Why The Recall Of Judge Persky Is Terrible For Racial Justice

 In Social Commentary

“What’s concerning. . . is that the idea of removing Judge Persky from the bench is being equated with the fight for racial justice and fairness—a strike against white privilege and a broken criminal justice system. But the reality is, despite the righteous place this instinct may come from, the end result will be only more of the weight of a racist criminal justice system placed down upon communities of color.”
— Community Activist with Silicon Valley De-Bug’s Albert Cobarrubias Justice Project

I couldn’t agree more. Don’t sign the recall petition and if it ends up on the ballot, please vote NO because this recall will have an adverse effect on people of color.

Judge Aaron Persky of the Santa Clara County trial bench, sentenced Brock Turner, a freshman Stanford swimmer, to six months in jail for a 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. (It is frequently overlooked that Judge Persky also required Mr. Turner to register as a sex offender for the rest of his life.)

I was a trial judge on the same court for nearly 19 years. During my time on the bench, I sentenced thousands of convicted men and women. If I had been the judge in the Turner case,

I would have imposed a longer jail sentence. Still, I oppose the effort to remove Judge Persky by a voter-initiated recall election. Should the recall succeed, the independence of the California judiciary and the integrity of lawful, albeit sometimes unpopular rulings by judges will be forever compromised.

Judges must have the ability to exercise their discretion, especially when it comes to sentencing. Without discretion, we are left with cookie-cutter justice that imposes mandatory sentences, without any regard for the defendants’ circumstances. If Judge Persky is recalled, trial judges in Santa Clara County, and throughout the State of California, will be looking over their shoulders, testing the winds before rendering their decisions.

In addition to destroying the independence of the judiciary, there’s another compelling reason why you should not sign the recall petition and oppose this wrong-headed recall effort. Our criminal justice system is deeply unjust, but the recall campaign’s attempt to put the blame for these problems on Judge Persky is shameful and harms defendants who are poor and of color.

By sending a message that unpopular decisions may lead to a recall, the campaign threatens the willingness of judges to give individual consideration to defendants at their sentencing. Should this recall succeed in removing a judge for making an unpopular decision, it will be harder for low-income defendants, most of whom are of color, and harder for those who advocate for them, to receive judicial consideration of mitigating circumstances. I’m not just making this up. Several empirical studies have concluded that judges impose harsher sentences when pressured by elections, and that these effects are concentrated on defendants of color.

The Albert Cobarrubias Justice Project created by Silicon Valley De-Bug in San Jose, California is doing groundbreaking work in assisting defendants to present mitigation information at their sentencing hearings. The Project has developed a “participatory defense” model that involves families of defendants in preparing information for their sentencings. The Project’s work includes creating mitigation packets and “social biography videos” that allow judges to see the defendants before them as more than their worst mistakes. If this recall succeeds, the voices of these families will be ignored by judges, wary of being attacked for exercising mercy within the law.

For just one example from my own judicial career, I imposed a sentence on a 15-year-old Latina whom I had convicted of felony-murder, a sentence that I believed fit her involvement in the crime. My decision was met with outrage from prosecutors and from the victim’s family. The local newspaper’s headline screamed, “Judge Gives Murderer One Year.” There was an implication that my African-American identity had led to an unfair, indeed an outrageous sentence. But there was no movement to seek my removal from the bench, and I continued to serve for almost a decade more, sentencing many people without further incident and doing justice to the best of my ability.

Sentencing is the hardest thing judges do; undoubtedly, we sometimes get it wrong. But the proper sentence, one that punishes and rehabilitates, is not something that should be subject to popular vote.

Again, I urge you to oppose the recall petition and don’t sign the petition to place the recall on the ballot.

*Note: I have relied heavily upon the superb article entitled, “Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair.” The article is authored by two 2016 graduates of Stanford Law School, Emi Young and Avika Freidlibn.

Here’s a link to their terrific article:
https://medium.com/@recalljustice/race-privilege-and-recall-d0658c8d04ea

 

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  • Lauryn McCroskey
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    In your essay titled, “Why the Recall Of Judge Persky…” , you speak to the ramifications of recall to the future of fair sentencing. ” By sending a message that unpopular decisions may lead to a recall, the campaign threatens the willingness of judges to give individual consideration to defendants at their sentencing. Should this recall succeed in removing a judge for making an unpopular decision, it will be harder for low-income defendants, most of whom are of color, and harder for those who advocate for them, to receive judicial consideration of mitigating circumstances.” What you never touched in your argument, was the obvious and horrific injustice dealt to this particular defendant. The case was so heinous, the victim so articulate in the effects of the crime committed against her, and the jury so convinced that the crime had indeed been committed, that there is no redeeming quality that could come from such a miscarriage of justice. Judges MUST be held accountable to the public whom they serve. When their judgement is so clouded, so infected with bias as Judge Persky’s seems to have been, they better be able to defend their actions. So far, Judge Persky has neglected to give anything resembling an adequate account of his sentencing. He is afraid of the damage the rapist will incur by going to jail?! Please! Judge Persky is accountable to those whom he serves. This isn’t about needing to appease the public, or a judge scorned for carrying out an unpopular sentence. This is about a judge needing to be brought back to reality about whom he works for. And who has the right to fire him when he gets carried away with his own sense of power. He felt he knew best what this rapist deserved. Somehow, he knows better than the average person what justice looks like. That is a God complex if I ever heard one.

  • Antoine Jones
    Reply

    In all of your delicate tip toeing in your careful argument for judicial discretion, you leave out an important point: the criminal justice system should also serve to deter–both the criminal from reoffending (called rehabilitation) and to keep the general public from committing a similar offence (an essential part of the rule of law).

    It is this rule of law part that American jurists are forgetting about. Folks who believe as you and Judge Persky do that jail-and even the arrest itself-are so damaging that punitive sentencing are not universal best practices in jurisprudence neglect the community-reifying effects of consistent sentencing. Said another way: if Brock Turner was a poor white drifter who committed this same crime as a first offence, no judge would have been lenient on him. And there would have been no public outrage either if this hypothetical Turner got 14 years.

    The same forces that doom defendants of color and poor whites to harsher sentences have been the same forces that let high SES whites like Turner avoid even moderate pressure from the criminal justice system. What is happening in the contemporary Era is that many people across the SES spectrum are losing respect for the rule of law, a concept that is foundational in the history of this repiblic. And because CA is North America’s most populist democracy, jurists there are subject to stronger forces. This is a safety valve that the founding fathers of CA put in place to check the excesses of government, for better or worse. And since the judicial oversight committee decided Persky was in line with the law andother CA jurists, the people are exercising their constitutional right to be shocked to their community consciousness, as Durkheim put it when discussing justice and community formation.

    In the age of women’s empowerment and the internet, judges will not be able to hide behind sexist, racisist, classiest and antiquated law codes and expect to enjoy the responsibility of the bench unchecked. Until there is a time when people of color enjoy the same soft handed treatment of the criminal justice system that high SEA whites do, your arguments as to why Persky should stay on the bench and/or not be subject to a recall are facile and best, and ignorant of the true faillures of the American criminal justice system at worst.

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