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The recall of the judge who sentenced Brock Turner will end up hurting poor, minority defendants

I’m a public defender. Here’s why the recall vote is no progressive victory.

Judge Aaron Persky poses for a photo with a sign opposing his recall in Los Altos Hills, Calif.
Judge Aaron Persky poses for a photo with a sign opposing his recall in Los Altos Hills, California.
AP Photo/Jeff Chiu

Many people were outraged by the light sentence given to Brock Turner, the former Stanford swimmer, after his sexual assault conviction: a mere six months (of which he served three). The sentence inspired a national debate. On Tuesday, voters in Santa Clara County voted to recall Judge Aaron Persky, who imposed that sentence.

That is a terrible mistake, whether or not you agree with the sentence.

This was the first successful recall in California in almost 90 years. Though the recall only involved one judge, its impact will be felt nationwide.

It sends a dangerous message to judges everywhere: If we don’t like one decision you make, you’re out. That represents a terrible threat to judicial independence and highlights the problems with electing judges — or subjecting appointed judges to reelection. They need the protection to think independently, even if they sometimes make decisions we don’t like.

I am not arguing that Turner’s sentence was the right one. Indeed, as a public defender, I am all too aware of the racial and class disparities in sentencing that redounded to Turner’s benefit. I have previously written about the ways privileged criminal defendants often are rewarded precisely because of their privileges. (One need look no further than Harvey Weinstein, who easily posted bail and did not spend a day in jail after his arrest.) But allowing an uninformed public to punish a judge for one unpopular decision jeopardizes the integrity of our entire system.

I’ve seen firsthand how the Judge Persky episode is affecting judges’ behavior

Long before this week’s vote, the recall campaign’s impact had been felt in courtrooms across the country, where judges became increasingly cautious about exercising discretion, worried that they might be punished for leniency. In my work as a public defender in Oakland, California, I have observed how the recall effort has changed judges, whether consciously or not, making them more timid about taking risks on defendants who deserve mercy.

I have also heard stories from other lawyers. One told me that after earning an acquittal for a young client with no criminal record, he was told by the judge how relieved he was by the decision, which meant the judge would not have to sentence him. The judge clearly felt the young man did not deserve a harsh sentence, had he been convicted, but he was worried about creating a “Brock Turner problem” for himself, he said.

Given that the criminal justice system disproportionately targets and prosecutes the poor and people of color, the ones who suffer from judges feeling pressured to sentence harshly are not people with privilege like Turner, but those without privilege.

Judges have always had more incentives to punish harshly than leniently, and elections only increase these pressures. A Brennan Center for Justice study found that when judges are approaching reelection, they are more likely to impose harsher penalties. This is common sense, given that judges who have sentenced a defendant harshly rarely make the news.

That is no small thing; in this country, we have an epidemic of wrongful convictions, yet never have I heard of a public outcry to recall or vote against a judge who presided over a case in which an innocent client was convicted or sentenced. In contrast, as we have just seen, a sentence perceived as too light not only will make headlines but could cost a judge his job.

Most judges nationwide are appointed, not elected. (In federal courts, that’s exclusively true.) Despite this, in many state courts, even appointed judges must run for reelection. And many judges are also subject to recall proceedings at any time.

When judges are looking over their shoulders, worried about losing their jobs if they enrage the public, the fairness of our system is compromised. Judicial independence is especially important because the public is often wrong, particularly on a local level.

Consider the example of desegregation. After Brown v. Board declared school segregation unconstitutional, the Supreme Court left much of the implementation of desegregation orders to local federal judges. Many Southern whites remained deeply committed to segregation and were infuriated by the decision. If those federal judges had to worry about elections, or about being recalled by a racist local community, few judges would have ordered schools desegregated.

There are plenty of ways to hold judges accountable — including term limits

Eliminating judicial reelections would hardly mean the end of judicial accountability. Judges would continue to be reviewed by judicial commissions, which review complaints about judges and determine whether to sanction them, and would still be subject to appellate review — and, in extreme cases, impeachment. And ending the public’s role in reelecting judges would not mean we’d have to go all the way in the opposite direction and grant appointed judges lifetime tenure.

State legislators should consider imposing term limits on judges, which would ensure that fresh faces and perspectives would be added to the bench. But even without the imposition of term limits, the nominal accountability that reelections offer is far outweighed by the erosion of judicial independence that public elections cause.

The recall campaign was led by people lacking any criminal law experience. Many lawyers who have actually appeared before Judge Persky in criminal cases describe him as a thoughtful, smart judge. Even the head prosecutor where Persky presided opposed the recall, noting that Persky was not actually known for leniency and that “most judges in California would have done the same thing” in sentencing Turner. (Indeed, Persky followed the probation department’s sentencing recommendation.)

The California Commission on Judicial Performance reviewed Persky’s decision in the Turner case, along with others that recall supporters identified, and found no evidence of bias. Recall supporters pointed to other defendants Persky had sentenced to more time than Turner as evidence of bias, but the examples revealed a lack of insight into how criminal courts operate.

For example, recall supporters pointed to the harsher sentencing of a Latino man in a sexual assault case Persky had presided over. But that defendant had pleaded guilty after plea negotiations, rather than after a trial. As anyone practicing criminal law knows, it is rare for judges to interfere with plea bargains.

In addition, recall that supporters have handpicked other cases of perceived leniency, but the only trend among these cases is that Persky appeared to believe in second chances for young offenders, and was often focused more on rehabilitation than punishment. In general, this is something many Americans now say they want from a justice system that for too long has been overly reliant on incarceration.

Judges are not lawmakers. They are not elected to implement policy or to respond to social movements. The only way to guarantee they don’t is by insulating them from public opinion. The recall of Judge Persky is already causing harm, but we can limit future harms.

The only way to prevent judges from allowing their rulings to be swayed by the public is to change laws that allow them to be recalled.

Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.

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