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.”

Proposition 57 — the victorious November ballot measure sponsored by Gov. Jerry Brown — continues to spark controversy over its loose definition of “nonviolent” crimes.

The proposition won easy approval despite harsh criticism from district attorneys around the state. The measure writes into the state Constitution guarantees that those convicted of “nonviolent crimes” can be eligible for early parole if they behave well and take part in rehabilitation programs.

But the measure was crafted rapidly in what critics likened to the judicial version of “gut and amend,” transforming what was originally meant to be a ballot initiative reforming juvenile justice into an expansive measure with far-reaching reform goals. The revision was approved by the California Supreme Court despite a stinging dissent from Justice Ming W. Chin who said failure to subject the measure to normal thorough reviews set a poor precedent and made it more likely to be poorly drafted.

Chin’s point was underscored when it came to the public’s attention through the Brock Turner case in Stanford that under Proposition 57, the former college athlete’s sexually molesting an unconscious female student was considered a “nonviolent” crime — among many sex crimes considered “nonviolent” because of Prop. 57’s reliance on crime category labeling dating back to 1976.

Brown: Trust parole officials to protect public

The governor’s counter was that the state Department of Corrections and Rehabilitation would never prematurely parole someone guilty of a violent sex crime. But many state lawmakers aren’t persuaded, especially given the corrections agency’s history of scandals and problems.

Sen. Patricia Bates, R-Laguna Niguel, wants protections against possible early release of sex criminals and other violent felons written into law. She told the Los Angeles Times she is pushing a bill with that goal in hopes of sparking a public debate on what crimes should be added to the list of those technically considered “violent” by the state, starting with violence against children and police officers.

“If you put yourself in the position of a victim in any one of those crimes, you will say, ‘That was violent because that affected me physically and emotionally,’” Bates told the Times.

Bates isn’t the only lawmaker seeking changes.

Assemblyman Kevin Kiley, R-Roseville, wants cruelty to animals, crimes targeting older people and the kidnapping of children with the intent of using them as prostitutes added to the list.

Assembly members Melissa Melendez, R-Lake Elsinore, and Lorena Gonzalez Fletcher, D-San Diego, want all types of rape involving people incapable of giving consent branded as violent crimes.

There is also likely to be interest in adding assault on a domestic partner to the list.

State budget says no early parole for sex offenders

Brown has dismissed criticism of Prop. 57 in his public comments. But the 2017-18 budget Brown released in January contains a de facto response to critics. It explicitly noted that sex offenders would not be considered for early parole.

That’s still not good enough for many district attorneys, who say parole decisions can be challenged in court because of Prop. 57’s language.

Unless Prop. 57 is revised before the 2018 gubernatorial campaign revs up, it is likely to be an issue in that race.

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.”

They’ve been two of California’s biggest stories for months: the simmering anger over the light sentence given in early June to Brock Turner, a former Stanford swimmer, for sexually assaulting an unconscious fellow student in early 2015, and Gov. Jerry Brown’s push for Proposition 57, a far-reaching ballot measure that would speed the parole process for those convicted of “nonviolent” crimes.

But the crime that Turner committed is one that Brown’s ballot measure labels “nonviolent.” It appears that it wasn’t until Associated Press reporter Don Thompson wrote a 984-word story last Friday that this angle was covered in the news sections of California’s daily papers. Thompson’s summary:

A November ballot measure backed by Gov. Jerry Brown would allow earlier parole for thousands of California inmates, but critics say it could result in the very situation that led to public outrage in the case of former Stanford University swimmer Brock Turner.

The proposal is aimed at controlling overcrowding in state prisons and reining in costs, and is limited to nonviolent offenders. But in California, “nonviolent” is broadly defined.

It applies to certain rapes and sexual assaults, such as Turner’s conviction, along with vehicular and involuntary manslaughter, assault with a deadly weapon, domestic violence, exploding a bomb with intent to injure and other crimes.

Because of that, the ballot measure could mean less time in prison for people like Turner, prosecutors say. The one-time Olympic hopeful swimmer was released Friday after completing half of a six-month jail sentence for sexually assaulting an unconscious woman behind a trash bin near a fraternity house hosting a party.

Many already were upset that the law allowed him to avoid hard time.

Yes on 57: Corrections, parole officials can block release

While some California opinion pages and writers covered the Turner-Proposition 57 link — most prominently Dan Walters with his Aug. 8 column in the Sacramento Bee — other journalists appeared reluctant to connect the dots. A Nexis hunt of U.S. newspapers using “Brock Turner and Proposition 57” showed no news coverage before the AP report. One possible reason is that Sacramento reporters thought that the case a Yes on 57 spokesman offered in the Associated Press story was credible: Either Corrections Department officials, parole authorities or both could block the release of a sexually violent convict.

But going forward, that explanation isn’t likely to stop leaders of the anti-57 campaign — the California District Attorneys Association — from invoking Brock Turner over and over again. And the extent of anger over Turner’s case could help reduce Gov. Brown’s biggest advantage in this fight: his huge war chest. He entered the 2016 campaign season with $24 million in two accounts.

