Bail Reform and the Judge Persky Recall

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

Two things strike me about the bail reform measure signed by Governor Jerry Brown: One, under the bill, the public sector grows and the private sector shrinks; Two, the specter of Judge Aaron Persky’s recall haunts the process created by the bill.

The legislation, SB 10 authored by Senators Bob Hertzberg and Rob Bonta, was created to combat the situation that poorer people suffer under the cash bail system because they cannot afford the bail while they await trial. One cannot argue against this injustice, especially when data shows that only about 15% of those detained ultimately end up in prison.

Reform is necessary. But by creating a system that requires a risk assessment system for judges to determine if a prisoner can be freed indicates the need for a growing bureaucracy of public workers to manage the system. At the same time, the careers of approximately 3200 registered bail agents in the state would be ended.

Other doubts have been raised about the bill including law enforcement, legal and financial concerns. However, one objection has echoes of the recent recall of Santa Clara County Superior Court Judge, Aaron Persky.

Recollect the case of Stanford student Brock Turner who was convicted of sexually assaulting a woman who had blacked out from drinking. Persky handed down a six-month sentence. Critics railed against the sentence’s leniency and gained traction when the assault victim expressed her pain in a widely publicized document. A recall effort was mounted and in June Persky was removed from office, the first California judge recalled in over 80 years.

What does this have to do with a bill on bail reform? The bail reform bill offers judges more discretion on whether to free detainees to the community. Like everyone else, as an old saying goes, judges follow the election returns. They know what happened to Persky offering a lenient verdict in the Turner case.

Should a judge release a prisoner who then performs a violent act, the judge could be in the crosshairs of angry citizens with access to recall petitions.

The assessment tools created to determine whether a prisoner is a danger to the community may not serve to protect a judge who says he or she was just following the recommendation of the risk assessment program. Remember that Persky was following the recommendation of the Santa Clara County Probation Department officers in determining Turner’s sentence.

Keeping a prisoner in jail removes the risk of another offense by the prisoner that could jeopardize the judge’s reputation with the community. If this is the avenue judges pursue out of concern for holding their offices, the goal of the bail reform will be undermined.

Beyond the potential failings debated in the legislature about this bill, the shadow of unintended consequences hugs tightly to this legislation.

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