Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.

1. The False Claims About Judge Persky

The claims that Judge Persky acted on racial and class biases are unsubstantiated and deeply misleading. The problems begin with the recall campaign’s description of the Brock Turner case itself: The campaign charges that “Judge Persky intentionally ignored the statutory minimum to hand out a light sentence to an elite athlete from his alma mater.” But Judge Persky imposed a lawful sentence recommended by Monica Lassettre, an officer with the county’s probation department. As the Associated Press found, Persky has followed the department’s sentencing recommendations since he began presiding over criminal trials in Palo Alto in 2015. One can argue that Persky should have deviated from the recommendation in Turner’s case, but failure to do so does not suggest that he “ignored” the law or favored Turner.

In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.” But there are two crucial legal differences between the cases, which render the comparison meaningless:

• First, plea bargains are different than trials. Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence. As the California Supreme Court has explained, in a plea bargain, a “defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment[.]” This results from “a process of ‘bargaining’ between the adverse parties to the case — the People represented by the prosecutor on one side, the defendant represented by his counsel on the other — which bargaining results in an agreement between them.” The judge “has no authority to substitute [her]self as the representative of the People in the negotiation process.” Nor does the judge have any role in deciding what charges are filed in the first place.
• Second, Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it. Both Ramirez and Turner were charged and convicted with violating Penal Code section 220(a)(1), assault with the intent to commit rape. Under Penal Code 1203.065(b)(1), this offense presumes a prison sentence, but gives judges discretion to order probation. Conversely, Ramirez alone was also convicted under another section of the penal code, one that carries a mandatory prison term:

These legal distinctions reflect an important factual difference between Ramirez and Turner’s cases, one that should be clear to anyone familiar with criminal law. (To confirm our analysis, we spoke with the experienced public defender who represented Ramirez, who has “emphatically disagreed” with the false comparison to Turner’s case.) Ramirez was convicted and sentenced for forcibly assaulting his roommate — but he did so after breaking into the victim’s bedroom. This could have been charged as first-degree burglary, which means unlawfully entering an inhabited dwelling with the intent to commit a crime. Under Penal Code section 220(b), “any person who, in the commission of a burglary of the first degree, assaults another with intent to commit rape . . . shall be punished by imprisonment in the state prison for life[.]” This means that if Ramirez had insisted on going to trial, the prosecution could have sought a life sentence — and the jury would have heard testimony from a victim who could narrate every detail of the crime.

There are good reasons to question whether the law should treat “forcible” digital penetration of someone who is awake (as in the Ramirez case) any differently from penetration of someone who is unconscious or drunk (as in Brock Turner’s case). Such questions have been central to past and current feminist legal reform movements. But the boundaries between offenses are defined by legislatures, not judges. Nor do judges decide which charges to bring against a defendant; that tremendous power belongs to the prosecutor. And once a prosecutor agrees to bring or drop legally supportable charges in exchange for a defendant’s guilty plea, a judge has no authority to modify the bargain’s terms. These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term — not the recall campaign’s unsupported claims of judicial bias.

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient. The facts in this case, and the injuries to the victim, are upsetting — but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney. Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.”

One of the recall campaign’s main proponents — Professor Michelle Dauber, who teaches at our law school — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge:

This insinuation turns law and policy on its head. For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family. Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born.

In 2010, the U.S. Supreme Court’s decision in Padilla v. Kentucky triggered major changes in how the criminal justice system deals with these issues. The Court specifically addressed plea bargaining, formally recognizing what everyone involved with the criminal justice system already knew: that “deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty[.]” The Court’s opinion noted that “[b]y bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.”

In response to Padilla, the Santa Clara County District Attorney’s office and others around the country adopted policies that require prosecutors to consider immigration consequences when plea bargaining with defense attorneys. In an office-wide policy memo, Santa Clara D.A. Jeff Rosen cited the Padilla decision as part of “a dominant view . . . that the appropriate consideration of collateral consequences is central to the pursuit of justice.”

Last year, the California legislature adopted this view by passing a law that makes consideration of adverse immigration consequences a mandatory part of plea negotiations. Immigration reform activists hailed California for “bold steps [that] should serve as a roadmap.” We should be wary of distorting the state’s prudent and humane immigration policy to suggest that the criminal justice system coddles defendants. And attempts to use plea-bargained sentences or prosecutorial charging decisions as a way to smear Judge Persky should be dismissed out of hand.

2. The Campaign’s Consequences

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake—and the effort to recall him only harms less privileged defendants.

The false personal accusations against Judge Persky distract from real understanding of structural inequalities. In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class. For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions. Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers — like disciplinary policies that have created a “school-to-prison pipeline” — impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes. By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them. That includes the groundbreaking work being done right here in Santa Clara County, where community organizers at the Albert Cobarrubias Justice Project (ACJP) in San Jose have developed a “participatory defense” organizing model that helps families impact the cases of their loved ones. This includes creating mitigation packets and “social biography videos” that help judges and prosecutors recognize people as more than their worst mistakes. The voices of these families will be ignored by judges wary of being attacked for exercising mercy within the law.

Those effects are not merely speculative. As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color. Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems. As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”

There is no basis for believing this effect would be limited to cases that involve sexual assault, or to defendants who look like Brock Turner. In the words of one of ACJP’s community organizers:

“What’s concerning . . . is that the idea of removing Judge Persky from the bench is being equated with the fight for racial justice and fairness — a strike against white privilege and a broken criminal justice system. But the reality is, despite the righteous place this instinct may come from, the end result will be only more of the weight of a racist criminal justice system placed down upon communities of color.”

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky. By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Other voices against the recall of Judge Persky:

• Public Defenders’ Letter in Support of Judge Aaron Persky and Judicial Discretion (signed by 400 public defenders and attorneys)
• Letter from 46 Leading Law Professors Opposing Judge Persky’s Recall (Leading professors and deans decry the recall as “a serious threat to the rule of law”)
• Statement from LaDoris Cordell (pioneering lawyer, judge, and advocate for policing reforms)
• Open Letter from Stanford Law Professor Emerita Barbara Babcock (pioneering feminist lawyer and public defender)
• Open Letter from Retired Judges of Santa County
• Open letter from 1/3 the Stanford Law School 2016 graduating class