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Rape Victims Deserve Better. Mandatory Minimums Won’t Help. Helping Rape Victims After the Brock Turner Case
(about 11 hours later)
What should we do with the anger inspired by Brock Turner, the former Stanford swimmer who was sentenced to just six months in jail for sexual assault?What should we do with the anger inspired by Brock Turner, the former Stanford swimmer who was sentenced to just six months in jail for sexual assault?
A movement to recall the judge who ordered that sentence, Aaron Persky, continues to gain support, with a celebrity-studded fund-raiser this month.A movement to recall the judge who ordered that sentence, Aaron Persky, continues to gain support, with a celebrity-studded fund-raiser this month.
In California, legislators have proposed several bills meant to prevent short sentences for sexual assaults, including one that would require a mandatory-minimum term for anyone convicted of sexually assaulting an intoxicated or unconscious person.In California, legislators have proposed several bills meant to prevent short sentences for sexual assaults, including one that would require a mandatory-minimum term for anyone convicted of sexually assaulting an intoxicated or unconscious person.
We share in the outrage at Mr. Turner’s actions, but worry that this law could cause more harm than good. History shows that this reform would not deter violence and most likely would perpetuate punitive racial and class disparities.We share in the outrage at Mr. Turner’s actions, but worry that this law could cause more harm than good. History shows that this reform would not deter violence and most likely would perpetuate punitive racial and class disparities.
Under California law, most instances of rape are punishable by a mandatory minimum sentence of three to eight years. However, for certain kinds of sexual assault, judges can opt out of the mandatory punishment. If a defendant did not use physical force, a judge may have him serve some of that time as probation.Under California law, most instances of rape are punishable by a mandatory minimum sentence of three to eight years. However, for certain kinds of sexual assault, judges can opt out of the mandatory punishment. If a defendant did not use physical force, a judge may have him serve some of that time as probation.
Of course, Mr. Turner had no need to use such force. The victim was blacked out, unable to resist. California legislators are correct to recognize an injustice here: Why does it matter if a rapist uses a gun or alcohol to facilitate an assault? Either way, the victim was denied autonomy. The proposed bill seeks to close what these legislators see as a loophole.Of course, Mr. Turner had no need to use such force. The victim was blacked out, unable to resist. California legislators are correct to recognize an injustice here: Why does it matter if a rapist uses a gun or alcohol to facilitate an assault? Either way, the victim was denied autonomy. The proposed bill seeks to close what these legislators see as a loophole.
But inflexible mandatory minimum sentences, like the kind the California legislators want, are not the answer to our anger. During the second half of the 20th century, federal and state governments established mandatory minimum sentences, with a special focus on drug offenses. Many supporters saw minimums as a way to be “tough on crime,” but some also saw an opportunity to reduce disparities in sentences. Reformers worried that people like Brock Turner, white men with access to expensive lawyers, received more lenient sentences than minorities and poor people charged with the same crimes. These advocates hoped that minimums might make sentences fairer.But inflexible mandatory minimum sentences, like the kind the California legislators want, are not the answer to our anger. During the second half of the 20th century, federal and state governments established mandatory minimum sentences, with a special focus on drug offenses. Many supporters saw minimums as a way to be “tough on crime,” but some also saw an opportunity to reduce disparities in sentences. Reformers worried that people like Brock Turner, white men with access to expensive lawyers, received more lenient sentences than minorities and poor people charged with the same crimes. These advocates hoped that minimums might make sentences fairer.
Unfortunately, mandatory minimums have proved a failed experiment, contributing to prison overcrowding, racial imbalances and overly punitive sentences — all without, studies show, reducing crime.Unfortunately, mandatory minimums have proved a failed experiment, contributing to prison overcrowding, racial imbalances and overly punitive sentences — all without, studies show, reducing crime.
Because criminal laws are written expansively, mandatory minimums shift sentencing power from judges to prosecutors, who can effectively choose the sentence when they decide which of a range of eligible charges to bring against a defendant. And while defendants can appeal judges’ opinions, decisions made by prosecutors are nearly impossible to challenge.Because criminal laws are written expansively, mandatory minimums shift sentencing power from judges to prosecutors, who can effectively choose the sentence when they decide which of a range of eligible charges to bring against a defendant. And while defendants can appeal judges’ opinions, decisions made by prosecutors are nearly impossible to challenge.
