The effort to recall Judge Aaron Persky, which has submitted signatures to be on the ballot in Santa Clara County in June, is misguided and a threat to judicial independence. If there is disagreement with a judge's decision, the appropriate remedy is to appeal the ruling, not to seek removal of the judge.
Such recall efforts are a serious threat to judicial independence as judges will fear that unpopular rulings will cost them their jobs. Justice, and all of us, will suffer when judges base their decisions on what will satisfy the voters.
Judge Persky has been on the bench in Santa Clara County since 2003 and most recently was reelected without opposition in 2016. The recall effort is entirely a reaction against a sentence he imposed in a single case.
In March 2016, Brock Turner, a student at Stanford University, was convicted of intent to commit rape of an intoxicated/unconscious person, penetration of an intoxicated person, and penetration of an unconscious person. California law allows a maximum sentence of 14 years in prison for Turner's crimes. The prosecutor requested a six-year sentence, while the probation department recommended a sentence of six months to one year in jail. Persky imposed a sentence of six months imprisonment, followed by three years of probation.
Those who are championing Persky's recall conspicuously fail to mention that the sentence was within the range recommended by the probation department.
I understand the anger about Turner's sentence; six months seems too lenient for a sexual assault. I, too, was moved by the victim's eloquent statement. But I strongly oppose the recall effort.
A judge should be subjected to recall only for illegal or unethical conduct. No judge in California has been recalled since 1932. The Commission on Judicial Performance, an independent state body tasked with investigating complaints of judicial misconduct, found no judicial misconduct by Persky. Subjecting a judge to recall for unpopular decisions undermines the independence of the judiciary.
Judges should decide cases, including the difficult task of sentencing criminal defendants, according to their best view of the law and facts. This time the recall is for a judge who was too lenient in imposing a sentence, but next time it could be for a judge who excludes evidence in a high-profile case because the police violated the Fourth Amendment or for a judge who orders a school to be desegregated and upsets the voters.
Efforts to recall judges for light sentences encourage judges to impose maximum penalties out of fear that anything else could cost them their positions. After all, no one has begun a recall when a judge imposed an outrageously high punishment, such as in the first case I argued in the Supreme Court where my client received a sentence of 50 years to life under California's "three strikes law" for stealing $153 worth of videotapes.
Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions. This is not a new realization. One of the grievances enumerated in the Declaration of Independence was how the King of England effectively controlled the judiciary by removing judges. Several years ago, when I spoke in Russia, judges there told me how they would be removed if they did not rule as the prosecutor and the government wanted.
I also am very troubled by the tactics of the campaign to recall Persky. Michele Dauber, the Chair of the Committee to Recall Judge Persky, began her letter encouraging voters to sign a petition to have the recall on the ballot by declaring: "This week, we saw rape culture in action when Brock Turner filed an appeal."
But every criminal defendant has the right to appeal a conviction. To use that against the judge is unfair and just wrong.
On Jan. 11, Dauber stated at a press conference that the California Constitution Center, a non-partisan academic research institution at Berkeley Law, concluded that this recall will not harm judicial independence. This is flatly incorrect.
Nothing in the California Constitution Center report supports this characterization; it is a description of the law and the history of recall efforts in California.
A California Court of Appeal can overturn a sentence if it finds that it was an "abuse of discretion." If the prosecutor believes a sentence is too lenient, the remedy is to appeal.
But the answer is not to remove a judge from the bench because we dislike the sentence. We all need judges to decide cases, including sentencing defendants, without fear that an unpopular decision will cost them their jobs.
