White-Collar Crime

Was Brock Turner's Sentence Too Lenient?

The severity of Brock Turner's sentence depends on just how much you take into account.

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Brock Turner

Brock Turner

Since Brock turner was sentenced to six months in a county jail after being convicted of sexual assault on a woman passed out behind a dumpster, much of the public reaction has assumed the sentence was too lenient.

Maybe it was, but let’s think about it.

First, many folks have said that the sentence was too low because if he were poor or black, it would have been longer. There aren’t nationwide statistics on sentences for sexual assault broken down by gender and race — and if they were, that may not tell you much about the facts of each assault and person who was convicted. A guy who has eight prior rape convictions probably ought to get a sentence on his ninth that’s longer than someone who hasn’t been convicted of sexual assault before. That said, given what we know about the criminal justice system, it isn’t unreasonable to think that it’s true that poor and black men accused of sexual assault would have a more severe sentence.

Why is that?

One problem is that poor people more often have lousy lawyers. Aside from letting Turner’s dad submit a letter to the judge that has rightly been mocked online, Turner had an excellent lawyer who spent a tremendous amount of time on his case. Access to really good counsel ought to be a right; until it is, it’s the clearest kind of privilege that wealthy people enjoy in our court system. “Equal Justice Under Law” is a cruel lie when the quality of counsel varies as widely as it does in our criminal justice system.

And, of course, another obvious explanation of why there are disparate sentences is implicit or explicit bias by prosecutors and judges against people who aren’t white or wealthy.

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So, assuming that if Turner were black and/or poor he would have gotten a different sentence, does that make Turner’s sentence too low? Judging by my Facebook page, this seems to be an article of faith by progressives. Does this hold up?

I think it’s obviously false. There are two possible explanations why there are disparate sentences between wealthy and white people and folks who don’t have that privilege — one explanation is that the sentences for poor folks and black folks are just about right and Turner’s sentence was low because it deviated from that practice. Another, though, is that Turner’s sentence was right and the sentences for poor black people are too high. (Or, of course, it could be both are wrong and that the right sentence is someplace in the middle).

I tend to think the right answer is that sentences for poor and black people are too high. Our country has been obsessed with thinking that prison time is the only measure of the effectiveness of a prosecution; our intuitions about what an appropriate sentence should be have been jacked up across the board. This affects poor people more than rich people because they’re more likely to be prosecuted, but that doesn’t mean their sentences are right.

If it’s right that sentences for low-income people and African-Americans are too high — and I suspect many of the folks who criticized Turner’s sentence would say that it is — then it’s an odd argument to say that Turner’s sentence should also be long.

The solution to a cancer cluster in a low-income neighborhood is not to give cancer to people in a wealthy neighborhood. You don’t equal out an injustice done to black people and poor people by imposing an injustice on folks who aren’t black or poor.

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What other reasons are there to think the sentence was too low?

Federal judges are told — by statute — to look at four things when imposing a sentence: (1) specific deterrence; (2) general deterrence; (3) the need to rehabilitate the person who was convicted so he or she can reenter society; and (4) to reflect the seriousness of the offense.

Two of those factors suggest a light sentence is the right result here. I don’t think there’s much question whether Brock Turner is likely to sexually assault anyone again. And getting him in a position where he can productively contribute to society again — meeting the criteria that he be rehabilitated — doesn’t appear to require a lengthy prison sentence.

The other two support a longer sentence. General deterrence — making sure that when other college-aged men find themselves near unconscious women they don’t have sex with them would be served by a severe punishment. (Though, really, one would think young men would learn not to have sex with comatose women through other means. If we have to use the criminal justice system to teach men in college that inert women are people, we’re doing something badly wrong as a society.)

The main criticism of the sentence focuses on how serious this crime is.

Imposing a lower sentence for a sexual assault where the attacker met his victim at a party than if the two are strangers before the assault sends the message that party-based sexual assault is less bad than stranger-based sexual assault. For a long time, that was assumed to be true and, for very good reasons, that view is waning. This sentence looks like a throwback.

And the facts here are bad. It looks like Turner found the woman he assaulted at a party when he knew she was massively drunk, left with her, and when she passed out behind a dumpster he had his way with her.

Worse, Turner’s own sentencing materials show he didn’t appreciate the seriousness of his conduct. He blamed his crime on college drinking culture. To be sure, collegiate drinking is problematic, but there’s a pretty big intervening cause between a woman drinking too much and a woman getting sexually assaulted — and that cause is a guy like Turner.

The message this case sends about the seriousness of drinking-related sexual assault matters; it’s a reason to care about the length of this sentence.

One thing the judge looked at was the other effect on Turner of his conduct. He’s not going to graduate from Stanford, if he’s able to go to college it’ll likely be a community college, he has to register as a sex offender for the rest of his life, he is forever Google-linked to this incident, and while he was a promising candidate to follow in Michael Phelps’s footsteps — or at least Ryan Lochte’s — he’s now banned for life from USA Swimming. He’ll never compete again.

Is it right for a judge to look at these things? I think it clearly is.

A few weeks before Turner was sentenced, a judge in Brooklyn wrote a widely-praised opinion discussing the collateral consequences of a conviction — the things that happen to someone convicted of a crime separate and apart from the prison time that he or she might face.

That case was different, to be sure. The woman sentenced — Chevelle Nesbeth — was convicted for dealing drugs. She was in college and studying to work with young children; she wanted to be the principal of a school later. As a result of her conviction, the judge said, she would be unable to get grants, loans, or work study to pay for college, she’d be unable to apply for a passport to see her family living abroad, she can’t live in subsidized housing provided by the federal government, she can’t get food stamps, and her driver’s license will be suspended or revoked for at least six months. Her dream of becoming a principal didn’t vanish completely, but the road got a lot harder. Obama’s Justice Department recommended she be sentenced for 33-41 months. The judge gave her a year of probation.

Most thinking people — including, hopefully, many of those who are outraged over Turner’s sentence — think Nesbeth’s sentence was about right. There are relevant differences between her and Turner, of course, the most obvious one being that the drug war is stupid and sexual assault is horrific.

But the collateral consequences should matter. The most important thing to come out of Nesbeth’s case is a clearly-articulated recognition of what is surely true: prison is not the only way to punish people. Nor is it the best.

It’s hard to have compassion for people convicted of crimes. Empathy for those who have done wrong is always in short supply, and even more so in Turner’s case. It’s a lack of empathy that drives the massive sentences for those who are different than judges because of their race or economic status. But judges, prosecutors, and online commentators ought to reject that; we ought to recognize that these are people being punished, not just sets of bad acts. Looking at all the ways a person will be affected by a conviction matters — it’s an important part of recognizing there’s a person behind the case.

For years we’ve looked at prison time as the yard stick of seriousness. This is a good way to lead the world in prison population, but a lousy way to think about how to punish people.

No person contemplating Brock Turner’s crime would think the punishment would be worth it. The message has been sent; sexual assault is a horrible crime with serious consequences.

Once we’ve established that, how big a pound of flesh must we take?

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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