Judge Persky’s Reason Why He Shouldn’t Be Recalled: Voters Should Never Be Allowed To Fire A Judge

Brock Turner’s judge believes he should not be recalled because if he is then other judges may start caring about how well or how poorly voters think they are doing their jobs.

By David Grace (www.DavidGraceAuthor.com)


After a jury trial in Judge Aaron Persky’s Palo Alto, California courtroom, Brock Turner was convicted of felony assault with intent to commit the rape of an intoxicated or unconscious person, felony sexual penetration of an intoxicated person, and felony sexual penetration of an unconscious person.

Turner was a Stanford student with no criminal record, twenty years old, white, and from a reasonably wealthy family.

Judge Persky sentenced him to a term that Persky knew would result in Turner serving only three months in the county jail.

Persky continues to defend his sentence as proper and correct. Not only would he impose the same sentence in Turner’s case again, but, presumably, if a similar, future defendant (white, rich, and a Stanford student) were convicted of similar crimes in Persky’s court, Persky would apparently give him the same punishment.

Judge Persky’s contention that the sentence he imposed on Turner for these crimes demonstrates good judicial judgment has resulted in Persky becoming the subject of a recall campaign.

Persky’s Defense

Judge Persky’s response to the recall campaign was not:

  • I should have given more consideration to the concerns of the victim and the prosecutor
  • I failed to appreciate the message this sentence would send both to future offenders and to future victims
  • I made a mistake and if I had it to do over again I would not impose that same sentence
  • My sentence was correct and therefore I should not be recalled

No, Judge Persky’s fundamental response was, essentially,

  • How dare the citizens think they have any right to fire me?
  • How dare the citizens think that they have any right to evaluate how well or poorly I perform my job?
  • How dare the citizens think that they are qualified to understand if I’m doing a good job or a bad one? They’re not lawyers. What the hell do they know?
  • If citizens can remove judges then judges are going to care about how well or how poorly people think they are doing their jobs and who wants that?

Persky’s argument against his being recalled was that it’s a bad idea for voters to be allowed to recall judges whom they feel have demonstrated poor judgment in sentencing criminals; that citizens who have lost confidence in a judge’s ability to fairly and reasonably sentence criminals should not be allowed to remove him because then judges would have to consider the voter’s potential reaction to future unusually short or unusually long sentences.

Not The Argument I Would Have Made

If I were a judge facing recall because of a particular decision or a particular judicial philosophy I would defend myself either by explaining why that decision was right, or, if I thought I had made a mistake, I would disavow it and promise not to make that same mistake again.

But not Aaron Persky.

Persky’s Argument

Persky’s reason why he should not be removed from office was not that Brock Turner’s sentence was a proper one, though he clearly believes that it was.

No, he told people to vote against the recall because he believes that giving voters the opportunity to remove a judge whom they think has demonstrated unacceptably poor judgment in sentencing a criminal will deter other judges from imposing sentences that voters will also think demonstrate unacceptably poor judgment, specifically sentences which the voters think are unreasonable, unfair, or discriminatory.

Persky called them “hard decisions” which judges should be free to make without being concerned with how fair or reasonable the public may think the judge is.

I would call them “bad decisions” which evidence such a level of poor judgment that the voters should have the option of removing the incompetent/biased judge from office.

The Only Person Who Can Criticize A Judge Is The Judge Himself

Persky thinks that the call as to whether a decision is a “hard” one or a “bad” one should be totally in the hands of the self-interested judge who makes that decision and never in the hands of the citizens for whom he is supposed to administer his office.

In Persky’s world, by definition, judges should be deemed to be fair, reasonable, unbiased and have good judgment even when they don’t. In his world the judge should be conclusively presumed to always be right.

And if a judge does demonstrate that he is, in fact, biased, unreasonable, or has poor judgment?

In Persky’s world the citizens are not supposed to have any recourse.

That’s essentially his argument why people should vote “no” on his recall — it sets a bad precedent if voters are ever allowed to recall judges no matter how bad their decisions may be.

Is that a reasonable argument?

What About This Other Judge?

Remember the Texas case where a drunk, rich, sixteen-year-old boy drove seventy miles an hour down a back road at night, playing chicken with the other cars on the highway, then lost control and killed four people on the shoulder?

