On the Aaron Persky recall

Today, California voters go to the polls to determine whether Judge Aaron Persky should be recalled. Persky, of course, is known for handing an extraordinarily light sentence to Brock Turner, the Stanford swimmer convicted of three counts of sexual assault.

Turner’s conduct was unconscionable, and his sentence shockingly light. But the effort to recall Persky for that single act of sentencing is itself an awful idea that should have been put down long ago. Here is what I wrote last July:

Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage.  And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context.  But the recall effort is still a terrible idea.

Judicial recall, non-retention, and impeachment are all tempting weapons of the outraged class who seek to remove or punish a judge for a single controversial decision. California is no stranger to this sort of activity. In 1986, three state supreme court justices were successfully targeted for non-retention based on a single decision the court had rendered on the death penalty. Across the country, similar efforts have targeted judges for their decisions on everything from same-sex marriage to the disposition of property. Attacks have come both from the left and the right. The unifying theme of these efforts has been to try to wedge a judge’s entire career into a single decision. Never do they even attempt to consider or reflect upon the judge’s overall performance, skill, or temperament.

That is because efforts such as this serve one purpose: to score political points. Sometimes the goal is to drive voters to the polls in a general election to improve a political party’s overall prospects. Sometimes the goal is tactical, to create an opening on the bench that could be filled by a politically like-minded politician. Sometimes it reflects a deep misunderstanding of the judge’s ruling. Sometimes it is mere virtue signalling.

So it is here.  I have seen nothing to indicate that those seeking to recall Judge Persky have ever previously expressed concern about his fitness as a judge. He has already been cleared of any abuse of discretion by a state commission. And while a comprehensive judicial performance evaluation program would provide helpful context on Judge Persky’s overall body of work, California has no such program.

One can be shocked and angered by the Brock Turner sentence and still see this recall effort as for what it is: a transparent and poorly thought-out effort to score points with a political base. Californians deserve better.

Mob justice is no justice. Will Californians preserve judicial independence (flawed as it may be) against the wrath of the mob, or will they sacrifice their judicial system to the political vultures? Today I am hopeful, if not terribly optimistic, that they will do the right thing.

California judiciary readies new sexual harassment guidelines

In the wake of the federal court system’s formation of a working group to address sexual harassment in the judiciary, the California courts have formed their own working group to address the same issue. Among other things, Chief Justice Tani Cantil-Sakauye is pushing for a change to the current court rules that would require public disclosure of settlements for sexual harassment claims involving judges. Proposed new rules should be unveiled in the next few weeks.

Berkeley launches Judicial Institute

The University of California, Berkeley has launched a new Judicial Institute to explore the personal and professional issues that judges face. The Institute will be run by the Hon. Jeremy Fogel, U.S. District Judge for the Northern District of California, and for seven years the head of the Federal Judicial Center.

This is an exciting project, and landing Judge Fogel is a major coup. I’ll look forward to following the Institute’s work in the coming months and years.

California makes its judicial elections marginally less awful

Governor Jerry Brown has signed a bill requiring judicial candidates in California to appear on the ballot with “actual government job titles” rather than fanciful designations designed to elicit emotional voter reaction.  In recent elections, candidates have sought and received ballot designations like “Child Molestation Prosecutor” and “Gang Murder Prosecutor.” Under the new law, candidates will have to list either their formal job titles (e.g., “City of Los Angeles Deputy City Attorney”) or provide a short, neutral description of their work (e.g., “Attorney at Law”).

The bill had broad bipartisan support, and it is not hard to see why. Allowing candidates to select their own designations may spur the voter reaction needed to win (who doesn’t love a “Gang Murder Prosecutor”?), but badly poisoned the impartiality and legitimacy of California’s elected judiciary. How could any criminal defendant hope for a fair trial before a judge who owed his election to that prosecutorial slogan? Even if the judge was able to transition to a mode of impartial decisionmaker — which many prosecutors have done with great success — who would believe it?

This was, then, an eminently sensible move. But Californians should hardly be complacent. The state’s more than 1500 trial judges are still chosen by popular election, and there is little reason to be confident that merely removing the most egregious designations from the ballot will improve matters much. Over the years, the state’s judicial elections have been poisoned by ethical lapses, the flow of money into campaign coffers, and political dog-whistling.  And there is an alternative: the state uses gubernatorial appointment to fill unexpected vacancies on the trial court (due, for example,  to death, retirement, or promotion), and that process that could be extended to all trial court selection. True, it would take a constitutional amendment, but many states have done just that over the past 70 years.

I am not holding my breath just yet. But until serious judicial election reform comes to the Golden State, Californians are merely editing out the worst excesses of a lousy system.

Some thoughts on the effort to recall Judge Aaron Persky

There is currently an effort in Santa Clara, California, to recall Aaron Persky, the Superior Court judge who gave an extraordinarily light sentence to former Stanford swimmer Brock Turner last summer after Turner was found guilty of sexual assault.  Persky sentenced Turner to six months in county jail, far short of the recommendations of prosecutors, after Turner was found to have sexually assaulted a drunk and unconscious woman behind a dumpster.

Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage.  And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context.  But the recall effort is still a terrible idea.

Continue reading “Some thoughts on the effort to recall Judge Aaron Persky”

San Francisco courts stop issuing warrants for “quality of life” infractions

Judges in San Francisco no longer issue warrants for unpaid fines or failure to appear in court when the underlying infraction is a so-called quality of life crime like loitering, sleeping in a park, or urinating in public.  The courts characterize the change as a nod to the reality of the city’s homeless population: many of those cited simply lack the means to pay fines, and jail time is not considered a constructive punishment.

The decision has been criticized by many public officials:

The mayor’s office told local newspapers that judges were shirking their duty and throwing away opportunities to help the homeless.

San Francisco Police Officers Association President Martin Halloran said the court was sending a bad message.

“We get thousands upon thousands of calls a year about quality-of-life concerns by the residents of this city,” he said. “With no consequence now, with none whatsoever, there’s no reason why anyone has to obey the law.”

Cities have long struggled to thread the needle between public health and safety on the one hand, and the humane treatment of the homeless on the other.  It will be interesting to see the effects of the approach taken here.

California courts to pilot video remote interpreting

According to this story, California will pilot the use of the video remote interpreting (VRI) technology in the Superior Courts of Merced, Sacramento, and Ventura.  The pilot, designed to cope with what is described as a “severe shortage” of qualified court interpreters in the state, will begin in July.