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2018 Bay Area Primary and Mass Incarceration: A Judge's Role

The overwhelming vote to recall Santa Clara County Judge Aaron Persky contrasted with the San Francisco Public Defender unsuccessful attempt to challenge conservative judges up for reelection highlights a critical problem with the criminal justice system. The state court judicial system is programmed for mass incarceration. I’ll explain.

If a judge sentences based on considerations such as a lack of record, youth, remorse, the fact the conviction alone will brand someone a felon, and in the Brock Turner case, a registered sex offender for life, the judge faces public ridicule and loss of his profession. Human nature tells us no one would want to risk losing his livelihood and plummeting from the pinnacle of prestige for a stranger. Instead, the judge will tend to err on the conservative side by giving the accused the longest and most harsh sentence imaginable. That way, the media and the public are less likely to complain. Comparatively, very few people rally behind someone who committed a crime to argue the person was treated too harshly. Even when there are those that come to the defense of convicted felons (for example, reality TV star Kim Kardashian recently successfully advocated for the release of a convicted grandmother at the White House), there is rarely any negative publicity for the judge who handed down the harsh sentence in the first place. If there is no downside for giving a harsh sentence, why wouldn’t the judge do it? On the other hand, the fear the decision to give a more lenient sentence will later come back to haunt the judge pervades the judge’s decision-making to the point the judge will generally tend to err on the side of incarcerating longer and harsher rather than investing in rehabilitative or restorative justice efforts.

The drive to do what is just is simply not as strong as the drive for self-preservation. Thus, day-after-day, criminal defendants come before judges who want to maintain their station in life rather than help people who have made sometimes colossal mistakes. This is the case despite

the fact data shows incarceration does not reduce or deter crime. In fact, there is data to suggest increased incarceration may lead to increased crime. Diversion and restorative justice programs are much more effective and impactful.

Contrast Judge Persky’s situation with the San Francisco Public Defenders who challenged four sitting judges in an unprecedented effort to bring light to the issues raised above. I am in a somewhat unique position to comment because two of the challengers were my former supervisors, the other two colleagues and I have appeared in front of all four sitting judges. Ironically, the San Francisco Superior Court is starkly more liberal than the Santa Clara Superior Court where Judge Persky presided. Nonetheless, after seeing sentences meted out based on the judge’s self-preservation and political pressure rather than what is just for all the surrounding circumstances and parties concerned, these San Francisco Public Defenders decided to do something about it. California has a system in place to require judges to run for “retention” elections even after being appointed by the governor. Those elections, however, are meaningless if the judges run unopposed. The Public Defenders sought to give the retention election provision life by creating a real choice for the voters. They also sought to apply pressure in the opposite direction from what judges usually experience. Whereas the typical pressure is toward longer, harsher sentences, these Public Defenders wanted there to be pressure to end mass incarceration and inject compassion into the system. After all, the United States locks up more people for longer stints than any other country in the world. Those incarcerated tend to be poor, under-educated members of racial minority groups. While laws are changing in some jurisdictions, those changes are vulnerable to the political climate and the next big scandal.

When there are outcomes like this election where compassionate judges are vilified while conservative judges remain in power, there is little hope for putting an end to mass incarceration.

If you or someone you know has been arrested in the San Francisco Bay Area, contact the criminal defense professionals at Washington & Associates. Washington & Associates will work passionately to win your case. Our expertise, experience and drive for leaving no stone left unturned in your defense is unmatched. When your life, reputation, money, and freedom are at stake, we will not leave you defenseless. Call Washington & Associates at (925) 287-6430 to get the best on your side.

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