After Superior Court Judge Aaron Persky ‘84 MA ‘85 handed down what many have criticized as an overly light sentence in the Brock Turner case, activists started a recall campaign to unseat the judge. In the months following, Persky has decided to push back.
Since launching the “Retain Judge Persky — No Recall” campaign early last fall, Persky has garnered a non-trivial number of endorsements from law practitioners, law faculty and community leaders. If he goes down in the face of a well-funded and popular campaign to unseat him, it won’t be without a fight.
Persky rose to national prominence when he sentenced Turner to six months in county jail for sexually assaulting an unconscious woman on Stanford’s campus in January 2015. Persky also sentenced Turner to three years of probation, mandatory lifetime registration as a sex offender and participation in a sex offender rehabilitation program.
The District Attorney’s office asked for six years in prison for Turner, but Persky followed the probation department’s recommendation. Turner served only half of his sentence due to good behavior in jail and was released on Sept. 2.
Persky’s decision sparked a national outcry from many who believed that the sentence was too lenient, particularly after Turner’s victim criticized the sentence in a letter she read in court. Critics of Persky accused the judge of showing bias toward the privileged, favoring a white male and fellow athlete from his alma mater.
“A prison sentence would have a severe impact on him,” Persky said in a statement that drew criticism, citing Turner’s lack of prior criminal record. “I think he will not be a danger to others.”
If it succeeds, the recall, which is essentially a petition to hold an early election, would put the issue on Santa Clara County’s June 2018 ballot. Then, voters would decide whether to retain Persky or to replace him with another candidate. So far, Persky’s only potential opponent is Cindy Seeley Hendrickson ’87, a Santa Clara County assistant district attorney.
The recall campaign dwarfs Persky’s defense in terms of funding: The former had raised over $400,000 as of last month, while Persky’s counter-campaign had gathered only $64,618 as of the end of last year, according to its latest finance release. The movement to recall Persky has also garnered a host of well-known supporters among political, business and community leaders, from local Congressman Ro Khanna to groups like the National Women’s Political Caucus of Silicon Valley to actress Lena Dunham.
Meanwhile, Persky — who did not respond to a request for comment — has built up his own circle of support. His campaign website’s list of endorsements includes the names of retired California Supreme Court Justices, retired, associate and presiding justices on the Court of Appeal and judges on the California Superior Court.
The Santa Clara County Bar Association and the California Judges Association both issued statements within weeks of Turner’s sentencing emphasizing the importance of judicial independence and warning of the dangers that come with trying to recall judges; the bar association said that it opposes the recall.
Last month, Persky’s retainment campaign scored a major, albeit controversial, endorsement from Santa Clara County District Attorney Jeff Rosen. While Rosen publicly stated his disapproval of Persky’s sentencing in the Turner case following the June 2016 decision, the district attorney affirmed that he did not believe Persky should be recalled.
A week after Turner’s sentencing, Persky dismissed a case mid-trial, and Rosen removed the judge from a forthcoming sexual battery case.
“After this [decision to dismiss the case] and the recent turn of events, we lack confidence that Judge Persky can fairly participate in this upcoming hearing in which a male nurse sexually assaulted an anesthetized female patient,” Rosen said in a statement.
Two months later, Persky asked to be reassigned from criminal cases; he has been handling civil matters since early September.
In a statement provided to The Daily following his endorsement of Persky, Rosen stated his “allegiance is to Emily Doe and the victims of campus sexual assault.”
“My Office and I have worked to raise national awareness by organizing a campus sexual assault symposium, crafting a ground-breaking protocol on how colleges and law enforcement handle such assaults and changing state law to ensure that future perpetrators are sentenced to prison,” Rosen wrote. “The legacy of Emily Doe’s courage is fewer sexual assault victims and more compassion for sexual assault survivors.”
Rosen did not elaborate in his statement on his rationale for endorsing Persky, though.
According to the “Retain Judge Persky” website, two of Rosen’s predecessors, George Kennedy and Dolores Carr, have also endorsed the embattled judge.
While Frederick I. Richman Professor of Law Michele Dauber leads the “Recall Persky” campaign, which other members of the Stanford faculty have aligned with, some faculty of Stanford Law School have publicly endorsed Persky. In July, 13 Stanford law professors were among the 46 law professors from California universities who signed a letter opposing the recall.
Advocates for and opponents to the recall disagree on two fundamental notions: first, whether or not Persky has displayed a pattern of bias in his tenure as judge, and second, how a recall would align with or depart from the established role of choosing judges through electoral processes. Advocates for the recall have also expressed particular concern over the way cases involving sexual assault are treated in the court system.
A pattern of bias?
The recall campaign’s central argument is that the allegedly lenient nature of the Brock Turner sentencing was not an isolated occurrence; supporters of the recall contend that Persky has shown a repeated bias that disadvantages victims of sexual violence and privileges white men and particularly athletes.
Two of the cases the recall campaign cites include a domestic violence case against a former Foothill College and later University of Hawaii football player, as well as a civil case in which a teenage girl sought damages against a group of De Anza College baseball players who allegedly raped her.
In both cases, Persky’s critics claim he acted unfairly in favor of the defendants: for example, recall advocates argue, by delaying the athlete’s sentencing after he pleaded no contest so that he could play football in Hawaii and by allowing the jury in the De Anza case to see photos of the girl socializing in revealing clothes months after the alleged rape. The photos were part of the defense’s argument that the girl did not have PTSD.
Other sentences of Persky’s that have been criticized as too light include four days in county jail for possession of child pornography and 12 weeks of weekend-only jail for domestic violence that caused physical injury.
Stanford law professors, students and alumni have diverged in their assessments of Persky’s record.
