Leading the push for the rare recall of a state judge was Stanford law professor Michele Dauber, whose daughter was a childhood friend of swimmer Brock Turner’s victim, a Stanford student who has not been named by news organizations which withhold the identities of sexual assault victims. Dauber and her supporters have depicted the light sentence as examples of both societal indifference to sexual violence and of white privilege; Turner (pictured) is from a wealthy Indiana family. In a series of interviews with sympathetic journalists, Dauber depicted a vote for the recall as a chance for Santa Clara County voters to show they stood firmly with the Me Too movement dedicated to fighting sexual harassment and even worse behavior by men.

But Dauber’s campaign went firmly against a central tenet of the criminal justice reform movement. It holds that harsh sentencing laws approved in the high-crime 1980s and early 1990s have destroyed the salvageable lives of hundreds of thousands of young people – especially African-American and Latino men. This explains the campus dynamic at Stanford detailed in a lengthy Huffington Post story by Julie Ioffe published June 1. While Turner’s victim is universally receives deep sympathy, the report showed Dauber has become an unpopular figure with many of her fellow law school faculty.

Professors, public defenders rip judge’s main critic

“Twenty-nine Stanford law professors have signed a letter against the recall,” the Post reported. “Robert Weisberg, who teaches criminal law and describes himself as a progressive feminist, grew visibly angry when he spoke about Dauber. The recall, he argued, was ‘a gratuitous and vindictive campaign’ and ‘an exploitation of the Me Too movement.’”

Further fueling the local backlash against Dauber: Persky’s outstanding reputation among public defenders who have appeared before him.

“My clients are all indigent and most of them are nonwhite,” Barbara Muller told the Post. “I have never seen him treat my clients differently than those clients who can afford private attorneys.”

A second public defender, Gary Goodman, made an even more sweeping case in Persky’s defense. He said California sentencing guidelines called for leniency for young defendants like Turner –  “a 19-year-old with no criminal record.” And in a claim substantiated by The Associated Press, Goodman said Persky’s sentence for Turner came at the behest of another wing of the Santa Clara County legal system: the probation department.

While Persky’s recall was celebrated by feminists nationally, recall critics are now going beyond the specifics of the Persky case to emphasize the danger of incentivizing judges to throw the book at defendants.

“What will happen when the rest of California’s elected judges, worried about mob scrutiny, decide that lenient sentencing is a one-way path to joblessness and begin to sentence even more harshly? The people most affected by that calculation won’t be the ones who look like Turner. They’ll be those who most often fall victim to harsh sentencing overall – minorities and the poor,” wrote Christina Emba, a Washington Post opinion columnist and editor.

But in an interview with the San Jose Mercury-News that was published Sunday, Dauber depicted criticism she faced not as principled but as part of a sexist backlash to women fighting for fair treatment. “I welcome their hate,” she told the newspaper. “I read it as a sign we’re being effective.”

The Mercury-News asked Dauber about the fears of Emba and others that the recall would end up haunting young minority men who come before judges who fear losing their jobs. She dismissed that idea as reflecting an “incredibly dim view of judicial integrity.”

A series of high profile rape accusations led California lawmakers to pass new legislation designed to remove a judge’s discretion in certain cases and to lift the burden on victims to bring suit before the law allows the validity of their claims to lapse over time. But questions immediately rose as to whether the approach might have significant unintended consequences.

Constraining judges

Assembly Bill 2888, passed in response to the controversy around sentencing leniency in the case of former Stanford University swimmer Brock Turner, bars courts “from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape” or related acts “if the victim was either unconscious or incapable of giving consent due to intoxication,” according to the legislative counsel’s digest. “Turner was sentenced to six months in county jail (that the law only required him to serve three of with good behavior, which was exactly what happened), three years of probation, and a sex offender management program,” as Bridgette Dunlap, a California women’s rights attorney, recalled in Rolling Stone. “He will have to register as a sex offender for the rest of his life.”

But as Dunlap observed, AB2888 was written in a way that could worsen the pronounced disadvantage that some defendants already suffer in court. While Turner was able to avail himself of a robust defense, the bill passed in response to Judge Aaron Persky’s exercise of discretion “will inevitably have a disproportionate impact on the same people mandatory minimum laws generally do — poor people of color,” Dunlap suggested. “The likely consequences of this kind of tough-on-crime response to a high profile case seen as a symbol of a larger problem should concern two groups in particular: Californians and feminists.”

The dilemma playing out, especially on the political left, raised questions as to how Gov. Jerry Brown, famous for reigning in some of Sacramento’s hastier actions, would react. “A spokesman for the governor declined on Tuesday to comment on his plans for the bill, adding that Mr. Brown has until the end of September to sign or veto it,” the New York Times reported. 

