Justice Reform Movement’s Self-Inflicted Wound

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

The progressive movement for criminal justice reform was wounded in the California primary and one of those wounds was self-inflicted.

Major efforts by liberal groups to back District Attorney candidates who generally supported an overhaul of the bail system, reduced incarcerations, and tougher stands against police misconduct mostly faltered. At the same time, the recall of Santa Clara County Judge Aaron Persky will likely lead to some stiffer sentencing and more jail time from judge’s concerned about voter reaction to lenient sentencing.

Liberal investor George Soros joined with the ACLU and other wealthy donors in backing D.A. candidates in Alameda, Sacramento and San Diego counties. Candidates who received support from these donors were on a mission to change judicial proceedings that they believed were too strict, especially on minorities. Candidates offered platforms that called for never seeking a death penalty verdict, not pursuing criminal cases for certain crimes, and never trying juveniles as adults, while working to change the bail system.

Yet, Alameda County District Attorney Nancy O’Malley; Sacramento County District Attorney Anne Marie Schubert; and interim San Diego County District Attorney Summer Stephan withstood the challenges against them and held their offices.

It is not that the winning candidates are against judicial reform but they were not as open to the dramatic changes Soros and his liberal allies advocated.

But for supporters of more lenient sentencing, the progressives behind judicial changes will likely take a step backward because of the successful Persky recall vote.

Stanford law professor Michele Dauber, who spearheaded the recall against Judge Persky because of the soft sentence he handed down in a sexual assault case, characterized the victory in partisan and ideological terms. According to a Los Angeles Times report, Dauber issued a statement post-recall which stated that violence against women was now a voting issue “that progressive Democratic women care about. If candidates want the votes of progressive Democratic women they will have to take this issue seriously.”

Terming the victory in such stark partisan and ideological terms can undermine efforts at reform.

Concern over tougher sentencing is amplified if judges’ are constantly looking over their shoulders. Indeed, a 2015 study of elected judges by New York University law school found that judges issued longer sentence as they neared re-election campaigns.

As columnist Cathy Young suggested in analyzing the recall “Progressives who are concerned about high rates of incarceration for young minority men should be especially worried.”

The feared reaction by the judges should not be a surprise. Judges awareness of public sentiment is an old idea. I more than once repeated on this page early 20th century political humorist and columnist Finley Peter Dunne’s most famous quote through his character Mr. Dooley: “The Supreme Court follows the election returns.”

Other judges are sure to follow the recall election return. So the progressive movement, according to Dauber, may have notched a victory over Judge Persky but at the same time may have shot itself in the foot in its striving for judicial reform.

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