If you thought the fallout following the hysteria over the Brock Turner sentencing was over, gird yer loins. Female lawprofs are just getting started, riding the wave of feelz beyond the return of mandatory minimums and elimination of statutes of limitations. Rushing to catch the wave is this upcoming article in Wake Forest Law Review by criminal law professor Erin Sheley.

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds.

This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting.

I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

To the extent one can discern anything from the jargon, Sheley seeks to use the victim impact statement from the Brock Turner case, an immediate icon of feminist tears, as the counterbalance to the “mediation of traditional news reporting.”  In other words, if a story is reported by the media in a way that doesn’t sufficiently bring tears to your eyes, the VIS should be used to indulge emotionalism in the exercise of the government function of sentencing.

Why? So the system “better serves its expressive function.”  What expressive function?

If you’re sitting there, shaking your head, muttering, this is inane gibberish, you just don’t get it. Forget all there is about the legitimacy of using the bludgeon of government power to control and, when violated, punish conduct that society has deemed criminal. It’s not about society. It’s about the sad tears of the victim. What about the victim?!?

Initially, the Brock Turner case, a one-off sentence that caught fire amongst feminists as the embodiment of rape culture, will be ridden as far as they can take it. It’s not that the sentence wasn’t peculiarly light. Neither all men, nor even all criminal defense lawyers, agreed with the sentence. But just as we’ve criticized unduly harsh sentences, it reflects a choice with which we disagree based upon the facts and circumstances of the case in light of the legitimate purposes of sentencing.

You know what’s not a legitimate purpose of sentencing? “Expressive punishment,” the meaningless phrase used to create a sense of meaning that sounds a lot better than, “the victim’s feelz.”

But beyond the abuse of the Brock Turner sentence for all manner of fundamental change in criminal law by the pathologically miserable is the attempt to shift focus from reason to emotion without anyone noticing. A criminal sentence is about the “wrongdoer” saying “I count but the victim does not”?*   That may be one of the most insanely stupid notions ever put into writing.

No, the “wrongdoer” isn’t in court being sentenced because he’s having a great day. No, he’s not about to have the weight of the government crash on his head because it’s so much fun. No, he didn’t tell the judge, “please, sentence me, then sentence me again because it feels so good.”

It’s because of the commission of a crime that we built these marble palaces to justice. This is all about the victim, except when it’s all about the victimless harms that similarly make you sad. The defendant isn’t standing court in an orange jumpsuit and shackles because he likes the look.

This reflects an effort to normalize the concept of personal vengeance as the justification for sentence. No sentence is harsh enough if it doesn’t sate the bloodlust of the victim. And if Turner’s case demonstrates anything, it’s that the mob would have castrated him once it got worked up. So much for rehabilitation, kids.

But this insipid “scholarship” reflects yet one further dive into the cesspool of criminal law academia. Erin Seley teaches criminal law. Much like Mary Anne Franks teaches criminal law. These women are teaching future prosecutors and defense lawyers that the goal of criminal law is to punish defendants more severely because women’s feelings must be vindicated.  The law schools that allow them near students have condemned their charges to an education of their gender politics rather than of law.

Does the traditional media get criminal law wrong? You bet, all the time. But the solution is to improve traditional media’s reporting. Elevating women’s expressive narrative, whether true or false, artfully crafted to emote as effectively as possible, has nothing to do with it. It’s not the counterbalance, particularly since traditional media is more likely to play the emotion card in their favor since reason is far less interesting. It’s the antithesis of the justification for using the state to drop its weight on a defendant’s head.

Are they entitled to their opinions, as absurd as they are? Sure, but they aren’t entitled to defile young law student minds with this drivel. Get them out of the classroom, and don’t promote their gender agenda in law reviews. Too much time and effort has been spent trying to eliminate the hysteria that gave us prison nation to have it repeat itself in the name of Brock Turner and sad feminist tears.

*Would this argument be made to punish black defendants? Would this argument be made on behalf of the victims of drugs (and yes, many argue that drug sale and possession has its victims, even if you think otherwise)? Not a chance. There is no rational basis to distinguish various defendants and the harm done to victims, but by tying the argument to Brock Turner and ignoring its obvious extension to all defendants, feminist academics can pretend they aren’t intellectually dishonest and hold wildly inconsistent and facile views.

*As was pointed out to me a day after this post was published, I misread the quote. My apologies.