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by Peter Moskos

June 8, 2016

Who speaks for the rapist?

Apparently, in the Stanford rapist case, the judge. If you're still in denial that our justice system can be mean and even racist, would you at least consider that it often benefits the rich and privileged? And then can you see that these two statements are essentially one and the same?

Here's very interesting take from Ken White, a defense attorney concerning privileged justice, from Mimesis Law:
Empathy is a blessing. But empathy’s not even-handed. It’s idiosyncratic. Judges empathize with defendants who share their life experiences – and only a narrow and privileged slice of America shares the life experiences of a judge.

That’s one reason that justice in America looks the way it does.
Despite what Hollywood would lead you to believe, we criminal defense attorneys do not advocate lenient sentences for all wrongdoers as a matter of policy. Many of our clients are frequently victims of crime themselves, and their lives are circumscribed by criminal environments. We don’t believe, in the abstract, that people who tear the clothes off of young women and violate them in the dirt next to a dumpster should go free. Our role is to stand beside our clients, no matter who they are or what they did, and be their advocates, the one person required to plead their case and argue their interests.
But most people fed into the criminal justice system aren’t champion athletes with Stanford scholarships. Most aren’t even high school graduates. Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge. Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn’t make bail?
This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him. No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky.
So you won’t find defense lawyers like me cheering Brock Turner’s escape from appropriate consequences. We see it as a grim reminder of the brokenness of the system. We recognize it as what makes the system impossible for many of our clients to trust or respect. And we know that when there’s a backlash against mercy and lenient sentences – when cases like this or the “affluenza” kid inspire public appetite for longer sentences – it’s not the rich who pay the price. It’s the ones who never saw much mercy to begin with.
There are two ways to see good fortune and bad fortune. You can say “someone who has enjoyed good fortune should be held to a higher standard, and someone who has suffered bad fortune should be treated with more compassion.” But America’s courts are more likely to say “someone who has enjoyed good fortune has more to lose, and someone who has suffered bad fortune can’t expect any better.”

Judge Persky and his ilk can’t stop being human. But they are bound by oath to try to be fair. When a judge says you are very fortunate and therefore it would be too cruel to interrupt that good fortune just because you committed a crime, they are not being fair. For shame.
Let me throw one other contraversial idea out there: six months behind bars for rape is just about right. It's the "normal" sentences that are way too long! Incarceration is supposed to punish, not destroy lives. If only that standard applied to everybody.

[Hat tip to Radly Balko's tweet]


Andy D said...

At first blush I wanted to explode at your statement about the 6-month sentence being "just about right" for a cruel rape of a helpless person, but then I settled down a bit. While I'm not sure 6 months is quite long enough, I'll set that aside: would you concede that after 6 months of incarceration, some kind of halfway-house style "work release" type intensive supervision for a LONGER period would be appropriate, even for someone like Turner who has a stable life to return to? Probation itself does an AWFUL job of 'supervising' offenders who are released. Could some sort of intermediate solution be a good idea? In Turner's case maybe for an additional year. It would be both a "softer" form of continued punishment (like taking a "grounded" teenager and allowing them to once again not be completely grounded but still giving them reduced privileges--i.e. no TV, can't use the family car, an early curfew etc) and would serve society's interest in keeping closer tabs on the offender for an extended period of time.

This could involve living in dorm-style housing, attending treatment or educational classes, a requirement to be on-site from 8pm to 6am, drug and alcohol testing, or any number of other things, possibly with slowly increasing freedom if the offender follows the rules closely and shows progress? It may be LESS appropriate for Turner than for offenders with less skills and an unstable home environment.

I'm certainly not a sociologist or criminologist, but I posit this as a potential alternative to just locking offenders in a cage.

Peter Moskos said...

It all seems so complicated. And it sounds like much of what have now, it it often fails. It may be a good idea... but I'm much more fond of the simple "punish and be done with it."

If we want to reform/improve people, it can't be done in the criminal justice context. It's never really worked. Ever. It's how we got prisons in the first place.

IrishPirate said...

First, Brock Turner is the worst name I've heard for a privileged white boy since Conrad Sphincter.

He's toast. His life is fucked. When he gets out of prison reporters and protesters will be there. When he shows up at his family's house...

He should contact George Zimmerman to get some idea what his life is going to be like. Brock is now the poster boy for white college fratboy/jock rapists. Who the hell is going to hire this mope? What college will accept him?

