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The Precedent Of Recalling Judge Persky


Voters in Santa Clara County, Calif., have recalled a judge for the first time this week in more than 80 years. In 2016, Judge Aaron Persky sentenced Brock Turner, a 20-year-old former Stanford student, to six months in jail with community service after he was found guilty of sexually assaulting an unconscious woman. Many people were outraged by that sentence. And this week, Judge Persky was removed from the Santa Clara County Superior Court. But some lawyers and judges are concerned. Rachel Marshall is a public defender in Oakland. She handles felony cases there and joins us now from Oakland, Calif. Thanks so much for being with us.

RACHEL MARSHALL: Thank you so much for having me.

SIMON: What are your concerns about a judge being recalled?

MARSHALL: My concerns are that the recall sends a dangerous message to other judges. Judges will be looking over their shoulders worried about losing their job simply because a sentence may be perceived as too lenient. And for my clients, who are mostly people of color, all people without financial resources, this is going to result in harsher sentences, and judges making decisions not based on what they believe to be right but what they think the public won't object to. And that's a problem.

SIMON: But I have to ask. If this has happened just once in more than 80 years, I mean, this isn't the recall provision on the books for a reason?

MARSHALL: It is. And I think it's something we should really revisit. It is something that hasn't typically happened. And it is something that I worry is going to open the floodgates because it is so rare and happened in this case. And one of the things that concerns me is that there's very little in place to make sure that the information upon which a recall is based is actually accurate. It's very easy for someone to allege things about a judge that may or may not be actually true. And judges aren't in a position to really defend their records, given their roles as judges. So the problem is misinformation can spread. A public may not understand the nuances involved in the criminal justice system. And then they therefore rely on misinformation and misrepresentations in making a decision that has long-lasting repercussions for others in the criminal justice system.

SIMON: How did you react to the sentencing of Brock Turner by Judge Persky?

MARSHALL: Well, it struck me as shocking. And I wrote about my outrage over it not so much because I was saying that that sentence was wrong but because every day in criminal courts, across our nation, people are being sentenced to the maximum amount of time allowed under the law by judges. And none of those judges are on the front page of the news. None of those judges face movements to recall them. So the problem is that this sentence gave an inaccurate view of the criminal justice system, which is actually over-punitive and has perpetuated mass incarceration. And now there's an idea that this is typical, and it's creating further pressures to be even more punitive by judges.

SIMON: And what would you say to those people who consider the success of the recall movement of Judge Persky to be a victory for those activists who want more justice for women and the ability to be able to confront their accusers and receive equal recognition in the justice system?

MARSHALL: I am a tremendous advocate for women. And I want to make the world a safer place for women. And I have tremendous compassion for victims of sexual violence. But I believe it's a false narrative to believe that the recall is going to make women safer. Instead, they're just going to fuel mass incarceration, which hurts other marginalized groups, without making women any safer.

SIMON: How would you hold a judge accountable?

MARSHALL: There are other ways to hold a judge accountable, including the appellate process. When a judge makes a decision that is against the law or that a party believes to be against the law, we have appellate courts to review them. We also have judicial commissions that are designed to take complaints from the public, from lawyers, from other judges and evaluate them to make sure they have merit. We need to let experts in the field determine whether a judge has committed misconduct, whether there's a problem of bias, because otherwise it's too easy for misinformation to spread and for an uninformed public to take things out of context and not understanding the significance of individual factors and specific cases.

SIMON: Rachel Marshall, public defender in Oakland, Calif. Thanks so much for being with us.

MARSHALL: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.