If Judge Persky Was Wrong, What’s Right?

Millions upon millions of people have opined that Judge Persky was wrong to sentence Brock Turner to 6 months incarceration.  Many have called for his removal from the bench because they found this sentence outrageous.

But what is the right sentence?  Bear in mind, there are five factors to be considered in fashioning a sentence.

  • Retribution (punishment)
  • General Deterrence
  • Specific Deterrence
  • Incapacitation
  • Rehabilitation

Within that framework, parsimony requires that a defendant be sentenced to no more than is necessary to serve those functions.

There are collateral consequences as well, such as sex offender registration, with the regulatory limitations that come with it, such as where one can live and what jobs or licenses one can hold. Since the judge can’t do anything about the collateral consequences, you have to accept them as they are.

And then there is the impact that stems from societal views toward convicted felons. Right or wrong, they exist.

Sentencing isn’t a right or wrong proposition, but a balancing of values within the legitimate factors. Try not to introduce “facts” because you heard them somewhere and want to believe them because they bolster your views. Try to rely on the facts as existed at the time of sentence, the ones the court had before it when sentence was imposed. A mythology surrounding the case has since developed, so this can be hard to do, but try.

With this in mind, what is the proper sentence and why? There is no right answer.

 

38 thoughts on “If Judge Persky Was Wrong, What’s Right?

  1. Marc Whipple

    There is no right answer, but there are different answers that might not be wrong. Here’s mine.

    Let’s start with the notion that a felony should be punished by a sentence of not less than one year’s incarceration. (I am not licensed in CA and I don’t do criminal defense work: my rough understanding is that rape-related felonies usually have higher penalties in CA. But let us be magnanimous.) Turner was convicted of three felonies. So our base assumption is that he should receive not less than three years’ incarceration. As for where he should serve it, let’s also go with the notion that for a final sentence of less than one year, he should serve it in the county jail. For a year or more, in a state penitentiary. Feel free to correct and/or mock any of these base assumptions. (If it needs to be “more than a year,” add a day if we end up right at a year.)

    Now let’s go through the five factors and see what potential adjustments may be appropriate. These are just me thinking out loud, so to speak.

    Retribution (punishment) – This is the most subjective factor, in my opinion. The punishment should fit the crime, but motive and mindset are, again in my opinion, relevant. Some articles have cast Turner as a happy-go-lucky dudebro who, at worst, was sucked into party culture and made a very bad decision while significantly intoxicated. Others have cast him as a predator-in-training who was already into heavy drugs and thought of women as basically targets. I don’t know him. The probation officer and the judge talked to him, reviewed his life in detail, and made a decision about what level of retribution was appropriate. Based on what *I* know, I would say that absent psychic powers there is no way to determine in his case whether enhanced retribution is appropriate or whether leniency is called for. Therefore I would make no adjustment in the sentence. However, because IMO at least two of the charges would, in my ideal society, be completely redundant and/or impossible to prove separately given the facts of the case as I know them, I would order that two of the three years be served concurrently. New sentence is two years incarceration.

    General Deterrence – “You can go to jail for a few months and have your life totally fucked over if you bang a passed-out girl behind a dumpster” and “You can go to prison for three years or more and have your life totally fucked over if you bang a passed-out girl behind a dumpster” are, in my opinion, roughly equal considerations to the demographic which we are attempting to deter from committing similar crimes. Enhancing the sentence is not particularly useful. “You might go on probation and not be able to finish school for a few years if you bang a passed-out girl behind a dumpster” is moderately less deterring. Reducing the sentence below some incarceration is definitely not appropriate. So again, no adjustment. Still 2 years incarceration.

    Specific Deterrence – All custodial sentences are horrible. A few years in the penitentiary is more horrible than a few months in county jail. Turner needs to serve time in the penitentiary to achieve maximum specific deterrence. Two years is probably quite a bit worse than one year, but I don’t know if three years is so much worse than two years as to constitute a reasonable increase in specific deterrence. No adjustment, sentence 2 years incarceration.

