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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.

Will a $1 Million Grant To Fight Sexual Assault Change A DA's Office Known for Jailing Rape Victims?

The DOJ just gave $1 million to the New Orleans DA for rape kit testing, but advocates question whether real change can come to an office fighting allegations that it threatens, intimidates and jails rape and domestic violence victims.

Will a $1 Million Grant To Fight Sexual Assault Change A DA's Office Known for Jailing Rape Victims?

The DOJ just gave $1 million to the New Orleans DA for rape kit testing, but advocates question whether real change can come to an office fighting allegations that it threatens, intimidates and jails rape and domestic violence victims.

The Orleans Parish District Attorney’s Office recently received a three-year, $1 million federal grant to staff new prosecutors, an investigator, and a “victim service advocate” to investigate and prosecute the cases that result from the belated testing of rape kits in New Orleans Police Department storage.  The grant is from the Sexual Assault Kit Initiative, administered by the Department of Justice’s Office of Justice Programs, which is giving millions of dollars to the nation’s law enforcement agencies with the worst records on enforcing laws against sexual assault. Orleans DA Leon Cannizzaro has already used the funding to create a new unit to prosecute neglected rape cases, and NOPD received $1 million in 2015 to test rape kits and create a plan to prevent another backlog.

“DNA empowers women in rape cases,” said Assistant District Attorney Laura Rodrigue. “It gives them strength in numbers and it’s people all coming together behind them.”

But seven-figure grant money to law enforcement for rape kit testing doesn’t address the reasons that they weren’t tested in the first place. Sexual assault investigations require significant police work like interviewing victims, tracking down witnesses, and corroborating accounts of victims. But instead of doing the needed legwork, police routinely downgrade rape cases, close them by classifying them “unfounded,” meaning false or baseless, or refuse to fill out police reports at all. Furthermore, police departments do not report such cases to the FBI’s Uniform Crime Report (UCR), which collects data from over 18,000 law enforcement agencies and publishes widely used annual reports.

Front-end investigative failures in sexual assault cases are particularly common in New Orleans. In 2009, a Times-Picayune investigation found that the NOPD, which had touted a decline in rape, classified over half of sex crime allegations reported in 2008 as miscellaneous, noncriminal incidents. No official reports were created for these complaints and they were not reported to the FBI. The department’s reported rape rate unbelievably fell below the reported murder rate.

At the time, NOPD denied that it misclassified cases. “If it is a rape or a sexual assault, it is a sexual assault,” said then NOPD Assistant Superintendent Marlon Defillo. “There is no gray line with respect to that. We call it the way we see it.”

But in 2010 and 2011 when the DOJ’s Civil Rights Division investigated the NOPD for patterns and practices of illegal police misconduct, the agency found that the department “misclassified large numbers of possible sexual assaults, resulting in a sweeping failure” to properly investigate sex crimes. According to the DOJ, NOPD’s “investigations are seriously deficient, marked by poor victim interviewing skills, missing or inadequate documentation, and minimal efforts to contact witnesses or interrogate suspects” as well as “replete with stereotypical assumptions and judgments about sex crimes and victims of sex crimes, including misguided commentary about the victims’ perceived credibility, sexual history, or delay in contacting the police.” For example, officers asked victims to fill out and sign a document stating they did not want to file charges or proceed with an investigation or prosecution. The document, called a “Voluntary Victim/Witness form,” included information about Louisiana’s criminal mischief statute, suggesting victims could be prosecuted for filing a false police report. DOJ further found that even when officers properly classified sexual assaults, investigative reports often omitted crucial details like descriptions of a victim’s injuries or results of forensic exams.”

In 2012, the city of New Orleans and the DOJ entered into a consent decree “with the goal of ensuring that police services are delivered to the people of New Orleans in a manner that complies with the Constitution and laws of the United States.” The agreement required the police department to reform a broad range of its policies and practices, including those related to sexual assault.

But a May 2014 New Orleans Inspector General Office’s audit of the NOPD’s Uniform Crime Reporting process found that the department was still misclassifying rape complaints at a high rate. In 41 of 90 sex crimes complaints examined by the Inspector General, officers misclassified the complaints and failed to report them to the Uniform Crime Report. The inspector general’s office found that all 41 cases should have been reported as rapes. Instead, 20 were coded as noncriminal “signal 21,” 14 as unfounded, and seven as “sexual battery,” a lesser offense not counted in the UCR as a major crime.

A high-profile sexual assault case from 2014 sharply illustrated the NOPD failures outlined in the inspector general office’s report. In the early afternoon of July 1, 2014, New Orleans resident Maria Treme reported that she was drugged and raped at a popular downtown bar and restaurant. Detective Keisha Ferdinand of the NOPD’s Sex Crimes Unit did not take Treme to a hospital for a forensic exam or toxicology screening until about 8:30 that night; exams and blood tests didn’t begin until 11 p.m. Treme said that she then did not hear from the NOPD about the status of her case for three weeks so she went to a local news outlet to draw attention to the mishandling. Soon after the story aired, Treme claims, Ferdinand scolded her for “making the NOPD look very bad.” The police later said they had lost key surveillance video footage provided to them by the club. In December, when the police discovered the video was missing, they went back to the club and found that the footage had been taped over, in accordance with the club’s video retention policy.

