Judge Aaron Persky has gained extreme notoriety in recent months. In June, he sentenced Brock Turner, a Stanford student who was convicted of multiple felonies after sexually assaulting an unconscious woman behind a dumpster, to just six months in county jail.
Later, it came out that Persky had been similarly lenient in several other cases involving violence against women: The day of the Brock Turner sentencing, he sentenced Silicon Valley engineer Ming Hsuan Chiang to 12 weekends in county jail for brutally assaulting his former fiancée, and in 2015 he sentenced a 48-year-old father of two named Robert James Chain to a mere four days after he plead guilty to possessing child porn.
In response, a campaign has emerged demanding a recall election of the judge in Santa Clara County, California. Though it's received some criticism from some who are skeptical that it's a worthwhile endeavor, Michele Dauber, the Stanford professor at the helm of the campaign, says the recall is the best way to ensure that rape victims in the county receive justice going forward.
Dauber tells Broadly a "recall" is not as harsh as it sounds. "Recall is a misnomer: All it is is a petition for an early election," she explains. As in many states, judges in California are elected. Persky lost his first election in 2003, but the following year a seat became vacant, and Persky was appointed to the seat by California's governor. Persky then ran unopposed for the bench in 2004 and 2010, and this June he received another term after running, yet again, unopposed.
According to Dauber, if the Brock Turner case had happened earlier, Persky wouldn't have been unopposed. As it stands now, Persky will be up for reelection in 2022, but Dauber says activists don't want to wait that long. "He's an elected official with what we allege is a record of bias in cases of violence against women and sex crimes. That is a record that voters can and should consider."
Triggering an election early is challenging, says Dauber: The campaign will need to get 20 percent of registered voters to sign a petition for the recall and will need to raise over a million dollars. But Dauber says the exceptional nature of Persky's judicial record makes this a case where a recall is appropriate. She also notes that a recall election isn't far-fetched; protocol for such recalls can be found in California's constitution.
Nevertheless, some people have expressed concern over how a recall of Persky might affect judicial sentencing across California. John Pfaff, a law professor at CUNY, cautions that one recall could have broader ramifications across the state and contribute to mass incarceration. "It's going to make judges in California more punitive across every crime," he says. "They're not going to know what next offense will trigger outrage or if, for example, prison time they give to a young drug dealer could come back to haunt them."
If you can show he systematically favors wealthy or white defendants, then it makes sense.
Dauber, however, says that arguments like this make little sense in California, where judges are constantly up for reelection. "First of all, I think Brock Turner is an odd poster boy for the problem of mass incarceration. He was facing at most two years, so what we're really talking about is two years—hardly mass incarceration," she notes. "Mr. Cain [the man sentenced to four days for possession of child pornography] was facing six months."
In addition, Dauber says that Perksy's recall effort is largely a result of his actions not fitting with the sentencing of other judges in his county. "If we recall a judge because he failed to sentence privileged white defendants in line with his colleagues, I don't see how that would lead to the kind of consequences that people are holding out. I don't think that makes sense."
Dauber also adds that one successful recall isn't likely to inspire a string of recalls across California. "Recall election are rare, and come with financial and procedural hurdles. They are not trivial. They're reserved for very extreme cases, and this is a very extreme case."
Another potential concern, according to Pfaff, is that, while it's crucial to show that a judge like Persky has a history of bad judgment calls, doing so could prove challenging because record-keeping policies in Santa Clara make it impossible to look at a judge's entire sentencing history. He says it's easy to focus on the high-profile cases, but that recalls need to be the result of a demonstrated pattern of behavior.
"If you could show that [there's a history of poor judicial oversight], then it's OK to recall because you're not fighting one shocking case. You're not saying this is one bad call," says Pfaff. "I think that's a very dangerous precedent. But if you can show he systematically favors wealthy or white defendants, then it makes sense."
Dauber believes that, despite the difficulty of obtaining a comprehensive look at Persky's history of sentencing, the recall campaign has collected enough evidence to indicate an apparent bias.
This is a judge who does not grasp or properly weigh violence against women.
"He's definitely wildly out of step with the other judges in Santa Clara [when it comes to] child pornography," she says, citing the information from the Cain case. "There is also a case we discovered of a sex offender named Raul Ramirez, a Latino man who was an immigrant from El Salvador. He committed a very similar sex crime to Brock Turner, and he received three years. I think that indicates Persky's bias being focused on white or other privileged defendants."
Dauber also points to the Ming Hsuan Chiang case, in which a Chiang's fiancée, a Chinese immigrant in her early 30s, testified that Chiang "hit [her] nonstop" and was "trying to kill" her. "In court, Judge Persky treated her extremely dismissively," she says. "Everyone in court was shocked at the treatment she was receiving. He interrupted her several times, and his attitude was dismissive. My takeaway from this is that this is a judge who does not grasp or properly weigh violence against women."
When I asked Dauber about the fact that, technically, Persky hasn't broken any rules, she explained that that fact doesn't matter for a recall. "At the end of the day, this is democracy. The fact that he hasn't committed a crime or ethical violation is irrelevant. Judges have to continually run; it's not an entitlement. We have a system of judicial election, so the standard is 'Are you the best person, the best candidate, to have this electoral office?' Just like any other."
For Dauber, time is of the essence in removing Persky from his position. "Voters will have the right to vote him off bench in 2022 and consider his record in 2022, so why can't they do it now?" she asks.
"Right now, many students are about to be sexually assaulted," notes Dauber. "It's going to happen because research shows most campus assaults happen in the first eight weeks of the school year. A whole bunch of women are about to be raped at Stanford, and if any want to pursue criminal charges, Aaron Persky is going to be the trial judge. And that's going to go on for next six years unless we elect him off the bench."
Dauber cites research from Stanford which indicates that 43 percent of cisgender female students at the school will experience serious sexual violence at some point during their college education. (LGBT and trans students are at an even higher risk of sexual assault, she says.) "We can't afford to wait another six years," she affirms. "The women and vulnerable students at Stanford deserve better than that, and that's why I'm doing this. That's why it's worth it."