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:

On Antonin Scalia’s (In)Famous Dissents

Sorry, I couldn’t resist: I do think THIS is where Scalia would have been most at home.

What a great week last week was for America! I am talking about, of course, the Supreme Court decisions upholding the Affordable Care Act and the Fair Housing Act, as well as finding same-sex marriage bans unconstitutional. (I mean, yes, upholding the death penalty still sucked, but we take what we can.) Yet on some level, it was an irritating week too, due to primarily all the fawning over the world’s most overrated jurist, Antonin Scalia.

A Curious Presumption

One of the most mystifying things people say about rape is that being raped by a stranger is “worse” than date rape or any other kind of acquaintance rape. Richard Dawkins (whom I have long believed to be a passive-aggressive misogynist) is getting some well-deserved flogging as we speak for lecturing women on how trivializing “lesser rape” isn’t tantamount to endorsing it. There is a whole series of smarmy, condescending tweets, but what caught my eye in particular was this:

A Belated Mothers’ Day Wish

Volga barge haulers: they had it easy.

Here is what I want: I want people to stop saying that motherhood is “the toughest job”. For the record — I am a mother. I especially want people to stop saying that stay-at-home motherhood is “the toughest job”. For the record — I am not a SAHM.

Ten Rules for Making an Official Apology

Pictured: NOT Mike Maggio, Rush Limbaugh, Rupert Murdoch or that Duck Dynasty dude. They wish.

When politicians, public officials or celebrities get caught making outrageous comments, I find myself wondering about the anonymous machiavels who sit in the shadows and craft their boilerplate unapologetic apologies – which, as we all know, accomplish nothing except add fuel to the fire.

I wonder: is it a lucrative occupation, writing the same formulaic nonsense that never works over and over? (Maybe I’m in the wrong profession.) Do these people, who specialize in writing official apologies, actually heed public opinion, seeing as they are supposed to be Public Relations experts? Do they sincerely believe any of their tired semantic tricks for deflecting blame actually work? Do people really pay them for their “services”?

“Restorative Justice” Is Potentially Destructive, Too

The New York Times magazine has published an article about the application of the “restorative justice” model to a Florida murder case. To get this out of the way immediately (I’ll get to the details later), the case centers on a 19-year-old who shot his girlfriend in the face. The families of the perpetrator and the victim were quite close. The girl’s parents and siblings, who described themselves as devout Catholics, elected to forgive the murderer, and to work that forgiveness into getting him a reduced sentence and sparing him the anguish of a trial. They did it because Jesus, and also because they didn’t want to become “trapped in anger” over the boy they loved blowing their daughter’s and sister’s head off while she was on her knees and pleading for her life. The article bears a pithy title, “Can Forgiveness Play a Role in Criminal Justice?” — to let you know right away on which side of the issue the author comes down and also to prepare you for the warm and fuzzy feeling this article is apparently supposed to give you. Alas, it has mostly left me cold.

Adventures in Women’s Lib: I’d Rather Take Cash, Thank You

When I started practicing law eleven years ago, the profession was — I realize it now, in retrospect — on the crux of a major change.

The legal trade was one of the last holdouts against women’s encroachment on the “man’s world,” and litigation, in particular, was still decidedly a sausage fest. If I went to a deposition, I was usually the only woman in the conference room, apart from the stenographer and maybe the witness. If I entered a courthouse through the entrance reserved for attorneys, the court officer would often gruffly order me into the public line before I had a chance to display my court ID. In the courthouse, I was clearly a member of a small minority. There were still, at that time, old-school gentlemen-lawyers shuffling to and fro, cranky old men who started practicing back in the 1940’s, when some states still didn’t allow women to be admitted to the bar at all, or even to sit on juries. When they happened to be in a good mood, these men would patronize and condescend to you in truly quaint ways, that would seem tacky even in a plot for Mad Men. But most of the time, they were cross, loudly complaining about all these girls in the courthouse and bemoaning the death of law as a dignified profession.

How the world has changed, and how quickly!

Why Can’t Seasteading Get Off The Ground?

For years now, slow-news days have brought us the breaking news that the world’s richest people — and hence the world’s best — fed up with taxation, government regulation, and having to co-exist with the unwashed masses without hunting them for sport, are about to go off to live on a modified oil rig, a “project” known as ”seasteading”. Alternatively, they may inhabit a giant cruise ship.

On the surface, it looks like a perfect futuristic Galt’s Gulch, a cluster of manicured, pastel-colored apartment buildings separated from the world of “parasites” by the forbidding ocean, but yet within a safe distance of some friendly country, one that does not mind having billionaire excrement, broken champagne bottles, and an occasional dead body washing up on its beaches. There are no taxes to pay, no building codes, no labor laws, no zoning regulations, no legal protections for non-residents (you know, the cleaning staff) — a paradise.

Arranged Marriage: It’s Not All It’s Cracked Up to Be

It is my experience that Americans are very romantic. And yet it is Americans, and to a somewhat lesser extent the rest of the Western cultures, who like to extol the supposed virtues of arranged marriages and poo-poo love matches. If you are a news and blog junkie, like me, you have probably read countless entries talking about how the institution of arranged marriage is a cure for divorce, unhappiness or the so-called “hook-up” culture, extolling it as the epitome of sensibility and the pinnacle of a stable, responsible lifestyle. Cherry-picked accounts by people (women especially) from patriarchal cultures swearing up and down how happy they are in a marriage to someone they did not even know before the wedding, someone picked by their parents, abound. And people lap it up. In fact, O Gentle Reader, you probably found this entry by Googling romantic stories about arranged marriages or happy arranged marriage accounts, or some other such nonsense — didn’t you? But clearly, this fascination with arranged marriage stems from the fact that most Westerners have absolutely no experience with this phenomenon and come from families where people have followed their hearts for so many generations, they retain no memory of what your garden-variety arranged marriage is really like.

So let me tell you a story about an arranged marriage in my family, which will, hopefully, introduce a dose of sober reality into this rosy picture.

Isn’t it time for freedom FROM religion?

When Republican-controlled state legislatures began enacting laws allowing pharmacists to withhold contraception, we were told that druggists’ “freedom of religion” necessitated imposing needless inconveniences on patients, including rape victims. When cases began cropping up of pharmacists not only refusing contraception, but holding on to prescriptions, we were told their “freedom of religion” was more important than whatever damages resulted to patients from having to obtain duplicate ones. When Republicans were screeching about the rule requiring parochial employers to provide insurance for contraception, we were told that religious people’s “freedom of religion” was more important than others’ autonomy, health and even life.

And so it’s no surprise that it has now come to this: a crazed religious fundamentalist jail guard, whose “freedom of religion” required nothing less than an ability to force a detained rape victim — a victim of a violent crime totally and absolutely within the guard’s power — to bear her rapist’s child.