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Chaos in the Courthouse as Border Arrests Surge

Public defenders say immigrants arrested under Trump’s “zero-tolerance” policy are being denied their due process rights.

A 1-year-old from El Salvador clings to his mother after she turned herself in to Border Patrol agents.
John Moore / Getty

Chaos in the Courthouse as Border Arrests Surge

Public defenders say immigrants arrested under Trump’s “zero-tolerance” policy are being denied their due process rights.

It was just before 3 p.m. on a recent Tuesday and Magistrate Judge Barbara L. Major of the Southern District of California had been waiting all afternoon to arraign 37 people arrested for illegally entering the country. The arrests followed the Trump administration’s enactment of a new “zero-tolerance” policy, under which anyone caught crossing the border illegally—even first-time offenders—would be federally prosecuted for a misdemeanor and face a possible six months in prison. But the defendants never appeared in the San Diego courthouse that day. While processing them, the Bureau of Prisons’ computer system crashed nationwide, leaving U.S. marshals unable to transport people to court.

Quickly, federal public defenders filed writs of habeas corpus, which compel the government to produce defendants when they are scheduled to be in court. By Wednesday morning, prosecutors dropped the charges against 32 people charged with misdemeanors, after defense attorneys moved to dismiss the charges based on the delay. Standing outside the chief judge’s chambers that morning, U.S. Attorney Michael Lasater told Ryan Stitt, a trial attorney at Federal Defenders of San Diego, the government had erred in trying to rush through the prosecutions. “They should not have been booked,” he said. “It was silly to book them.”

But for public defenders representing clients being swept up under the new policy, the situation is anything but silly. When Attorney General Jeff Sessions announced the change in April, many wondered whether federal courts would be able to handle the thousands of new prosecutions without infringing on legal and due process rights. The answer, public defenders argue, is now clear. They say that some of their clients are detained in far-away facilities, are often not allowed to adequately consult with defense attorneys before appearing in court, and are being coerced into accepting plea deals just to get out of jail.

“The court has already begun to reshape itself to accommodate the increase in prosecutions, and these accommodations serve to diminish both the court and the constitutional protections accorded the accused,” wrote Reuben Camper Cahn, executive director of Federal Defenders of San Diego, in a June 4 letter to Chief Judge Barry Ted Moskowitz, first reported by the Voice of San Diego.

“It’s profoundly depressing to see people treated this way,” said Jami Ferrara, a former trial attorney with Federal Defenders, which provides defense at first appearance to anyone arrested in the district without a private attorney. Ferrara now leads the Criminal Justice Act Panel, which assigns lawyers to provide defense for poor people charged with federal crimes. These two organizations are saddled with the thousands of new cases the government has tried to push through in recent months.

“The district is in complete disarray,” Ferrara told The Appeal. Lawyers have heavy caseloads, files are often incomplete, and the courts are sometimes open late into the evening. While the maximum sentence for misdemeanor illegal entry is six months, many defendants feel compelled to plead guilty to guarantee a speedy release, opening them up to being prosecuted for felonies the next time they are caught crossing the border. A felony conviction carries the potential sentence of two years in federal prison, with the possibility of added time based on the defendant’s criminal and immigration history.

Ferrara said the government is rubber-stamping most cases with “time served” sentences, but her clients are still at risk. “We’re not getting enough discovery, and the government thinks that by just making time-served recommendations, that pretty much solves the problem. I don’t know which way this is going to go, but it’s a very disappointing time in American jurisprudence.”  

Judge Major herself seemed wary of the speed at which these complaints were being presented to her for review. On the day of the computer glitch, when a Border Patrol agent presented her with 57 new complaints, Major asked if he had actually read them. When the Border Patrol agent nodded nonchalantly, Major followed up, “All of them? Because you know you’re signing them under threat of federal prosecution for perjury.”

"I don’t know which way this is going to go, but it’s a very disappointing time in American jurisprudence."