    Incapacitation – Turner will not get any women drunk and rape them while in prison. Having to register as a sex offender and do regular check-ins for the rest of his life may somewhat reduce the likelihood of his doing it in future, but we can’t keep him out of bars or away from parties, and his attitude towards women is unlikely to change. The risk of him repeating his crimes is reduced the longer we keep him in prison. At best, sentence stays the same. A small argument for increasing it may be supported. The principle of mercy says we keep it the same. 2 years incarceration.

    Rehabilitation – Turner is not going to have his basic nature and approach to inter-gender relations changed by more or less time in prison. If what’s already happened hasn’t convinced him he was wrong, sitting in wishful-thinking classes isn’t going to either. IMO rehabilitation is a non-issue. No adjustment. 2 years incarceration.

    Collateral Consequences: Turner will be a felon, presumably for the rest of his life. He will have to register on the sex offender list and be subject to the restrictions, both official and unofficial, which accompany both of these things. His athletic career is over. His educational career is probably over. His Internet search results/background check results will be highly negative, again presumably for the rest of his life. “Punishment,” in a real sense, will follow him for the rest of his life. This might have an additional deterring effect, or it might make him less careful of preserving what remains to him. (Fear the man who thinks he has nothing to lose.) I don’t know how to make that determination and I don’t know that anyone else does, either. But it’s not nothing. I might very well be moved into reducing his custodial sentence so that he doesn’t have to spend as much time in prison waiting to go out into the wasteland of his new life. Depending on that I might reduce his sentence to as little as a year, or at the very least cut six months off the second year.

    So, in my non-criminal-law-practicing-attorney reasoning, based on what I know about the case which could be totally wrong, I could be convinced that as little as one year in the penitentiary was a reasonable sentence. Less than that would be hard to convince me of. I could also be convinced that up to three years was a reasonable sentence. More than that, absent knowing more about Turner than I feel that I do, would also be hard to convince me of.

  2. PDB

    Too much thinking from SHG and Marc Whipple.

    I feel that the correct answer is: ONE BILLION YEARS IN A FEDERAL POUND ME IN THE ASS PRISON!!!!!

    (reference to Office Space for the uninitiated)

    1. Patrick Maupin

      I agree. Any conviction at all would take care of Specific Deterrence and Incapacitation. Rehabilitation is obviously an impossible task — how could the man even think like that in the first place?

      But General Deterrence and Retribution both require that we give the good judge a billion years.

  3. mb

    Well, I can understand why they’re upset. Between Brock Turner and Haven Monahan, rapists are only serving a couple of weeks on average. Maybe they would calm down a bit if we went back and put Monahan on the sex offender registry.

    I wonder how many people have been raped, murdered, robbed, or otherwise violently assaulted by personality disordered, drug addicted products of impoverished, broken homes (or for that matter, how many personality disordered, drug addicted products of impoverished, broken homes have been assaulted or shot by police or others trying to defend themselves, whether justified or not) in the time we’ve been talking about this one privileged white guy.

    1. pml

      Except Tuner was not convicted of rape. So that throws your BS statement right down the drain.

        1. pml

          Really? Seriously? You are joking, right?

          You cannot think what you wrote could even be remotely taken as a joke.

            1. pml

              Sorry SHG, didn’t mean to hijack your post

              I was hoping for rational thoughts that might give me more food for thought with future sentencing decisions.

          1. mb

            Alright, Imma help you out with this. Haven Monahan wasn’t convicted of rape, either, and he can’t be incarcerated for any time at all, because he doesn’t exist. So the average sentence for the two of them is just half of Turner’s sentence. It’s a ludicrous exercise, but then I see it as ludicrous for folks to pretend to care about these crimes when all they really do is search around for cases that confirm their privilege/oppression worldview, and run with them, even when, as with Monahan, they don’t exist, or, as with Turner, they don’t get the kind of calculated, sober violence they were looking for. They just paper over these kind of details.