“Having read the arguments on both sides [of the debate over Persky’s bias], I wasn’t convinced there was a pattern of bias,” said David Sklansky, Stanley Morrison Professor of Law and co-director of the Stanford Criminal Justice Center. “That is part of why I agreed to support his opposition to recall.”
Dauber, his colleague, frames the situation differently, emphasizing the risks of potential biases in the court system.
“We believe that the history of bias by this judge in cases of violence against women is so obvious and glaring and serious that I’m not sure what benefit there is to waiting six years,” Dauber said, referring to the end of Persky’s current term. “What about all the women who are going to come before this judge over the next six years? They’re entitled to receive an unbiased decision maker as well, and if they draw Judge Persky they will not get an unbiased decision maker, that’s clear.”
Another point of contention between Persky’s critics and supporters centers on the relationship between judicial independence and democratic accountability, particularly in a system in which judges stand for election.
“I’m very much concerned with the independence of the judiciary,” said William Gould, Charles A. Beardsley Professor of Law, Emeritus in the Stanford Law School. “I don’t like the idea of judges being pilloried and attacked and denigrated. We’ve seen some of this subsequent to the Persky incident with President Trump and his reaction to judicial decisions that he regarded as unfavorable to him.”
Opponents of the recall believe that it could make judges fear removal from office if they send down sentences that are perceived as too lenient. That very prospect could make judges err towards harsher sentences, Sklansky said.
“I’m particularly uncomfortable with recalling [Persky] because we think that the sentence [he] handed down is too lenient because I think that in general our criminal justice system is way too harsh, and the brunt of that falls not on white, privileged defendants but on poor, disadvantaged and minority defendants,” Sklansky said. “I think the last thing we should want is for judges to worry in every case that if they oppose a sentence that people think is too lenient … they’ll be kicked out of office.”
Judges at the Superior Court level in California are elected and are subject to reelection every six years. Persky himself ran unopposed when he was up for reelection in November 2016, and thus his name did not appear on the ballot during the election. The deadline to file to run for the seat had passed shortly before Persky sentenced Turner. Following his reelection, Persky’s tenure is slated to last until 2022 if he is not unseated.
While several instances exist of judges losing reelection campaigns after public confidence in them erodes, recall campaigns are expensive and rare. California Superior Court judges have only been successfully recalled twice: in 1913 and 1932.
“It is true that elections are part of our system,” Sklansky acknowledged. “But so is a norm of judicial independence which I think should be respected.”
Judicial and electoral issues
Regardless of the result of the recall, Persky’s sentencing of Turner has elevated the issue of how judges should handle sentencing for perpetrators of sex crimes on both local and national levels.
DA Rosen helped pass a California state law requiring prison time for people convicted of sexual assault of an unconscious or intoxicated individual.
The harder question, says Mark Lemley ’88, Neukom Professor of Law at Stanford, is when should a judge be subject to recall — and whether cases of sexual violence can be a catalyst for that.
“I do think that, both in our society generally and more specifically with this judge … there is a problem that we don’t take sexual violence and sexual assault sufficiently seriously,” Lemley said. “If the message that this [sentence] sends is going out of your way to protect rapists by departing from the law is something that outrages people, that’s a message I’m okay sending.”
Dauber voiced a similar concern.
Some people “just don’t think lenient sentencing in cases of sexual assault is a good enough reason [for a recall], or lenient sentencing in cases of domestic violence,” Dauber said.
However, Dauber is optimistic that the recall will be successful. Initial polls from last June by Capitol Weekly found that 66 percent of voters — including 73 percent of women — supported recalling Persky.
“I think what the recall is doing is that it’s turning violence against women into a voting issue, which it really has not been,” Dauber said. “The recall is providing a means and a mechanism for taking what has been a deeply personal issue and turning it into a public, political issue. I think women have been waiting for that moment … and that’s why I think we’re going to succeed.”
The recall campaign
For the voters of Santa Clara County to have a say in Persky’s tenure, the recall campaign will have 160 days to collect 90,000 signatures, starting in June. Once that allotted time has transpired, the campaign will file the signatures for the county to count; if the requisite number of certified signatures — 58,634 — has been obtained, the issue will appear on the June 5, 2018 ballot, and voters can officially decide to retain Persky or vote for another candidate. Removing Persky will take more than 50 percent of the votes, according to the recall campaign.
So far, Hendrickson is the only candidate to declare her intention to challenge Persky if the petition passes. As a member of the District Attorney’s executive office, she has headed its domestic violence team and has spent 22 years as a prosecutor.
“I feel that the people in Santa Clara County should have the right to decide whether they want Judge Persky to be their judge, to work for them for the next five years,” Hendrickson said. “I think that for the people of Santa Clara County to have a meaningful choice, there has to be a qualified candidate in opposition, and so I’m happy to be that person.”
Proponents of the recall are relying on the support exhibited from initial polling to last until June 2018.
“My sense is that there was a lot of outrage [after the Turner decision], and that will come back, and I think people will remember as the issue comes on the ballot,” Lemley said.
Opponents of the recall, however, retain hope that the issue never reaches the ballot.
“I’m just deeply concerned about those who jump in and say, because they don’t like the way [Persky] resolved this, that he should be removed from the judiciary,” Gould said. “That’s very dangerous for a democratic society.”
Contact Alexa Philippou at aphil723 ‘at’ stanford.edu.
An earlier version of this article stated that Persky allowed the jury in the De Anza civil case to see photos from over a year after an alleged assault; in fact, the photos were from less than a year after. A description of the former Foothill football player also stated that he pleaded guilty when in fact he pleaded no contest. The Daily regrets these errors. Information about the De Anza case photos has been updated, and the article now reflects that Persky did not respond with comment.