Jack L.B. Gohn, BridgeTower Media Newswires
California voters’ recent recall of Judge Aaron Persky has provoked a lot of distress among those worrying about judicial independence and the possible politicization of the judiciary.
California voters are not often moved to remove their judges; the last successful popular judicial recall in California had occurred 80 years ago. Persky had, however, given a shockingly mild sentence (six months, with only three actually served) to Brock Turner, the so-called Stanford rapist. This drew the wrath of many concerned about sexual assault itself. (The state dropped the rape charges because it could only prove digital penetration, although most non-lawyers would consider what happened rape and I shall continue to refer to it as such.)
There was also an obvious concern as to the issues around it, including the credibility many judicial and administrative decision-makers give to men accused of rape, the burdens and standards of proof victims have to surmount, and the concern shown for offenders, as opposed to care for the victims, in assessing sanctions.
It would be a mistake to denigrate the sincerity or understanding of those horrified by the recall, who may well simultaneously share the recall proponents’ dismay about rape and the surrounding issues.
The politicization of the judiciary is always a legitimate concern, and particularly in times like these, where judicial independence is under direct attack from the highest places. And Persky’s defenders have pointed out that the choices he made in determining the sentence imposed on the Stanford rapist were within his statutory discretion. Are we really at a point, they ask, where a judge operating within the proper bounds of his discretion is to be removed for doing so?
I would argue, however, that it is precisely the fact that the judge was operating within his discretion that made this particular recall appropriate.
It is often within the margins of discretion that the most important decisions of a judge fall. And there exist few mechanisms to correct such decisions when they are wrong. Trial court decisions as to the law, if incorrect, may be reversed by an appellate court. But most laws authorizing sanctions set minima and maxima, and so long as a judge stays within those guidelines, appellate courts generally will not review, on the basis that the decision rested within the sanctioner’s so-called “sound discretion.”
Now it is of course possible to argue that as a result acts of “sound discretion” cannot meaningfully be characterized as wrong, and hence any such decision must be accepted as correct. But this is nonsense, and the Stanford rapist’s sentence proves it.
Beyond any reasonable doubt the decision betrayed Persky’s faulty understanding of the seriousness of the life-long trauma rape typically inflicts upon victims, not to mention his excessive solicitude for the impact of sanctions on the life and career of the defendant.
No, “sound discretion” is not the absence of error, only the protection of a category of potential error from appellate reversal – and unfortunately in a context where no other reversal or review or sanction usually exists – as here, where Persky had withstood complaints to the California Commission on Judicial Performance to censure him, the state legislature had failed to impeach and he had just won a retention election.
In other words, without recall, Persky would “get away with it.”
The solution is not to broaden the scope of appellate review. Appellate courts should not be second-guessing such judgments because of (in the oft-used phrase) “an absence of judicially manageable standards” for them to apply. The concept may best be understood by observing its opposite: a clearly worded statute which establishes the law in ways both trial and appellate courts can easily apply. Perhaps an intermediate point of comparison would be existing common law rulings; they may not be precisely on-point with the new issue a trial judge must confront, but they are close enough so that both the judge and the appeals courts above the judge can extrapolate from them, and the appeals courts can still intelligently determine if the judge was wrong in conducting that process.
But errors like Persky’s, issuing a sentence that fell between statutory minima and maxima, lie more in the category of political choice. Appellate judges can’t manageably evaluate it, but the public can, and should.
Most of the time, the ways in which the judge sentences will reflect the consensus of the community on questions that are inherently political; for example, the extent to which drug consumption is a punishable criminal act as opposed to being a treatment-worthy manifestation of “drug abuse syndrome.” Frequent application of such inherently political community consensus is unavoidable, particularly at the trial court level.
Political choices in our society are generally effectuated by elected public officials and political appointees of those officials. But the legitimacy of those choices depends finally upon the public will, as expressed at the ballot box through the initial elevation of and later potentially forcible retirement of the officials and their appointees who make those choices. Such electoral accountability is attenuated or absent for most judges. But when judges make political choices that are out of step with the community, choices for which other sanctions are nonexistent or impracticable, is electoral accountability such a bad idea?
It could well be objected that the cure of a recall election is potentially worse than the disease. Voters at a recall election are not required to give their reasons; they could be voting to protest the law a judge applies, or because the judge is a nasty person or belongs to the wrong party or ethnic group. That may all be true, but where, as here, recall is already lawful, and the reason for the recall is obvious, namely a judge’s complete, and worse, apparently oblivious revolt against the political consensus of the electorate on the culpability of rape, it is hard to characterize the recall as an attack on judicial independence.
The voters removed Persky as was their right, where the system left it to their sound discretion, which at least in this instance seems to have been soundly exercised.
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Jack L.B. Gohn is partner emeritus with Gohn Hankey & Berlage LLP. The views expressed here are solely his own.
