Persky's recall: a loss for our nation's judicial system | An Alternative View | Diana Diamond | Almanac Online |

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By Diana Diamond

Persky's recall: a loss for our nation's judicial system

Uploaded: Jun 6, 2018

Emotionalism won; judicial understanding lost. By a 60-40 margin, Judge Aaron Persky was recalled from office Tuesday. That is an unfortunate loss for our judicial system in this country. It was the first recall of a California judge in 86 years.

One would think Persky did something horrendous to have warranted such a recall. He didn’t. No misconduct or malfeasance by him, no illegalities, just one unpopular decision during his years as a judge. In fact what he did was legal, and backed up by nearly 100 law professors in this state.

Except Stanford Law Professor Michelle Dauber, who alone started this recall. She was able to fire up the emotions of many (especially women) who felt Persky’s six-month jail sentence of Stanford student Brock Turner was too light and the judge should be punished for treating a sexual assault so leniently. No matter that Turner will be legally regarded as a sexual offender for the rest of his life, and not only have to frequently report to the local sheriff wherever he lives, but also have restrictions on where he can live.

No, that didn’t seem to matter to supporters of the recall. To them, Persky became a symbol of all sexual offenders who mistreat women, and also all the males in the legal system who have been too dismissive of sexual crimes against women. Dauber also proclaimed that Persky has been too lenient in other cases, but when the four she mentioned are examined, her charge did not stand up. Nevertheless, Dauber’s recall won, and she won name recognition. The state’s Commission on Judicial Performance said there was no pattern of bias or misconduct by Persky.

When I traveled last month and met a number people from other states, particularly Massachusetts, New York and D.C., many were very aware of the Persky case. Two were judges and said many judges in their states were closely watching the outcome of the recall.

So this recall will affect the judicial system in our country. Consciously or unconsciously, judges will become very aware (as in “Could I be recalled, too?”) of whether their sentences will be judged as too lenient – not only in sex cases but also in those where public sympathy or outrage could easily become an issue. I am certain judges in Santa Clara and San Mateo counties already have their fingers in the wind, testing public opinion.

The recall is a mistake. Sure, Persky lost his job, and I am sad about that. But what bothers me even more is the long-term effect this recall will have on future court sentencing.