Jun
16

In Praise of Judge Aaron Persky

I’m not hopping on the bandwagon circling the Santa Clara County, California, courthouse. Don’t add my name to the million-plus names of those calling for the scalp of Superior Court Judge Aaron Persky. Far from a goat, Judge Persky is a hero.

Would that there were more judges like him.

Judge Persky presided over the sexual assault trial of a Stanford college student, Brock Turner, accused, and then convicted by a jury, of raping a fellow student. Mr. Turner and his victim attended a frat party. The victim was intoxicated, passed out; the defendant, too was drinking.

There was sexual contact. She claimed rape. He claimed consent. She was apparently in no position to consent.

I suspect this scene is replayed on college campuses nationwide more often than we care to admit. But these days, colleges are driven by the new Puritans to get tough on libidinal crimes.

Mr. Turner was sentenced to six months in prison, three years of probation, and he must now register as a sex offender. The sentence outrages the judge’s critics. How could the judge be so callous and minimize this crime of violence?

I’ve said it before, and I’ll say it again: We’ve fallen in love with prisons in this country. We incarcerated almost 25 percent of the world’s prisoners, although we are just under 5 percent of the world’s population. The sentences we impose for all sorts of crimes are far longer than sentences imposed in other republics.

Somehow, we can’t get enough of prison.

A felony record isn’t enough? Six months behind bars is a slap on the wrist? Stigmatization of the sex offender registry is of no consequence?

Those who believe the punishment does not fit the crime live in a dream worWhat explains our penal savagery?

I suspect it is at root the same violent instinct that leads us to shoot one another in one mass shooting, or isolated act of violence, after another. We boast of being the land of the free and the envy of the world, yet our streets are blood-soaked, and the prisons are filled with despair.

We’ve each the right to define ourselves, to declare our identity, and then to demand that our idiosyncrasies be treated as sacrosanct, if not sacred. Deny my identity, and you’re now guilty of the new heresy. Heretics, we know, must be burned at the stake.

The stench hanging in the air is smell of fear. What else can explain the unusual politics of this electoral season than a full-scale legitimation crisis? Not many of us believe the creeds we were taught. Everyone is groping for something secure, some foothold in a world in flux.

I envy historians the task of deconstructing and explaining our time, the time the center gave way, and we scattered, each of us driven to extremes by our desires.

My hunch is that a secular society just can’t work; we’ve lived for a couple centuries now on borrowed spiritual capital. Intellectuals long ago declared God is dead; now that the masses have read the memo, we’re suddenly all at once governed by, and at war with, our desires.

Consider our attitudes toward sex. We have a morbid preoccupation with sensuality, at once reveling in it and then condemning anyone who colors outside the lines.

Sex is entertainment. It is advertising imagery. It is desire unleashed. We celebrate sexuality in a way that cannot help but send mixed and confusing signals to the young.

Then, when a young man makes a mistake, when he takes seriously the notion that there can be intimacy without consequences, we declare him a criminal.

I call this species of hypocrisy sexophrenia — it’s a moral mania, a species of mass hysteria.

Judge Persky, it appears, called the hysterics’ bluff. He refused to crucify a young man who made a horrible mistake, and, for this, the new Puritans among us want now to destroy Judge Persky.

Have we lost our minds?

A few weeks ago, a federal judge in Connecticut sentenced a popular former prosecutor turned defense lawyer to 30 days in prison for the theft of $600,000 from a client. The sentence sent shockwaves through the defense bar — how could this leniency be explained to less popular defendants facing far more time for similar crimes?

I took some consolation in the sentence. Perhaps it was a signal that the judiciary is now beginning to understand that prison is not the answer. Locking folks up for years and years isn’t justice; it’s institutional savagery.

Why not start with the presumption that 30 days is enough time for anyone convicted of theft of funds? That would be a start.

So, too, in the case of Mr. Turner. Why isn’t six months in prison, a felony conviction, probation, sex offender registration enough of a sanction for a drunken assignation at a frat party?

To utter these words publicly is to court outrage. I will be accused of tolerance of “rape culture.” We need to send a message that this sort of violence won’t be tolerated. Campuses must be made safe. Messages must be sent.

Oh, please.

Spend a night in prison and then tell me six months isn’t enough time. Save us from the self-righteous among us.

Judge Persky may well be recalled from office as a result of what his critics believe was undue leniency toward a rapist. A mob will have silenced a jurist guilty of doing nothing more than using his judgment to impose a sentence he thought fair, just and reasonable.

Other judges, less courageous than he, will get the message. They’ll feed the penal plantations in our midst other young men as a result.

All we like sheep have gone astray. Passion replaces reason; identity trumps integrity.

What a world, the Wicked Witch of the West said as she was dissolved by the water Dorothy doused her with in “The Wizard of Oz.”

What a world, indeed. The bonds of civil society are dissolving in the name of righteousness. I admire Judge Persky’s courage.

Related topics: Journal Register Columns
Comments (2)
Posted on August 16, 2016 at 9:01 am by David
Perky
Attorney Pattis, This is a great post. But how do you explain the 30 day sentence to the former prosecutor? How is the next guy that gets a guidelines sentence supposed to make sense of it? It would be great to hear your perspective.

Posted on June 17, 2016 at 7:50 pm by Stephen Douglas
Persky
Great essay! Everything you wrote is completely dead-on. The nightmare of America is this insane bloodlust for incarceration and punishment, this anti-sex bent that has taken over this country. It's getting to be time for a re-set. One of these days...
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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