#MeToo and Persky eroding mercy in justice system
Santa Clara County voters recently recalled Judge Aaron Persky, the judge who sentenced Stanford student Brock Turner to six months in jail to be followed by three years’ probation and lifetime sex offender registration.
As a public defender, I do not see this as a victory for justice. As a feminist, I do not see this as a victory for civil rights.
The #MeToo movement is — perhaps unintentionally — pushing mercy out of the courtroom and replacing it with spite.
Though I practice criminal defense in Florida, I know that this type of outrage will have national implications. It sends a message to the judiciary that any leniency will be punished.
In contrast to Persky, consider the public embracing of Judge Rosemarie Aquilina, who oversaw the trial of USA Gymnastics team doctor Larry Nassar for molesting young women under his care. While “our Constitution does not allow for cruel and unusual punishment,” she said, if it did, she would allow “many people to do to him what he did to others.”
By advocating for removal of judges willing to exhibit leniency, such as Persky, but backing behavior of judges like Aquilina , #MeToo advocates support a culture in which judges are more focused on satisfying public appetite for vengeance than carefully crafting an appropriate and fair sentence for each unique case.
Effects of the Persky recall will be felt by the people who make up the majority of accused people in our criminal courts — poor people, people of color, people who are not afforded the opportunities that I and so many of us had while growing up.
I represent those individuals. My clients are too poor to afford an attorney. They make up the vast majority of people prosecuted and sentenced. And it is these people for whom criminal defense attorneys largely seek mercy at sentencing hearings.
According to a 2016 report by the U.S. Census Bureau, white people make up 55 percent of Santa Clara County residents, Latinos make up 26 percent, and black people make up a mere 3 percent. A Race and Prosecutions study commissioned by the county’s District Attorney’s Office from that year showed that black people accounted for 11 percent of felony cases and 9 percent of misdemeanor cases. That is three to four times their representation in the county’s population. In a similar pattern, Latinos accounted for over 40 percent of felony prosecutions.
In my work, I am often faced with difficult cases and uncomfortable facts. My clients are not perfect, their actions are not perfect, and their lives are not perfect. However, they are more than their worst decisions. They are parents, children, hardworking employees, students, partners and friends. In a sentencing hearing, my goal is to show the judge all of these different dimensions of the person before them — a person who very well may have done something terrible. In large part, my clients and I are seeking mercy from the judge and victims of crime.
In his book “Just Mercy,” Bryan Stevenson, founder of the Equal Justice Initiative, writes: “The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent — strong enough to break the cycle of victimization and victimhood, retribution and suffering.”
I fear that #MeToo advocates have forgotten the importance of mercy in our justice system, and I fear that they do not realize that the unintended victims of their crusade will be my clients, people who have not seen much mercy in their lives.