The signatories to this letter are all professors of law at California universities, as indicated below.

The victim in the Brock Turner sexual assault case has suffered multiple injustices. To begin with, she was sexually assaulted beside a dumpster and she had to endure a humiliating forensic investigation of her body after the fact to secure evidence of the crime. No punishment of the defendant brings anything like a full measure of justice to victims of crimes like this. She may yet pursue civil remedies, but no amount of money will heal the wounds caused by the crime.

The second injustice is one with which all victims of sexual assault who choose to go to law are sadly familiar seeking any measure of public justice requires an extended, agonizing reproduction of the dreadful experience at trial. Whatever a genuinely healing process looks like, having to motivate police investigators and prosecutors to believe in your case and then take the stand and be cross-examined is surely the opposite. The risk of re-victimization, of being blamed in court or in the press for one’s suffering, is pervasive. To the extent that this is an unavoidable cost of the constitutional guarantee of due process and the defendant’s right to counsel, it is a steep one.

Finally, the judge presiding over the case imposed a sentence that, in the opinion of many observers, appears not to fit the crime. The sentence has prompted some to advocate the recall of Judge Persky if he refuses to step down voluntarily. 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.

It is possible to imagine a sentence so patently lawless or corrupt, or proving a pattern of bias, that it justifies the conclusion that a judge is unfit. The question is whether this is such a sentence. Although 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.

The sentence departed downward because the judge followed the recommendation of the probation report. Reliance on the recommendation of a probation report is a standard practice in criminal sentencing, and an independent review of Judge Persky’s sentencing decisions conducted by the Associated Press reveals no evidence of a pattern of bias. The AP found that Judge Persky consistently follows the recommendation of the probation report in cases, like the Turner case, that end in a guilty verdict. And in cases that don’t, cases where the defendant accepts a specific sentence as a part of a plea bargain negotiated with the assistance of counsel, he generally enforces that agreement. This too is a standard practice in criminal sentencing. Finally, Judge Persky “has a pattern of sparing relatively low-level offenders of color from prison,” he is described as fair by lawyers who regularly appear before him, and the prosecutor in the Turner case, as well as the lead prosecutor for Santa Clara County, have opposed the recall movement notwithstanding their strong disagreement with the sentence Turner received.

The argument of the recall campaign is as follows: (1) judges who enter lenient sentences do not take sexual assault seriously, (2) judges who do not take sexual assault seriously are unfit to wear the robe, and (3) the people should summarily remove such judges by popular fiat.

Grant the second claim — there are arguments for and against having litmus tests for judicial appointment, but no one who genuinely thinks sexual assault is a trivial offense should sit on the bench.

What about the first and the third? A judge might take sexual assault quite seriously and at the same time weigh a range of legally recognized factors against imposing a harsh sentence in an individual case. One can argue that the factors should be different, or that they should be eliminated altogether if they operate too frequently in mitigation of sexual assault sentences. But these are arguments that the law of sentencing may not reflect the gravity of sexual assault, not that the judge who applies the law as written is unfit.

Rather than take on the difficult democratic work of seeking to change the law that confers sentencing discretion upon judges, or filing a complaint with the independent state agency charged with investigating and punishing judicial misconduct, the recall movement seeks to make Judge Persky and all other California judges fear the wrath of voters if they exercise their lawful discretion in favor of lenience.

This poses a serious threat to the rule of law. 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. 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. Nationally, hundreds of millions of dollars now pour into judicial elections, converting them, as former United States Supreme Court Justice Sandra Day O’Connor has lamented, into “political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law.”

It is no answer to say, as the leaders of the recall movement have insisted, that recall of a judge is allowed under California law. The question is not whether it is permissible to unseat a judge by popular vote but whether such an extreme measure is warranted by the facts, and whether the collateral damage is outweighed by any expected gains to the administration of justice. Here, the judge appears to have exercised lawful discretion. Perhaps other facts will come to light now that a PAC is scouring Judge Persky’s record, but voters will be deprived of other critical evidence because the judge is prohibited by strict ethical rules from providing many of the kinds of information and assurances that might put the public’s mind at ease.

And there will be grave collateral damage to the administration of justice in California if judges fear recall for showing leniency. Sentencing — the most delicate phase of the criminal process in which the judge must assess the individual defendant, the nature of the offense, and society’s interest in punishment and the defendant’s rehabilitation — will become deeply politicized. A state already struggling with budget crippling, racially disproportionate mass incarceration and unconstitutional prison conditions will struggle more to accommodate harsher sentences imposed by fearful, or worse still, opportunistic judges.

Simply put, justice for victims of sexual assault justice cannot be achieved by pursuing remedies that undermine the fair administration of justice.

Californians can grieve the injustices suffered by the victim in this case and mobilize to prevent sexual assault while rejecting a recall movement that threatens the integrity of the state’s criminal justice system.

Hadar Aviram – UC Hastings

Barbara Babcock – Stanford

Maitreya Badami — Santa Clara

Ralph Richard Banks – Stanford

Patricia Cain – Santa Clara

Linda Carter – McGeorge

Erwin Chemerinsky – UC Irvine

Gabriel Chin — UC Davis

Sharon Dolovich – UCLA

Donald Dripps – San Diego

Daniel Farber – UC Berkeley

Catherine Fisk —UC Irvine

Richard Ford – Stanford

Bryant Garth – UC Irvine

Robert Gordon – Stanford

Thomas Grey – Stanford

Deborah Hensler – Stanford

Robert Hillman — UC Davis

Paige Kaneb – Santa Clara

Pamela Karlan – Stanford

Herma Hill Kay – Berkeley

Gregory Keating — USC

Amalia Kessler – Stanford

Russell Korobkin – UCLA

Ellen Kreitzberg – Santa Clara

Christopher Kutz – UC Berkeley

Richard Leo – USF

Laurie Levenson – Loyola

Bernadette Meyler – Stanford

Joan Petersilia – Stanford

Robert Rabin – Stanford

Margaret Russell – Santa Clara

Gregory Shaffer — UC Irvine

Steven Shatz – USF

Jonathan Simon – UC Berkeley

Robert Solomon – UC Irvine

Ann Southworth – UC Irvine

Edward Steinman – Santa Clara

Shauhin Talesh – UC Irvine

Ronald Tyler – Stanford

Gerald Uelmen – Santa Clara

Emily Garcia Uhrig — McGeorge

Michael Vitiello — McGeorge

Robert Weisberg — Stanford

Charles Weisselberg – Berkeley

Franklin Zimring – UC Berkeley

Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.