The DOJ contends its recent computer failure had nothing to do with the zero-tolerance policy. Later that week, the U.S. Attorney’s Office dismissed another 18 cases because of delays in presenting clients in court for arraignment. The computer system was working just fine that day. Instead, according to DOJ spokeswoman Kelly Thornton, the defendants “were not cleared medically to appear in court, and therefore the United States moved to dismiss their prosecution.” Thornton added that her office is working “with the court to implement the attorney general’s zero-tolerance policy and manage the increase in cases while respecting due-process rights.”

Regardless of what causes the delays on a particular day, public defenders say these are signs of a system that has been pushed to the breaking point. As U.S. attorneys’ offices near the southern border have continued to increase prosecutions and the DOJ has allocated even more prosecutors to these districts, they say, there’s no sign that the government will be backing down—and little effort to ensure that immigrants are being treated fairly.

‘I cry nearly every day’

Federal criminal prosecutions of individuals apprehended by U.S. Customs and Border Protection (CBP) along the southwest border with Mexico jumped 30 percent in April 2018 over March figures, according to Syracuse University’s TRAC, which tracks federal prosecutions. Between January and April, criminal prosecutions jumped 60 percent, rising to 8,298 from 5,191. Still, that’s far from “zero-tolerance.” In April, only 22 percent of Border Patrol apprehensions resulted in criminal prosecutions, up just slightly from 20 percent of apprehensions in January 2018.

Overwhelmingly, public defenders say, those prosecuted for illegal entry are Central American and Mexican men whose ages range from 18 to well into their 60s. Several have asylum claims they plan to file after the federal criminal cases conclude and they are transferred to immigration courts for deportation proceedings. But many are also simply trying to rejoin their families, who are often a mix of U.S. citizens, lawful permanent residents, and undocumented individuals.

Some have crossed the border with children, who are then separated from their parents and placed in the custody of the Department of Health and Human Services. Nizario Jacinto-Carillo, 32, an immigrant who was fleeing gang violence in Guatemala with his daughter Filomena, 5, was caught by Border Patrol near the port of entry at Tecate, California, on May 16. According to a declaration provided to The Appeal by his federal public defender, they were brought to a Border Patrol station where agents took Filomena away from her father. “I do not know when I will see my daughter again,” Jacinto-Carillo said in his declaration. “I cry nearly every day missing my daughter.” With the help of his lawyer, Jacinto-Carillo found out his daughter had been taken to New York. “I do not know where New York is,” he said.

Last week, the Los Angeles Times revealed that prosecutors plan to use an expedited prosecution program, known as “Operation Streamline,” to try to charge as many border crossers as possible. Under the program, which has already been instituted in Arizona and Texas, dozens of immigrants can be arraigned, convicted, and sentenced in minutes.

For years, the judges in the Southern District of California have resisted efforts by federal prosecutors to institute “Operation Streamline” in the district. The judiciary, its justices argued, should not conform to the whims of the executive branch of the government. But at a meeting of the Criminal Case Management Committee, which was convened by the district’s chief judge, Barry Moskowitz, to address the rising caseloads, the Southern District judges reportedly acquiesced. Prosecutors want the program to start in one month, according to a defense attorney who attended the meeting, but defender groups have voiced serious concerns about the program with the court.

Meanwhile, the scene at the courthouse remains hectic: Defendants arrive in a relatively steady stream, despite the delays in processing that led to some dismissals. The rattle of chains is never far off, as the defendants shed their shackles in a hallway next to the courtroom before being led into the jury box by a phalanx of marshals.

As the judge sets bail in each illegal entry case, public defenders stress the connections these defendants have to the United States. But even if family members are able to post bail—which can reach as high as $5,000— the defendants will rarely get to stay in the United States to fight their criminal cases. Instead, they will be transferred to Immigration and Customs Enforcement custody and put in deportation proceedings. Once an immigrant is deported, his or her case is dismissed, and the bond is repaid to family members. But, as one defense attorney explained, that’s not a common outcome. For the most part, she said, families can’t make bail and the defendants languish in federal custody until they take a plea deal. Many of the defendants have prior deportations on their records, meaning that if they were to try to bring their misdemeanor cases to trial, prosecutors could file superseding indictments that would charge them with illegal re-entry, a felony, incentivizing them all the more to take quick plea deals.