Maybe his dad can buy him a car and he can drive for Uber since they refuse to do background checks.

Is six months appropriate? Well I doubt he's a likely recidivist.

Then again I could be wrong.


For his own safety he needs to be placed in a very secure part of the prison he ends up in or he will likely learn what it is to be physically assaulted and possibly raped.

He's "lucky" he got some prison time. He's likely safer there than he would be "free" on the street. Poster boy rapists don't do well on the outside.

LV Taylor said...

In a perfect world, he'd jail with The Booty Warrior, AKA Fleece Johnson. Fleece would make every month seem like 10 years.

campbell said...

six months behind bars for rape is just about right

Brother, you might have lost your mind on this one. Turner is exactly the kind of case that merits a long sentence for some deterrent effect. This isn't something driven by an addiction or a situation that could be prevented with education. Are we really going to pretend that it's a revelation to him that he can't fuck an unconscious girl behind a dumpster? This guy knew what he was doing. When those grad students went to intervene he tried to run away and they had to restrain him.

Andy D said...

"Turner is exactly the kind of case that merits a long sentence for some deterrent effect."

I happen to totally agree with you; though I imagine Peter would (or will) argue that there is no such thing as a deterrent effect. I DO think he deserves it more than some poor black or brown person, since there are no mitigating bad home/poor upbringing/addiction/psychological problems issues here. Unless you believe in "affluenza"

Andrew Laurence said...

Six months is WAY too short for any rape, particularly that of an unconscious victim.

Peter Moskos said...

Yeah, I'm not much on deterrence through sentencing (or in general). BUT... in as much as there is a deterrent effect, this would have to be the the kind of crime and the kind of criminal where it would be most effective!

I want drunk frat boys talking about this case and thinking about it in their little sloshed beer-pong bro-brains the next time they see a women pass out drunk. And I think he "deserves" it more, without mitigating factors.

You drive a hard bargain, but I'll go up to 2 years, with potentially 6 months off for good behavior. I really don't think many crimes should get more than that. What's the point? After that, it's just expensive life-ruining wanton excess.

Reminds me of something I wrote in "In Defense of Flogging":

Ten years not enough? Give him twenty! Why? Because he deserves it. Consider convicted felons Dudley Kyzer and Darron Anderson. The former received ten thousand years plus two life terms for a triple murder; the latter received twenty-two hundred years for rape, kidnapping, and robbery. A judge, on an appeal by Mr. Anderson, added nine-thousand years to his sentence (a second appeal knocked off five hundred years). Mr. Anderson’s release is set for the year 12744. Clearly, this is absurd.

Andy D said...

meh. murder without mitigating factors is more than 2 years, just to keep them out of circulation. But I know you don't feel that way. Lenient sentencing just got a cop killed http://chicago.cbslocal.com/2016/06/06/man-with-chicago-ties-charged-with-killing-memphis-cop/

Peter Moskos said...

I'd go for 10 years (actually served) for murder.

Part of the reason I want shorter sentences is so we can sentence *more* people to shorter sentences (and also to reduce or incarceration numbers). That cop killer got _nothing_ for assault (probation before charges were dropped). That is the real problem.

John said...

You might want to credit Ken White at pope hat for the original writing. Lot's of good stuff there.



Peter Moskos said...

Specifically what? I've never heard of Ken White at Pope Hat.

Peter Moskos said...

Ah, Ken White wrote the piece. Yes. I should credit him!

Andy D said...

Well yes, that was my point regarding the cop killer...he got ZERO time. But that was in 2013. Had he been given 6 months, or a year, or 2 years, he'd STILL be out and could never have had to deal with violating probation...

Peter Moskos said...

Or maybe he would have learned his lesson from a bit of time? (though I doubt it)

Andy D said...

And maybe the moon is made of blue cheese too! I know we can't incarcerate our way out of this...BUT maybe if we were ONLY incarcerating people for violent crimes, robberies, assaults, rapes and murders we would feel more free to be harder on violent crime. I don't that isn't really your position prof but I'm be in favor.

Rich Giordano said...

I may have missed in this discussion but there are other reasons to impose sanctions than to deter, the defendant or others. As is quite clear in this case, we also sanction to give validation to the worth of the victim and even when it is a "victimless" crime to give definition to ourselves as a social unit. Often these ideas are met with the label of "vengenace" but that's just using a word with a negative connotation to try to give a negative valence to something which is actually the definition of justice. For both reasons it certainly appears that the sentence in this case was foolish. While I think there are multiple ways in which identification with either the defendant or victim can sway a judge one way or another this study mentioned on NPR's Hidden Brain is worth noting.


