In January 2015, Stanford undergraduate and former Team USA swimmer Brock Turner was arrested after raping an unconscious woman behind a dumpster near a fraternity. When two graduate students on bicycles encountered the scene, Turner tried to flee. The other students caught him and held him until the police arrived.
Turner told police he penetrated the victim but claimed it was consensual. However, his behavior, as well as the fact that the victim remained unconscious for several hours after Turner was caught, told a different story.
Slam-dunk case, right? Indeed, Turner was convicted in March on three felony sexual assault charges. Considering how rare prosecutions of and convictions in sexual assault cases are, the three convictions seemed like a victory.
But on June 2, trial judge Aaron Persky sentenced Turner to just six months in county jail, with the possibility of release after three. (Turner will also have a probation term and will be required to register as a sex offender.) The prosecution had recommended six years in prison out of a possible 14. But Judge Persky expressed concern that a longer sentence might have a “severe impact” on the defendant.
There are many reasons why Persky’s sentence of Turner has infuriated so many. One is that Turner is a white, wealthy kid whose relatively light punishment seems directly tied to his privilege. A rapist who is smart or a rapist who is a good swimmer should not be punished differently than a rapist who is poor, uneducated, or a person of color. As Ken White wrote recently for Mimesis Law:
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.
From reporting to investigating to prosecuting, every step of the criminal justice process is more difficult if the crime is one of sexual violence. Statistics and the work of advocacy groups like RAINN and End Rape on Campus show that sexual assault victims tend not to report for fear they will not be believed. Research has shown that police untrained for these situations—that is, most police—interrogate sexual assault victims as though they are defendants. When victims do report, prosecutors often not opt to take the case to trial. For an assault conviction to result in such a lenient punishment makes all of this difficult work seem Sisyphean. Why even go through the difficulties of reporting at all if an empathetic judge can swoop in at the last minute and gift the convicted felon with a slap on the wrist?
A person might even go so far as to wonder whether there should be some sort of mandatory minimum sentences for sexual assault. After all, getting caught with a single gram of LSD currently carries a mandatory sentence of at least five years in prison—without the possibility of parole.
While those calling for tougher sentencing guidelines are motivated by a sense of moral outrage, America’s justice system doesn’t exactly have a leniency problem. The Bureau of Justice reports that over 2.2 million people were incarcerated in the US in 2013, about 1 out of every 110 adults. (The percentage of the population under penal supervision—including parole and probation—is much higher.) By any metric, we live in a carceral state.
One of the biggest causes of this epidemic is exactly the kinds of long prison sentences that result from mandatory minimums. These measures disproportionately punish poor people, addicts, women, and people of color. Jeremy Haile of the Sentencing Project noted that The Sentencing Reform and Corrections Act could lead to a dramatic decrease in the federal prison population: “More than 5,000 of the bill’s beneficiaries—about 80% of them African American—are serving lengthy prison terms under discriminatory crack cocaine laws.”The purpose of mandatory minimum sentencing laws is to remove discretion from the hands of judges. They force judges to hand out sentences without taking into account the context of individual cases.
Joseph E. Kennedy is a professor at the University of North Carolina at Chapel Hill who specializes in prosecutorial discretion. He, like Persky, is also a Stanford alum. “There is an inherent tension in sentencing between having judges make consistent decisions across the board and having them make contextual that are fair to the facts of the particular case,” Kennedy says. “It is a choice between rival goods. We want both. It’s a matter of where you strike the balance.” Unfortunately, history showed that mandatory minimum sentence laws shifted the balance in an ultimately harmful direction.
In an unfortunate paradox, Kennedy notes that cases such as Brock Turner’s spread harmful misconceptions about the judiciary system. “A judge will make a bad judgment in a particular case, and that will lead to the opinion that judges have too much discretion, when really the opposite is true,” he says. “If you take away a judge’s power to make bad sentencing decisions, then you also take away a judge’s power to make good sentencing decisions.”
So what is the solution? What happens when judges like Persky or Justice William Horkins, the judge in Jian Ghomeshi’s trial, get it so, so wrong? Get better judges, according to Kennedy. “Taking away sentencing discretion is like letting the tail wag the dog.” The answer is instead to “take the bad judges out of the courtroom.”
We need to train our police to treat victims of sexual assault properly. We need to call attention to, and if possible oust, judges who do their jobs poorly. But removing discretion from the hands of judges, as history has taught us, only puts people arguably less culpable—and certainly less able to defend themselves—than Brock Turner behind bars.