Not A Real Criminal: An Elegy For Aaron Persky’s Judicial Career
This week, the voters of Santa Clara County, California, recalled Judge Aaron Persky by a large margin. Good riddance.
In 2016, Persky presided over the trial of Brock Turner, a Stanford freshman convicted of
rape assault with the intent to commit rape and “penetration of an intoxicated woman”. The case generated a tornado of media coverage, and featured a shattering victim impact statement, an obnoxious dad and sanctimonious victim-blaming. Persky sentenced Turner to six months in jail (he ultimately only served three) and three years’ probation. The sentence was widely condemned as shockingly lenient, considering the circumstances of the crime, and ultimately cost Persky his judgeship.
During the nasty, messy recall campaign Persky’s defenders have been both vocal and eloquent in their opposition. The argument of the anti-recall campaign boils down to the idea that Persky merely followed California’s sentencing guidelines, which enumerate factors relevant to considering leniency.* Another, frankly paradoxical, justification for Persky’s sentence is that the guidelines simultaneously give judges a lot of discretion in sentencing AND somehow tie judges’ hands. If you care about this case, I urge you to read not only the victim’s impact statement, but also Brock Turner’s statement and Judge Persky’s sentencing decision. Having read all those, here is where I believe Persky and his defenders went wrong:
Brock Turner committed a violent crime.
Rape — whether “rape-rape” (with a dick, and punches to the head) or “quasi-rape” (with objects or fingers, of a person who cannot resist because she is unconscious, comatose or paralyzed) — is not like selling a bag of weed, pilfering a tablet from Staples or operating an unlicensed gambling den. Rape is a violent crime. It is absolutely astounding to me how many people, even now, nearing the end of the second decade of the twenty-first century, can’t wrap their mind around this fact.
Brock Turner committed a violent crime.
Everything else about him must be viewed through that lens. This is not to say that it is impossible for a violent criminal to demonstrate redeeming qualities — but there is no rationale I can grasp for considering the supposed evidence of his good character in a vacuum, as if he were applying for a camp counselor’s job, as opposed to, say, asking for a discount on the sentence for having committed a violent crime. Brock Turner is not a nice boy. He is not a promising young man. He is a violent fucking felon, and whatever else he’s done in his young life has to be weighed against that.
This, in my opinion, is the most fundamental problem with former Judge Persky’s decision. He simply brushed aside the fact that Turner committed an incarceration-worthy crime, and never acknowledged the fact that the crime was a violent one. He treated his conviction, and the facts of the case, almost as if they were irrelevant.
Persky’s finding that Turner had demonstrated remorse is absolutely mind-boggling to me. Turner’s statement does nothing of the sort. Oh, sure, Turner was sorry that this “20 minutes of action” (as his father put it), turned out so badly for him. He was sorry he had lost a chance at a Stanford education, or a career in professional sports, or a life of easy bourgeois respectability. He was sorry he had to be so sad now. But at no point did he express regret for the victim having to live with the consequences of his violent act perpetrated upon her.
His letter is not merely devoid of remorse and brimming with self-pity. It is positively oblivious in its treatment of the victim as an afterthought.** (And, lest you think his egotism is accidental, keep in mind this letter was minutely examined, edited and polished by his lawyers.)
Persky did acknowledge this fact to some degree in his decision, but credited Turner for the “honesty” in how the perpetrator saw the events (something bad that happened to him), and deemed that “honesty” an acceptable substitute for actual remorse. That is something the guidelines, quoted by Persky in his decision, do not even remotely justify. He simply injected his own personal belief that candor about one’s lack of a conscience is as good as having a conscience.
As nutty as Persky’s take was, Turner’s statement was not even candid. It is untruthful on its face. Turner claimed that growing up in a small Ohio town (cue a fucking banjo or whatever), he never experienced alcohol-fueled party culture, and thus arrived in jaded California a naive country boy. A few paragraphs later, he claimed he didn’t think imbibing alcohol liberally was a big deal because he had spent his whole life around people who drank every day. So which is it? Everyone in Norman Rockwell country, including minors, gets sauced every day, but at parties they only drink lemonade, because of reasons? I admit I’ve never lived in a small town in Ohio, but this does not seem believable to me.
Turner claimed he was drunk during the incident (the insinuation being that he did not know what he was doing) — but at the same time, he recounted the events in minute, excruciating (and of course, self-serving) detail. So which is it? He was so drunk, he didn’t realize shoving his meat hooks (and dirt, and pine needles) into the vagina of a passed-out woman is wrong, but he was sober enough to preserve a photographic memory of every tiny detail of how he’s innocent? And sober enough to bolt when caught in the act?
Turner claimed he had never been in trouble with the law enforcement prior to his arrest for assaulting Emily Doe. That too, was false.***
Turner’s claim that he had never taken illicit drugs and never engaged in hard partying in Ohio: also a lie.
