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These Public Defenders Don’t Think Brock Turner Is Getting Off Easy. Here’s Why.

An outrage-appeasing sentence would set a bad precedent for first-time offenders from all backgrounds, one attorney argues.

 The former Stanford swimmer's January 2015 booking photo.

 

 

In the firestorm over the short sentence Judge Aaron Persky handed down to convicted Stanford sex offender Brock Turner, Persky is painted as a callous enabler of the status quo, seemingly more concerned with the plight of the victimizer than the victim. News references to his biography (former Stanford athlete) and his rationale (“a prison sentence would have a severe impact” on Turner) jump out as red flags for bias. For anyone who’s read the victim’s heartbreaking and eloquent letter to Turner, lashing out at Persky feels like the only humane response. And that impulse has coalesced into a wave of anger: A petition to recall Persky has garnered more than a million signatures, and jurors are refusing to be seated in his courtroom. But in recent days, two public defenders—including well-respected feminist Molly O’Neal, head of the Santa Clara County public defender’s office—have come out in support of the judge, and the sentence he handed down. And their reasons take the long view of how the criminal justice system ought to be treating first-time sex offenders.

“The culture of mass incarceration has warped our psyches into thinking that lengthy jail or prison terms are always the answer to criminal behaviors like sexual assault,” Sajid Khan, a San Jose public defender, wrote in a blog post this week. “They’re not.” 

To be sure, the legal minds weighing in on Turner’s sentence have been all over the map. Attorneys have sounded off to the Los Angeles Times that Persky’s sentence was too lenient; Santa Clara County DA Jeff Rosen agreed, but still backed up the judge’s performance. 

But other attorneys—including Khan, O’Neal, and San Francisco deputy public defender Sandy Feinland—maintain that Turner’s punishment of jail time, probation, a felony conviction, and the lifetime requirement to register as a sex offender is “being mischaracterized as a slap on the wrist,” as Feinland puts it.

According to Khan, the media are treating Turner’s jail time as the sum total of his sentence. “But it’s not six months and he’s off scot free,” Khan tells us. Turner also faces three years of probation, where he’ll be required to undergo alcohol treatment, sex offender treatment, or any step the probation officer deems necessary. “If he were to violate probation by failing to do those things, or even committing a misdemeanor, Mr. Turner could still go to prison for up to 14 years. That prison term is hanging over his head.”

In Khan’s view, any first-time offender with an otherwise clean record deserves the same judicial discretion. “I think it is more rehabilitative for the offender to receive rehab services and show themselves worthy of participating in the community,” he says. “If they succeed, we as a society all win. If they fail probation, they go to prison.” 

Over the past couple of years, California has begun to disentangle itself from the rigid approach to sentencing that kicked into gear with 1994’s “three strikes” law. A more recent shift in the national conversation—one California is leading—emphasizes prevention and rehabilitation over years in prison. Khan doesn’t want to go backward: “I think for too long our judges lacked the discretion to take a holistic approach to sentencing, and it has resulted in harsh sentences that prey on underprivileged and minority members of our community.”

Turner is neither underprivileged nor a minority. But Khan worries that outrage over his case could have unintended consequences. “I would hate for this sentence to be condemned to the point that the reaction is to the other extreme, which ends up leading to more harsh sentences for my underrepresented, poor clients.” Of Persky’s decision, he adds: “I want the system to operate this way for everybody. This is the holistic workup that should be done for every defendant, whether white, black, or Latino, or rich or poor.” 

Of course, some of the outrage over Turner’s sentence is rooted in a suspicion that Turner got off easy because of his race, background, and privilege. Anecdotally, Khan believes there’s nothing about Persky’s judicial record that points to a double standard for white and minority offenders. “In fact, many colleagues in my office that appear before Judge Persky believe that a public defender client who wasn’t white or affluent would have received the same type of sentence from him,” he writes. 

All important things to consider before signing that recall petition.


Correction
: An earlier version of this story suggested that San Francisco deputy public defender Sandy Feinland considers Turner’s sentence "anything but light." That is his view of probation for sex offenses, but not necessarily Turner’s sentence. Feinland’s comment has been updated to reflect his view.


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