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the rule of law
California Lawyers Denounce Mob Justice

Over a million people have now signed a petition calling for the recall of Aaron Persky, a Santa Clara County judge, for following the recommendation of the county’s probation officer and issuing a shorter-than-expected sentence to Brock Turner, the twenty-year-old former Stanford swimmer convicted of sexually assaulting a woman at a fraternity party early last year. The California penal code’s recommended minimum sentence was two years and the prosecution asked for six, but Persky—taking into account Turner’s youth, expressed remorse, lack of prior offenses, and the county probation officer’s recommendation—sentenced him to six months, plus three years probation and lifetime registration as a sex offender.

The social media-fueled campaign against the judge has gained so much steam that his career now seems to be in jeopardy. Big feminist fundraisers are apparently throwing their weight behind the effort to have him kicked to the curb in a recall elections. With a few important exceptions, media and legal elites have been silent about the threat to the rule of law posed by this kind of torches-and-pitchforks campaign. To defend an independent judiciary is to defend the light sentence, and to defend the light sentence is to defend a rapist—or so the reasoning goes.

But the Santa Clara County Bar Association (the most influential legal body in the jurisdiction where Persky would need to stand for re-election) knows better than to think that the public can simply re-litigate individual sentences through political campaigns without any broader consequences for the impartiality of the legal system. The group recently released a strongly-worded statement condemning the efforts to unseat Judge Persky. An excerpt:

The SCCBA … recognizes the importance of judicial independence, a principle that has not featured prominently in the national discussion to date. The judiciary plays a critical role in upholding the rule of law in our society and constitutional system. Judges have a duty to apply the law to the facts and evidence before them, regardless of public opinion or political pressure.  In that role, judges provide an important check against other political forces.  If judges had to fear direct, personal repercussions as a result of their decisions in individual cases, the rule of law would suffer. These principles date back to the founding of our nation and are a bedrock of the United States and California Constitutions. […]

In view of these principles, the SCCBA opposes the present attempts to remove Judge Persky from the bench based on his sentence in the Brock Turner case. The SCCBA has seen no credible assertions that in issuing the sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith. Nor is the SCCBA aware of any other complaints or allegations of impropriety against Judge Persky during his 13 years on the bench. Seeking to punish a judge under these circumstances presents the very threat to judicial independence that the SCCBA has resolved to condemn.

While we believe—having reviewed the publicly available information, but without having sat through the trial—that Persky’s sentence was too lenient, we are also alarmed about the implications of recalling a judge based on a single unpopular sentence. Among other things, it seems likely to pressure the judiciary to be more punitive overall—and often in ways that the social justice advocates crusading against Persky would not welcome.

One apologist for the anti-Persky campaign said, “if you want independent judges, don’t elect them.” And it may indeed be true that California’s process makes it too easy for judges to be unseated by angry electoral majorities. But it also should be possible to have a middle-ground where state judges are accountable to the public without creating a political culture where competent, good-faith jurists—who issue dozens of sentences per year—are removed from the bench because a single one is picked up by the social media outrage machine. The fact that California’s political have not done more to protect the independence of the state judicial system in the face of this uprising is outrageous. But it’s good the see the county Bar Association doing its job.

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