Peter Moskos said...

From an email sent to me:

Something that seems to be left out of this conversation is the pre sentence report which recommended a "moderate" county jail sentence. In the report the victim stated, "I don't want him to feel like his life is over and I don't want him to rot away in jail; he doesn't need to be behind bars."

It has been my experience that judges typically follow the recommendations in the pre sentence reports. The judge is ultimately responsible for the sentence, however, it appears that he did what is typically done during sentencing in this case.

woolywoman said...

About a third of women who are raped develop PTSD.

Im not going to bore you with the symptoms of PTSD, the difficulty in treating it, how it is a lifelong problem, how it takes workers out of the workforce, contributes to death by suicide, family instability, people being unable to work at all. I know you know how to google.

Six months is not enough time for a rapist. No mater how much time they serve, the woman they rape serves a longer sentence, but six months is laughable.

Your statement that it is makes me question every single other thing you have ever said.

Peter Moskos said...

Cops are pretty familiar with PTSD.

You can't just say 6 months or a year in prison isn't enough. How much is enough? 2 years? 10 years? 50 years? Seriously. What is right? And what purpose does it serve? To punish or rehabilitate?

And should it be less, equal, or greater than robbery or aggravated assault?

But yes, I think sentences for all crimes should be shorter, not longer.

Peter Moskos said...

woolywoman, I really actually was hoping for a reply to my questions.

woolywoman said...

Well, since you asked, if I were in charge of the world, and the prison system, here what I'd do.

Id make them get an education. Id make it mandatory, and Id make every single privileged hinge on how hard you worked at your schooling. It would be a lot like living with me as your mom. Not everyone has to go to college, but everyone has to finish high school and everyone has to get a secondary education in something.

So, you get to prison, all the shit that happens to you happens, and you are escorted to your class. You get tested to see where you need remediation, and you start. You sit in class all damn day. You can be a jerk and refuse to work at school, but then you get nothing. You get an A, you get 20 bucks in your commissary account, just like my house. You get your GED, you get nice food for a grad party for your block and and you get to watch TV or play video games on the weekend. You meet with a career counselor.If your there for a while, likely a PhD in the liberal arts will be your thing. only 5 or 10 years? maybe HVAC or one of the Trades, or computer science or whatever the hell the smart people at the community college say is the thing to get. So, you start your associates degree. Prisons partner with local community colleges. Teachers will teach there because the prisons make it safe to do so. Another partnership with the state University.

People in solitary get home study material. Good behavior has the added dimension of good grades. Good grade continue to earn money for your account and celebrations for your cell block, so that the community starts to celebrate scholars. I hear that things like salads and other fresh food are in short supply. Im guessing pizza and so forth would be budget friendly.

Every criminal I've known or read of, other than the wall st type, has lacked education and the ability to think. They lack middle class values. Education instills that. The prisons already have the means to make people shut up and sit down. Make them shut up and sit down and learn. If they cant learn? Teach them something else. Teach them to read. Teach them to draw. Teach them whatever their special education needs brain can learn. If they refuse to participate? Fine. Let everyone else get free money and more privileges and extra good behavior points. They still have to sit in class, all damn day.

What about the mentally ill? Well, the prisons here in California are the state hospital for the mentally ill. How about we start treating them. There in prison. Can we compel them to take their meds? I think we can, but someone with a greater legal mind than this nurse will have to figure that out. How much could it possible cost to give them group therapy once a week?

Yeah, I know, these are scheming, violent men and women. There are huge safety concerns. But prisons are good at dealing with that. Find the ten oldest correction officers who still have a soul and ask them how we can make it work. Use the rooms and cages and facilities that exist. Make tutoring a job that prisoners can perform. Have Americor teachers do the teaching.

Bring in the restorative justice peope. Bring in the innovative dg training programs you hear about. Make all the work they do something that pays the community back, even if it is crocheting blankets for foster children. I know, the private prison use prisoner labor as an economic buffer to keep prisons cheap. Cut it out. With shorter sentences, education, and restorative justice, less people will be in prison, and hopefully, there will be no money to be made in private prison corporations.

Oh, and legalize drugs and tax the shit out of them and use the money to both increase community policing and increase drug treatment.

You asked.

Peter Moskos said...

Thanks. Interesting and well said.