (e.g., basic emotional harms that an average sexual abuse victim would suffer), can be relevant. We then would have to determine if the cost overwhelms this benefit.

Also, there is going to be some arbitrariness probably including the other way -- two equally guilty people might get very different sentences because one person is more well off and liked with more character witnesses though the other is as morally culpable.

Posted by: Joe | Jun 13, 2016 3:17:50 PM

My problem with victim impact statements is this: Suppose my twin brother and I each randomly fire into a crowd. As a result, I kill a disgruntled loner with no family, while he kills the sole breadwinner in a family of 12 disabled children. If victim impact statements are given any weight, then he will get a longer sentence than I will. Get, it seems to me that we are equally morally culpable. Why should I get a break because I happened to kill a guy whose death affects no one?

Posted by: gdanning | Jun 13, 2016 1:23:48 PM

I can see why it can be a problem given the high level of importance in capital cases -- Booth v. Maryland -- but inclined not to think a TOTAL bar of victim impact statements is warranted. The statement, along with other things, helping a judge set a term of years sentence -- especially a relatively short one -- seems reasonable. I'm open to arguments the other way, but that part didn't convince me. The article overall is a good one; it helps that one can believe that AND think the sentencing was wrong here.

Posted by: Joe | Jun 9, 2016 11:35:05 PM

I don't see what the problem is with victim impact statements, at least not if you going to allow character testimonials on behalf on the defendant.

Posted by: John | Jun 9, 2016 11:00:15 PM

I've yet to see comments pointing out how progressive law professors (including some at Stanford) have been outspoken critics of fixed or minimum sentences. I'm still waiting to see them speak out on this case.

Posted by: PaulB | Jun 9, 2016 8:46:12 PM

Don't answer that, Howard! Just let me bask in the glow of this one post!

Posted by: Mark Joseph Stern | Jun 8, 2016 4:59:55 PM

Why do you "generally [] not like" Stern's work?

Posted by: Marcus Neff | Jun 8, 2016 4:48:12 PM

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