His statement was glaringly, demonstrably false in several respects. Lack of candor to a tribunal is as clear an indication of a lack of remorse as it gets. Persky ignored Turner’s multiple falsehoods.
Also not remorse: blaming impersonal, amorphous forces for one’s actions. Turner blamed the “party culture”. He blamed alcohol. He blamed California. He blamed his innocent upbringing. He blamed casual sex. Paragraph after paragraph, page after page, he deflected the blame onto abstract concepts. Neither casting oneself as a victim of circumstances, nor disclaiming responsibility for one’s actions can be reasonably interpreted as remorse.
This leads to the other relevant factor listed in the guidelines, whether the perpetrator poses a risk for reoffending. Statistically, most rapists are repeat offenders, so it’s a crime with a documented high risk of recidivism. Add the aforementioned lack of remorse. Add the fact that Turner was quickly released into the bosom of his family, who believe their good boy deserves pity because he’s lost interest in eating red meat. The likelihood that Turner will commit another sexual assault is high. He is just going to be craftier about it.
Former Judge Persky is not known for right-wing lunacy. He is not an overt misogynist. And I believe he was well-meaning in sparing certain defendants from having to do time in a state notorious for its overcrowded prisons, even for a country which is generally notorious for mass incarceration, obscenely long sentences and brutal prison conditions.
That said, I have stated before that I feel very queasy about people adopting the arguments of social justice in favor of leniency for the perpetrators of crimes that have a history of being trivialized, ignored, underprosecuted and even underreported — which would include, of course, the rape of any woman slightly less virtuous than the Virgin Mary by a privileged young buck with a “bright future”. American sentencing and prison systems are in need of a reform, but it can’t start with those kinds of crimes.
Overincarceration is a problem in the American justice system, but so is insidious misogyny, which informs the judgment of even superficially progressive people; people who will outwardly reject the notion that women are inferior, but somehow assume that certain crimes aren’t real crimes. And what do you know, Persky had a history of going easy on rapists, child molesters, wife-beaters and girlfriend-punching college athletes.
Where states permit judges to substitute probation or “time served” for a prison sentence, one of the factors prescribed by the guidelines is the degree of harm that would result to the defendant from the incarceration. Obviously, anyone who goes to prison is harmed by it. Prison is harmful by nature. Persky acknowledged as much in his decision, but then he just kind of dropped it. (It is but one of several instances of laziness expressed in his opinion.) What legislatures have in mind when enacting such guidelines is convicts who are more vulnerable than the general population, and would therefore suffer extraordinary harm from incarceration. This category would include people who are mentally ill, very elderly, those suffering from life-threatening physical illness, pregnant women, etc. It’s harm to those kinds of defendants that judges have an opportunity to prevent. Young felons in good health being deprived of mommy and their favorite comfort foods isn’t the kind of “harm” that makes incarceration inadvisable.
For the life of me, I can’t understand why character statements play a role in sentencing at all. Brock Turner is an unapologetic rapist. That is his character. Glowing testimonials of all the nice things he has done for himself (his grades, his athletic achievements, his love of steak) only reinforce the notion — reflected in Turner’s own statement — that what “happened” is all about him. Don’t punish him too harshly, Mr. Judge, for the awful thing he’s done to himself — look at all the non-awful things he’s done for his future! It’s as if he is the only person affected by the crime; as if the very concept of accountability — to others — is incomprehensible or offensive.
Character statements are full of platitudes. They are invariably positive. They do not give an accurate picture of the defendant’s character, because those who have a negative opinion of him are not invited to comment. If, prior to the rape, he’s ever done things that are disturbing, despicable, and so forth, character statements won’t mention them. These letters pass through the defense team, so nothing that contains any negative information whatsoever gets through to the judge. The authors of such letters do not get cross-examined. The facts they assert (to the extent they assert any) are not verified.
Any reasonably “together” middle-class family can organize a letter-writing campaign on behalf of their felonious baby. Brock Turner was a star athlete in a small town. It’s not surprising his parents managed to get 38 people to write letters about what a swell guy Brock was.
Another factor that casts doubt on the credibility of letters by friends and neighbors is that such people are pressured to write them simply by virtue of their relationship to the family. The aftermath of the decision showed that at least some of the authors did it as a nice gesture and were not terribly committed to vouching for Brock Turner’s stellar character. A friend of his from high school, a musician, apologized for her victim-blaming diatribe once the blowback began to affect her gig bookings. Another “character witness”, a guidance counselor … excuse me, excuse me, a guidance counselor??? What insights into one’s moral character would a guidance counselor have? I was a star student in high school, and I met my guidance counselor maybe three or four times. Whatever that woman knew about me came from my manicured college applications — which were, by their very nature, self-serving. Anyway, Brock Turner’s guidance counselor also stepped back from her boilerplate, wisely figuring that advocating for a rapist to skate wasn’t the hill she wanted to die on.