“That Legislature’s action came less than a week after the Santa Clara County Superior Court announced that Judge Persky would stop hearing criminal cases and handle civil cases instead, effective Sept. 6. He had asked for the transfer, the court’s presiding judge said. Now, Judge Persky is in a battle to retain his position. A petition seeking hearings to impeach him has collected 1.3 million signatures since it was started three months. The movement to remove him has also raised more than $250,000.”

Stopping the clock

At the same time, Brown must pass judgment on a second piece of rape-related legislation. The governor, “who has vetoed bills to extend legal deadlines for filing lawsuits over child sex abuse, must now decide whether to abolish time limits for charging someone with rape, sodomy, lewd or lascivious acts, oral copulation, and continuous sex abuse of a child,” according to the Los Angeles Times. “Most of the crimes now carry a 10-year statute of limitation.” The bill making those changes was passed in response to the allegations of rape and sexual assault directed at Bill Cosby by dozens of women over a period of decades.

“Under the state’s current law, rape and felony sex crimes must be tried within 10 years, unless DNA evidence comes to light after that time period,” as New York Magazine noted. “And sex crimes against children younger than 18 must be prosecuted before the victim turns 40. Cosby stands accused of assaulting more than 35 women in the ‘70s, ‘80s and ‘90s, but in several of their cases, the statue of limitations has expired.”

Facing a never-before-seen push to oust him because of a ruling, a California judge has become the focus of a political maelstrom centered around the politics of rape, gender and the rule of law. 

After giving a lenient sentence to Brock Turner, a former Stanford student convicted of sexual assault, Santa Clara County judge Aaron Persky was swiftly targeted by former colleagues, movement feminists and others, who mounted an unprecedented campaign to oust him from his position solely because of his exercise of discretion. As a statement released by the victim of the attack became a viral sensation online, Stanford Law Professor Michele Dauber “helped publicize the case by tweeting out excerpts of the offensive remarks Turner’s supporters made,” the Huffington Post noted. “Horrified by the lenient sentence Turner received, and as a family friend of the victim, she then started planning a recall effort against Persky.”

Turner was sentenced to six months in prison, three of which he was required to serve. “While prosecutors pushed for a six-year sentence, Judge Persky chose a lighter sentence due to Turner’s previously clean record, and the potential impact a heavier sentence could have on Turner’s future,” KCBS San Francisco reported. Dauber, meanwhile, has been a close friend of the victim’s family, according to Politico.

Far and wide

Across the country, mobilization around Dauber’s campaign was swift. Recently, HuffPost reported, she appeared at a New York fundraiser “organized by Grlcvlt, a secretive women’s-only society of about 3,000 members. To join, a woman has to be invited by one member, and a second member has to vouch for her character. Grlcvlt’s Facebook group is invite-only, and its events up until now have been private — but in June, members held their first public ‘F— Rape Culture’ event to write letters calling for Persky’s removal. They thought maybe 50 people would show up, but more than 1,000 people came, the line wrapping around the block.”

But in addition to under-the-radar groups, the recall effort has attracted a massive following online, where expressing support for Persky’s recall requires just a click or a tap of the screen. The petition for his removal hit 1.2 million signatures, thanks to the change.org website. There was more: “Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct, according to Politico, while UltraViolet, an organization instrumental to the recall petition, “also hired a plane to fly over Stanford during graduation carrying a banner that said, ‘Protect Survivors. Not Rapists. #PerksyMustGo,’ and paid for a billboard on a nearby, high-traffic freeway that sends the same message.”

Leery scholars

Persky has not been without his defenders, however. In an open letter signed by California law professors — including noted liberal progressives such as UC Irvine’s Erwin Chemerinsky — the campaign against Persky was portrayed as a dangerous precedent and a threat to the basic norms underpinning the rule of law. “Promoters of the recall movement have formed a political action committee, made media appearances, whipped up a storm of social media criticism of the judge to influence the opinion of Santa Clara County voters, and launched a website to raise money for the PAC and gather the necessary signatures to unseat the judge,” the signatories noted; but “[a]lthough the sentence may be lenient, there is nothing so far to establish that it is lawless, corrupt, or the product of a pattern of bias on the part of Judge Persky.”

“Naked political pressure of this kind risks undermining the very foundation of dispassionate, independent judgment upon which all criminal convictions and sentences depend for their legitimacy,” the authors concluded. “If disappointed litigants can influence the outcomes of future cases by unseating judges who rule against their interests, the administration of justice quickly falls into the hands of the wealthy, special interest groups, and anyone who wants to launch a political action committee on the heels of media coverage of a controversial case.”