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Recalling the Judge from Brock Turner's Case is a Dangerous Mistake

Posted by Seth Chazin | Feb 14, 2018 | 0 Comments

In June of 2016, Judge Aaron Persky of the Santa Clara County Superior Court sentenced former Stanford swimmer Brock Turner to six months in jail. Turner was quickly made the poster child for unfair sentencing practices.  Since the sentencing, Santa Clara county residents, with the encouragement people throughout California and beyond, set in motion a vote to recall Judge Persky. But recalling Persky won't fix a sentence that seems unfair -- it will only serve to deepen cracks in an already broken criminal justice system.

Turner, the former student-athlete, was charged with sexually assaulting a reportedly unconscious woman outside a fraternity party. Aaron Persky, the judge assigned to Turner's case, was concerned that prison would have a severe impact on Turner's mental health and future. Turner's lack of a previous criminal record, coupled with his genuine remorse over his actions, led Persky to sentence Turner to six months in jail, compared to the lengthy prison sentence that the prosecution was asking for.

The public erupted in outrage, feeling that Turner received a lenient sentence because he was white, affluent, and well-educated. Michele Dauber, a Stanford Law Professor, spearheaded a campaign to paint Judge Persky as misogynistic and unsympathetic to survivors of sexual assault. She charged that Persky, a graduate of Stanford himself, was unfairly biased in favor of Turner because of their shared alma mater as well as the fact that he was affluent and a former athlete.

Persky, however, was merely following a recommendation set forth by the Santa Clara County Probation Department, which recommended six months jail time for Turner. Persky has often followed recommendations by the Probation Department, and has a history of leniency with first time offenders, favoring progressive rehabilitation over tough-on-crime, punitive sentencing.

As of February 6th, over 94,000 Californians have signed a petition to recall Judge Persky. A recall vote will now take place in June of 2018, seemingly giving Californians a mechanism to channel their outrage. However, if the voters sign off on Persky's removal from office, it will be the first time a judge has been recalled in 87 years, and be a very dangerous precedent.

Superior Court Judge LaDoris Cordell expressed concern over the impact of removing Judge Persky. “This is a threat to the independence of the judiciary,” Cordell said. “That means that if there are judges who want to do the right thing — and the right thing may mean being compassionate, being lenient when composing a sentence — they're going to think twice about doing what they believe to be right and following the law because of fear.”

This isn't just the anxious speculation of Persky's colleague. A study done by the Brennan Center found that judges increased sentencing when they are closer to reelection. Public pressure on judges often exacerbates the likelihood of unfair sentencing.

The integrity of the judicial system is based on its independence from the public. The tough-on-crime politicization of the judiciary could catalyze a breakdown in compassionate sentencing, and even increase mass incarceration. There's no reason to believe that making an example of Persky would result in increased sentencing solely for white, affluent offenders. Rather, it would likely aggravate pre-existing racist tendencies in our criminal justice system, particularly at sentencing.

What does it mean if the public can vote to remove a judge simply because a single case, a single decision, was unfavorable given public sentiment at that moment? Recalling a judge should be reserved for cases in which the judge is grossly incompetent or corrupt. Overturning 87 years of precedent could mean that judicial impartiality will cease to exist. Persky's recall would intimidate judges into handing down the harshest punishments possible. The judiciary was explicitly divorced from the public to prevent mass hysteria from polluting impartiality. Californians must decide whether they want a compassionate, independent judicial system, or judges who levy harsh punishments with impunity to protect themselves.

About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 25 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 30 years experience.

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