The recent sentencing of Brock Turner, the Stanford student convicted of sexual assault on an unconscious woman while she was face down on the pavement behind a dumpster, has generated a firestorm of debate. The sickening details of the attack, his refusal to admit culpability, and the odor of entitlement that wafts from his and his father’s sentencing statements make Turner a very unforgiveable offender. But the judge in the case, Aaron Persky, gave him what virtually everyone considers a slap on the wrist: 3-6 months in jail and three years of probation. Petitions to impeach the judge have already garnered millions of signatures, prospective jurors in Santa Clara County are refusing to serve if Judge Persky presides, and even some of Turner’s own character witnesses have said that they disagree with the sentence. But everyone should slow down for a minute and carefully consider the details of the sentencing.
First, the newly convicted felon is far from “free to go” even if he can get out of jail in the minimum of three months, and his incarceration can be extended if he misbehaves. The conditions of his probation have not been made public, but it is likely that he will be on a very short leash; he will be on a curfew, be made to wear an ankle bracelet, and have to submit to regular drug and alcohol tests, given that the crime involved a copious amount of alcohol. Failure to comply with these requirements will send him back to court, and likely to jail or prison. That is what probation is for, to test a person’s ability to change his behaviors; fail the test and suffer the consequences. For example, consider the notorious case of the affluenza teen in Texas who got probation after killing several people while driving drunk. He couldn’t adhere to his probation restrictions and is now serving time in prison.
Secondly, the judge followed the recommendations of the county probation office, which cited the lack of a criminal record, Turner’s youth, and his prospects for rehabilitation (usually measured by purportedly objective risk assessment instruments.) A female probation officer interviewed the defendant, the victim, and other parties, and the judge apparently followed her report closely, possibly completely. Some brave attorneys have risked public rebuke and gone on record to state that the recommendation and sentence comport with the usual practice in Santa Clara County, and that the judge, a former prosecutor, is fair and balanced in his rulings. It is always very difficult to ascertain the correct sentence, if there is such a thing, but blaming the judge in this case focusses too narrowly on one actor in the system.
Third, it has largely gone unmentioned that Turner, as a registered sex offender—for the rest of his life—is effectively under the control of the justice system forever. Wherever he goes and whenever he changes his address he will have to register or face jail. His career choices will be severely restricted, above and beyond the innumerable restrictions placed on all felons. Many persons listed on sex offender registries are guilty of the crime of consensual sex, albeit with someone a year or two younger but under the age of consent. The registries are another example of the American impulse for overly harsh punishment. People on the registries can have very significant problems finding employment and housing, and often suffer public humiliation and attacks from vigilantes, years after the crime took place, and even in cases where the offender and the “victim” eventually marry.
There is a rising consensus that reflexive and interminable incarceration, even for violent offenses, is not a just, or sound, policy. As one Santa Clara attorney put it, “We lock up more people in the U.S. than anywhere else in the world. To what end in this case?” America is, famously, one of the few places in the western world that still has the death penalty and life sentences. As a general policy, “lock ’em-up and throw away the key” is not a good solution, especially for young first offenders and Turner is only 20 years old. There is solid neuroscience research showing that personality—particularly impulsivity—is plastic in many people under 24 years, and scholars argue that this fact should lead us to emphasize rehabilitation and not punishment.
All victims of rape are horribly wronged and injured and may have many years of recovery ahead, but lengthy prison sentences for young offenders produce unemployable outcasts and that makes us all less safe. Calls for brutal punishment (a true description of an American prison) are an understandable reaction from those who see only the terrible crime and not the longer view and the larger picture. I would prefer that our rage and energy be focused on, for example, the hundreds of thousands of untested rape kits, a lost opportunity to identify serial rapists and murderers, cases where lengthy prison sentences can truly protect potential victims. We could also direct our outrage on the fact that a poor black person is much less likely to get the reasonable treatment that Turner received, for at least two reasons. First, he will likely have a series of lesser criminal charges, like jumping turnstiles or possessing a joint, and this will increase (falsely) his “objectively calculated” risk of recidivism. Second, many young black men do not have the same opportunity as Turner to earn a stellar educational background, which is associated with lower recidivism. There are many things wrong with the criminal justice system, but a sentence of probation for a first time offender, combined with a lifetime on the sex offender registry, is not one of them. Two wrongs do not make a right. Both rape and reflexive harsh punishment are wrong.