Eliminating The Sentencing Judge’s Bias
June 10, 2016 (Mimesis Law) — Ken White’s post on the Brock Turner sentence raised some important points. Unlike Mr. White, however, I do not comment specifically on other judges’ decisions I read about in the media. Without reading the transcript and reviewing ALL the evidence a judge reviewed, one may have an opinion, but it’s not a fully informed one.
My experience teaches me that’s it’s unwise to offer an opinion without knowing all the facts. Having sentenced thousands of defendants from probation to the death penalty (which a jury decided but I imposed it) I know that a specific sentence can often turn on a single piece of evidence or by the testimony on a single point by a witness or victim.
Assuming, without knowing, that the media reported all the relevant facts of this sentencing – something I have never observed in the press coverage of my cases – the public outcry that this sentence is inexcusably lenient is understandable.
Mr. White’s main point that empathy in judges is a blessing, but that it is not applied evenhandedly, is right on the money. Cognitive psychologists have extensively studied “in group favoritism ” and “out group hostility” and have concluded that both lead to discrimination in decision making. Recent scholarly study points more to “in group favoritism” as a culprit in biased discretionary decision making.
Judges are human, too, and can easily succumb to both “in group favoritism” and “out group hostility” unless they are extremely conscious of how these twin biases can affect their decisions. And simply being aware is not enough. One needs to thoroughly examine the objective facts and precisely identify their own motivation to help ensure that theses cognitive biases are not at work in their decision making. As Justice Kennedy noted in today’s opinion in Williams v. Pennsylvania: “Bias is easy to attribute to others and difficult to discern in oneself.”
Judge Persky recognized, and rightly so, that imprisonment would have a “severe impact” on this privileged felon’s life. Of course, that is one of the important purposes of sentencing, specific deterrence for committing a very serious crime and general deterrence to let other would be felony sex offenders know that there are severe consequences for crimes like this one. While the probation office recommended the sentence Judge Persky imposed, they are subject to these same cognitive biases.
One way to roughly approximate the legitimacy or illegitimacy of this sentence is to asked if a much less privileged (socially and economically) male person of color would have received the same sentence? If so, at least we would know the sentence was not tainted with in group favoritism or out group hostility. Of course, there are still plenty of other reasons for folks to legitimately question such a clearly lenient sentence.
On a personal note, I did find the father’s letter totally disgusting and strong evidence of a sense of privilege, unearned entitlement to leniency, and a disgusting lack of empathy for the real victim – who clearly is not his son. I know I would have reacted extremely negatively to the letter and said so on the record. If Judge Persky was motivated towards leniency by the letter, a strong argument can be made that this is further evidence of in group favoritism.
Public scrutiny of judicial decisions is a good thing and helps our branch of government become more transparent. However, I question whether a judge or members of the other two branches of government should be removed from office for a single decision, even a very poor one. Isn’t it wiser to judge a public servant on their whole body of work rather than a single decision one disagrees with? I am surprised that a law professor is leading the charge. If a tenured law professor could be removed for one poor decision no one would be left on law school faculties — or anywhere else.