BROCK ALLEN TURNER: THE SORT OF DEFENDANT WHO IS SPARED "SEVERE IMPACT"
June 8, 2016 (Mimesis Law) — Ten years ago my firm represented a kid on a minor drug charge. This kid played an instrument – for the sake of this story, let's call it a xylophone. He approached the xylophone like he approached geometry, by which I mean he often showed up for it and probably wouldn't fail it. But by the time we were done writing about that kid in the sentencing briefs, he was the most xylophone-playing motherfucker ever to walk the Earth. He was the YoYo Ma of xylophones, someone whose skills would make angels weep and the doors of fame and success slam open.
We didn't do that because people who play xylophones are less criminally culpable than people who don't. We did it because a defense attorney's challenge is to humanize their client at sentencing. Judges process dozens of defendants a month, or a week, or even a day. If judges confronted the defendants' individual humanity as they caged them one after another, they'd go quite mad. It's impossible and inadvisable.
The trick is to light a spark that catches the judge's eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection. Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth. At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate. It's harder to send a man into a merciless hole when you relate to him.
Empathy is a blessing. But empathy's not even-handed. It's idiosyncratic. Judges empathize with defendants who share their life experiences – and only a narrow and privileged slice of America shares the life experiences of a judge.
That's one reason that justice in America looks the way it does.
Last week Santa Clara County Superior Court Judge Aaron Persky sentenced Brock Allen Turner to six months in jail. Turner will probably do half of that – about the length of a single quarter at Stanford University, where he was a student. Most people think that was an appallingly and unjustly lenient sentence for what Turner did: brutally sexually assaulting a drunk, unconscious young woman behind a dumpster outside a party.
Judge Persky clearly empathized with Brock Allen Turner. Turner was a championship swimmer and a Stanford student; Judge Persky was a Stanford student and the captain of the lacrosse team. Judge Persky said that sending Turner to prison would have a "severe impact" on him, that he did not believe that he would be a danger to others, and that he was young. Turner's victim was not spared a severe impact, despite her youth and lack of criminal record. Her statement was harrowing. Her sentence is lifelong.
Judge Persky's empathy fell so far into tribalism that he rendered good defense attorney practice irrelevant. Dan Turner, the defendant's father, offered excuses to the court that were frankly repulsive; he suggested that Turner work to warn students about the dangers of "promiscuity" and characterized the attack as "20 minutes of action." Turner's friend, Leslie Rasmussen, indulged in loathsome victim-blaming, suggesting that a Stanford athlete thrusting his hand into your vagina as you sprawl passed out in an alley is the predictable and somewhat justifiable consequence of drinking, and that to pretend otherwise is an example of "PC culture." Under normal circumstances such letters would be potentially catastrophic for the defense, which is why careful attorneys take pains to prevent them from reaching and enraging the judge. But Judge Persky's empathy required no caution or moderation.
Despite what Hollywood would lead you to believe, we criminal defense attorneys do not advocate lenient sentences for all wrongdoers as a matter of policy. Many of our clients are frequently victims of crime themselves, and their lives are circumscribed by criminal environments. We don't believe, in the abstract, that people who tear the clothes off of young women and violate them in the dirt next to a dumpster should go free. Our role is to stand beside our clients, no matter who they are or what they did, and be their advocates, the one person required to plead their case and argue their interests.
This is the closest our society comes to grace or humility. It's grace because we give this support to defendants whether they deserve it by any objective measure, and it's humility because we know the system is so capable of grave error in accusing and punishing. So we stand up and talk about our clients' xylophones. We don't worry about whether it would be good for society if our arguments win the day, because that's supposed to be the judge's role.
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 Sanford 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.
But most people fed into the criminal justice system aren't champion athletes with Stanford scholarships. Most aren't even high school graduates. Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge. Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn't make bail? How many can empathize with someone more likely to sleep by a dumpster than exit a frat party next to one? They can conceive of the humiliation of being on the sex offender registry after getting into an elite university, but can they conceive of the humiliation of being stopped, frisked, detained, and beaten with impunity because of the color of their skin? Experience teaches that the answer is usually no.
