In a major political struggle in California the interests of women and ethnic minorities
were placed in opposition to each other. A lenient judge was recalled and will be replaced with a prosecutor.
What happened?
To understand this, you must understand the problem of mass incarceration and how it
works in court. Reading Michele Alexander’s superb book “The New Jim Crow” is a good beginning, but it doesn’t attempt to acquaint you with the day-to-day functioning of criminal courts. Criminal courts process large numbers of people, not unusually herding them into court
like cattle. Court is so inhuman that no communication, such as mom throwing a kiss to her son in custody, is allowed.
When a person has pleaded guilty or has been convicted by a jury, the probation
department writes a report which is submitted to the sentencing judge. It goes over the defendant’s record: criminal, employment, education, family. It recommends a sentence—incarceration, probation, restitution, etc. The judge reads it, and most judges rubber the report’s recommendation.
Not former Judge Aaron Persky. He didn’t blindly and mechanically shovel people into the gaping maw of mass incarceration. He was known for giving black and brown young defendants a second chance. He did the same for Stanford athlete Brock Turner, treating him with the same leniency he accorded to others. But this sparked an outcry and eventually a successful recall campaign, led by Stanford Law Professor Pam Dauber, who was a family friend of the victim.
The allegation against Turner was that he dragged his victim, who was unconscious from
alcohol intoxication, behind a dumpster where he penetrated her with his fingers. The victim, who like Turner was a Stanford student, was very articulate and wrote a
moving victim’s statement, which she read at sentencing. Judge Persky adopted the probation officer’s recommendation with some modification, which is not unusual for a judge to do. He sentenced Turner to 6 months in jail (of which he served 3 months) and to register as a sex offender the rest of his life.
If one objected to the system under which judges usually approve the probation officer’s report, the sensible thing to do would be to change the system. But Prof. Dauber limited her protest effort to recalling this one judge, leaving the system of mass incarceration, which includes rubber stamping probation reports, untouched.
The defenders of Judge Persky put forth the same argument that failed for former Chief
Justice Rose Bird in 1986: the recall threatens the independence of the judiciary.
This factor is, in fact, opposed to another principle: the judiciary should be responsive to the wishes of the people. The people are strongly in favor of the latter principle, and merely defending on the basis of the judiciary’s independence was bound to fail. The successful recall has had some effect on local judges, who don’t want to end up in Persky’s position. Whether that is a good or bad thing remains to be seen.
With the recall Prof. Dauber got rid of the most lenient judge who will be replaced by
a former District Attorney, a prosecutor. A prosecutor is a minion of mass incarceration and will not do lenient sentencing. It seems likely that the new judge will be what on the frontier used to
be called a “hanging judge.”
Further, Prof. Dauber created an atmosphere to intimidate judges who might want to act in a lenient way, particularly in a case involving a sex offense.
The net effect of the recall was to exchange a lenient judge with one who is likely to
sentence more harshly. The system of probation reports being rubber stamped and people swept into mass incarceration remains unchanged.
One thing has changed. There is a vacuum of leadership for the women’s movement. It
has no real national leaders. The mainstream media is working to propel Prof. Dauber into this position. For example, The San Jose Mercury News not only mentioned her in articles about the Persky recall campaign, but on June 10, 2018, after the recall campaign, gave her front page
coverage. The article amounted to a feature on Prof. Dauber and any future plans she may have.
The message to women was: This is your leader. She focused on a sex offense by one man. She attacked and eliminated a decent judge. Judge Persky was in family court in San Jose for years before he was routinely transferred to criminal court. In family court he was no worse than other judges. I know this as family court was where I practiced law up to April 2018. When a family judge was outstandingly bad, women would complain to me. They didn’t complain en masse about Judge Persky. It is true that family court is very misogynist (which doesn’t negate some dads being mistreated). Most lawyers practicing in family court are numb to this and will claim the court is gender neutral.
Judge Persky’s actual problem was that he would go along to get along in this environment, as he blended into the system of mass incarceration in criminal court. But Dauber’s
claim that he was lenient on Stanford athletes in sex cases was unfounded, at least, she never produced an ounce of evidence to support her claim. She is now the new designated leader—the one the mainstream media tells women: She is your leader.
I don’t believe in identity politics that tell women that men are the source of all societal ills, that all men are naturally criminals and rapists. The source of societal ills is the horrible system we live under which includes mass incarceration and more and more an oligarchy. That is
what I will fight against.
