On January 18, 2015, Swedish Stanford graduate students, Peters Lars Jonsson and Carl-Fredrik Arndt, stopped and captured Brock Turner, a swimmer with Olympic potential, as he sexually assaulted an unconscious author then-student Chanel Turner behind a dumpster. California’s Santa Clara County Superior Court Judge Michael Aaron Persky presided over the trial of The People of the State of California v. Brock Turner. On March 30, 2016, Turner was convicted and found guilty of three felonies. The statutory maximum sentencing was fourteen years in jail. On June 2, 2016, Judge Persky rejected prosecutors’ recommendation of a six-year prison sentence and went with the probation officers’ report’s proposal: a six-month jail sentence and three years of probation. One of the probation officers who wrote the report is a woman. On June 7, 2016, Judge Persky won his reelection unopposed. Turner was released after three months on September 2, 2016, is permanently registered as a sex offender, and attended a sex offender rehabilitation program. On December 19, 2016, the California Commission on Judicial Performance cleared Judge Persky of any wrongdoing.
Around this time, Stanford Law Professor Michelle Landis Dauber organized “Recall Judge Persky” to collect the required 80,000 signatures of county voters to hold a special recall election. On January 24, 2018, the county Registrar of Voters confirmed the receipt of 94,539 signatures and put the recall on the June 5, 2018 ballot, when voters recalled Judge Persky. Rebecca Richman Cohen, a graduate in 2007 and Lecturer on Law since 2011 at Harvard Law School, directed “The Recall: Reframed” (2022), a short documentary questioning the wisdom behind this recall.
This short film was assigned to me and not on my radar, but “The Recall: Reframed” is the kind of documentary that I would watch so I accepted the assignment. I too am a Harvard Law School graduate and licensed lawyer who did business law for two years and litigated for nineteen. I have zero experience in criminal law other than academic and theoretical though in my professional capacity as a civil litigator, I have faced litigants who have committed egregious sexual offenses. If I have a bias, it is the belief in recidivism for people who commit sexually based crimes. I went into the documentary knowing about this specific case and the events after sentencing.
In terms of film value, “The Recall: Reframed” is an adequate expository documentary that aims to convince viewers that they should see the recall election as alarming and endangering the judiciary’s independence. The film pleads with feminists to reconsider why they lean towards restorative justice for every type of crime except sexually based offenses, which makes them call for punitive action and disproportionately affects Black people.
“The Recall: Reframed” is a bit manipulative to persuade its viewers. It leads with Miller’s victim statement but waits until the end of the documentary’s closing credits to reveal that she refused to appear in the documentary, along with Judge Persky and Prof. Dauber. It starts with talking heads acknowledging the egregious crime and possibility of white privilege playing a role in the sentencing who then explain how they can hold these positions and oppose the recall. Because the Santa Clara County District Attorney Jeff Rosen, whose office prosecutes sexual crime cases, Prosecutor Alaleh Kianerci, who requested the six-year sentence, and retired Judge Ladonis Cordell, a Black woman and self-proclaimed feminist, oppose the recall to preserve judicial legal independence, the viewer is supposed to believe them. They assert that Judge Persky’s ruling was fair and legal then blame the media for mischaracterizing Judge Persky as biased for signing off on plea bargains and going with probation’s recommendations.
I agree with what they are saying, but “The Recall: Reframed” is too short and misses a lot of red flags with these arguments. Just because people focused their outrage too narrowly on a judge who was doing his job and did not understand the judge’s role as an enforcer of the law does not mean that the recall itself was wrong. How do these talking heads reconcile calling Judge Persky fair, unbiased and legal yet refuse to examine the law that led to the recall? If all laws are great, which is the implicit assumption, and judges are elected in California, then just like they hate how the system worked for Turner, but stand by it, they should do the same for Judge Persky’s recall or go deeper into whether the process for choosing and recalling judges promotes judicial independence, and if not, what they are doing to change the way that people become judges in order to prevent such action in the future. It is not enough to blame the media’s mischaracterization here. Also the film uses probation’s agreement—they did it too—as a deflection without examining whether the probation department’s function serves justice. We are getting into Stanley Milligram territory where individuals cloak themselves in the agentic state excuse, which can lead to incorrect results. It is easy to sympathize with individuals that we know such as probation officers and judges, but not faceless theoretical masses such as the outraged electors or vague references to unjust sentencing guidelines as if they materialized from the ether with no authors.
“The Recall: Reframed” feels like a commercial to rehabilitate Judge Persky’s reputation, which may be necessary, but it is a bit of a shell game to be concerned about protecting judges when the point should be to interrogate the entire system and process to protect all people equally. It has been four years since the recall election, and the documentary fails to show one example of how judges’ independence was impacted. Sentencing rates went up but how do we know that specific judges did not increase sentences for other reasons? Correlation does not equal causation, and this argument needed to be fleshed out.
“The Recall: Reframed” does a better job of confronting the seeming contradiction of feminism’s impulse towards rehabilitative and restorative justice except in sexual offenses. University of Colorado Professor Aya Gruber makes this point and rings the alarm bell that it leads to “racialized mass incarceration.,” which participatory defense organizer from De-Bug, Charisse Doming, validates. The demand for intersectionality is a good one, but it felt like a huge omission not to at least reference Michelle Alexander’s “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” Cohen shows excerpts from Sanford C. Gordon and Sidak Yntiso’s study, “Incentive Effects of Recall Election: Evidence from Criminal Sentencing in California Courts,” which showed that sentences went up by 30%. Now remember when Judge Persky stayed within sentencing guidelines for Turner, but was more lenient, everyone cosigned it and wanted the public to accept it because it was legal, but now that the sentencing guidelines are harsher for Black people, it is bad though still legal because it is biased and unfair. I agree that the sentencing system is problematic and biased, but the documentary is in the “have its cake and eat it too” category by refusing to examine the system and simply reducing its argument to the recall made judges scared. If sentencing guidelines and judicial discretion is inherently biased, then the documentary needed to do more to dissect the entire system and propose solutions. It would be consistent to deflect blame from the judge to biased sentencing guidelines, not accept it for Turner.
“The Recall: Reframed” ends on a bad note by trying to assert that Turner’s punishment was adequate, and the recall was a bad way to fix a nonissue. It admonishes the public for being angry, and um, no. This take undermines the strength of every prior argument. Even the jurors disagreed with Judge Persky. It is a rare, unified nonpartisan, almost nonracial, across all genders agreement. The public is not usually angry enough, and the sentence was not adequate.
“The Recall: Reframed” proposes that Judge Persky’s careful analysis should apply to all defendants, not just Turner, which I agree with theoretically, but the film needed to be serious and define an adequate sentence. Because the documentary thinks it was fair, the argument falls apart. Legal and fair/just are two different matters. People were not demanding the death penalty or a lynching, just more jail time. Again the film is more sympathetic to Turner while ignoring the fact that if Turner’s sentence was more substantial, he may have been forgotten and would already be living a normal life. There would be no crisis of faith in the justice system, and these issues would be moot.
As a result of perceived injustice, in a textbook, Turner has become the face of rape, which is a crime that he was technically not convicted of. Civilians keep track of him, which is understandable considering that civilians had to stop him, not the police. Subsequent jurors refused to serve under Judge Persky’s direction. When the public loses faith in the justice system, it can be because the justice system is not doing its job. It has led to a form of vigilantism. So the documentary ends with just asking what justice looks like without mass incarceration instead of demanding that these talking heads offer a practical solution which restores faith in the system. It feels as if they are using Black bodies to shield white men with privilege.