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. No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky. Judges take their youth as a sign that they are "superpredators," not as grounds for leniency. If you tell a judge that they aren't a danger to others, the judge will peer over his or her glasses and remark that people who rape unconscious girls in the dirt are self-evidently dangerous, and don't be ridiculous. Judges don't think that a good state prison stretch will have too severe an impact – after all, what are they missing, really?
So you won't find defense lawyers like me cheering Brock Turner's escape from appropriate consequences. We see it as a grim reminder of the brokenness of the system. We recognize it as what makes the system impossible for many of our clients to trust or respect. And we know that when there's a backlash against mercy and lenient sentences – when cases like this or the "affluenza" kid inspire public appetite for longer sentences – it's not the rich who pay the price. It's the ones who never saw much mercy to begin with.
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."
Judge Persky and his ilk can't stop being human. But they are bound by oath to try to be fair. When a judge saysyou 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. For shame.
Ken White, who writes about free speech and criminal justice at Popehat.com, is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.
LEAVE A REPLY
[…] I've got a post up over at Fault Lines about the Brock Allen Turner case. […]
As a defense attorney, I would add – locking someone in a cage and making them register as a sex offender for the remainder of his life (in this person's case, 60 years or more) is probably an appropriate sentence. However, as a society we view caging another human being as essentially nothing, and people spend life in prison for less serious acts, and spend months in jail before being convicted, that it is viewed as nothing.
- Lokiwi8 June 2016 at 1:34 pm - Reply
I don't mean this to be a comment on the appropriateness of this sentence, but it is amazing how casually American society will shrug off a prison sentence of months or years as "light." I've seen complaints about 3 to 5 years being far too light for less serious crimes. I doubt much of the public considers just what the loss of a year or more of freedom would mean to them.
As a public defender, I find you offensive. This kids life is over. I'm sure he'd prefer the cage to his felony and being a sex offender. You're as clueless as the mob of idiots on social media. You don't represent me, don't claim to be one of us.
- Ken White8 June 2016 at 11:03 am - Reply
As Marie of Romania I accept your rebuke.
- Mike8 June 2016 at 12:25 pm - Reply
But you are not Marie of Romania. Wait a minute, I get it, that means you think Jay is not a PD.. duh.. that took way too long to put together.
- Whandall8 June 2016 at 2:16 pm - Reply
- shg8 June 2016 at 11:20 am - Reply
"One of us"? Your reach exceeds your grasp.
- Eli Rabett8 June 2016 at 11:31 am - Reply
As Ghandi said about Western Civilization, that would be a good thing
- Whandall8 June 2016 at 11:40 am - Reply
A public defender who is unable to separate the person from the behavior? That's actually kind of amazing. We should have you stuffed.
- PersephoneK8 June 2016 at 11:44 am - Reply
Jay, so, you think the felony conviction is too severe?
- Ted Mielczarek8 June 2016 at 12:03 pm - Reply
Shocking news: groups of people do not all share common beliefs! This kid's life is over because he committed a crime and was convicted for it. This is how the justice system works, even if the result here is imperfect. If he didn't want this to happen maybe he shouldn't have committed the crime in the first place?
[…] Thoughts on empathy and lenient sentencing from Ken White (a defense attorney). […]
Ken,
Great post. That said, given the probation officer's recommendation of a year or less in a county jail, what sentence would you have imposed?
All the best.
Rich Kopf
- Joe Dokes8 June 2016 at 12:03 pm - Reply
Richard,
You bring up an excellent point. Given the kid chose to go to trial, you'd think the prosecutor would have asked for a more serious sentence.
So it would appear that there is plenty of shame to go around. A quick google search implies that the penalty for rape in Ca is 3,6, or 8 years. So the DA didn't even ask for the minimum.
- Chuck8 June 2016 at 12:29 pm - Reply
The DA asked for 6 years. The probation office (which is run separately) recommended the lighter sentence.
