By Lucy Arnold
On Monday, the California Commission on Judicial Performance cleared Judge Aaron Persky ’84 M.A. ’85 of wrongdoing in his sentencing of former Stanford student Brock Turner, who received six months’ jail time – later reduced to three – for sexually assaulting an unconscious woman.
Although many criticized the sentence as excessively lenient, the commission report called Persky’s ruling “within the parameters set by the law and therefore within the judge’s discretion.”
An independent state agency, the commission also said that it had closed investigation into claims of Persky’s misconduct. According to the report, no evidence of bias or abuse of authority was found to suggest that Perky is guilty of judicial wrongdoing and requires discipline.
The investigation began after the commission received thousands of complaints that Persky’s sentencing for Turner reflected bias based on gender, race and socioeconomic status. Many complained that a nonwhite, less privileged defendant would have received a stronger penalty. Others linked Persky’s sentence to his own status as a Stanford alum or cited the fact that Turner faced a 14 year maximum prison sentence.
The commission examined various aspects of Persky’s record to reach its conclusion.
After reviewing Persky’s decision-making process in the Turner case, it determined that Persky took both Turner and the victim’s positions into account as he reached his ruling. It also found that his sentence aligned with the probation officer’s recommended sentence of time in county jail coupled with three years’ probation and sex offender treatment.
Upon looking into four other cases judged by Persky, the commission found no sign of bias. Its report stated that Persky’s continued ties to Stanford and any potential connection to his sentencing were “insufficient to require disclosure or disqualification.”
Michele Dauber, Frederick I. Richman Professor of Law at Stanford and leader of a campaign to recall Persky from the bench, was not surprised by the commission’s decision to clear Persky.
“This commission almost never imposes judicial discipline and has been criticized extensively for the lack of transparency in how it conducts investigations,” Dauber said. “Recently, it was the subject of a huge controversy and successful effort to get an audit of its past cases for the first time in 56 years, so this is not a body that has a lot of public trust.”
The commission dismisses 90 percent of the public complaints it receives and disciplines judges at a much lower rate than do similar agencies in Arizona, New York and Texas.
Dauber said that the current report is based on serious factual mistakes, calling the investigation one-sided and a “closed-door proceeding in which the only participant appears to be Judge Perksy’s lawyer.”
A recently passed piece of California legislation (AB-2888) expands the legal definition of rape and increases the penalty for assault of unconscious victims. While Dauber said that the new law is a “fine reform,” she also emphasized that it is not necessarily a panacea for the situation; the problem with Turner’s case was not the law, she said, but Persky abusing his discretion.
“You shouldn’t tie the hands of a thousand good judges to deal with the problem of one bad one,” Dauber said. “And a judge who is willing to abuse their discretion and act from a place of bias can do it just as easily under the new legal regime as under the old one.”
Dauber said the campaign to recall Persky will continue. If the campaign can gather enough signatures in April, the issue will appear on the Santa Clara County ballot next November. Dauber is confident that the measure will pass. Independent polling of Santa Clara County residents in July found 66 percent support for the recall as well as four-to-one support among women.
Dauber remains excited about what the recall could mean for those who believe that Turner was dealt with too leniently.
“For people who are thinking that we need to fight back, this election provides a tremendous opportunity because we are literally putting rape culture, yes or no, on the ballot,” she said.
A previous version of this article incorrectly quoted Dauber as saying, “the commission almost never opposes judicial discipline.” The Daily regrets this error.