            Anyway, that was a pretty good laugh I had at you, but you’re obviously not the kind of person I meant to make fun of.

            1. mb

              Back to the subject at hand, though, I can’t help but wonder what would have happened if Turner hadn’t been caught when he did. Now, I know that for those who are upset about the relatively short sentence, this is irrelevant. To them, a drunk guy who touched an unconscious girl is a “rapist” and should be buried under the prison, even if he then realized what he was doing, sobered himself up and protected the girl until she woke up. But to me it does make a difference, and if I thought he would have continued and even had intercourse with her, but for getting caught, I’d want him buried under the prison. Problem is, that’s a difficult thing to speculate on. I just leave it to the judges and hope I’m paying them enough to not be racist or support rape.

      1. B. McLeod

        And that is a great point. There was no trial for “rape,” and no conviction of “rape,” because the state dismissed those counts for lack of evidence. Still, hordes of ignorant, emotionalist comments on the Internet continue to declare Turner a “rapist” and to state that he committed “rape,” directly in the face of the facts shown of record in the case. Just as people who normally oppose the death penalty in any context (and normally oppose attacks on the courts) are calling for violence against the defendant and the judge, normally rational posters are deliberately misstating the facts of this case. Further, Internet sites supposedly aligned with the “pursuit of justice” have been leaving the misstatements unmoderated.

        Today, I reviewed an ABA Journal post from June 7, in which numerous posters labeled Turner a “rapist,” stated that he had committed “rape,” that the charged conduct is “always rape,” and that other posters defending the sentencing judge were “rape apologists.” All of these posts were factually and legally wrong and defamatory. Notoriously so, given that the case record clearly reflects the “rape” counts were dismissed for lack of evidence of a necessary element. Everyone who has followed the case knows it. The ABA Journal writer who wrote the June 7 article (carefully staying with references to “sexual assault”) knew it, and all the ABA Journal editors obviously knew it. Yet, two weeks later, all of those factually and legally incorrect posts remain unmoderated.

        The irresponsibility seems to have extended along partisan lines, and it is difficult to imagine a purpose beyond providing intentional support to those who have urged attacks on the defendant and on the court. I suppose that, when the violence comes to fruition, all of the people publishing the incorrect and inflammatory statements will become that asshole in the lynch mob who says, “Hey, I didn’t hurt anyone, I only carried the rope.”

        1. SHG Post author

          Aside from explaining this a few times (usually to very adament people who refuse to accept the premise), one fellow was at least honest about it, informing me that rape was whatever he decided it was, and that none of my legal argle bargle would change that.

          To the extent people choose to believe non-existent facts in the face of reality, there isn’t much to be done.

  4. Patrick Maupin

    As you say, there is no right answer.

    In many states, the sex offender registries alone may eviscerate the concept of marginal deterrence, giving rapists a serious reason to consider whether murder will reduce their chances of being caught.

    With all the rhetoric about how being raped is the worst possible thing ever, this almost seems by design. I’m not sure exactly how or when the change happened, but 30 years ago you’d be hard-pressed to find a feminist who would let being a rape victim define her very existence, but now it seems to be the in-thing.

    1. Dragoness Eclectic

      It’s one of the things I don’t like about modern feminism. Normally, different people react to trauma differently. Some people snap back easily, including some women who were raped. Some people don’t. Insisting that everyone who was raped *must* be a basket case is actually very bad for recovering rape victims–to be told over and over that something must be wrong with you now, and that you *must* be suffering and traumatized, turns into a self-fulfilling prophecy.

      For some reason, having your body broken in a car accident, which is extremely mentally and physically traumatic, isn’t held up as something that supposed to ruin you and scar you mentally for life.

  5. OEH

    I don’t think there is much to criticize about the sentence in isolation.