- Ken White8 June 2016 at 12:30 pm - Reply
Judge Kopf,
I would want to read the probation report before commenting on how it would impact me — the victim's description of her interaction with probation (in the letter she wrote to the court) is disturbing. In my experience state and federal probation can be both irrationally lenient and irrationally tough.
Ken
- Richard G. Kopf8 June 2016 at 1:46 pm - Reply
Ken,
Fair enough. One other thing, and I'll go back to my trial.
Our esteemed editor once imagined The Sentence-O-Matic 1000 with fear and loathing. (See here: http://blog.simplejustice.us/2014/08/03/the-sentence-o-matic-1000/. )
As you know, we feds use a rough equivalent called the Sentencing Guidelines.
Perhaps The Sentence-O-Matic 1000 or its little sister the Guidelines are not such bad ideas after all. But what do I know?
All the best.
Rich Kopf
PS You have generated much fascinating discussion. I sincerely admire your work.
[…] punishment as possible, but because that's our duty to our client. Ken White explains why at Fault Lines. We expect, hope, to get the lowest possible sentence under the […]
Jay,
While having a felony conviction and sex offender status is a serious and lifelong consequence of his action on the night were beyond the Pale. Simply put, this man's acts were not defensible in any way shape or form and if he'd been anyone else he'd be serving years in prison, as he should be. Prior to this event the defendant was going to have an easy life. The connections he would make at Stanford would afford him easy access to the middle class or the wealthy class. So yes, his life is going to be a lot harder, as it should be. He will not be lucky to be a member of the middle class and will have both the sex offender status and felony conviction haunt him, as it should be.
Ken was simply pointing out that the defendant still got of light when compared to many others accused of the same crime. This is the reality of our criminal justice system. This cannot be construed as offensive.
As you mention, the judge likely saw himself in Turner–the Stanford athlete with a bright future who would lose so much if sent to prison for years.
I guess the question this raises for me (which is tangential to the post, admittedly) is why the Santa Clara DA doesn't have a standard policy of papering Stanford-grad judges in criminal cases with Stanford-student defendants to prevent exactly this sort of outcome. (Unless the Santa Clara bench has so many Stanford grads that reassignment to one would be pretty likely regardless.)
This is a very well-written and honest article; actually I am surprised that someone in the profession of law is able to step back from it far enough to see what's actually taking place in the broken the US legal system. It's interesting to see that some of the comments focus entirely on the 'unfortunate boy' in the case and completely, absolutely disregard the victim of the crime. It is a clear example of how the victim is so easily regarded as a throw-away piece of trash by the legal system when the victim is deemed 'less valuable' by society's standards of value, which is based nearly exclusively on wealth and social status. It has been this way for centuries, and remains so today. The topic of the severely broken legal system does indeed need to be discussed much more, as this article points out. I do not know what the best solution would be; I have never thought about it; I am not in the legal profession, but I can say with certainty from my knowledge gained through scientific studies of human nature and human behavior, that forcing this stupid boy to register as sex offender for the remainder of his life is definitely not the solution (not only because giving him a label to bear will actually create more of the same behavior in him rather than diminish it; that's just basic human nature that apparently the legal system is somehow ignorant of) nor is slapping him on the wrist, thereby insulting the victim even further (who is now likely to be even further damaged psychologically), essentially teaching him that his wealth and social status is his golden key to escape from pretty much anything he fancies to do at whim in life, regardless of its brutality. I am surprised that the rapist isn't at least required to pay the victim for the long, arduous process of mental health recovery. And he certainly should spend significant time in jail, so that he can get a taste of what life is like outside of his artificial paradise.
I am concerned at the way in which some attorneys in the comments section are attacking the author of this article; revealing how mentally disturbed that some attorneys are, and who are apparently not aware of how thoroughly broken the legal system is in the US, and with such attorneys no wonder the brokenness remains. There is another issue not being discussed: the issue of deep mental and emotional disturbance that is pervasive not only within the legal profession on all levels, but also in American society overall. I wonder what is it that has driven this affluent, over-privileged, yet clearly lost and confused boy to engage in a brutal rape; a grotesque sexual perversion? Why has he chosen to use his privileged position to engage in egotistical brutality instead of doing something good and useful in society, since he has the means?
