Mimesis Law
22 November 2017

A Defense of Judge Perksy’s 6 Month Sentence of Brock Turner

June 17, 2016 (Fault Lines) — You may have heard that Brock Turner, a former Stanford student and champion swimmer, was convicted of assault with intent to rape a drunk woman. He was drunk, she was passed out drunk, and he was sexually penetrating her behind a dumpster. She remembered nothing about the assault later, but Turner claimed it was consensual. The nurse examiner said it was more like trains colliding. It all sounds quite terrible.

Because campus rape is a hot button issue, this case was grabbing headlines even before Turner’s sentencing. But it was the sentencing that turned this case into a complete media circus. First, dad did his son no favors by saying that a long sentence would be a steep price to pay for “20 minutes of action.” Then a childhood friend and member of the band Good English wrote a letter supporting Turner by victim blaming. And, no surprise, his mom still loves him. No one really cared about mom’s letter, but the other two letters became news stories of their own.

Fault Lines cross examiner and managing editor said this about one of the letters:

A serious concern is that letters in support of a defendant, particularly for a heinous crime, are often hard to obtain. People are understandably reluctant to connect themselves to criminals, fearing that any support will come back to bite them in the ass. That Leslie Rasmussen’s letter not only brought a shitstorm down on her, but on her sisters, their band, is the sort of thing that will deter people from getting involved, from putting their lives and reputations on the line to help a defendant facing sentence.

But then, few people would have written the letter Rasmussen wrote. And few lawyers would have allowed that letter to see the light of day. This case is an outlier in every respect, and none of it good or right.

Hopefully, the lawyer did not solicit this letter and submit it unread, and it was instead an unsolicited action by the childhood friend. In any event, the crime and the letters were not the real story. The judge was the main story. This is largely because the judge sentenced Turner to three years’ probation and six months of jail time instead of 14 years of prison time. Prosecutors had asked for six years.

At Fault Lines, Ken White has a great post, which touches on the judge’s possible motivations:

Here’s the problem:  the judges are human, and they’re humans who have enjoyed enough good fortune to become judges.  The quality of their mercy is strained through their life experiences, which don’t resemble the life experiences of most of the defendants before them.

Judge Aaron Persky empathized with Brock Allen Turner and could easily imagine what it would be like to lose sports fame (as Persky enjoyed), to lose a Stanford education (as Persky enjoyed), to lose the sort of easy success and high regard that a young, reasonably affluent Stanford graduate (like Persky was) can expect as a matter of right.

Judge Persky could easily imagine how dramatically different a state prison is from Stanford frat parties, and how calamitous was Turner’s fall.  That’s how Judge Persky convinced himself to hand such a ludicrously light sentence for such a grotesque violation of another human being. ***

This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him.

Another way of saying this is because the judge doesn’t really know and cannot know what sort of life Turner will lead after this conviction, the judge falls back on mental heuristics to fashion the appropriate sentence. And further because of the judge’s background, he was biased to weigh collateral consequences more heavily in this case than he might have in other similar cases.

Ken then sums it up by saying:

There are two ways to see good fortune and bad fortune.  You can say “someone who has enjoyed good fortune should be held to a higher standard, and someone who has suffered bad fortune should be treated with more compassion.”  But America’s courts are more likely to say “someone who has enjoyed good fortune has more to lose, and someone who has suffered bad fortune can’t expect any better.” * * *

When a judge says you are very fortunate and therefore it would be too cruel to interrupt that good fortune just because you committed a crime, they are not being fair.

One the other hand, collateral consequences of a conviction are usually things criminal defense attorneys argue to court in order to lessen the criminal sanctions imposed. Similarly, Doug Berman has asked if we use prior bad acts to enhance sentences, then prior good acts, such as military service, would be the flip side to that, i.e. lessening the punishment. But then, this was rape and he is seemingly a privileged, white man, so it’s all different because post-colonialism—or something.

Ken’s comment suggests that all of these considerations are unfair because people who have done good things and have more to lose collaterally should still get same sentence as an offender with a lengthy history and no positive contributions to society—other than filling a space in mom’s heart. This appears to suggest that all defendants should get cookie-cutter sentences. Interestingly, that is a similar line taken by pro-prosecution bloggers such as Paul Cassell and Bill Otis. Even Scott Greenfield was disinclined to defend the sentence.