As the number of immigrants held in federal criminal custody increases, the U.S. Marshal Service has had to find new places to hold immigrants, which often means sending them hundreds of miles away from their lawyers. In addition to a federal jail in San Diego, as well as two nearby privately run detention facilities, marshals have recently begun housing arrested immigrants at the Santa Ana Jail, Orange County Jail, and San Bernardino County Jail, leaving public defenders to rely on videoconferencing to speak with their clients, many of whom are facing perilous conditions in overcrowded jails.

Other immigrants in both the criminal and immigration systems are being housed at the Otay Mesa Detention Center near the border, run by the private company CoreCivic, formerly known as Corrections Corporation of America.

“The rise in enforcement has been a huge boon to corporations,” said Nicole Ramos, director of the Border Rights Project of Al Otro Lado, an organization that provides legal assistance to refugees. “These immigrants are forced into exploitative working conditions where they’re essentially coerced to work in the prison for a dollar a day.”

An ongoing class-action lawsuit filed last year by immigrants being held in detention at Otay Mesa alleges they are being paid at most $1.50 per day, or sometimes not at all, for their work as kitchen staff, janitors, barbers, and other occupations.

On May 31, immigrants detained at Otay Mesa released letters detailing their abuse in the facility. “When we ask for medical attention, they do not treat us, and many of us have pains, wounds, and the officers don’t pay attention to us and ignore us,” the letter reads. Amanda Sluss Gilchrist, a spokeswoman for CoreCivic, told The Appeal, “CoreCivic cares deeply about every person in our care. Our immigration facilities, including Otay Mesa, are monitored very closely by the government.”

"These immigrants are forced into exploitative working conditions where they’re essentially coerced to work in the prison for a dollar a day."

From the moment of arrest, it appears, immigrants are being plunged into a system that is chaotic and disorderly. Immigrants arrested on the weekend, for instance, may have to sleep on the floor of a Border Patrol station, Stitt, the attorney at Federal Defenders, explained.

“It’s unfortunately commonplace for people to spend multiple nights at either a port of entry or an immigration station that is not equipped to handle housing people in this way,” he said. “It is routine to hear stories of people who are locked in rooms with many other people. There’s no place to sleep. The lights are on all day, there’s no hygiene products for women at times. … You sleep on a bench. You sleep on the floor if there’s no space on a bench.”

The administration’s ‘mission impossible’

The zero-tolerance policy also raises questions about whether federal prosecutors will be forced to shift resources away from prosecuting serious crimes, like human smuggling or drug trafficking, in order to handle the relentless flood of misdemeanor cases.

Writing for the Washington Post, Alan Bersin, Nate Bruggeman, and Ben Rohrbaugh, three former officials at Customs and Border Protection, warned that not only will the agency be overwhelmed by this new policy, but that U.S. attorneys’ offices will shift priorities for prosecutors. “Already handling a massive workload, including drug- and human-trafficking cases, these prosecutors focus their time and effort on cases that have the greatest impact on public safety,” the trio wrote. “The administration’s new “mission impossible” will force prosecutors to misallocate resources to economic migrants; but even then, there will not be enough resources to get the job done. In the meantime, organized crime, drug smuggling, and financial crimes will receive short shrift.”

For example, Stitt described a case he worked on two weeks ago in which a woman was arrested and charged with misdemeanor illegal entry after being found in the trunk of a car as she was being smuggled through the border.

“Typically, the government would charge the driver. Smuggling someone into the United States for financial gain, which is the reason everyone does it, carries with it a minimum three-year sentence,” Stitt told The Appeal. “In this case they prosecuted the woman in the trunk, [who had] no prior criminal history, a first-grade education, and who was just coming to work.” They did not prosecute the driver, he speculated, because the driver’s case was more complex, would require more resources, and require them to hold the person in the trunk as a witness instead of prosecuting her. “The focus goes from the driver to the passenger, because the driver had lawful permission to enter the United States. Not the passenger,” Stitt explained.

