Why we oppose Persky recall
This week, 89 law professors from throughout California are offering new voices to what has been a very lopsided debate about a troubling recall campaign in Santa Clara County against Superior Court Judge Aaron Persky. Judges, unlike politicians, have ethical constraints limiting what they can say about their decisions. Our statement explains why this recall threatens fundamental principles of judicial independence and fairness that we seek to instill in our students. We urge you to oppose this recall.
A competent judge cannot be an advocate. The judicial branch is far from perfect, but its integrity is built on independence from either side of a case. Recalling — essentially “firing” — a judge because of disagreement with her or his lawfully made decisions is a dangerous precedent.
Alexander Hamilton described judges as the “least dangerous branch of government” because their responsibility is to decide cases outside of the muddy fray of politics; they are distinctly not the executive or legislative branch. Judges cannot promise, much less guarantee, a particular verdict or sentence in a case. (Consider the appalling re-election slogan of a judicial candidate in the 1980s: “Over 90 percent Convicted Criminals Sentenced. Prison Commitment Rate Is More Than Twice the State Average.”)
This campaign to recall Judge Persky was instigated in response to a sentencing decision in the case of Brock Turner, in which the judge followed a probation report recommendation and exercised his discretion in issuing a sentence permitted by the California Penal Code. We appreciate that some people (indeed including some of the signers of this statement) might have chosen a different result, but the core values of judicial independence and integrity require the judge to make a decision based on the record (including, in this case, the recommendation of a skilled professional — a probation officer), not on public outcry about a controversial case. Judge Persky’s decision was controversial, but it was lawful. Other sentences by Judge Persky that have been challenged by the recall movement have followed the equally common and legitimate practice of accepting a recommendation agreed on by the prosecution and the defense.
Judicial recall was designed for and must be limited to cases where judges are corrupt or incompetent or exhibit bias that leads to systematic injustice in their courtrooms. None of these criteria applies to Judge Persky. We believe it is critical to distinguish disagreement with a particular sentence or allegations about a handful of decisions from an attack on a judge’s overall record. Thus, it is vital to recognize that both the Santa Clara County Bar Association and the State Commission on Judicial Performance have issued statements that they have found no evidence of bias whatsoever.
Judge Persky’s reputation for fairness and impartiality explains why he is widely respected by both prosecutors and defense lawyers. The last three elected Santa Clara County district attorneys (with a total of 27 years of experience) oppose the recall, as does the defense bar. Lawyers who represent indigent defendants rightly view the recall as a danger to, not promotion of, progressive values. This is because historical and empirical evidence show that the threat of recall pressures judges toward sharply ratcheting up sentences, especially against the poor and people of color, out of fear of media campaigns run by well-funded interest groups.
No wonder that former U.S. Supreme Court Justice Sandra Day O’Connor lamented such campaigns as “political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.”
A fair legal system requires judges who dispassionately assess the culpability and background of offenders, balancing the goals of retribution, deterrence and rehabilitation. Public clamor and incomplete information have distorted what this recall is about. Reject the recall.