The new Sexual Assault Kit Initiative grants to agencies like the Orleans DA do not address such profound investigative failures. Indeed, Cannizzaro’s office said in 2017 regarding Treme’s case: “The NOPD has neither made an arrest nor have they presented the case to the DA’s office as a non-arrest consult.”

Nor does the funding address a culture within Cannizzaro’s office that involves threatening and even jailing rape victims for refusing to testify as well as publicly mocking sexual assault victims. When rape survivors including Treme held a press conference  in front of the Orleans DA’s office in May 2017 to highlight the handling of rape cases, then-DA spokesman Christopher Bowman sarcastically tweeted, “Don’t you hate it when a protest has more reporters than protesters!!!” (Bowman later deleted this tweet as well his Twitter account.)

When asked by The Appeal to respond to criticism that the Orleans DA’s office has mistreated victims of rape and domestic violence, spokesman Ken Daley said that he would not “do that kind of interview over the phone” and ended the conversation.

But in a recent brief filed in support of a civil rights lawsuit against the Orleans DA for jailing a domestic violence victim who was deemed uncooperative, advocacy groups like the Louisiana Foundation Against Sexual Assault blasted prosecutors for a “propensity to distrust and blame the victim and to bully them into assisting the prosecution.”

Treme’s case never made it that far.

“The case was damaged beyond hope,” she told The Appeal, “all evidence was messed with. And collected improperly.”

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Louisiana Prisoners Demand an End to ‘Modern-day Slavery’

People incarcerated at Angola want opportunities for education instead of hard labor in the fields.

A resident of Angola prison clutches a fence there.
Mario Tama / Getty

Louisiana Prisoners Demand an End to ‘Modern-day Slavery’

People incarcerated at Angola want opportunities for education instead of hard labor in the fields.

On May 8, a group of prisoners at the Louisiana State Penitentiary refused to perform the field labor they are compelled to do for virtually no pay. The prison, commonly known as Angola, stands on the site of a former plantation named for the origin of the slaves that worked its fields. That connection is not lost on the prisoners or their supporters.

“Guys are getting fed up and a lot of guys are just not going [to work],” said Ron,* a prisoner and a member of Decarcerate Louisiana who helped organize the strike. “They don’t want to work for free [because it’s] modern-day slavery.”

The unrest started the week before, when a prisoner, Kristopher Schoeing, ran out of line, despite what the prison reported as warning shots fired by a guard. The Department of Corrections said in a press release that the work stoppage the following Tuesday took place after two prisoners, Emanuel Williams and Earl Harris, “broke out of the security line as they were heading to work” and “attacked” two corrections officers. After the fight, a prisoner named Roy Walker laid down and refused to work, and 27 others joined him, the press release stated, but resumed work later that afternoon. Williams’s ankle was broken in the altercation.

Alonzo, a prisoner who took part in the strike, contends that version is inaccurate, and instead it began when Walker told the guards that he couldn’t work because he had a bad back. Soon after, he slipped and hurt himself, Alonzo said. In solidarity, when the warden called roll call for the work shift, roughly 50 people refused to go out, Alonzo estimated, nearly double what DOC said. Ron said that some workers have been refusing to work since.

Prisoners in Louisiana say the strike wasn’t a sudden or isolated event but part of more than three years of organizing with the help of their supporters.

During the stoppage, the Incarcerated Workers Organizing Committee issued a list of demands from the prisoners at Angola. “We demand a national conversation,” reads one of them, “inquiring how state prison farms across the country came to hold thousands of people from African descent against their will.”

Work at Angola is grueling, Ron explained. The prisoners spend long hours doing manual labor—such as fieldwork harvesting produce—that requires a lot of bending down in the hot sun. Prisoners complain of a lack of water to keep them hydrated and cool.

Ken Pastorick, communications director for the Louisiana Department of Public Safety & Corrections, disputed that assertion. “The prison provides abundant water, ice, and sports drinks for offenders at the institution’s job sites,” he said. “Agriculture work at the prison provides offenders with a skill they may use once they are released from prison, and the produce helps feed the offenders at the state’s prisons.”

Pastorick acknowledged the presence of armed guards who patrol the fields where men work. “Because some of our offenders have jobs outside of secure areas, we have a use of force policy which authorizes our staff to use the amount of force necessary to maintain custody and control, and public safety,” he said.

