A Judge Facing the Ballot Box

There’s a revolution underway in Santa Clara County in Silicon Valley. It’s been overshadowed by the seemingly endless crises streaming out of the White House, but it’s there—and, in the age of Donald Trump, it is more important than ever.

On June 26, activists from all over the county came together to file a “notice of intent” with the Santa Clara County registrar’s office that will set in motion a series of steps that will see the option to recall Judge Aaron Persky appear on the June 2018 ballot. Led by Stanford Law School professor Michele Dauber, the campaign must collect 58,634 signatures during a period between August and January 2018 to qualify for the upcoming June election. The effort will enable Persky’s constituents to be the ultimate arbiters of whether the much-embattled judge should continue on the bench in Santa Clara County.

Judge Persky was the subject of international outcry when he sentenced Brock Turner to six months in county jail and three years’ probation, despite the former Stanford University swimmer’s conviction on three felony counts of sexual assault, which carried a maximum of fourteen years in prison. Despite the prosecution’s request for a minimum of six years in prison, Persky administered a sentence that legal analysts described as “way too low” and prompted the California legislature and Governor Jerry Brown to enact a law that imposed new mandatory minimum sentencing requirements in certain cases of rape and sexual assault. Due to California’s custody credit laws, Turner received credit for time served prior to his sentencing and was released last September after serving three months. “He should be in prison right now” Santa Clara County Sheriff Laurie Smith told assembled media after Turner’s release.

When Persky delivered his sentence in the Turner case last June, his decision came amid a widely distributed statement by the survivor of Turner’s attack. The young woman’s words received international attention, prompting an open letter by then Vice President Joe Biden, who described the woman’s bravery as “breathtaking.”

Yet, during the June 2016 sentencing, Judge Persky explained his decision with the “severe impact” he believed a harsher sentence would have on Turner, then 20. In his statement to the court, Persky also described Turner has having “less moral culpability” for the assault because he was intoxicated when he committed the crime, and cited Turner’s young age, and his status as a first offender as accompanying reasons for his leniency in sentencing.

Shortly after the Turner sentence, Persky was blocked by prosecutors at the Santa Clara County Superior Court from hearing another sexual assault case after District Attorney Jeff Rosen raised concerns that Persky could not “fairly participate” in proceedings. In August, Persky voluntarily transferred himself to civil court, though there are no barriers preventing him from returning to criminal cases.

In the wake of widespread public outcry (a petition on Change.org to protest Persky’s decision earned more than 1 million signatures within weeks of Turner’s sentencing), Judge Persky was subject to an investigation by the California Commission on Judicial Performance, which failed to find he had committed judicial misconduct. Despite the Commission’s findings, there was—and remains—a sense that the Turner sentencing hit a nerve, and may serve as a catalyst for more sentencing reforms in cases of gender-based violence.

Dauber’s efforts and those of the efforts of the Recall Judge Aaron Persky campaign are now calling on Santa Clara residents to consider the bias he’s exhibited, rather than merely the technicalities that shape the law. As Ms. reported in December, since Persky handed down his decision in the Turner case, Dauber has uncovered numerous instances of bias in Persky’s courtroom in cases of violence against women.

Persky sentenced a man convicted of felony child pornography depicting young and infant girls to serve only four days in jail. He granted a Cisco engineer weekend jail time after he pleaded no contest to severely beating his fiancée. Persky has demonstrated himself a particularly egregious example of a larger pattern in courtrooms throughout the United States and around the world.

“For too long, the criminal justice system—including judges—have either not prosecuted or been too light on cases of violence against women,” Katherine Spillar, executive director of the Feminist Majority says. “The successful recall of Judge Persky will send a message that women have had it. Violence against women must be taken seriously.”

Public support for the effort remains strong. In the fall, polls showed that 67 percent of registered Santa Clara County voters support the recall, and 63 percent did not believe Persky could be fair in any case. Meanwhile, Dauber and her team have been hard at work disseminating their findings and taking on the recall effort’s critics. Some have voiced concerns about what the recall means for judicial independence and preserving the judiciary’s role as an independent arbiter in the public arena. But, as Dauber points out, “The single biggest threat to judicial independence is judicial bias because it undermines public support for the independent judiciary. The public defenders and judges defending Judge Persky are being shortsighted here.”

As one of the 39 states where voters elect their judges to the bench, and one of eight whose Constitution allows for the removal of a judge by a recall vote, the state has extant mechanisms to hold judges accountable to their constituents. Over the coming months, it is up to the voters of Santa Clara County to hold Judge Persky accountable for the biases he has perpetuated in his courtroom. The campaign’s slogan “Enough is Enough” captures the feelings of women everywhere.

Learn more at the official Recall Judge Aaron Persky website.



Lauren Young is a Ms. contributor. She has a Master’s Degree in European and Russian Studies from Yale University and a Bachelor’s Degree in Government and Russian Civilization from Smith College. Follow her on @thatlaurenyoung.