So, I am going to attempt what no prosecutor does in a case like this where the judge’s sentencing decision is way, way below the recommendation and/or maximum, defend the judge. Not the sentence itself, but the judge. Maybe this is because I just miss doing defense work or maybe Scott hurt my feelings suggesting I was a tyrant. But at the end of the day, it takes a prosecutor to do the job that criminal defense attorneys used to do but won’t do anymore.[i]

First of all, the judge’s actions were authorized by law. If the legislature (the people’s body) authorized the judge to make this sentence, then the primary blame rests with them. The pitchfork and torch mobs should be going to the legislature demanding change, instead of trying to recall a judge for legally exercising the discretion the legislature vested in him.

Similarly, we can infer from the broad range of sentence available to the judge that the legislature intended for the judge to consider a wide range of factors in reaching the sentence. Otherwise the sentence would have been highly determinate or with a much smaller range. This implies that the judge is intended to exercise a great deal of discretion.

Like Judge Kopf, I am unfamiliar with California’s sentencing scheme. But in Ohio, there used to be a presumption of the minimum sentence in all cases and there still is a presumption of probation in lower degree felonies. But if the legislature provides for no guidance on the exercise of judicial discretion, or does so in a way favorable to defendants, then that’s not the judge’s fault. Indeed, the probation’s officer’s report only refers to rules of court guiding the judge’s decision, which are rather vague and general.

Further, the judge is often asked to choose between two extreme positions. The prosecutor is generally charging the most serious offense readily provable. Thus, a sentencing recommendation after a jury trial usually tracks closer to the maximum than the minimum available sentences. On the other hand, criminal defense attorneys try to find every way to mitigate the behavior and minimize the sentence. Due to the extremes in advocacy, the federal sentencing guidelines is an effort to give the judge an objective recommendation. There appears to be nothing like that here, except the probation officer’s report.

And that report supported the judge’s sentencing decision. In fact, the judge’s sentence was at the top end of what the probation officer recommended. Moreover, the victim herself appeared to support a lenient sentence, although she later seemingly denied that. Plus, according to the probation officer, the offender took responsibility. Granted it was after a conviction, but there are a significant number of defendants who never accept responsibility. And we’re told that defendants exercising their right to have a trial shouldn’t be taxed for that. Remorse is still mitigation, right? Plus, he was a first-time offender, who was a relatively low risk to re-offend and would suffer significant lifetime consequences from this conviction.

Another consideration that potentially militates against Ken’s unfairness argument is California’s prison overcrowding issue. It’s conceivable that the judge believed that Turner would have received early release anyhow, so why bother sending him to prison. Also, it’s entirely possible that the judge was aware of other, more dangerous offenders who he had sentenced receiving early release due to over-crowding. If that’s the case, then sending Turner to prison instead of jail would have accomplished little.

These are all reasons we should put out the torches and drop the pitchforks. If anything, it appears California has a systematic problem with sentencing and incarceration, which a single trial judge can do nothing about. Is there more to Judge Persky’s decision being wrong other than our gut feeling that this was an injustice, perhaps something objective? If not, maybe that’s just our own personal bias talking.

[i] Of course, I imagine as the prosecutor here, I would have been quite upset; so, just stop right now with that objection.

16 Comments on this post.

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  • Matt Norwood
    17 June 2016 at 11:26 am - Reply

    I was following your argument until I got to this:

    “Ken’s comment suggests that all of these considerations are unfair because people who have done good things and have more to lose collaterally should still get same sentence as an offender with a lengthy history and no positive contributions to society—other than filling a space in mom’s heart.”

    No, it suggests no such thing. You’re arguing against a straw man. I’ll give you the benefit of the doubt and assume you completely misunderstood Ken’s post instead of assuming you’re misrepresenting it in bad faith.

