On June 5, 2018, a recall vote will be held in Santa Clara, California to determine whether Judge Aaron Persky will continue as a county judge. The recall efforts were led by Michele Dauber, a professor at Stanford Law School, who gathered enough signatures for a petition to force the vote. For the activists who campaigned to remove Persky, this is a huge success. However, for the criminal justice system, the recall vote is a travesty.
Judge Persky sentenced Brock Turner, the infamous Stanford University swimmer who sexually assaulted an unconscious woman, to only six months in jail. Many feminists and activists found this sentence to be too lenient. Turner’s crimes, after all, were heinous; he was convicted of three felony counts of sexual assault. However, before proclaiming that his sentencing was unfairly lenient, it is important to know that Judge Persky followed the sentence that was recommended to him by the Santa Clara Probation Department. Claims that Persky let Turner off easy because of his status as a white male at a prestigious university are unfounded — Persky has been known to forgo long sentences for all first-time offenders because of his liberal ideas about the possibility of rehabilitation. These beliefs of his appear to transcend race and class lines.
On Jan. 13, Sen. Kirsten Gillibrand of New York tweeted, “This is incredible: In California, the activists behind @RecallPersky gathered 100,000 signatures to recall the judge who sentenced Brock Turner to just six months in jail….” By lauding the campaign’s accomplishments, Gillibrand illustrates the danger of recalling Judge Persky: the vote poses a threat to an independent judiciary. Allowing legislators and public opinion to determine whether a judge is fit to serve is in direct conflict with the separation of powers that is fundamental to democracy. According to the California Judges Association, “It does harm to our constitutional system … to place judges in fear of recall or personal harm before making unpopular decisions that comply with the law.” A popular judgment is not inherently fair or constitutional.
Public opinion does not selectively influence judges. If judges see that one of their colleagues is being recalled for not being tough enough on one crime, judges everywhere get tougher on all crimes. Sexual assault is unique in that it has not, historically, been taken as seriously as other crimes have. The way to address this, though, is to increase mandatory minimums for sexual assaults by changing the law, not by recalling Judge Persky. The threat that recalling Judge Persky poses is greater than any one crime, or even any issue of social justice — it concerns the integrity of this nation’s judicial system. Though the campaign to remove Judge Persky aims to punish him only for his lenient sentence for Brock Turner, it will likely have the adverse effect of encouraging more stringent sentencing for all criminals, not just Brock Turner.
Paul Butler, a professor at Georgetown University Law Center, wrote in the New York Times that “politically, it’s always safer for a judge to throw the book at a convicted criminal rather than give him a break — even when giving him a break is the right thing to do.” There is evidence to back up Butler’s claim: A Brennan Center study found that judges hand out harsher sentences when they are nearing an election cycle. If Persky is recalled for being too soft on crime, judges will likely respond by being harsher on crimes across the board.
If judges increase sentences all around as a response to the outrage that ensued after Judge Persky issued Turner’s sentence, the population that would be most adversely affected is not rich, white college athletes. Instead, the people who will suffer the most are those who most often find themselves in front of sentencing judges in courtrooms around the country — people of color, and people who cannot afford lawyers to talk courts out of handing harsh punishments. According to Butler, who cites 2010 U.S. Census data, “Almost 70 percent of the people in prison in California are Latino and African-American. Those are the groups that would bear the brunt of zealous punishment.”
In response to Turner’s lenient sentence, the California legislature passed Assembly Bill 2888 in August 2016, which increased the mandatory minimum sentence for the crimes Turner committed to three years in prison. If people were unhappy with Judge Persky’s sentencing, then changing the law was the appropriate way to move forward. Society has a system in place for addressing these concerns, and it was used effectively and fairly. But by forcing a vote to recall Judge Persky, activists may be responsible for recalling a judge who values rehabilitation and fairness. More importantly, they are threatening the independence of the American judiciary.
