We are longtime Palo Alto community members and social justice advocates who oppose the recall of Judge Aaron Persky. Our experience working in the criminal justice system informs our vote of NO recall on June 5.
This recall is not a referendum on the wrongfulness of rape and our commitment to end sexual assault. We all abhor violence against women and children but this recall does not provide meaningful reform to help rape victims or survivors. Instead, the recall will spend more than a million dollars to remove one judge for one lawful decision.
We oppose the recall for these reasons: 1) a successful recall will compromise the independence of our judiciary; 2) the recall will not help survivors of sexual assault; and 3) harsher sentences as a result of the recall will disproportionately hurt communities of color and the poor.
The recall campaign has spent almost two years and and over a million dollars spreading false and misleading information about Judge Persky's record. That is why we and several other local feminists co-founded, "NO Recall of Judge Persky" and made our motto "Get the facts!" Judge Persky is ethically bound not to comment on cases so we ask people to visit our website, norecall2018.org/get-the-facts/, for explanations that debunk the distortions and false narrative of the recall campaign.
This recall is a threat to judicial independence. Judges take an oath to act according to the law and to disregard opinions of any sort from the community. As judges contemplate a difficult decision they should not be thinking about who will come after them if unhappy about the outcome. This concern is a silent and subtle corrupting force that undermines judicial integrity and independence. The ability to shut out public pressure is being undermined by this campaign. If the recall succeeds, will those who come before a court continue to be confident that a ruling is impartial or will they fear it is in response to outside pressures?
More than 130 current and retired judges and justices concurred in an op-ed that stated: "It certainly appears the goal (of the recall) is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts." Judge (ret.) Len Edwards observed, "No one cares about judicial independence until they walk into a courtroom and want an independent judge."
The recall will not help victims of sexual assault or make women safer. We need meaningful reform to prevent secondary trauma to victims as they seek justice and help. We must put resources into better training for law enforcement, medical personnel and those in the legal system. Recalling an able and thoughtful judge does none of this.
Harsher sentences as a result of the recall will disproportionately hurt communities of color and the poor since they are the majority of people who come through the criminal justice system. The recall effort has already resulted in the passage of a law creating a new mandatory minimum sentence for sexual assault crimes. Molly O'Neal, the Santa Clara County public defender, opposes the recall and warns that "communities of color would be negatively impacted (by the recall) for decades."
Before his appointment to the bench, Judge Persky was a district attorney who prosecuted sexual assault crimes. He served on the executive committee for the Support Network for Battered Women and the Santa Clara County Network for a Hate-Free community. He received a civil rights leadership award for his work on hate crimes and has served as a judge for 14 years earning a reputation for fairness and integrity.
The recall campaign claims that Judge Persky is biased in favor of white, male, privileged athletes by referring to five cases out of his approximately 2,000 criminal cases. The independent watchdog agency, the California Commission on Judicial Performance, reviewed Judge Persky's record and found no evidence of bias or misconduct. District Attorney Jeff Rosen, who opposes the recall, says that there was never one complaint against Judge Persky.
For more than a year, the recall campaign misled the public regarding the case of Raul Ramirez. They said Judge Persky unfairly sentenced a Latino in a "similar" case more harshly than Brock Turner, who is white. But Ramirez's plea was before Judge Brown — not Judge Persky. Judge Persky also did not sentence Ramirez — in fact, Ramirez was never sentenced by any judge because he fled the country. Nevertheless, the recall campaign used this case to persuade many politicians and the public to endorse their efforts.
The recall claims that Judge Persky "adjusted" the sentences of college athletes to fit their football schedules. This is false. Judge Persky, with the agreement of the district attorney, followed the recommendation of the probation officer, to create a sentence that held a young African American community college student accountable for his crime while allowing him to continue his education. The recall campaign advocates a punitive approach that is at the root of the "school-to-prison pipeline" that derails so many young men of color. We need judges who will use their discretion to temper justice with mercy within the law when imposing a sentence.
We are living in a time when our institutions and our judges are being attacked by politicians and special interest groups. Whatever one thinks of a particular sentence, Judge Persky followed the law.
Facts matter. Truth matters. An independent judiciary matters. We urge a NO vote on June 5.
Elspeth Farmer is a lawyer and social justice advocate. Ellen Kreitzberg is a professor of law and the director of the Center for Social Justice at Santa Clara University.