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Recall Discourages Rehabilitation

Posted By Administration, Friday, June 1, 2018

By Kevin Hammon
2018 SCCBA President

By the time you read this message, the fate of Judge Aaron Persky’s career may have been decided by Santa Clara County’s voters.  I have never appeared before Judge Persky, but I know him to be kind and thoughtful through his work with the county’s high school mock trial program.  Over the past two years, I have spoken with a wide array of lawyers, paralegals, and court personnel who have appeared before or observed Judge Persky in the courtroom.  Their feedback is universally positive.  Some praise his calm demeanor, patience and humility.  Others praise his intellect, compassion, and good humor.  If this recall is successful, it appears Santa Clara County will have lost an outstanding jurist.   

 

I think about Judge Persky often when I reflect upon my years representing the Department of Family and Children’s Services in Santa Clara County’s Dependency Wellness Court.  In this setting, parents describe their victories and challenges with overcoming addiction, navigating bureaucracies, coping with intimate partner violence, finding affordable housing, securing employment, and obtaining mental health services.  Many of these parents have experienced multiple traumas over the course of their lives, finding temporary solace in illicit drugs or alcohol. In DWC, parents receive support from a team of professionals including social workers, domestic violence and substance abuse counselors, attorneys, and judges.  Team members facilitate and bear witness to the capacity for human beings to change.  Breaking the cycle of domestic violence, accepting responsibility, embracing recovery are not just abstract concepts- but tangible accomplishments.  Successful parents will often have their children returned to their care and ultimately their children’s dependency cases dismissed.

 

But make no mistake. These parents have often done terrible things.  They may have histories of domestic violence, substance abuse, drug sales, property crimes, gang activities, and repeated incarcerations. Their children are victims of abuse or neglect.  If dependency proceedings were not confidential, I imagine an understandable public outrage when children are returned to the care of parents described as felons, drug addicts, domestic violence perpetrators, and gang members.  Although they may be accurate, these descriptions miss the point.  If we perpetually define people by their worst decisions, we ignore and discourage rehabilitation. The reduced headlines overlook litigants’ profound life changes readily observable to social workers, probation officers, attorneys, judges, and others charged with closely investigating or assessing a panoply of facts.  There is a special danger in recalling so-called “lenient” judges and enacting legislation that limits judicial discretion in an effort to be “tough on crime.”  While well intended, these efforts exacerbate over-incarceration and preclude a thoughtful consideration of individualized circumstances.  

 

To be clear, I have profound sympathy for all victims of violent crime.  Far too often, we tend to view the criminal’s conviction or sentence as a validation of the victim’s experience.  This is wrong. For victims, there is no amount of jail or prison time that will “make it right.”  Proponents and opponents of the recall agree that Brock Turner’s victim suffered a horrific experience, and that her public statement should be widely disseminated.  Simply put, her words must be heard.  It is a mistake to view Brock Turner’s sentence in any way as a discredit to her, her message, or her experience.   

 

On June 5th, I will vote against the recall of Judge Persky not simply because I believe he is an exemplary jurist or because I believe in judicial independence.  I will vote against the recall because I value rehabilitation.  I have seen the transformative power of targeted interventions.  At face value, the recall effort conveys to judges that their jobs are in jeopardy if their orders do not sufficiently punish the litigants who appear before them.  I fear that the recall may ultimately suggest to litigants that: their progress, change, and accomplishments are irrelevant; and that their wrongdoings will forever define them.  When we focus only on the misconduct, it is easy to confuse thoughtfulness and compassion for leniency.  Please join me in opposing the recall of Judge Persky.    

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