The boy’s lawyers argued that his rich parents had never disciplined him and he had never learned right from wrong. Therefore, they argued, it would be unfair to punish him now. It was called the “affluenza” defense.

The judge in that case thought that the affluenza defense was a really good argument and sentenced the reckless killer of four innocent people to ten years probation and no jail time.

In Judge Persky’s world that Texas judge made a “hard” decision and he deserved to be immune from complaints by the voters. In Persky’s world that Texas judge should be guaranteed to keep his job so that he would be free to exercise similar horrendously bad judgment in future cases.

If you lived in that Texas county would you want that judge to keep his job? Would you trust that he would make fair and reasonable decisions in the future?

Or would you want to kick him off the bench for having proven that he has incredibly bad judgment?

If you think that the Texas judge should have been immune from any recall by the voters and allowed to keep on deciding cases then you and Judge Persky are on the same page.

If not, then Persky’s argument that you should vote “no” because voters should never be allowed to remove a judge whom they believe has demonstrated very poor judgment pretty much falls flat.

Why Some Lawyers Are Supporting Persky

I recognize that Judge Persky has his defenders, but I think that many of them are people who are philosophically opposed to long prison sentences, and they see Judge Persky as being on their side in that debate.

I think they are upset about the prospect of a judge being removed because he followed their philosophy of shorter sentences.

So, let’s do a thought experiment. Suppose things were flipped around.

What If The Complaint Was That Persky’s Sentences Were Too Long Instead Of Too Short?

Suppose that there never was a Brock Turner. Suppose that instead Judge Persky had presided at the trial of a twenty-year-old, unemployed, black man with a clean record on a charge of illegal possession of ten Oxycontin pills. Suppose that upon his conviction Persky sentenced the defendant to ten years in state prison — assuming that such a sentence was legally possible.

Then suppose that a few months later a young black woman with a clean record was convicted of stealing her neighbor’s Mustang to go on a joy ride and Persky sentenced her to ten years in state prison — assuming that such a sentence was legally possible..

I wonder how many of the people who are now saying that citizens should not be allowed to recall a judge for what the citizens believe are wildly inappropriate sentences would still be opposing Persky’s removal.

If this recall had happened because lots of people thought that Persky’s sentences were massively too long and that they evidenced a bias against poor, black people instead of that they were too short and evidenced a bias in favor of rich, white people, not only would a boatload of Judge Persky’s current supporters no longer be behind him, but, instead, quite a few of them, I think, would be calling for his head.

My Point Of View

On June 12, 2016 I published this column: Where Brock Turner’s Judge Went Wrong

In it, I listed the reasons why I thought the sentence that Judge Persky imposed on Brock Turner demonstrated bad judgment.

For me, when a professional makes a decision that you think shows bad professional judgment and that person says that they would make similar decisions in similar circumstances in the future, you should not hire that professional to make those kinds of decisions any more.

Anyone can make a mistake. In fact, mistakes can be positive. We can learn a lot from mistakes.

The problem with Judge Persky is that he doesn’t think he made a mistake. He thinks that his Brock Turner sentence was perfectly fine. That means he’s likely to give the similar sentences in similar cases in the future.

Since I think it was a bad decision that evidenced poor judgment, I think he should be removed from a position where he will be able to make those same bad decisions in the future.

If you think his Brock Turner sentence was proper, then, by all means, vote “no” on his recall. If a majority of voters feel that way then his judgment will be vindicated.

Judge Persky thinks he should be allowed to continue to make decisions that many the citizens whom he is supposed to serve believe demonstrate a material lack of good judgment.

I think that if a judge exercises his discretion in ways that show that he is materially prejudiced, unreasonable, immature, lacks common sense, or has poor judgment then the citizens whom he serves have the right, if not the duty, to remove him from office.

— David Grace (www.DavidGraceAuthor.com)

To see a searchable list of all David Grace’s columns in chronological order, CLICK HERE

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Government Theory, Liberal, Conservative, Libertarian; Wealth & Poverty; Law & The Constitution; Democrats, GOP & Political Parties; Guns & The 2nd Amendment; Privacy v. Gov’t Action

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David Grace

David Grace

Graduate of Stanford University & U.C. Berkeley Law School. Author of 16 novels and over 400 Medium columns on Economics, Politics, Law, Humor & Satire.

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