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#MeToo Too Far: Reflection on a Judge’s Recall in California

The instinct to punish judges for an unpopular or mistaken decision is alive and well and imperiling judicial independence.

June 12, 2018

Cross-posted from The American Prospect

A week after residents of Santa Clara County in Northern California voted, by a lopsided 60–40 margin, to toss out Superior Court Judge Aaron Persky for his lenient sentence in the Brock Turner sexual assault case, disquieting concerns linger about the implications of the recall vote.

Occurring amid a long overdue national conversation about sexual assault and harassment spurred by the wider #MeToo movement, the decisive margin of the rare recall—the first in California since 1932—was striking but not surprising. But, unfortunately, for many sitting judges in California and in the handful of other states that permit such recalls, there is also another message playing loudly now, one more chilling than uplifting: Unpopular rulings, including hard sentencing decisions, can cost you your job.

Brock Turner is the former Stanford swimmer convicted in 2016 of sexually assaulting a woman on campus the year before as she lay unconscious behind a Dumpster following a fraternity party. Persky sparked nationwide outrage, and a new state law imposing mandatory minimum sentences in sexual assault cases, by giving the convicted, unconvincingly contrite Turner just six months in county jail for the attack (of which he served just three for good behavior) plus three years of probation. California law also requires lifetime registration for a convicted sex offender like Turner, bad policy that generally fails to make communities safer.

Far from the six-year prison sentence the prosecutor requested, but within the range recommended by the county probation office, the sentence struck many people as too lenient—while a still modest-seeming prison term for the young first-offender of, say, two or three years, might not have caused a stir. The eloquent and hard-hitting pre-sentencing statement by the victim, known publicly as Emily Doe, became a viral sensation as soon as Buzzfeed posted it.

Michele Dauber, the Stanford Law School professor and friend of the victim’s family who led the well-funded grassroots recall effort, told Maura Dolan of the Los Angeles Times that Persky’s forced exit sent a message that “sexual violence, including campus sexual violence, must be taken seriously by our elected officials and the justice system.”

Yet as opponents of the ballot measure warned—including many who disagreed with Persky’s sentencing call, as I do—ousting a judge because of a lawful but controversial judicial act messes with the principle and reality of fair and impartial courts central to the nation’s democracy. It is a dangerous line that voters in a prosperous swath of Northern California have just crossed.

The almost certain result will be to make state judges even less likely than they already are to hand down lenient sentences when deserved at a time when there is tremendous fiscal, legal, and moral need to reduce mass incarceration—a retreat that would hurt poor defendants of color the most. A 2015 study assessing the impact of judicial elections on criminal case outcomes by the Brennan Center for Justice, where I am a senior fellow, found that the pressures of an upcoming re-election contest or retention election campaign, including fear of getting labeled “soft on crime,” makes judges more punitive toward defendants. The angry recall will not help that problem.     

Last week, Vox published an op-ed by Rachel Marshall, a public defender in Oakland, California, who shared her perception that the recall effort had “changed judges” even before the actual vote. She cited an instance where a judge expressed relief at a young defendant’s acquittal because “he was worried about creating a ‘Brock Turner problem’ for himself.”

Edwin Chemerinsky, the progressive constitutional scholar and dean of the University of California Berkeley School of Law, a leading recall opponent, has made the valuable point that while the recall this time was for a judge’s too-lenient sentence for a serious sexual attack, “the next time it could be for a judge who excludes evidence in a high-profile case because the police violated the Fourth Amendment or for a judge who orders a school to be desegregated and upsets the voters.” 

Indeed, calls to fire judges over disagreement with their rulings, whether they be state jurists or appointed federal judges protected by life tenure, are hardly a new phenomenon or the sole province of progressives or conservatives. Consider the “Impeach Earl Warren” billboards and signs that lined roadways in certain pockets of the country decades ago to protest the Warren Supreme Court’s landmark decision in Brown v. Board of Education, declaring separate public schools for black and white students to be unconstitutional.  

“Lawmakers in at least a half-dozen states have sought in recent years to impeach or otherwise remove judges as a result of controversial decisions—including in some instances over same-sex marriage rulings,” the Associated Press reported in March. The story focused on a statement by the Republican chief justice of Pennsylvania’s Supreme Court putting down an effort by a group of GOP state lawmakers to impeach four of his Democratic colleagues over their rulings in a congressional redistricting case. Chief Justice Thomas Saylor accurately termed the partisan mischief “an attack upon an independent judiciary.” 

Which brings us back to the Golden State. The rule of law relies on maintaining a degree of insulation sufficient to allow judges to render decisions based on their understanding of the law, the circumstances, and what is right, not out of fear that an unpopular or mistaken decision, or one that offends powerful interests might jeopardize their judicial tenure. That insulation, already weakened by increasingly politicized, influence-money-drenched judicial elections in many states, and highly partisan appointive systems, is in further peril after voters cast out Judge Persky one-third of the way into a six-year term.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Image: Getty)