Crime

Criminally Yours: The Right Lesson To Learn From The Stanford Rape Case

Judges should not be stripped of sentencing discretion or recalled because of one sentence out of whack with what many view is fair.

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justice-handcuffs-e1372182679824-300x286It’s no secret that as a defense attorney, I often defend people accused of terrible crimes. It’s also no secret that everything I write in this column comes from that experience and perspective.

That’s why I’m torn by the controversy surrounding the judge’s recent decision in the Brock Turner rape case to sentence the perpetrator to only six months in county jail and three years of probation.

In my experience, six months and probation is a slap on the wrist for such a crime, especially considering that Turner was found guilty after trial and after testifying. Usually defendants get higher sentences when they lose after trial as opposed to pleading guilty. Testifying, also, generally gets the defendant extra time when he loses. Judges generally presume he committed perjury on the stand.

None of that happened here.

No judge I know in New York would have sentenced him so lightly. I’ve had clients accused of less serious sexual offenses who have been punished worse.

But that’s not what bothers me about the case.  Like I said, I’m a defense attorney.  It’s my job to argue for shorter sentences no matter how grievous the crime.  Every defendant has the right to be heard and have his attorney 100% behind him.

What concerns me is that I can’t help but think that race had a role in the judge’s favorable sentence. If this were a black man accused of raping a white woman, I’m guessing the sentence would have been harsher.

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I’ve always maintained that race plays a role in sentencing, but it’s hard to quantify exactly what role it plays. I know there are lots of databases with sentencing statistics, but I don’t know of any national database that compares sentencing in the way it needs to be compared to come up with true numbers. First, you’d have to look at not only the race of each person sentenced and match up the type of crime committed, but then you’d have to take into consideration the defendant’s criminal history, the injury to the victim, the availability and willingness of the victim to testify, the gusto of the particular prosecutor in pursuing the case, as well as other mitigating and aggravating factors.

My guess is, no matter the crime, people of color get punished worse than Caucasians, but let’s not try to equalize the playing field by taking all discretion away from judges. We’ve tried it that way before (and for many crimes there still is minimum mandatory sentencing), but whenever that’s the case, it rarely works out fairly for the defendant.

Let’s consider the Federal Sentencing Guidelines. One reason they were implemented was to create fairness in sentencing across the board. Any defendant in any district in any state would face the same minimum and maximum time for the same crime. It was calculated like your taxes — lots of categories, exemptions, and additions, except instead of measuring your gross income minus your expenses, the U.S. Office of Probation would plug in a base number for the type of crime, add points if the person was a leader or manager, subtract points if he admitted guilt, etc., etc. None of the factors involved race.

Sounds fair in the abstract, right? A way to keep race out of consideration. But it didn’t work that way.

What it did was hand a whole lot of power to the prosecutor because once a guideline was determined, say, between 97 and 121 months, that’s what the judge had to give the defendant no matter how sympathetic the case or the person before him. The prosecutor held all the cards. He decided what to charge, what to plead it down to, and whether cooperation merited consideration.

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Mandatory sentencing didn’t make the system fairer, it just allocated the power to the U.S. Attorney and not the judge.

The mandatory nature of the guidelines was struck down in the first decade of the new millennium based on a couple of Supreme Court decisions, but the guidelines are still used today. Although called “advisory,” and not mandatory, they are still the starting point for sentencing.

Since the change, some defendants have been receiving higher numbers than the guideline sentence, but in other districts, defendants have been getting lower than what the guidelines’ calculation comes to. What’s important is that it’s the judge who decides what that number should be, and not the prosecutor alone.

That decision is based on a whole lot of factors — common sense stuff like the person’s future dangerousness, the need to send a message to other offenders, the defendant’s background, history, and acceptance of responsibility. The factors are fair and wide-ranging in what they cover, and defense attorneys spend a lot of time putting forward the best image they can of their client.

Back to the Turner case. Many people, upset by the low sentence given to Turner, are calling for Judge Aaron Persky’s resignation. A music group as far away as Brooklyn had its concert canceled because one of the band members wrote a letter in support of the defendant, a childhood friend. (She later retracted it.)

But let’s not assume this one case means the system needs a complete overhaul and judges shouldn’t be allowed to exercise discretion. Most defendants never see such low sentences for the crime of rape; in fact, in the jurisdiction I’m most familiar with — New York — judges sentence very harshly.

We’ve come a long way from the days when judges in rape cases joked around with the defendant and his counsel and told the complainant she was “asking for it” by dressing provocatively.

This isn’t that case. Maybe this judge was swayed, even subconsciously, by race. Maybe he wasn’t. Unless he has a track record of giving shorter sentences to white men, we’ll never know.

But the last thing I’d recommend is stripping judges of sentencing discretion or recalling a judge because of one sentence out of whack with what many view is fair.

The judge is the only person in the system charged with viewing the case neutrally and taking all the information from both sides into account.

He must look at the defendant as an individual, with all his good and bad points. He must maintain the ability to do that and not be swayed by popular opinion, no matter how strong that might be.

I’m not defending Brock Turner’s actions or the type of crime he committed, but I am defending the judge’s right to be open-minded to any legal sentence without fear of losing his job. It’s his duty to hear argument from both sides and not just impose the sentence the prosecutor demands, no matter how unpopular his decision.

Otherwise, everyone will lose.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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