Why the Recall of Judge Persky is Terrible for Racial Justice

Editor's Note:

Shortly after Judge Persky of Santa Clara County sentenced Brock Turner to a six month jail sentence for sexual assault, a recall campaign fueled with online petitions, celebrity signatories and rallies, went into full swing. Though recall organizers claim the effort is for justice, retired judge Ladoris Cordell writes recalling Judge Persky will only further injure communities of color under siege of a broken criminal justice system.

“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.”

                    - Charisse Domingo 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.

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.

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 sentencings. 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 and 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 Freidlin.

Related Article:
Race, Privilege, and Recall
How Our Limited Options for "Justice" Around the Brock Turner Sentence Only Punishes Communities of Color