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.