Ken,
Why no mention of the Sam Ukwuachu case?
He received the same jail sentence–180 days. The differences only make his case worse: (1) He proceeded despite the pleas & evident suffering of his wide-awake victim, (2) The act went much farther sexually, and (3) there was a prior history of incidents, which came out in testimony at trial.
Media covered the trial, including the sentence, yet there was none of this outrage. Not even close. The sentence was just accepted, and the focus shifted to how screwed up Baylor's process was.
Why the different reactions? To be fair, part of the reason may have been that it was Texas, so the sentence was issued by a collaborating jury, rather than a single arbitrary judge. So, not as scandalous. Also, people trust Texas to be tough, especially towards a black man, so if they only gave him 6 months in addition to lifetime registry, then it's probably a fair sentence.
But if we're being honest, I think we also have to acknowledge another critical distinction that drives the disparate reactions. Brock Turner perfectly meets the stereotype of a "Douche"–a white-privileged college bro, anointed for success from birth. The name itself–"Brock"–screams douche.
Just as a white judge in our system may be likely to overly humanize a douche who preys on others, the dominant SJW zeitgeist is prone to the opposite: the dehumanizion of douches. Brock Turner is instinctively seen as a selfish, conniving brat, whose character it is to prey on others without remorse, rather than a *teenager* who was acting from of a totally intoxicated state of mind, and who might otherwise have never been OK with causing such pain to another.
With Sam Ukwuachu, things get a bit trickier for the SJW. He's black, presumably poor, with a wonderful opportunity to get a good education and overcome inherited disadvantage. We root for him to succeed, and feel some sadness to see his life take such an unnecessary and irreversible turn into the system, alongside the greater sadness for the victim.
Part of the problem with rape is that the punishment decisions are arbitrary. There's no easy symmetry or proportionality to appeal to. With murder, the answer is simple: you willingly ended a life, so your life ends (via LWOP or DP). That fits.
How are we to do that with rape? In addition to sex offender registry, the judge can give Turner 6 months. The prosecutors can just as easily ask for six years. Or 2 years. Or 20 years. And if the law allowed it, life–which is what a black rapist might get, say, in Louisiana. What is the basis for any of these punishments? They are all arbitrary, just expressions of anger that get quenched at some arbitrary point. Either that, or they are appeals to past arbitrary punishments that others received, and so on.
If we are looking for symmetry and proportionality in the pain our punishments inflict, then it's not clear that this sentence was unjust, or that a harsher sentence is warranted. Over the course of her life, the victim will face some total amount of suffering from the crime–the intensity of which will hopefully ease as time passes and healing takes place. But it may well be the case that 6 yrs for a soft and highly-vulnerable inmate in Cal state prison, plus lifetime sex offender status, will entail *more* cumulative suffering–maybe much more. People can't say this without triggering ire, but it may be the case that if given the option, Brock Turner would gladly accept being raped himself, in a simple one-time eye-for-eye retribution, to avoid that plight, which is a plight that those unfamiliar with the system severely underappreciate.
- Chris8 June 2016 at 12:57 pm - Reply
Greg, I have to say your response is one of the most balanced I have yet read on this issue, especially with regards to the disparate scrutiny given this case and punishment. I don't do crim law, but I have volunteered my time with defendants, sometimes those who are registered sex offenders. I can say that I have occasionally heard them say that they would do another decade rather than be punished with sex offender registration. The severity of registration is something very few can fathom. But in our society, to consider such thoughts on behalf of a defendant triggers condemnation and disgust.
Does the Judge have a sentencing record for rape convictions? Who was the probation officer who distorted the victim's opinion in a pre-sentencing report; what weight might that have carried in the sentence? What would be the typical sentence for a non- Stanford student who raped someone in the university's environs? This is about social class.
