No: One bad decision doesn’t justify a recall
Judge Aaron Persky sentenced Brock Turner, a Stanford swimmer, to six months in jail for the egregious sexual assault upon an unconscious young woman. As a result, the judge has been pilloried by millions of people on social media and is now the subject of a possible recall for the sentencing decision that many feel was far too lenient.
I disagree with Persky’s sentence. In my view, Turner’s punishment did not fit the crime. I believe that unconscious bias, the hobgoblin of all judges, unduly influenced his decision. Turner’s privileged upbringing and his status as a star athlete at a prestigious university were among the factors that led the judge to conclude that prison was too harsh a punishment. I doubt that a poor young man of color with little education would have fared as well.
Still, I oppose the effort to remove Judge Persky by a voter-initiated recall election. Should it succeed, the independence of the California judiciary and the integrity of lawful, albeit sometimes unpopular, rulings by judges will be forever compromised.
I was a trial judge in California for nearly 19 years. During my tenure on the same Santa Clara County Superior Court on which Persky serves, I sentenced thousands of convicted criminals. In many if not most of those cases, one side or the other was unhappy with my decisions. That’s what happens when you are a trial judge: One side wins, one side loses. A judge can’t and shouldn’t please everyone.
In a case over which I presided in 1995, I agonized over the sentence to give a 15-year old girl who, while unaware that anyone was going to be hurt, let alone killed, had aided in the robbery of a car that ended in murder.
After reviewing all of the factors that judges are required to consider, I rejected probation’s recommendation to place the girl in juvenile prison, the California Youth Authority, for seven years. Rather, I chose a less restrictive facility that focused on treatment and rehabilitation for the maximum term of one year.
Predictably, my decision was met with outrage. The local newspaper headline screamed, “Judge Gives Murderer One Year,” while the victim’s family, the prosecutor and the probation officer expressed outrage at my sentence.
There was no movement to seek my removal. I survived the fallout and continued to serve on the court until my retirement in 2001, when I left the bench with my reputation for fairness intact.
There are three ways in which a California judge can be removed from the bench: impeachment by the state’s Assembly and Senate, a decision of the Commission on Judicial Performance that is confirmed by the State Supreme Court, or by a recall election. The California legislature has impeached only two judges, both for criminal conduct.
In 1862, Judge James Hardy was impeached for conspiring with a district attorney to fix a murder trial of a former Chief Justice of the California Supreme Court. The judge was also charged with violating his oath to uphold the Constitution because of his very vocal advocacy of slavery, the Confederacy, and secession of the South.
Judge Carlos Hardy (no relation to James) was impeached in 1929 for practicing law while a sitting judge and for making a theater of the courtroom by printing and distributing tickets for seats at a high profile trial.
Since 2005, the Commission on Judicial Performance has removed six judges for misconduct including ticket-fixing, accepting expensive gifts from lawyers and litigants, submitting false reports for court expenses and lying to the Commission.
The one judicial recall was in 1913 when voters removed Judge Charles Weller, a police court judge in San Francisco, who had a history of setting extraordinarily low bail in rape cases and dismissing such cases on technicalities. Judge Weller was recalled due to a demonstrated history and pattern of bias in sexual assault cases.
The exercise of judicial discretion is critical, especially when it comes to sentencing. Without discretion, we are left with cookie cutter justice that imposes mandatory sentences without any regard to defendants’ circumstances. We’ve been there before, and the results are far more damaging than the occasional ill-advised sentence.
The only thing mandatory sentencing accomplished was the mass incarceration of the poor and people of color.
A recall election of Persky, whatever the outcome, would have trial judges looking over their shoulders, testing the winds before rendering their decisions. Cyber-mob justice is not the answer. One unpopular decision should not a recall make.