    First of all, your term “good things” is really confusing: are you saying that a rich kid who gets into Stanford and joins the swim team has done “good things”? Sure, I guess — good for himself. He hasn’t made any “positive contributions to society”, as you put it. He didn’t work at a battered women’s shelter or invent a cure for cancer — he pursued an educational path likely to lead to a career as remuneratory as that of his wealthy parents. Ken’s argument simply says that fortunate, rich, privileged kids on a fast track to personal wealth like Turner shouldn’t get lighter sentences on account of their already substantial privileges and advantages.

    So that covers the “rich kid” side of Ken’s argument. The flip side is that Ken says that poor kids with lives that are already bad should not get heavier sentences on account of their already shitty circumstances. Yet you’ve characterized these kids as “offender[s] with a lengthy history and no positive contributions to society”. What the fuck are you talking about? Every poor kid has “a lengthy history”? Meaning what exactly? Every poor kid has made “no positive contributions to society”, unlike Turner?

    Your argument is so… confusing (I’m not going to impute dishonesty to you)… that I fear there may be a fundamental disconnect between us. Do you actually regard being rich as a “positive contribution to society”, and being poor as somehow grounds for criminal culpability (“an offender with a lengthy history”) in and of itself? If so, I can certainly understand why you would defend the lenience of Persky’s sentence, but it’s a revolting attitude.

    Personally, I don’t have a strong position on the sentence one way or the other, but in general I find Ken’s argument about how it illustrates sentencing disparities to be very compelling.

    • shg
      17 June 2016 at 11:44 am - Reply

      You do realize that you can impute dishonest or stupidity to Andrew. It’s not as if he is deeply concerned about what you, whoever you are, think of him. I would hate for you to feel constricted. Carry on.

  • Andrew King
    17 June 2016 at 11:42 am - Reply

    Matt,

    I referred to “good things” as the items Ken specifically mentioned regarding Turner, e.g. Stanford education and sports fame. Then, Ken turned to talking about the system more broadly. The section you quoted was intended to capture both aspects of Ken’s arguments. I intended for it to serve as the most neutral word for something different than bad conduct, as I later contrast it against the bad conduct that usually increases punishment.

    Regarding your second point, I invite you to go back and read what I actually wrote, starting with “Ken’s comment suggests….” But if you want to read it as bourgeois statement critical of the proletariat, that’s you’re call; I can’t help you with that.

    • Matt Norwood
      17 June 2016 at 3:00 pm - Reply

      Andrew, I’m not being disingenuous when I say that I don’t understand this part of your argument. I don’t think that’s entirely my fault, for the reasons below.

      Ken’s argument is premised entirely on good fortune vs. bad fortune. He says that it’s unfair to punish people who have already had bad fortune more than those who have had good fortune. He even goes so far as to suggest that, if anything, the reverse should be true.

      You quote Ken’s comments to this effect, and then immediately start discussing two hypothetical defendants: the first has “done good things”, while the second is “an offender with a lengthy history” who hasn’t made any “positive contributions to society”. I think it’s reasonable to read this passage and conclude that:

      1. You are contrasting “doing good things” on the one hand with past criminal offences and making no “positive contributions to society” on the other. “Doing good things” certainly doesn’t read as “neutral”, either on its face or as you’ve used it.

      2. You are not addressing Ken’s argument. His argument had to do with good fortune and bad fortune. You are discussing good (laudable, pro-social) conduct vs. bad (criminal, anti-social) conduct. The fact that you’ve positioned your comments as a response to Ken’s reads as either a misunderstanding or a mischaracterization of his actual argument.

      I thought that my initial comment set this out pretty plainly.

      Your response now is still confusing to me. Ken never uses the term “good things” in his post. You don’t include the term in quotation marks or otherwise indicates that it’s in reference to anything in Ken’s argument. It’s your term, not Ken’s, and you’ve used it in the way I indicate above at (1) — a way that, as I said, is hardly “neutral”.

      • Andrew King
        17 June 2016 at 3:37 pm - Reply

        Matt,

        I didn’t take Ken to say it was good or bad fortune as meaning entirely the product of luck or immutable circumstances. In particular because being a champion swimmer and getting into Stanford aren’t exclusively owed to good luck. Plus, sentencing never completely absolves the defendant of some agency, plus there’s usually a required mental state. So, I don’t take Ken’s use of good and bad fortune to mean the absence any agency.