Bottom line: while I don’t discount the possibility that a letter coming from a completely independent source and recounting specific events that demonstrate good character, on balance, character letters are bullshit.
The discretion to consider “the role of alcohol” is yet another manifestation of sex crimes being treated as quote-unquote different. Judge Persky should have been careful not to make it yet another tired argument about how sometimes, men just can’t help themselves. It’s not that different from the repugnant “truism” that the fly of a man’s pants (or some petting, or a kiss, or the sight of a cleavage) is a sexual Rubicon beyond which it is simply unrealistic or inhumane to expect a man to stop. There is a depressingly effective answer to this argument.
One of its proponents once painted a familiar hypothetical in a debate with me. Imagine, he said, a man and a woman flirt all night. She is seductively dressed. They go back to her place, they make out. She undresses to her underwear, the man pulls down his zipper. He’s aroused. And then she’s like, haha, joke, I dunwanna. Think the man would be able to stop?
To which I responded with a similar hypothetical. Imagine, I said, a man and a woman flirt all night. She is seductively dressed. They go back to her place, they make out. She undresses to her underwear, the man pulls down his zipper. He’s aroused. And then her father walks in. Think the man would be able to stop?
Something similar happens with alcohol. While Brock Turner was assaulting he victim, two cyclers came upon him. As soon as they shouted at him, he bolted and ran. After his arrest, he had the presence of mind to lie to the police. In other words, while alcohol may have altered his assessment of the likelihood of being caught, it certainly did not impair his ability to act in his own self-interest. (Not to mention the fact that he had a prior arrest for underage drinking and was aware that it was illegal for him to drink.)
Rape is not an impulsive crime. It’s a crime of opportunity. If the assailant is lucid enough to take steps to get away with it, he’s lucid enough to understand that what he’s doing is wrong.
Brock Turner’s behavior at the scene and immediately after his arrest shows that he understood that Emily Doe did not consent. His level of alcohol is irrelevant under these circumstances. That it was unreasonable for him to think he wouldn’t get in trouble isn’t equivalent to him believing he wasn’t doing anything wrong.
But what about the fact that alcohol impaired his judgment? you might ask. The problem with putting it like that that the commission of a violent crime in any state is a manifestation of poor judgment. Alcohol is an explanation, not a mitigating factor.
With all due respect to Persky’s defenders, I don’t think we have to worry about the “precedent” of judges being recalled for rendering unpopular decisions.**** He is the first American judge to be recalled since 1977 (and his predecessor in that honor likewise lost his judgeship over sentencing in a rape case). The precedent that we should worry about is letting rapists — particularly rapists from “respectable families”, rapists with a “bright future” — off with a slap on the wrist. Because that is a precedent that actually exists. And it is that precedent — of treating violent crimes by men against women as not a big deal — that Persky’s recall is likely to change.
*Tangentially, a bit of law stuff: the sentencing guidelines enumerate the factors that a judge may evaluate when determining the appropriate sentence. They do not actually prescribe how those factors are to be determined. It’s less “if the defendant was drunk, then no jail time” and more “the court may consider the role of alcohol in the commission of the crime”. So it is not like former Judge Persky submitted to the guidelines; rather, he used them as a framework for his shameful sentence. Also, parenthetically, while judges take the recommendation of the parole officer seriously, this doesn’t mean they should just rubber-stamp it. All the flaws I discussed in Persky’s decision apply equally to the parole officer’s report, and Persky should have identified and rectified them.
**From Brock Turner’s statement:
I can barely hold a conversation with someone without having my mind drift into thinking these thoughts. They torture me.
GOOD. That’s how you become a better person.
***The link about Brock Turner 2014 arrest is to an article published in 2016. However, Judge Persky would have known about Turner’s prior criminal history had he done his minimal homework. Whether or not someone has been arrested is an easily resolved factual issue. It would have taken Persky’s clerk minutes to find out.
****Persky infamously compared his sentencing of Brock Turner to the 1954 Supreme Court decision in Brown v. Board of Education. The comparison is ahistorical. Racists tend to be vocal and destructive out of all proportion to their numbers. In reality, the idea of desegregation wasn’t nearly as unpopular in 1954 as Persky’s comment would suggest. Contrary to his insinuation, most Supreme Court justices are mindful of larger societal trends and hesitant to issue rulings that would be intensely unpopular with the majority of the country’s population. Here is an in-depth discussion of that subject from the vantage point of marriage equality. (Of course, the long-standing unwritten rule of judges’ sensitivity to the feelings of the majority of Americans is liable to change under Trumpism.)