Sex, Lies and “Severe Impact”: In Defense of Judge Aaron Persky
Sex, Lies and “Severe Impact”: In Defense of Judge Aaron Persky

JURIST Guest Columnist Nicholas M. Wooldridge discusses judge Aaron Persky’s sentencing of convicted Stanford sex offender Brock Turner…

Brock Allen Turner was convicted of three felony counts related to his digital penetration of an unconscious victim behind a dumpster at a frat party and sentenced to a short six month period of imprisonment. Turner’s sentencing generated public outrage, especially after the long, visceral and rambling 7,400 letter by the anonymous victim read to Turner in court went viral. Deeming Brock’s sentence “too lenient” and faulting the judge for considering the “severe impact” of imprisonment on Brock, self-proclaimed social justice activists launched petitions on, seeking the sentencing judge’s recall. Members of Congress—both right and left—have chimed in proclaiming that “the punishment for rape should be longer than a semester in college.” Leading the charge to remove Judge Persky is none other than a tenured Stanford University Law Professor, Estelle Freedman, a self-proclaimed progressive, who seems far more interested in gaining national attention for herself than the fundamental principles of due process and progressivism, which she brushes aside, because, well, sexual assault cases, at least to Prof. Freedman, are different.

But before we get to the substantive discussion, let’s start with the not-so-pleasant facts of Brock’s case. A jury convicted Former Stanford University swimmer, Brock Allen Turner, in March of assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object (his finger) and sexually penetrating an unconscious person with a foreign object (his finger). The first offense—assault to commit rape—carried a mandatory prison sentence. But Judge Aaron Persky, citing Brock’s youth, lack of a criminal record, the fact that alcohol was involved in the January 2015 assault, said that sending Brock to prison would have a “severe impact” on him, that he did not believe that he would be a danger to others and sentenced him to six months in the Santa Clara County jail followed by three years of formal probation. With good behavior, Brock may have to serve only three months of his sentence. However, he must also register as a sex offender for the rest of his life and participate in a sex offender rehabilitation program.

Brock’s unquestionably lenient, yet legally sound sentence under California law—and the visceral response to the sentence—underscore what’s wrong with criminal justice policy in the United States at large.

First, public scrutiny of judicial decisions is a good thing and uncontroversial, especially, where the judge, like Judge Persky, is elected. However, if a single decision by a judge, no matter how wrong, is reason enough to remove that judge, then why stop there? Should other judges or members of the other two branches of government be removed from office for a single decision, even a very poor one? As noted by one sitting federal judge, Hon. Mark Bennett of the United States District Court for the District of Iowa,”[i]sn’t it wiser to judge a public servant on their whole body of work rather than a single decision one disagrees with?” The fact that a Stanford law professor is leading the charge is all the more remarkable because Prof. Freedman, of all people, should know better: what if a tenured law professor could be removed for one poor decision? As noted by Judge Bennett, “[n]o one would be left on law school faculties—or anywhere else for that matter.”

Second, there is increasing occurrence, in fact, an expectation, that prosecutors and judges must respond and reward populist punitiveness, whether it is a sex crime or any other crime, without regard to the effectiveness of a penal policy in a given case. However, the aims and purposes of punishment and the government’s authority to punish are not to satiate the retributive lust of a mob, even a mob composed of the putative offender’s victims.

As noted by numerous contemporary commentators, throughout history, several explanations have been used to explain the aims and purposes of punishment. A citizen may demand:

[f]irst, get them off the streets; keep them away from us. Make them suffer: they deserve it. Teach them a lesson they will not forget. And let their pain and sufferings be an example to others. Maybe then, having been punished, someday, somehow, these criminals will feel remorse, change their attitudes, and productively reintegrate into society.

Drawing upon concepts and perspectives implicit in the Bible and the works of, amongst others, Plato, Hobbes, Beccaria, Kant, and Bentham, legal scholars have explained the aims of punishment as “reinforcement of sovereign authority,” “incapacitation,” “retribution,” “deterrence,” and “rehabilitation.” Each of these aims suggests a distinct normative foundation for punishment used to justify various strategies of response to criminal behavior; however, none of them permit or allow mob justice to determine a defendant’s sentence.

Judge Persky sat through a lengthy trial. He heard every piece of evidence, not just the small snippets of evidence reported in the media, which on more than one occasion erroneously depicted the victim’s rape as sexual intercourse, including penile penetration, not that it lessens the impact on the victim—but the popular and frequent use of term rape has lost all meaning. Judge Persky meaningfully considered the need for retribution, deterrence (both specific and general), and the need for rehabilitation. Again, none of the factors include mob justice or satisfying his electorate. In the end, despite the woefully inarticulate, misguided, self-serving and dumb letters of support and statements from both Brock and his father, the judge determined that the purposes of retribution, deterrence, incapacitation and rehabilitation were amply served by the sentence of six months, followed by three years of probation, sex offender treatment, and lifetime registration as a sex offender. This could be because academic studies and courts have realized the need to be “realistic about the incremental deterrent effect [if any] of extremely long sentences.”

Based on analysis by the independent probation officer, Judge Persky found that there was little to no risk of recidivism by Brock. In other words, there was a limited need for incapacitation to protect the public from future offending by Brock. Next, in sentencing remarks that could have been better phrased and explained, Judge Persky stated that sending Brock to prison would have a “severe impact” on him. This observation, which drew enormous criticism in the media, is, in fact, not only true but also an understatement. What does “severe impact” mean?