Over the past six months, as the total number of misdemeanor illegal entry prosecutions has climbed significantly, the number of human smuggling prosecutions has remained relatively steady, while prosecutions for drug trafficking have dropped precipitously, according to data on federal prosecutions in the Southern District of California obtained by The Appeal. Between November and April, prosecutions for misdemeanor illegal entry rose 65 percent. At the same time, the number of prosecutions for human smuggling rose by 10 percent, but the number of prosecutions for drug smuggling over the border dropped by nearly a third.

Chart by Ethan Corey

Kelly Thornton, spokeswoman for the U.S. Attorney’s Office for the Southern District of California, said the rise in misdemeanor prosecutions wouldn’t hamper other efforts. “As one of five Southwest border districts, immigration and narcotics trafficking are significant priorities of this office,” she wrote in an email. “The Department of Justice has given our district the necessary resources to prosecute these crimes and that’s what we are doing. Within the last six months we have received funding from the Department to hire 10 additional attorneys. “

Still, the sheer number of increased prosecutions of misdemeanor illegal entry shouldn’t be understated—in fiscal year 2017 (Oct. 1, 2016 to Sept. 30, 2017), the Southern District of California prosecuted 590 cases. During the first four months of 2018, that number had reached 777. It looks to only rise with the introduction of the expedited prosecution program.

Ferrara, the head of the Criminal Justice Act Panel, is unconvinced that this new policy will do anything to deter immigrants from attempting to enter the United States, particularly because many have deep ties to the country already.

“I saw a young man today who was pleading to a 1325 [illegal entry] and getting sentenced, who has grown up here in the United States; he has two United States citizen children who live here,” Ferrara told The Appeal. “He does not have the infrastructure or support in Mexico to set up a new life there, and everyone he knows and loves is here in the United States. That’s someone who it is going to be hard to picture them just giving up and not trying to come back and see their family. I don’t know where this exercise is going to take us, but it isn’t taking us in a humane direction.”

Illinois Prisoners Speak Out—and Then Lose a Cherished Debate Program

Debate coach Katrina Burlet says she was banned from state’s prisons after prisoners in her program argued for parole.

Katrina Burlet with her class.
Photo courtesy of WGN Chicago.

Illinois Prisoners Speak Out—and Then Lose a Cherished Debate Program

Debate coach Katrina Burlet says she was banned from state’s prisons after prisoners in her program argued for parole.

Prisoners are urging the governor of Illinois to reinstate a debate program at Stateville Correctional Center that the Illinois Department of Corrections abruptly shut down on April 25.

The program, the Justice Debate League, was suspended just weeks after 18 Illinois state legislators attended a public debate class at Stateville on March 21. During that session, prisoners serving life sentences without parole argued for the return of discretionary parole in Illinois, one of 16 states that offer no possibility of earned parole for prisoners. The prisoners also introduced legislation they wrote on the issue to lawmakers at the debate.

Without explanation, the IDOC canceled my program and banned me from all carceral facilities in the state,” Katrina Burlet, director of the Justice Debate League, told The Appeal. Burlet, 25, founded the nonprofit in October 2017, joining a handful of prison debate programs around the country. Apart from Stateville, her program also operated at the Illinois Youth Center, a juvenile detention facility in Warrenville.

“I am no longer able to coach anyone in debate, though my programs were both very popular and developed skills necessary for operating effectively in society: clear communication, maintaining emotional control in the midst of disagreements, and learning to consider situations from other people’s perspectives,” she said.

After graduating from Illinois’s Wheaton College with a degree in political science, Burlet began coaching college and high school debate teams but yearned to extend her reach. “I thought how much more impactful it would be for people to receive debate training who might not have access to other education,” said Burlet, who volunteered her time to establish the program. “Also, there were many competitive debates on the criminal justice system and no one incarcerated was involved, so it felt like a natural fit to start training people behind bars in competitive debate.”

Burlet said she had coordinated a video-recorded debate at the Youth Center in Warrenville on April 26 so the public could see the program in action, but when she showed up, she was barred from entering. She learned then that the program had been officially shut down the previous day. “After I was banned, I reached out asking to talk about what happened and everyone in the department has been prohibited from speaking to me,” Burlet said. “So there are no answers, there’s no explanation.”

