For very good reason, more attention has been spent addressing Stanford prawf Michelle Dauber’s war against now-former Judge Aaron Persky for not being nearly as harsh as she demanded, but only when she wanted, in imposing sentence on Brock Turner. But what about Brock Turner, who has now completed his jail sentence of six months, released in three for good behavior?
But what exactly is the criticism in the Turner case? For many, the answer to this question is obvious—so obvious that they have not paused to consider the question carefully. But care is demanded, for in truth, there are two, very different complaints. Admittedly, they are related, but they reflect different criticisms about society. Observers have not paid sufficient attention to this complexity. But the solution endorsed by the State of California is likely to make one problem far worse, without making the other any better.
While focus was on Dauber’s ruin of Persky, California was busy fixing problems the only way it knows how.
To prevent sentences like this in the future, the California legislature changed a provision of state law that had distinguished between the forcible sexual assault of a conscious victim and the sexual assault of an unconscious victim. In the former situation, California law required a mandatory minimum prison term. But in the latter, the assault was not considered “forcible,” and a judge could order probation in lieu of prison, as the judge did in the Turner case. Under the new law, both offenses require a prison sentence, from a minimum of two years to a maximum of 14 for first-time offenders.
While the war against mandatory minimums is being waged on the reform side, the carceral feminist side demands their re-creation, but only for crimes against women.
Supporters of the legislation are clear about its purpose: to punish offenders like Turner, certainly, but also to alter what they see as a culture of male privilege. Santa Clara County District Attorney Jeff Rosen, for instance, whose office prosecuted Turner and who sought the new legislation, asked rhetorically, “Why under the law is a sexual assault of an unconscious woman less terrible than that of a conscious woman? Is it less degrading? Is it less tragic, less traumatic?”
The rhetoric in favor of ramping up mandatory punishment isn’t merely an appeal to emotion, but a necessary weapon in the culture war against male privilege. There were myriad considerations that could inform a sentence. Or, in Brock Turner’s case, it could be reduced to male privilege, which is what Dauber did and sold to the unduly passionate mob.
But Turner wasn’t just male. He was a white male, a privileged white male, and that too was attacked.
Many people make a second charge—viz., that if Turner were poor, and especially poor and minority, his sentence would have been considerably more severe and he would not have escaped prison. In discussing the case in a radio interview, Professor Dauber recently railed against a double standard in criminal justice:
We have one system of justice in this country, and we need to make sure … that when an individual does perpetrate an offense, that they’re subject to the same kind of justice and to equal justice, regardless of who they are, whether they have high grades, whether they are a Stanford student or not, whether they are an excellent elite athlete or not. Everyone needs to be subject to the same standard.
To digress, this is both true and false, though to challenge the passion of reformers who desperately create the appearance that only black people go to prison while white people are given stern warnings would be to court disaster. While it’s statistically true that black people are disproportionately arrested, prosecuted and imprisoned, it’s not necessarily correct in hard numbers or, if one was to look at the specifics of individual cases, disconnected from the factual circumstances that judges are required to consider when imposing individualized sentence.
Where Dauber conflated these separate problems, Margulies views them as two distinct complaints.
I feel strongly that both problems—which we might shorten as male privilege and white privilege—are unpardonably severe in contemporary society.
At least Margulies makes no bones about the bias he brings to his analysis, before recognizing that the “cure” to the male privilege problem, the imposition of a mandatory minimum, will exacerbate the white privilege problem.
Isn’t it at least equally likely, given what we know about race and the criminal justice system, that when we create more carceral weapons, they will most likely be used against people of color?
Indeed, recent research shows this may be particularly true in the prosecution of sex offenses. For instance, roughly 750,000 people in the United States are registered sex offenders, two-thirds of whom are white men. Yet the sex offender registration rate for blacks is twice that of whites. The fact is that creating a mandatory minimum for a specific crime will not reduce white privilege when there are so many ways for white defendants to avoid the most draconian consequences of the carceral state.*
NYU prawf Rachel Barkow describes this phenomenon as “lumpy laws,” where we craft harshness to address some hated outlier defendant, which is then used against all the less-hated ordinary defendants who are lumped together in a law that covers a broad array of wrongs.
Brock Turner’s sentence exposes two, ugly aspects of American society: White men get a break when they mistreat women, and whites get breaks that people of color do not. But the response to Turner’s sentence threatens to exacerbate one to ameliorate the other. If that is our choice, we should at least be explicit about it.
Except nothing here proves white men get a break. At most, it proves Brock Turner got a break, and even that is subject to debate (and I say that even though I would have imposed a longer sentence than Judge Persky). There are examples of sentences that are perceived as harsh and lenient, for men and women. white and black. There are facts relevant in each individual case that need to be taken into account before picking the low hanging fruit of race and gender, but that takes work and thought which no one feels compelled to do.
To his credit, Margulies at least recognizes that there are two different things to hate about Brock Turner and separates them, recognizing the obvious if “unintended” consequences of the mindless jihad waged against Judge Persky.
Unfortunately, his ideological bias precluded him from considering that if the solution was excessively Draconian, then the better reaction would be to reduce the harshness with which black men are treated rather than increase the harshness on white men. As for his male privilege, there is no fix for his ideological sexism.
*Are there “so many ways”? There are a lot of white men in prison who would like to know about them.