While the campaigns for and against the recall of Santa Clara County Superior Court Judge Aaron Persky argue vociferously over each other's campaign tactics and the details of past sexual assault cases handled by Persky, the fundamental question for voters is how to strike the right balance between judicial independence and accountability to the community. Both are not only possible, but essential.
Judge Persky and those opposing his recall argue that nothing short of illegal behavior, incompetence or gross misconduct should be cause for removing a judge. If done for any other reason, they believe, judges will be intimidated into imposing harsher sentences out of fear they too might be recalled. The fact that the California court system has had only two previous recall elections in its history, with the last one 86 years ago, strongly suggests otherwise.
But more importantly, the California Constitution provides for this process and gives voters the absolute power to recall judges for any reason.
Unlike the U.S. Constitution, which gives federal judges lifetime appointments, the California Constitution requires that state judges stand for election every six years and allows for recall elections between regular elections upon submission of valid signatures of 20 percent of a county's registered voters, an extraordinarily high bar. It provides no guidance as to the standards for removal from office, leaving it to voters to make their own judgment.
So challenges to the very legitimacy of this election are unfair, undemocratic and directly contradicted by the law. Those who don't like the recall provision have every right to seek a change in the Constitution, but they have no right to criticize those who are availing themselves of the legal opportunity to challenge the fitness of Judge Persky to remain on the bench.
It is equally wrong to suggest that a recall election is anything other than an early vote on a judge that must stand for election anyway. Had Judge Persky coincidentally been on the ballot this year for re-election instead of four years from now, the campaign would have been no different except there would have been no burden of gathering almost 100,000 signatures nor any debate over the Constitutional recall provision.
Similarly, we find the argument that appointment of judges by the Governor is more likely to insulate the judiciary from political influences than the election of judges to be disingenuous and irrelevant. First, Gubernatorial appointments are inherently and obviously political, and done entirely in secret. But more importantly, that is not the issue before voters.
Instead, voters must decide whether or not Judge Persky's use of his discretionary sentencing powers in sexual assault cases has furthered the interests of justice and created an environment where victims of sexual assault will find the process fair and worthy of being re-traumatized during a trial.
On this question, we believe Judge Persky has failed the community so badly that he must be replaced.
A unanimous jury, after hearing all the evidence and testimony, convicted Stanford freshman swimmer Brock Turner in 2016 of three felonies for his sexual assault of an unconscious woman on the ground outside a Stanford fraternity. The Turner case was a rare instance of a sexual assault being witnessed and interrupted by uninvolved passersby. Two graduate students riding by on their bikes intervened, chased Turner as he attempted to flee and held him until police and paramedics arrived. Sexual assault cases rarely get any stronger than this one.
Persky's six-month sentence of Turner, which resulted in Turner only actually serving three months due to the standard 50 percent reduction of time for "good behavior," undermined the jury verdict and stunned the nation for its leniency. It sent exactly the opposite message hoped for by the victim and those seeking to reduce the high incidence of sexual assault on college campuses.
Under California law, the presumptive minimum sentence for Turner's convictions was two years unless the judge found, as did Judge Persky, unusual mitigating circumstances. The District Attorney asked for six years. But the probation department recommended just six months based on Turner's age, his lack of a significant criminal record (he had already been arrested earlier in his first quarter at Stanford for drinking) and on incorrect information about Turner's previous high school experience with drug and alcohol use (he asserted to the court his first use was at Stanford).
We will never know the damage done by Judge Persky's minimal sentence of Brock Turner and how many future victims of sexual assault will choose not to press charges out of fear that a judge might similarly upend a jury verdict by imposing a diminutive sentence. But that threat is far more real and potentially dangerous to our judicial system than the remote possibility that the removal of Persky will strike fear in other judges and lead to inappropriately harsh sentences of convicted defendants.
Judge Persky abused his discretion, disrespected a jury, failed a crime victim and broke trust with the public he serves. There is no judicial accountability if these failures don't lead to his removal from office.