Without knowing more about the recommendation from the probation office, I think it is a stretch to accuse the judge of personal bias to this degree. Persky was formerly a sex crimes prosecutor, and worked as a battered womens' advocate. In this debacle he has had very strong backing from the criminal defense community, especially the county public defender's office. I have friends in that office who have noted that he is considered among the most well respected judges in their office. This is no small thing – something like >90% of the clients who work with the office of the public defender are low income people of color, and when many of them state that they respect the judge's sense of judgement, they are factoring in issues such as privilege and bias. Many of them have stated they do not believe any other client of theirs would have been treated differently by the judge.
There are many, many facts that have yet to be disclosed. One of my friends, a county PD, has voiced frustration that Perfsky is one of the judges who is most even-handed, and despite his background, is not avidly pro-prosecution. As you mentioned, cases like this make it even harder for criminal defense. This friend also is highly suspicious of what she feels is an underhanded a campaign by a Stanford professor to attack the judge with selectively released and edited information. For example, perhaps it will turn out to be a rumor, but I have it on good authority that the victim in this case stated she wanted the judge to err on the side of leniency, which was one of the factors the probation office used determining its recommendation. This by no means should minimize a sentence beyond the recommended duration, but it is a factor. Until we know the full facts of the case, it is too easy to pile on the condemnation.
Amazing perspective. While it is not what I was expecting to read, I found myself enthralled. You are honest and correct in your assessment. It does say more about a broken system; a system that gives some people an advantage over others. It's not supposed to be that way, yet it is. Perhaps a few judges will read and learn from your story.
I'm in higher ed in the bay area (although not at Stanford), and have been following this case since the incident was first reported. This is the most well-reasoned piece of writing I've read on this verdict. Thank you.
It also matters that the Probation Department, according to multiple media sources, recommended the 6-month sentence.
Judges aren't the only actors in the system who can have poorly-placed empathy.
I loved the piece, but I wish you would learn to use the pluperfect.
"Turner was a championship swimmer and a Stanford student; Judge Persky was a Stanford student and the captain of the lacrosse team." means something quite different than "Turner was a championship swimmer and a Stanford student; Judge Persky HAD BEEN a Stanford student and the captain of the lacrosse team." Presumably Judge Persky is not still attending Stanford today.
instead of bemoaning how broken the system is, people like you are in a position to change and fix it. Maybe instead of lining your pockets with even more money, you could fight to correct all that is wrong in America's Revenge System, oops sorry Justice System.
- Evan Þ8 June 2016 at 3:19 pm - Reply
How do you think Ken could change and fix the system? He's been fighting for years to correct other problems in the system and defend free speech; he's had several victories, but things are still bad. I'm sure he'd do more if he could.
I don't know anything about Judge Persky, or what motivated him, or whether this is out of line with the sentence he might have given a different person who did the same thing.
I do know that it bothers me to hear any prison sentence, for anybody, for any offense, called "appallingly and unjustly lenient". If Turner got a lighter sentence than others, then perhaps that means the others shouldn't have been sentenced so heavily.
Yes, I know. The victim suffered and will continue to suffer. For a long time, and maybe for life. But she will suffer regardless of what happens to him. There is no balancing here. Retribution is simply more harm, and a culture that teaches that it is somehow "justice" owed to any victim invites a descent into barbarism.
Rehabilitation? I don't think many people still seriously believe the ridiculous 18th century idea that prison will somehow make anybody a better person… even though that idea is what originally made imprisonment "popular" as a punishment. There is no real opportunity for punitive rehabilitation.
The only proper purpose of punishment is deterrence. And it seems that deterrence really is needed. Without real consequences, many people will act badly.
But I do not believe that there's any evidence that long custodial sentences have much more deterrent value than shorter ones. Or indeed that the extended torture of prison is either less harsh or more effective than, say, whipping or the stocks. I'm not saying that as some hyperbolic way of mocking prison; I sincerely wonder if it might be both more humane and more effective to return to corporal punishment.
Even without such a fundamental change in modes of punishment, 6 months or even 3 months in prison remains a serious, torturous experience with lifelong effects. And 6 years may be enough to permanently remake a person… but not in a good way.
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