Thirteen prisoners at the Stateville Correctional Center wrote a letter dated May 17 to Republican Governor Bruce Rauner, urging his office to intervene in reinstating the program. “We are human beings whom society has demonized, dehumanized, discounted, and warehoused for decades in Illinois prisons,” they wrote. “In the face of that, though, we each believed in, and worked to rehabilitate ourselves until others began to believe in us as well.”

They noted that they were selected to participate in the program because of their academic records and achievements, and that many of them are serving life sentences for crimes committed as adolescents or young adults. “We got a tremendous amount from this class,” the prisoners wrote. Not only did we learn how to debate … but several of us were able to use this class to fulfill requirements necessary to obtain our bachelor’s degrees.” The debate class boosted their confidence, they wrote, inspired them, and provided hope.

“I don’t think the program should be cancelled at all,” Rep. Rita Mayfield (D-Waukegan), who attended the debate, told WGN Chicago. “I think this is one of the most positive programs to come out of DOC since I’ve been here.”

Rachel Bold, a spokesperson for the governor’s office, declined to discuss the prisoners’ letter and directed inquiries to the Illinois Department of Corrections. Calls to Mayfield and another lawmaker who attended the debate were not returned by press time.

During the debate, Joseph Dole, a prisoner serving time for murder, argued in favor of establishing a parole system in Illinois. “Dehumanization prevents prosecutors from being able to view people convicted of crimes as human, capable of change, and deserving of a second chance,” Dole said. He explained that prior to being incarcerated, he obtained a high school diploma through night school. Since being sent to prison, Dole won a 2017 Columbia University writing contest and had his work published in academic journals, which Dole cited as proof that incarcerated people are capable of change. He is serving a life sentence without the possibility of parole.

In 1978, Illinois banned discretionary parole, which grants parole based on individual decisions by a parole board. The state’s parole system was eliminated in favor of mandatory supervision, which is only offered in felony cases and doesn’t provide paths to early release.

“We know one of the drivers of mass incarceration is the length of sentence. It’s not just the number of people going into prisons each year; it’s also how many people are coming out of prison,” said Jennifer Vollen-Katz, executive director of the John Howard Association, an independent watchdog of correctional facilities in Illinois. Without parole, fewer people are coming out. “That ignores the potential for human redemption,” she said. “People change and grow. They should have the opportunity to go in front of a prisoner review board and make their case to be considered for release. If we really believe in rehabilitation as a stated goal of our system, how can we not re-evaluate people over time?”

Illinois’s lack of a parole system has contributed to making its prison system one of the most crowded in the United States. As of June 2016, 44,817 individuals were incarcerated in Illinois facilities approved to hold 32,095 people. The Illinois prison system was 150.4 percent over capacity at the end of 2014, the most recent data available from the Bureau of Justice Statistics. That’s more crowded than any other state in the nation, though Illinois’s prison population has slightly decreased since then.

Illinois Department of Corrections still has not provided an explanation for terminating the debate program. Burlet’s class members have said that the department’s assistant director, Gladyse Taylor, canceled a follow-up meeting with a state legislator, and told the class the program was not “evidence-based,” meaning it had not been shown to reduce recidivism.

The Department of Corrections wrote in an email to The Appeal, “The Department’s decision to end its relationship with Ms. Katrina Burlet was made collectively, by IDOC’s executive staff. Illinois Administrative Code (tit. 20, pt. 435.70) gives the Department the authority to terminate volunteers at any time.”

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Santa Clara County Public Defender Explains What Judge Persky's Recall Means For His Clients

The judge who sentenced Brock Turner brought much-needed compassion to the bench, says public defender Sajid Khan.

Supporters of the campaign to recall Judge Persky
@RecallJudgePersky / Twitter

Santa Clara County Public Defender Explains What Judge Persky's Recall Means For His Clients

The judge who sentenced Brock Turner brought much-needed compassion to the bench, says public defender Sajid Khan.