        In any event, I recognize that my point is slightly different than “exactly” what Ken wrote, which is why I signaled that to the reader by writing “Ken’s comments suggest…” instead of saying “Ken said.” Also, what exactly Ken meant, said, and how I personally interpreted isn’t strictly necessary to support my premise. That’s true even if Ken posted here, ‘you’re wrong stupid.’ So, this seems like an unnecessary misadventure.

        Despite you saying you’re not disingenuous, it’s getting increasingly difficult for me to believe. I didn’t say doing good things are neutral. In fact, I was careful to say I meant to use good things as the opposite of doing bad things. I used the word neutral to explain why I chose the word as an adjective, not as a way to define good.

        A point mention but not expanded on above is that first-time offenders often get credit for being a law abiding citizen. Sure we expect that out of everyone, but for whatever reason you wish to believe, it often gets considered as a mitigating factor against harsh punishment in many instances.

        You can quibble over whether doing what you are supposed to do is morally and meta-physically good or merely neutral. But in this context it doesn’t really matter.

  • Dawgzy
    17 June 2016 at 2:02 pm - Reply

    Does the Judge have a sentencing record in rape cases? Is there anything to indicate that there is or is not a double standard here?

  • E Hines
    17 June 2016 at 2:11 pm - Reply

    But then, this was rape and he is seemingly a privileged….

    This may be the way it is, but–naif that I am–this was rape. Full stop. He should get a rapist’s penalty.

    First of all, the judge’s actions were authorized by law. If the legislature (the people’s body) authorized the judge to make this sentence, then the primary blame rests with them.

    No. His sentence was authorized, but he was not required to issue that sentence; he did that entirely of his own volition. Furthermore, the sentence being authorized in no way makes it right, only legal. In Texas, if I catch someone breaking into my property–my home or my car, for instance–I’m allowed to shoot him. I’m even allowed to shoot him in the back as he runs away, so long as I’ve maintained contact. Even for this naive redneck Texan, though, that last would be murder, morally, albeit not legally.

    Whether California’s legislature ought to alter the parameters of its authorization is a separate question.

    Similarly, we can infer from the broad range of sentence available to the judge that the legislature intended for the judge to consider a wide range of factors….

    Of course. But what factors relevant to the case before him did he consider? I’ve not read the trial record, but you’ve only listed, via your cite of Mr White, a brief catalog of irrelevant similarities of history between the judge and the defendant. …because of the judge’s background, he was biased to weigh collateral consequences more heavily in this case than he might have in other similar cases. Sure, the judge is human and subject to the emotional vagaries of humans. But he’s highly intelligent, he’s highly educated, and he holds a post of great responsibility for which he’s a volunteer (if only because he accepted the posting) and heavily trained. Each of the two of those last–responsibility and training–if not each of the three, mean he not only must be held to higher standards than the rest of us, he must perform to them. In the present case, he must put aside that similarity of personal history and sentence based only on factors relevant to the case. That this particular defendant was a youthful adult and so had at best a very short list of atta-boys with which to counterbalance his rape (which in no way can be considered a mere aw shit) isn’t relevant to the price a rapist should be held to pay. The salient fact here is that rape. It wasn’t statutory rape involving two minors consenting as well as minors can. This was an adult taking advantage of a plainly helpless woman to positively rape her.

    A chauvinist aside. When a man encounters a woman who is in no position to take care of herself, whether she simply is too lost to have any judgment or physical coordination or she’s completely unconscious, that increases the premium on men. It’s not enough here simply to do nothing; we must step up and actively give support and protection. Sort of like two Swedish bicyclists did.

    Further, the judge is often asked to choose between two extreme positions. …
    And that [probation officer’s] report supported the judge’s sentencing decision. In fact, the judge’s sentence was at the top end of what the probation officer recommended.

    The judge certainly should take such reports, as well as the prosecutor’s and defense’s recommendations, seriously, but he is not bound by them. He’s the sentencing authority (or the jury is, depending on the jurisdiction), not any of these others. Even with formal sentencing guidelines. Yes, it’s hard to go against guidelines, too, but hard means possible.

    the offender took responsibility

    What does this mean, exactly? He…apologized? He shed a tear? What did he do, concretely, to act on that taking of responsibility, to make his victim whole?

    he was a first-time offender

    This is foolish. This was no mere robbery or burglary or possession. He inflicted a lifetime penalty on his victim. That he’s never raped before isn’t relevant. That he’s never robbed or burgled before doesn’t enter into it. Maybe, he has possessed, but that may only be a rumor.

