When I listened to co-founder of Black Lives Matter Alicia Garza speak at CEMEX Auditorium two weeks ago, mass incarceration was one of the core issues discussed. “We need to treat convicts as people, not problems,” she declared. Garza is one of many modern liberals to criticize the effects of “tough on crime” policies, especially mandatory minimum sentencing.
But does the left actually promote these policies? Just three months after Judge Aaron Persky ‘84 ruled on the Brock Turner case in June of 2016, the California legislature passed a mandatory minimums bill (without a dissenting vote!) for sexual assault cases.
California Governor Jerry Brown approved the bill, yet signed another removing a similar mandatory-minimum requirement for gun-related felonies just a year later. It seems that almost everyone agrees mandatory minimums for drug and gun-related crimes exponentially increase the number of incarcerated Americans of color. We need to trust judges to handle complex legal cases and grant them more flexibility and agency, not return to patently-failed measures that put fear over facts.
Tomorrow, Santa Clara County voters will decide whether Judge Persky will keep his job. Attempting to energize their base, the left is reviving the emotional scare tactics that dominated politics during the 1990s crime wave, which led to prison-expanding policies like Bill Clinton’s 1994 crime bill.
Michele Dauber, Stanford Law Professor and chief architect of the Recall Persky campaign, alleges that Persky has demonstrated systematic bias against women in multiple cases. However, the Associated Press, not exactly a bastion of conservatism, carefully reviewed each case involving sexual assault on which Persky has ruled. It found no evidence of bias. Moreover Persky, in People v. Turner, followed the sentencing recommendation from the Santa Clara County Probation Department, advice he has consistently adhered to in previous decisions.
The founding fathers designed an independent judiciary for exactly the type of situation this recall vote presents: to protect the constitutional rights of minorities against the capricious will of the American people. “Permanent tenure of judicial offices,” Alexander Hamilton writes in Federalist 78, is “peculiarly essential” to ensuring “the inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice.” Unlike the federal and executive branch, Hamilton argues, judges must be committed to preserving the unchanging individual liberties the Constitution grants regardless of public opinion.
The mass incarceration that resulted from mandatory minimums, which forced judges to deliver the lengthy sentences that voters demanded, offers a prime example of the hazards of allowing popular fear to limit the independence and autonomy of the judiciary. A Brennan Center report found that elected judges are “more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty” than their appointed peers. The more competitive the election and the larger the number of T.V. ads airing during the race, “the less likely state supreme court justices are, on average, to rule in favor of criminal defendants.”
Former California Supreme Court Justice Otto Kaus understood that the pressure to conform to the will of the voters is not conscious, but insidious and pervasive, infiltrating the mind of the presiding judge. Justice Kaus mused that deciding difficult cases before elections was similar to “finding a crocodile in your bathtub when you go in to shave in the morning. You know it’s there, and you try not to think about it, but it’s hard to think of much else while you’re shaving.”
This recall effort, however, takes place in a hyper-polarized political climate and poses a far greater threat to an independent judiciary than California retention elections or even past recalls. It has been presented as a dangerous binary based upon one decision, forcing voters to virtue-signal whether they “support rape culture” and belying the nuance of the issue. A recent message to one of my email lists asked, "Do you trust the privileged lawyers and judges that support Persky or do you side with the victims, activists, [and] feminists?”
Recalling Persky will not change the outcome of the Brock Turner ruling. What it will affect is every decision that comes next. Future judges, when handed a controversial case, will know that a lenient sentence could open themselves to a mob-like attack on their reputation. Their incentive will be clear: deliver harsher sentences than they otherwise would, avoid the negative spotlight, and keep their seat. African-Americans, who constitute 42% of the individuals on death row and 38% of the American prison population, suffer disproportionately in the post-recall world. Frequently supported by weak public defense lawyers and subject to intimidation by prosecutors to accept plea deals, these individuals are most affected by the longer sentences and biased rulings for the plaintiff that Recall Persky encourages. The privileged, well-funded perpetrators the campaign ostensibly targets will continue to deploy talented legal counsels and fight the system aggressively.
Prosecuting sexual violence is an incredibly serious issue. Very few sexual assaults are reported, and more perpetrators need to be brought to justice. But Santa Clara County voters should think twice about allowing the left’s emotional scare tactics to distract them from the tyrannous consequences a recall would induce. By whittling away at an independent judiciary that can thoughtfully evaluate case-by-case differences and give rulings that may fall outside the court of public opinion (but within constitutional bounds), recalling Persky will dissuade more lenient judges from acting independently. The result? More minorities will be jailed and our courts will continue to be enslaved by public opinion, not guided by constitutional principles, the exact opposite of the founders’ intent.
For an independent, fair judiciary, vote no on Tuesday.