Santa Clara County Superior Court Judge Aaron Persky was recalled from the bench Tuesday over the controversial 2016 case of Brock Turner, a 21-year-old Stanford student convicted of three counts of sexual assault. Turner’s sentence of six months in jail was widely denounced as too lenient. Critics accused Persky of failing to take sexual assault cases seriously—and of giving Turner preferential treatment as a white, affluent college athlete.

Some victims’ advocates hailed the recall as a victory against rape culture. But both local prosecutors and public defenders argued the move was a blow to judicial independence and sentencing reform.

“When judges believe that they will lose their careers for making unpopular but lawful decisions, they may lack the courage to stand up for the rights of minorities or others needing protection from powerful majorities or those with even understandably inflamed passions,” said Santa Clara County District Attorney Jeff Rosen.

Sajid Khan

Sajid Khan, a Santa Clara County public defender who’s been an outspoken opponent of the recall, spoke to The Appeal about the potential fallout from Persky’s ousting. His interview has been edited for length and clarity.

In a blog post about this recall, you said “we lost a fair, thoughtful, compassionate jurist.” That seems to go against the broader public’s perception, in light of the Brock Turner sentencing. What do you mean by “compassionate”?

Judge Persky looked at Brock Turner for more than just the crime that he was convicted of. He looked at his past, his youth, his prospects of rehabilitation, his prospects for redemption. So when I use the word “compassion,” what I mean by that is that he looked at the humanity of Brock Turner in a broad sense, as opposed to just looking at what crime he committed and what he was convicted for. And that’s so often missing in our criminal justice system. As a public defender, we so often see the humanity of our clients ignored by prosecutors and ignored by judges. There’s a lack of compassion that occurs so often in our system. And so when I see a judge look at the humanity of someone like Brock Turner or of others that appear in his courtroom, it’s refreshing, and I think our system benefits from more of [that] rather than less.

So in your view, the Turner sentencing wasn’t too lenient.

No, I thought it was a reasonable sentence. That’s the thing: The recall proponents put out, on every one of their fliers or ads, “Persky sentenced Brock Turner to just six months in county jail,” which is completely a misrepresentation.

What’s left out in every one of those ads is the fact that he was sentenced to three years of felony formal probation, which means that he’s going to be supervised for three years by a probation officer. He has to check in, he has limitations in terms of where he can live, where he can travel. He’ll have to participate in counseling as directed by the probation department. He has to obey all laws, and if he doesn’t comply with his probation, then he can be sentenced to prison for up to that 14-year maximum that was hanging over his head, in addition to the fact that Turner has to register as a sex offender for the rest of his life, no matter where he lives, whether it’s California or any other state. And if he fails to register even once, he could be subject to a felony prison charge and additional prison time. He’s subject to California’s three-strikes law, meaning that if he commits future felony crimes, he will have the penalty for those crimes increased as a result for the conviction on these offenses. This idea that it was too lenient is completely beyond my comprehension.

"We so often see the humanity of our clients ignored by prosecutors and ignored by judges. There’s a lack of compassion that occurs so often in our system."

In addition to that fact, we have to ask ourselves: what purpose does more incarceration time serve in a particular case? Let’s just say advocates would have been satisfied if Turner had been sentenced to two years, or six years of prison as opposed to six months in county jail, or one year in county jail as opposed to six months. Beyond just vengeance, and beyond retribution, what purpose or benefit beyond jail time does that sentence actually serve the particular offender, or the victim, or the community? My perspective is that that additional jail time, absent evidence that that jail time is going to somehow help rehabilitate the offender…it’s just retribution and nothing more, and I don’t think our system benefits from that. In fact, many people would argue that that additional time for Brock Turner or someone else in that situation would have made him more of a threat to the community in terms of traumatizing him further, exacerbating any sort of mental health or any other conditions that he might be suffering from. And these exact arguments are exactly what I’d be arguing for for a client of mine.

A major criticism of the recall itself is the worry that rather than pushing for fairer sentences, we are now just pushing for greater sentences for everyone. Do you feel that a fear of possible recall will make judges more punitive? Are you afraid that this is going to make your job much more difficult?

