Like many members of the public, when I read about the Brock Turner case, I was stunned by what I thought was a sentence far too low to reflect the social harm that Turner caused. Since then, I have participated in several events about the case. To prepare, I read parts of the record in the case, including the probation report upon which Judge Persky relied. It is available at this site. Many supporters of the recall have made false or misleading statements about this case; members of the press have unwittingly repeated misstatements. Democracy can work only if we have an informed electorate: I urge you to read both sides of this complicated story, starting with Officer Monica Lassettre’s Probation Report.
Here are a few things that I learned from researching the case: One, Judge Persky’s sentence was lawful and in compliance with the Probation Report. Judges are not bound by such reports but rely on them, in part, because it is good practice. California requires judges to balance competing goals when they sentence an offender (e.g. the need to deter the offender and others, the need to punish, the need to provide restitution to the victim). Probation officers become expert in making those assessments, in part, based on objective variables that have predictive value on an offender’s likelihood of reoffending. Two, much of the coverage in the media was inaccurate. I respect hard-working journalists, but often, especially in technical legal areas, reporters get it wrong. In a more in-depth article, I discuss many of the misleading statements found in the media concerning the Turner case, including repeated headlines suggesting that Turner committed rape. He did not. Three, as misleading as main stream media stories have been, no one can hope to correct the wildly misleading information spread on social media. My article can be found here. I urge you to read it.
Four, some recall supporters have made demonstrably false statements about Judge Persky’s record as a judge. Some claimed that he demonstrated racial bias in his sentencing practices. That claim does not wash: One case in particular demonstrates the extravagant claim by Persky’s opponents. According to recall supporters, People v. Ramirez involved a minority defendant, similar to Turner, but whom the judge sentenced to a three-year term of imprisonment. A part from many other factors that may have explained disparate treatment (not visible based on the sentence), Ramirez pled guilty of a crime that required a mandatory term of imprisonment; Turner’s crime did not require prison time. The other examples cited by the recall supporters also failed to support a claim of Judge Persky’s racial bias. The website opposing recall offers even more information about the false claims about Judge Persky’s biased sentencing practices. I urge you to read it.
Some recall supporters urge that the sentence ignored the victim’s harm. I am not sure that I understand that argument. Victims may fear further violence when their attackers are released from prison. But Turner is not likely to harm the victim again. I am unaware of any data that suggest that victims heal more quickly if their attackers spend more time in prison, absent in cases like the one I described a moment ago.
Persky’s critics argue that a longer sentence was needed for deterrence. That argument is worth close examination. Did Turner need a longer prison sentence to deter him from committing a similar crime in the future? The objective data relied on by the probation officer suggested that the answer was no. Turner will be a life-time registered sex offender, and if he violates terms of probation, he can be imprisoned for up to 14 years. These are not minor consequences.
What about general deterrence? When I have lectured on the case, I have posed the following question: How many individuals would be more inclined to commit a sexual assault on an unconscious woman if he thought that he would receive only a three-month jail term and be a life-time registered sex offender? No one has raised a hand. Less rhetorically, deterrence studies demonstrate that certainty of punishment is far more important than severity of punishment.
That last point takes me to #Metoo and the Turner case. Men have been able to get away with grotesque acts of predation and perversion not because of sentences like Turner’s. They have been able to do so because they have not been caught: The risk of getting caught was too low. As we make changes in light of the #Metoo movement, we will get meaningful protection for assault victims. We will not get meaningful reform of our criminal justice system by making judges afraid to give lawful sentences.
I welcome hearing from you if you have an interest in a serious discussion about the case. Don’t bother if you are a troll; I have plenty of anonymous emails already!
—Michael Vitiello, Distinguished Professor of Law, McGeorge School of Law