The culture of mass incarceration has warped our psyches into thinking that lengthy jail or prison terms are always the answer to criminal behaviors like sexual assault.
This culture of mass incarceration has so shaped our minds that when a jurist—like Santa Clara County Judge Aaron Persky in the case of Brock Turner—undertakes a holistic sentencing analysis that accounts for both the victim and the convicted, we still insist on arbitrary, lengthy terms of incarceration as the response to crime.
Mass incarceration is largely a result of judges who have either not utilized discretion in sentencing or who have been deprived by state legislatures of discretion. This lack of discretion has manifested in draconian sentences and overfilled prisons.
Rather than using robotic, one-size-fits-all punishment schemes, we want jurists, like Judge Persky, to engage in thoughtful, case-by-case, individualized determinations of the appropriate sentence for a particular crime and particular offender.
The efforts to remove Judge Persky may have unintended, unfortunate consequences. We want the humanity of all people, regardless of background, to be recognized in sentencing.
However, when we as a community reprimand or condemn a judge for engaging in such a holistic analysis and for exercising discretion, such efforts can have a chilling effect on judicial courage and compassion.
The punishment or removal of Judge Persky in response to his exercise of discretion could lead to policies that limit that discretion, will deter other judges from extending mercy and instead encourage them to issue unfairly harsh sentences for fear of reprisal.
I fear that this shift will disproportionately impact the underprivileged and minorities in our communities and perpetuate mass incarceration.
There are various purposes of punishment, not just retribution: deterrence (specific and general), rehabilitation, incapacitation and denunciation. Judges juggle these various factors and assign varied weights to each depending on the circumstances present in the case and the offender before them. Rehabilitation of the offender can be as important a factor, if not more, than the period of incarceration imposed.
In this case, after the jury found Mr. Turner guilty, the Santa Clara County Probation Department submitted a probation report along with a recommendation to the judge about the appropriate sentence. This report would include a summary of the offense, an interview with the victim, an interview and analysis of the offender, and then a breakdown of statutory aggravating and mitigating factors and sentencing criteria.
With regard to Mr. Turner, the probation department recommended, based on all of the circumstances and factors of the case, that he receive a county jail sentence along with probation supervision. Judge Persky fairly applied those factors and rendered a reasonable, thoughtful sentence within the confines of the law. He should be applauded for exercising discretion and mercy, not demonized.
The sentence Judge Persky imposed upon Mr. Turner is exactly what I would want for a public defender client of mine under similar circumstances. Mr. Turner, just 20 years old, had no prior criminal history and an exemplary record as a student-athlete. Probation, rather than prison, is the expectation for such an offender.
County jail coupled with probation supervision provides a first-time offender the opportunity to rehabilitate in the community and prove themselves worthy of avoiding prison. It is the sentence we would want for our brothers, our sons, and our friends if they were convicted of crimes, even sexual assault, for the first time like Mr. Turner. The lack of empathy for him is astounding.
My only outrage about Judge Persky’s decision would be if similarly situated public defender clients, particularly minorities, receive harsher sentences than Mr. Turner from Judge Persky; but no one has cited any such example. In fact, many colleagues in my office who appear before Judge Persky believe that a public defender client who wasn’t white or affluent would have received the same type of sentence from him.
Mr. Turner didn’t get off easy. There are many punitive, harsh layers of the sentencing that the headlines don’t capture. He received six months jail with formal, felony probation. Anyone questioning the severity of six months jail should spend one night in jail and then tell me Mr. Turner got off light. Six months of confinement should never be diminished.
Mr. Turner is now a convicted felon, a branding he cannot shake for the remainder of his being. He must register as a sex offender for the rest of his life. He must pay the victim restitution for any damages or losses she suffered. A probation officer will vigorously supervise him and require that he participate in various programs like substance abuse counseling and sex offender treatment.
If he violates his probation by failing to comply or by committing a new crime, he can still be sentenced to up to 14 years in state prison.
Not exactly lenient.