    Another consideration that potentially militates against Ken’s unfairness argument is California’s prison overcrowding issue. It’s conceivable that the judge believed that Turner would have received early release anyhow, so why bother sending him to prison.

    My understanding here is that California’s over-crowding early release program applies only the city and county jails, not to the State’s prisons.

    …California has a systematic problem with sentencing and incarceration, which a single trial judge can do nothing about.

    If this was the judge’s thinking, it’s a chickenshit cop-out. He doesn’t get to throw up his hands and surrender, even if he might be just tilting at windmills. This is a windmill that needs tilting at. He still–as a judge–must sentence in accordance with the crime committed, even when that’s inconvenient to him.

    The judge screwed up. Whether the magnitude of his screw-up warrants his removal from the bench is a matter for the people of California to decide. He’s their judge.

    Eric Hines

    • shg
      17 June 2016 at 2:20 pm - Reply

      Before we go through the next wave of “but he wasn’t convicted of rape,” no, he wasn’t convicted of rape. Carry on.

      • E Hines
        17 June 2016 at 3:31 pm - Reply

        He was convicted of assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object.

        What material distinction (not the artificial legal distinction) exists between rape and these specific convictions?

        Withal, substitute your legalist jargon for mine in all instances; I stand by my argument.

        Eric Hines

        • shg
          17 June 2016 at 3:42 pm - Reply

          You can call it cornflakes for all I care. But when it comes to crimes, “legalistic jargon” is kinda the point. Nobody gets convicted for being murderish. You, on the other hand, are free to believe whatever you like.

  • Matthew Melewski
    17 June 2016 at 2:24 pm - Reply

    You begin this post by quoting others, who present arguments contrary to yours. You do so reasonably, and those arguments are compelling. Then, without any warning or transition, you characterize them with a disparaging non-sequitor:

    “But then, this was rape and he is seemingly a privileged, white man, so it’s all different because post-colonialism—or something.”

    What is the point of this? It doesn’t rebut anything. It wasn’t asserted as a rationale by any of the contrary commenters. It just seems like a catch-all sneer you summon to remind yourself that all opinions looking vaguely SJW-friendly must be stupid (I am speculating, which seems fair given that it is otherwise inexplicable).

    You then offer that the judges’ decision was lawful, which is mysterious. No one suggested it was unlawful, and its lawfulness says nothing whatsoever about the moral reasoning presented by Ken White and others.

    Your overcrowding argument is, miraculously, even more baffling. Did Persky refer to overcrowding or the realities of sentencing in CA? No. Is overcrowding of the state prison system a legitimate factor in an individual sentencing determination, whatever the ostensible philosophical goals of the punishment scheme? No. So how does this help explain anything or contravene any of the arguments presented? Worse, you seem to rebut your own argument, saying Persky can’t do anything about overcrowding anyway:

    “it appears California has a systematic problem with sentencing and incarceration, which a single trial judge can do nothing about.”

    So your explanation is that Persky did something no one has suggested, which in no way justifies his decision even if it was true, and which would not have been effective even at its unrelated ostensible purpose. I struggle to imagine how this could be less persuasive. And yet you have the hubris to summarize by declaring that the myriad compelling arguments contra the sentencing decision, which you haven’t even addressed, let alone rebutted, amount to nothing more than “gut feelings” resulting from “personal bias.” Pathetic.

  • Greg Prickett
    17 June 2016 at 2:30 pm - Reply

    Like Andrew, I don’t have a problem with the sentence, primarily because of what the victim had reportedly told the probation officer preparing the sentencing report.

    Of course some of that may be that I’m from Texas, and we are still known sentence people to probation for murder…

  • Brittany
    20 June 2016 at 1:17 pm - Reply

    The key word here is “Stanford.” On the face of it, the Judge was doing a favor for a fellow Cardinal. The optics are not good.

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