Although mandatory minimums were meant to reduce disparities, in practice they hurt the populations some reformers sought to protect. Minorities and people with lower incomes are more likely to be arrested, and then more likely to be charged with crimes that carry higher mandatory minimums than others who commit the same act.Although mandatory minimums were meant to reduce disparities, in practice they hurt the populations some reformers sought to protect. Minorities and people with lower incomes are more likely to be arrested, and then more likely to be charged with crimes that carry higher mandatory minimums than others who commit the same act.
Consider, for example, Raul Ramirez, a Salvadoran immigrant whose rape case was also assigned to Judge Persky. Some advocates have pointed to Mr. Ramirez’s prison sentence — years longer than Mr. Turner’s, for a strikingly similar act — as evidence that the judge gave a light punishment to Mr. Turner because he was white. But Judge Persky didn’t choose the sentence: a prosecutor charged Mr. Ramírez with a more serious crime accompanied by a mandatory minimum, and Mr. Ramirez accepted a plea agreement. Prosecutorial discretion empowered by inflexible sentencing, not judicial discretion, produced the inequity.Consider, for example, Raul Ramirez, a Salvadoran immigrant whose rape case was also assigned to Judge Persky. Some advocates have pointed to Mr. Ramirez’s prison sentence — years longer than Mr. Turner’s, for a strikingly similar act — as evidence that the judge gave a light punishment to Mr. Turner because he was white. But Judge Persky didn’t choose the sentence: a prosecutor charged Mr. Ramírez with a more serious crime accompanied by a mandatory minimum, and Mr. Ramirez accepted a plea agreement. Prosecutorial discretion empowered by inflexible sentencing, not judicial discretion, produced the inequity.
With mandatory minimums, the privileged can still get off easy. Leading victims’ groups oppose mandatory minimums in part because judges and juries may be less likely to convict at all if they are uncomfortable with imposing a long sentence on a “sympathetic” (read: white and wealthy) person.With mandatory minimums, the privileged can still get off easy. Leading victims’ groups oppose mandatory minimums in part because judges and juries may be less likely to convict at all if they are uncomfortable with imposing a long sentence on a “sympathetic” (read: white and wealthy) person.
Repeated studies also show that mandatory minimums do not significantly reduce crime because it is the likelihood of a sanction, not its severity, that deters potential wrongdoers.Repeated studies also show that mandatory minimums do not significantly reduce crime because it is the likelihood of a sanction, not its severity, that deters potential wrongdoers.
The country is moving away from mandatory minimums. Groups as diverse as the American Civil Liberties Union and the conservative Koch brothers have banded together to fight them. The Obama administration has instructed federal prosecutors not to use particularly devastating mandatory minimum laws against certain drug offenders.The country is moving away from mandatory minimums. Groups as diverse as the American Civil Liberties Union and the conservative Koch brothers have banded together to fight them. The Obama administration has instructed federal prosecutors not to use particularly devastating mandatory minimum laws against certain drug offenders.
None of this is to say that Mr. Turner and the judge are not worthy of our disgust. There are better ways, though, to make courts responsive to rape and its victims. Some states have revised their criminal codes so that physical force is not a defining metric of the harm wrought by sexual assault and California should do the same. Consistency in sentencing can come through setting a ceiling, not a floor, for prison time.None of this is to say that Mr. Turner and the judge are not worthy of our disgust. There are better ways, though, to make courts responsive to rape and its victims. Some states have revised their criminal codes so that physical force is not a defining metric of the harm wrought by sexual assault and California should do the same. Consistency in sentencing can come through setting a ceiling, not a floor, for prison time.
We also have to look outside criminal law. The high visibility of the Turner case obscures the extreme rarity of rape prosecutions. Justice and accountability, then, will require increased access to the civil legal system where victims, not prosecutors, can decide whether and how to bring a case. The law in California makes it easier to take sexual abusers to court than it is in most other states, but legal representation is often prohibitively expensive. We need better state and private funding for legal services for survivors.We also have to look outside criminal law. The high visibility of the Turner case obscures the extreme rarity of rape prosecutions. Justice and accountability, then, will require increased access to the civil legal system where victims, not prosecutors, can decide whether and how to bring a case. The law in California makes it easier to take sexual abusers to court than it is in most other states, but legal representation is often prohibitively expensive. We need better state and private funding for legal services for survivors.
Tolerance for rape is an old but freshly infuriating story. Victims deserve a new solution, not a stale policy.Tolerance for rape is an old but freshly infuriating story. Victims deserve a new solution, not a stale policy.