Oh yeah, it’s already happened. … When we criticize a judge or we subject them to a recall or removal for imposing what is widely considered to be “too lenient” of a sentence, we implicitly and explicitly are sending the message to the bench that we would rather they impose more harsh, punitive sentences rather than err on the side of being more lenient, merciful, or compassionate. Whereas we never see judges being subject to vitriol or recalls or removal for imposing what we as public defenders would consider to be too harsh or too punitive or disproportionate sentences, which we believe are happening every day in our courthouses.

And we’ve seen it anecdotally from other public defenders who are appearing in our courthouse, where we see that judges are seemingly less likely to give lower offers to our clients, and we believe it’s in direct correlation to what happened to Judge Persky. What ultimately will happen is that the people that we represent—people of color, minorities, the disenfranchised, the poor in our communities that make up the people ensnared in our criminal justice system—they’re the ones that are going to bear the cost of this recall, because they’re the ones that are ultimately going to be suffering from higher offers or higher sentences because of an explicit or implicit fear that judges could be subject to vitriol or recall if they’re perceived as being too lenient. My ultimate position is that this recall takes us many steps backwards in terms of our fight against mass incarceration. It actually perpetuates mass incarceration, and really perpetuates the idea that justice equals more jail or prison time. That’s the message that this sends.

"We see that judges are seemingly less likely to give lower offers to our clients, and we believe it’s in direct correlation to what happened to Judge Persky."

Recall proponents cited a number of other instances in which Persky was allegedly lenient in cases involving sex crimes, or more lenient to white defendants. Do you think he saw a young, well-off white kid, and gave him compassion for that reason?

That would be my concern, too, if there was evidence Brock Turner, as relatively affluent, received more consideration or more compassion as compared to a similarly situated minority or poor client. But I’ve seen no evidence of that. Anecdotally, the colleagues that I work with that have appeared in front of Persky all indicated to me that their clients received similar consideration and understanding. They believed that if a similarly situated minority offender had been convicted of the same crimes Brock Turner was that he would have sentenced that hypothetical minority offender to the same sentence. Neither the recall proponents nor anyone else have been able to point to any specific indication that Brock Turner received some sort of exceptional treatment as opposed to some of the average “public defender clients” that would appear in front of Judge Persky.

There was a case that’s been cited by the recall proponents…this gentleman named Robert Chain, who pled guilty to possession of child pornography and received four days in county jail, and three years’ probation. That was another example of why I use the word “compassion.” Felony child pornography can be punished anywhere from zero days county jail with probation all the way up to three years in prison. There’s a wide range of options that judges have discretion to sentence someone to when they’re accused of that crime. But in our courts, so often the “going rate” for that crime is six months county jail, with felony probation, and they have to register as a sex offender for the rest of their life. When you ask prosecutors or courts, “Why six months? Why not less time?” They just say, “That’s the way we do things.” And it really is devoid of any consideration of the person being convicted, what impact that jail sentence might have on them, what impact other components of the sentence might have on them.

Judge Persky, in that particular case, was willing to buck that trend and say, no, I’m going to give this person the sentence that is appropriate for him and the charges he was been convicted of, as opposed to that one-size-fits-all kind of system of sentencing. That’s emblematic to me of compassion that our system benefits from, and that I would like to see more of for my clients.

In particular, I wrote a blog post comparing the Brock Turner case to the case of someone named Raul Ramirez. This was a case that was initially cited by the recall proponents very often as an example of minorities receiving more harsh sentences than Brock Turner received. But when you dig deeper into that case, we learn that the sentence Persky imposed on Raul Ramirez was agreed upon by the prosecutor, it was based on charges that were different than what Brock Turner was accused of, there were differences in terms of Mr. Ramirez’s age, potentially in terms of his criminal history. And so assigning any sort of impropriety to the judge based on a disparate sentence in two wholly different cases is wholly inappropriate, and is actually very misleading and inflammatory.

And any belief that a similarly situated minority offender would have gotten worse—well, if that’s true, then I would want the same consideration that Brock Turner received afforded to my clients in the future.

I want my clients to receive the same consideration and treatment that Turner received because I think that’s a more equitable system, and I think viewing our clients for their entire humanity as opposed to just their crime is the way our system best operates.

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