    It is only in the context of criminal sentences in general, that are so outrageously high, that it raises a suggestion that Mr Turner received unusually favorable treatment because of his background.

    Now, personally, I do not think we should get angry at favorable treatment; I think favorable treatment is great and everyone should get it, and it should be called “basic respect afforded to human beings.” Where there is unfairness we should level up, not level down.

    Still, this seems to be a basic part of human nature to hate people who have it better than them.

  6. Weebs

    Six months is a long enough sentence.

    After all, several female teachers have been convicted of sexually assaulting their students and have been given probation.

    Goose, gander, etc.

    1. ppnl

      Meh, I’m pretty sure that if a teacher found a student passed out drunk behind a dumpster and had her way with him she wouldn’t get probation.

  7. Dawgzy

    I wonder whether the Judge has expressed concern that a prison term might have a “severe negative impact” on others that he’s sentenced. Has he sentenced others who had no previous convictions and found guilty of similar crimes? If so, what were the sentences? The brouhaha is in part about whether there’s a double standard at play, and whether someone the Judge might identify with, in terms of social class, academic and athletic achievements, got a comparatively lenient sentence because of their similarities. Thiscsentence might be consistent with his record. Would he sentenced a kid from EAST Palo Alto using the same standards ? I’d like to think so, but don’t know.

  8. John Barleycorn

    WTF!?

    Yield?

    You Pussy!

    You haven’t been holding onto this and it is now Monday correct?

    P.S. How do ya want it!

  9. Richard G. Kopf

    SHG,

    It is an interesting thought experiment to apply the Federal Sentencing Guidelines to the Turner case as if, for example, the assault of an adult took place on an Indian reservation. A quick look at Guidelines suggests the range could have been as high as 97-121 months with a total offense level of 30 and a Criminal History of I. U.S.S.G. §2A3.1.

    All the best.

    RGK

    1. SHG Post author

      It’s easy for people to say the sentence “felt” horribly wrong. It’s a lot harder to say what sentence should have been imposed in its place. Even the Guidelines reveal this dilemma, as we rely on the grid to replace a thoughtful rationale for fixing a sentence of incarceration. If people are going to scream about how terrible the sentence was, then they need to appreciate how difficult it is to determine a proper sentence.

      1. Richard G. Kopf

        SHG,

        I heartily agree, admitting, of course, that I screw up lives and sentences every other day, at least.

        All the best.

        RG<

          1. Richard G. Kopf

            SHG,

            No, but I will be looking forward to it. Just don’t “cross” any judge who is worse at sentencing than I am. That’s would be bad for business.

            All the best.

            RGK

  10. John Barleycorn

    RAPE tops the list of all the strong-arm felonies that don’t involve death* They are all so VERY FUCKING REAL, so real that I don’t think it is possible to knee-jerk any sort of perspective LET ALONE pretend that it is a “good” idea to ponder “apathy” when sentencing. If you haven’t been there, might as well be on Mars!** None of this is happening but for “judgement”, “the show”, judges, and the Latin phrase that even google can’t reconcile when vengeance turns itself inside out in the insidious of 2016.

    *************If you don’t subscribe to the theory that purposefully altering your consciousness is a “natural” human desire that most people are still attempting to perfect without consequences, that NO-ONE (not even me) has gotten right, I got nothing for you*************

    NOT A GOD DAMNED THING!

    Anyway…

    “Searching” for orgasms is powerful (defining them is hilarious), people WANT them (LOL! for the AOL guy). More than money, fame, or moth to the flame, everyone wants “their” open flame “tempera”, -temporary-, or otherwise. (Excepting SHG who is standing here on his desk flailing his arms about “values” and the tired attempt to find the perfect proposition over a legit equation that he could care less about solving, if knowing, but for the void in his soul that forces his rarely displayed cowardice to ponder delayed comprehension.

    Suck-it-Up-Butter-Cup. You hate not knowing and you got nothing here.