In late June, the district attorneys group indicated it had little money for ad buys and would rely on getting the word out about Brock Turner being labeled “nonviolent” by the governor’s measure. It took two months, but it finally happened with the AP account, which the wire service touted as its “Big Story” of the day last Friday. The headline the Daily Post online newspaper based in the Palo Alto area used over the AP story: “Measure may let rapists out early.” The No on 57 campaign may build momentum with fund raising if such headlines continue.

At the least, there will also now be public pressure on a long list of California Democratic politicians — starting with Sens. Dianne Feinstein and Barbara Boxer, Attorney General Kamala Harris, House Minority Leader Nancy Pelosi and Lt. Gov. Gavin Newsom — to explain their view on whether what Brock Turner did should be labeled a “nonviolent” crime.

Many of these politicians voiced support for legislation inspired by Turner’s short sentence that was approved by lawmakers and sent to the governor last week. It mandates that prison time must be served by individuals who sexually assault an intoxicated or unconscious individual.

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.”

“Parole reform” ballot measure would reduce penalties for sex crimes

Proposition 57 — the newly numbered November “parole reform” ballot measure championed by Gov. Jerry Brown — has already proven controversial…

But according to the California District Attorneys Association, the list of “nonviolent felonies” touted by Brown and accepted by (Attorney General Kamala Harris) include crimes of sexual violence — specifically the ones committed by then-Stanford athlete Brock Turner when he sexually violated a passed-out fellow student in January 2015. 

CalWatchdog has more. 

In other news:

• Victor Davis Hanson, with Stanford’s Hoover Institution, wrote a searing column in The Washington Times — a takedown of California policy making that describes two Californias. Here are some highlights:
  • “One is an elite, out-of-touch caste along the fashionable Pacific Ocean corridor that runs the state and has the money to escape the real-life consequences of its own unworkable agendas.”
  • “The other is a huge underclass in central, rural and foothill California that cannot flee to the coast and suffers the bulk of the fallout from Byzantine state regulations, poor schools and the failure to assimilate recent immigrants from some of the poorest areas in the world.”
  • “If Facebook billionaire Mark Zuckerberg wants to continue lecturing Californians about their xenophobia, he at least should stop turning his estates into sanctuaries with walls and security patrols.”
  • “And if faculty economists at the University of California at Berkeley keep hectoring the state about fixing income inequality, they might first acknowledge that the state pays them more than $300,000 per year — putting them among the top 2 percent of the university’s salaried employees.”
  • Here’s the full column. 
• California’s pension fund takes a larger share of tax revenue than the national state average, but it’s unclear why, writes Capitol Weekly. 
• Eight things to know about Senate candidate Loretta Sanchez’s 20-year career in Congress, by the Los Angeles Times.
• And here’s eight highlights from the career of her opponent, Attorney General Kamala Harris.
• “The California Water Resources Control Board says the 28 percent May water conservation rate, compared to May 2013, was ‘phenomenal,'” writes Capital Public Radio. 

Legislature:

• Gone ’til August.

Gov. Brown:

• On vacation.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @lobbyists4good @lizettemata

Now a much more relatable, explosive controversy looms over the proposed state constitutional amendment — one that threatens its passage and could buffet the U.S. Senate campaign of state Attorney General Kamala Harris and damage Brown’s reputation.

The ballot argument that Harris accepted for Brown’s measure depicts it as a benign proposal to bring common sense to parole decisions by allowing “parole consideration for persons convicted of nonviolent felonies upon completion of full prison term for primary offense.”

But according to the California District Attorneys Association, the list of “nonviolent felonies” touted by Brown and accepted by Harris includes crimes of sexual violence — specifically the ones committed by then-Stanford athlete Brock Turner when he sexually violated a passed-out fellow student in January 2015. This screen shot from the CDAA website gives specific examples.

This is unlikely to sit well with the vast cross-range of people who are furious with Santa Clara County Superior Court Judge Aaron Persky’s decision in early June to sentence Turner, formerly a member of the Stanford swim team, to six months of imprisonment — much less than the six years sought by prosecutors.

The ruling quickly gained national and international attention. The letter Turner’s victim wrote to him became an Internet sensation. Judge Perksy faces an unprecedented campaign from Bay Area residents who vow to never serve as jurors in his courtroom. Citing the Turner case, members of the California Legislature have moved to toughen sexual assault laws.

The Proposition 57 debate seems likely to eventually merge with the debate over the fairness of Brock Turner’s sentence and whether sexual assault laws should be made much tougher. So far, at least, leaders of the California District Attorneys Association have hesitated to make an explicit connection between the two matters.

But that seems likely to change in coming months when Brown uses his hefty campaign war chest to push his agenda. The Brock Turner case appears to be tailor-made for district attorneys who complain that the media didn’t read the fine print on the governor’s initiative before their initial coverage of it early this year.