As observed recently by a distinguished and well-respected federal judge, Hon. Frederic Block of the United States District Court for the Eastern District of New York, there are more than 1,200 collateral consequences for a felony conviction in the United States. For sex offenses involving sex offender registration, there are an untold number of consequences, and they are permanent. They include public disclosure, exclusion from most educational programs, restrictions on movement, including visitation of certain areas, occupational restrictions, residency restrictions, as well as travel restrictions outside of the United States due to recent legislation passed by Congress requiring the passports of certain convicted sex offenders be marked to notify even anyone outside the United States that an individual is a sex offender.

It is not unusual or inappropriate for a sentencing judge to take into account the magnitude of a defendant’s fall from grace in fashioning an appropriate sentence. For example, in several high profile cases, including, Mark Fastow (the former CFO of Enron), John G. Rowland (former Governor of the State of Connecticut), Robert “Bob” McDonnell (former Governor of the Commonwealth of Virginia, and Jack Tarpley Camp, Jr. (former federal district judge for the Northern District of Georgia), the sentencing judge departed downwards from the agreed upon or recommended guideline range because of the severe impact on their future.

Unfortunately, punishment in the U.S. is only measured in terms of the number of months or years an offender is sent to prison to the exclusion of everything else. Brock will pay a very serious price—a lifelong price. Just as the victim was violated from within, he will be violated from the outside in until the day he dies without any possibility of restoration to the position he was in before he committed his offense. Brock is unlikely to ever complete his education, whether at Stanford or elsewhere, or even obtain a job—a crucial predictor of recidivism. Unless, Brock stands to inherit a sizeable fortune from his family, he has a pretty bleak life ahead of him.

On the other hand, the victim may eventually heal. She will get to work. She can live wherever she wants without restrictions. She will be able to move wherever she wants without restriction. She will be able to get an education. The victim can eventually have kids. The victim can and will do anything she wants the rest of her life without interference of the criminal justice system. Of course, the victim may also never heal, but she will have that chance. On the other hand, Brock cannot. His sentence is lifelong. He will not be able to do any of those things. Ever. His punishment will not end when he is released from his six-month jail sentence. Viewed from this angle, Brock has suffered a “severe impact,” arguably even a disproportionate impact, and any more would have simply been greater than necessary to fulfill the purposes of punishment.

Third, the widely lauded victim impact statement Brock’s victim read during the sentencing hearing underscored the detachment between what victims expect from the criminal justice and what the criminal justice system is designed to deliver. Her victim impact statement was an attack on the system—she wanted a trial where Brock admits his guilt—that’s not what happens in an adversarial system. A trial is a contact sport with a binary outcome: guilty or not guilty. The victim expected something from the criminal justice system that it was never designed to provide outside of the movies, at least, so long as fundamental principles such as the presumption of innocence or due process are to have any meaning. The victim is very much entitled and has a right to expect some responsibility, accountability, remorse and perhaps understanding and support from her attacker (by not having put her through the trial process in the first place)—but the criminal justice system is a blunt force tool not designed to provide any of the things that she desires. And, even after conviction, many defendants choose to appeal, so to expect a confession at that point, is a non-starter.

In a restorative justice system, primarily used in domestic abuse and violence cases in Australia, the victim may have received exactly what she was looking for—understanding by the perpetrator, an apology, an explanation and less exposure or dissection in the public sphere—but the trade off would have been even less jail time for Brock and far fewer collateral consequences.

I am glad the victim wrote an extraordinarily powerful letter and glad so many millions have read and been moved by it. But it had absolutely no place in the courtroom. None. As noted by numerous commentators, and highlighted above, victim impact statements introduce a massive amount of emotion into the proceedings and inject arbitrariness into a sentencing process that should be a product of logical reflection. The prosecutor, the probation officer, as well as the judge should have done a better job in managing the victim’s expectations in this case.

Brock Turner has been punished and the nature of his punishment ensures that he will suffer permanent and irreversible consequences for the rest of his life that will have a “severe impact” on him. If anything, Brock’s punishment is hardly an “eye for an eye” and will have a disproportionate impact on him. For those who focus on the “short” duration of the prison sentence, whether the sentence was six months or six years is of no moment and misses the wood for the trees: a prison cell is not the exclusive domain of punishment and would not have met the expectations or demands of the victim in this case.

Calls to remove Judge Persky, especially by Stanford Law Professor Freedman, for no other reason except that the judge’s sentence did not satiate the retributivist lust of the public or penal populism, highlights a willingness to jettison progressive principles in a profoundly misguided effort to stop sexual violence and cannot justify unraveling the most cherished safeguards of our criminal justice system. I wonder if instead of championing childish online petitions and fueling populist punitiveness, Prof. Freedman’s time would be better spent exploring alternative mechanisms or modes of justice and punishment, such as the restorative justice pilot programs being tried in Australia.

Nicholas Wooldridge is a prominent criminal defense attorney in Las Vegas, NV, as well as the founder of LV Criminal Defense. An expert in federal crimes defense and white-collar crime, Nicholas is also a published author and frequent media contributor.

Suggested citation: Nicholas Wooldridge, Sex, Lies, and & “Severe Impact”: In Defense of Judge Aaron Persky, JURIST – Professional Commentary

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