    [email protected]***

    “With this in mind, what is the proper sentence and why? There is no right answer.”

    Did you hear any of the professionals or armatures at the US Open yesterday “yell” FORE? I don’t think so!

    The ” Judges” did stir the final 13 though. BE DONE WITH IT!

    Wholly fucking shit burglars!!! Good thing almost everyone is getting paid… That probably doesn’t apply to the PGA nearly as well as it does to the judiciary.

    She probably wouldn’t of have had an orgasm IF she even agreed to wanting one, at 0.24 BAC, consciousness or awoken, unless she was doing some coke (and even then you have to have dabbled in, and have had a little practice with the freaky “side” of your own desires or willing openness to, the this that and the other “freak”, of your own homegrown “kama sutra”.

    And at 0.17 BAC boy wonder probably was not up to carrying out the details of even his darkest masturbatory fantasies in real life, “kama sutra” or not. IF he is in fact dark, and not just an “average” ordinary member of the Fraternal Order of Fucked Up ‘Merica and the Puritan-but for me- Colossal Order of Fucked-Up-Parentage.

    Wasn’t it the first Clinton Surgeon General appointee that got sacked for talking about masturbation?

    The second will probably dismiss her Surgeon General for having a thought.

    So, if we were to whip out the crystal ball…or the whipping post.

    It all comes down to whether or not they were jointly entertaining the common Stanford didelphis before her tail wrapped itself around the dumpster branch of unconsciousness or the swimming didelphis was holding his breath until she went under due to distorted masturbation fantasies that presented themselves or some really dark predatory shit.

    Who fucking knows!

    That all being said she definitely got “re-raped” for perspective at the hospital (which is no fun at all, but for cops, nurses and doctors-who are nearly as fun as CDL’s when one is suffering from a monster hangover) and I would probably do her sister on our wedding night but only if she wouldn’t turn states evidence against me for breeding genetically engineered didelphises.

    FUCK YOU!… old white guy! LOL!

    P.S. You know you want it more than sex! Your foreplay, if ordinary would arouse, but yielding to penetration here is suspect. Standing while fucking a conscious audience is not a crime! Even if you are the PUSSY!

    *came to mind, I could care less about the pay gradient between felonious strong-arm CDL specialists and DWI hacks or whatever….
    **Under nearly close to all circumstances don’t fuck with judges especially in the comment section. Getting “it” from your “perspective” will never make the math work even if no one brought up the sentencing-O-matic . I think Fubar was/is a judge and she doesn’t gamble.

    ***I don’t twit

    1. John Barleycorn

      I would have looked him in the eye and dropped the hammer with 1.42 years (because math and them fucking juries) and probably would have given some lecture with universal scolding “taint” that would have guaranteed more meat on the bones of a “recall”.

      Let the people speak. The options are becoming more wonderful by the moment.

      You know you want to go there, you know you do!

  11. Nigel Declan

    Given the tendency of the criminal justice system to produce worse results for black defendants than white defendants charged with similar offences, those decrying Judge Persky’s verdict for showing mercy to a white defendant convicted of crimes of a sexual nature, as opposed to a defendant of color, and those decrying it because he showed mercy to a male defendant convicted of these crimes make for strange bedfellows. People who are unwilling to tolerate mercy being shown to certain defendants are likely to end up with a judiciary inclined to show no mercy to any defendants.

    1. SHG Post author

      That’s what’s scaring the crap out of everyone, that the only safe way to sentence is to be sufficiently harsh that there’s no reason to complain. Life plus cancer, everyone! Nothing there to bite a minority defendants in the ass.

      1. Patrick Maupin

        Don’t forget the Ebola. Maybe that’s why the feds had to get involved with Dylann Roof — Ebola’s not something available to South Carolina under the 1033 program.

      2. John Neff

        It is also frightening that if we used sentencing software we would know what the right sentence would be.

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