Once cleared by a prison doctor, prisoners at Angola can be legally forced to work under threat of severe punishment, including solitary confinement. Even prisoners with physical impediments may still have to work. “Angola frequently fails to accommodate men with disabilities—often forcing them to work in dangerous factories or in the fields,” said Mercedes Montagnes, executive director of the Promise of Justice Initiative.

For example, prisoner Clyde Carter alleged in a 2016 lawsuit that he was forced to work in the fields even after he tore knee ligaments because his “temporary duty” status excusing him from such work kept expiring. In a separate lawsuit, prisoner Jason Hacker alleged that despite cataracts in his eyes that made him legally blind, he was still forced to work in the fields.

Most prisoners who arrive at Angola are required to perform field labor for at least 90 days. After that, they can apply for other jobs in the prison if they have positive disciplinary records, but there aren’t enough nonagricultural jobs for all the prisoners.

For all that hard labor, prisoners make as little as 2 cents an hour, according to the state’s 2015 pay regulations, a sum that Ron argues amounts to working for free. According to data collected by the Prison Policy Initiative, prisoners in Louisiana are paid anywhere between 4 cents to $1 per hour for jobs that support prison facilities, while work on products and services that are sold to outside government agencies and private businesses pays up to 40 cents an hour.

Prison work in Louisiana dates back to before the end of the Civil War, when the state built its first penitentiary, located in Baton Rouge, in 1837 and handed management over to lessees who then profited off the forced labor. Louisiana took control of the Angola plantation in 1901, housing prisoners in old slave quarters and forcing them to work in the existing cotton fields. As recently as 1979, prisoners at Angola were referred to as “hands,” not unlike the way slave masters referred to slaves.

“Profit—and not rehabilitation, retribution, or deterrence—became the guiding penological goal of Louisiana State Penitentiary,” writes Loyola University law professor Andrea Armstrong, which led to “a profit-oriented policy of inmate plantation farming that closely mirrored slavery.” Today, Angola still has the look and feel of the former plantation, with rows of crops tended by the prisoners. Burl Cain, who was warden until 2016, even noted that it’s “like a big plantation in days gone by.”

Yet, there’s also a long history of prisoners resisting their working conditions inside Angola. In the 1950s, 31 prisoners cut their own Achilles’ tendons to protest the prison conditions. In the 1960s, two welders refused a direct order to build a lethal injection gurney. After they were placed in solitary confinement, the next day 37 others similarly refused. The action spread to the fields, where hundreds of prisoners staged a work stoppage to protest of what had happened to the welders.

Today’s organizers want to get rid of forced labor altogether, which is permitted under the Thirteenth Amendment to the Constitution. The amendment outlawed slavery but contained a huge loophole: “Neither slavery nor involuntary servitude,” it states, “except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.”

“Given the history of slavery in Louisiana and America, these working conditions need to come under particular scrutiny and concern,” Montagnes argued.

Armstrong argues that reforming prison labor in Angola would benefit everyone. “People are going to act out if they’re treated inhumanely,” she said. “Changing the practices can ratchet down the tension, which makes the guards safer and also makes the people who are incarcerated safer,” she said.

Activists inside and outside the prison want to see money that’s being poured into incarceration instead get invested in education. “Classmates, not cell mates,” demands one of their slogans. “We’re asking the governor to de-invest in incarceration and invest higher in education, teacher pay raises,” Ron, one of the prisoners, said. He noted that correctional officers, who nationally make an average of $47,600 a year, can sometimes out-earn teachers, who in Louisiana make an average of about $49,700.  In 2014, Louisiana ranked 12th in the country for how much it spent per capita on corrections but 34th on school funding.

The prison organizing has coincided with a movement that has taken hold across the country as teachers go on strike and protest slashed education budgets in their states. The hope is that the prisoners may eventually be able to build a coalition with the teachers and potentially even coordinate their strikes.

Prisoners want the investment to reach inside prisons, too. “They’re just warehousing us in the cells,” Ron said. All he has for stimulation, he said, is a TV. There are waiting lists for programs such as vocational training or GED classes, Armstrong said, a fact Pastorick said was “due to budget constraints.” In 2012, only 1 percent of Angola’s budget was spent on rehabilitation programs.

This year has seen a lot more prison organizing in Louisiana in particular. “Louisiana is one of the biggest prison states,” said Michael Lucas, a delegate of the Industrial Workers of the World and an active member of the Incarcerated Workers Organizing Committee. “Seeing things pop up there is a really epic and really beautiful thing.”

Ron said prisoners at Angola are now planning a protest for Aug. 21, marking 47th anniversary of the death of Black Panther George Jackson while he was incarcerated in San Quentin.

Ron is helping to spread the word. “Guys are with it on the inside. It’s just a matter of staying connected in here and also staying connected with people on the outside that support our demands, that support what this movement’s about,” Ron said. “The guys on the inside, [we have to] let them know that they’re not alone in the struggle.”

*Incarcerated people interviewed for this story requested that only their first names be used out of fear of reprisal.

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