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August 9, 2016

"Put Away The Pitchforks Against Judge Persky"

The title of this post is the headline of this lengthy new Politico commentary authored by Lara Bazelon, which carries this sub-headline "Yes, he gave Stanford rapist Brock Turner a break. But to recall him would be to overturn our legal system."  Here is how the commentary, which merits a full read, gets started:

On this we can all agree: Brock Allen Turner, a blonde-haired, blue-eyed, one-time All-American Stanford freshman swimmer, is stone cold, beyond-a-reasonable-doubt guilty of committing a violent sexual assault against an unconscious woman behind a dumpster. Because what Turner did was brutal, criminal and depraved, and because of his utter lack of remorse—much less insight into his behavior—he should have gone to prison.

But the reaction to the lenient sentence given to Turner by Santa Clara County Superior Court Judge Aaron Persky is, frankly, frightening, dangerous and profoundly misguided.

In a charge spearheaded by Stanford law professor Michele Dauber — a close friend of the victim’s family — an effort is underway to recall Persky from office.  Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct. Over a million members of the feminist organization UltraViolet signed an online petition voicing their agreement.  The group also hired a plane to fly over Stanford during graduation carrying a banner that said, “Protect Survivors. Not Rapists. #PerksyMustGo,” and paid for a billboard on a nearby, high-traffic freeway that sends the same message.

Earlier this summer, prosecutors filed a motion to disqualify Judge Persky from presiding over another sexual assault case involving an unconscious victim — a sedated patient allegedly fondled by a nurse.  More recently, Persky came under fire once again for imposing a three-year sentence on a Latino man who committed an assault, that, on the surface at least, seemed similar to Turner’s.   But unlike the Turner case, the sentence was imposed after the defense and the prosecution agreed to it.  Nevertheless, the mob pounced. It was yet another sign, they said, of Persky’s bias toward white, affluent men — presumably the only kind of person he was able to relate to.  Dauber told NPR, “Hopefully, a qualified woman will replace him.”

As a law professor well-versed in the vital importance of an independent judiciary, Dauber should know better. Removing a judge — never mind investigating him for misconduct — because of a single bad decision undermines the rule of law.  It sends a chill down the spines of elected judges everywhere, which is nearly every judge in the state court across the United States.

I am pleased to see someone talking about rule-of-law concerns if/when folks get heavily invested in seeking to recall a judge for what is viewed as a bad ruling. But I actually think the Brock Turner case serves as even more of an object lesson in how hard it will be to fully address modern mass incarceration in the United States when there are still so many powerful and prominent Americans who are eager to devote time and energy to vindicate and operationalize the view that lengthy terms of incarceration are the only "fitting" form of punishment for many crimes and many defendants.

Some prior related posts:

August 9, 2016 at 11:39 AM | Permalink


Rule of law (rolls eyes). The majority of judges already are already craven toadies to the public's will. The author writes, "It sends a chill down the spines of elected judges everywhere...". I'm sure it does, the same sort of little electric period of arousal one gets immediately before an orgasm.

Posted by: Daniel | Aug 9, 2016 12:57:32 PM

Is this an actual recall, or is Persky up for his retention election?

Posted by: Ed Unneland | Aug 9, 2016 1:34:01 PM

"Like the vast majority of judges in Santa Clara County, Persky is unopposed in the June 7 primary. As a result, his name and the names of 24 other judges who are also up for re-election will not appear on the ballot because no one is running against them.

Critics have two avenues to try to unseat Persky, according to Shannon Bushey, the county's registrar of voters.

They can turn in 600 signatures to force a write-in campaign in November. If they choose not to do that or if that effort fails, they would have to collect 58,634 signatures to trigger a special countywide recall election, which would most likely take place next year."


Posted by: Joe | Aug 9, 2016 3:09:33 PM

Thanks, Joe ... I guess this gets into Rich Hasen territory, but the 600 signature option reminds me of New York's "opportunity to ballot" petition, often used when a party's leadership have some sort of stitch-up going on that party members wish to upend ...

Posted by: Ed Unneland | Aug 9, 2016 3:20:24 PM

This "journalist" starts out with an utterly false premise. There is much doubt that this was anything more than a very drunken hook up. This was a definite factor in the judge's sentence. But yeah, she's right about the challenge going a long way to overturning our system of justice, which in matters sexual has come pretty close to being turned over already.

Posted by: Stephen | Aug 9, 2016 4:55:47 PM

Mob Rule - Who really cares what one million feminists think, if that's what you call it?

I guess "democracy" is only as good as people think and not feelz. We are doomed.

Posted by: albeed | Aug 9, 2016 5:15:55 PM

All of this flows from the fact that many judicial positions in the country are elected.

If you elect judges, voters will take into account how the judges decide cases (or predictions of how they would decide cases based on their history as attorneys for non-judges running for the first time). If you add the right of voters to recall an elected official on top of that, voters will seek to recall judges immediately after any controversial decision. Elections are part of the legal system too. Pretending that elections are some type of platonic guardian type of process in which voters do not consider whether a judge's practices reflect the voters values is simply putting one's head in the sand. There is no chill from any recall of Judge Persky because the chill has been there for a very, very long time.

Posted by: tmm | Aug 10, 2016 10:53:59 AM

There is some "chill" when you use something in a particularly significant way & the attempt here (more so if successful) is just that. The system leaves the opening to just this sort of thing & people who are concerned about it (or as applied to this specific situation) are reasonably making their opinions known. True enough the criticisms can have a wide reach, including some implications that suggest judicial recalls etc. are bad as a policy.

Posted by: Joe | Aug 10, 2016 11:02:55 AM

@joe's most recent post perfectly illustrates the hypocrisy that I was mocking in my first comment. Judges love elections when those elections serve to confirm how great the judges know they are doing in their job. But should the people actually think the judge is not doing so great and want to throw the bum out then OMG elections are undermining the rule of law, everybody panic. Heads the judges win, tails the public loses.

Posted by: Daniel | Aug 10, 2016 1:13:02 PM

How is this sentence that unusual? This was a digital penetration of an intoxicated victim by someone with a clean history. Rape is 3 6 8 years and this kid would have been properly given 3 under the facts. Giving probation is not barred by law here, as it is for more serious sex crimes, and so even though most rape cases might not result in probation, it does not strike me as unusual that this case did. I saw a defendant in court who had confessed to a full on date rape and he got probation.

He isn't out of the woods. Sex offender probation is very aggressive and he could easily end up in prison on the slightest pretext. You think any judge will be fair to him now after seeing this circus?

I think some feminists are really lashing out at the law itself here. A mitigated sexual assault case is just not punished with a long prison term here in California.

The true punishment here is lifetime sex offender registration. The prison term pales in comparison to that.

Posted by: Senteping | Aug 11, 2016 5:04:23 AM

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