Don't Judge Persky Decision, or Any Sentence, in a Vacuum

Before retiring as a public defender, Aram James handled thousands of probation violations. In his essay, he writes that to fully evaluate Judge Persky's sentence of Brock Turner, the public needs to account for what being on probation really means to those convicted of a crime.

Former Stanford student and potential Olympic swimmer Brock Turner, a 19-year-old freshman at the time of this incident, was convicted in March of three felonies: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. The victim was a 22-year-old female college graduate, from another university, who attended the same alcohol-fueled Stanford fraternity party as Turner.

On June 2nd, Judge Aaron Persky of the Santa Clara County Superior Court, the same judge who presided over the trial, and after reviewing and considering a very detailed probation report prepared by a senior female member of the Santa Clara County Probation Department — including statements from the victim and defendant, and numerous letters attesting to Turner’s good character — sentenced Turner to six months in the county jail, with three years of formal probation. The sentence imposed was entirely consistent with the probation officer’s recommendation. Turner had no prior record.

The perceived leniency of Persky’s sentence set off a near public lynching of both the defendant Turner and Persky. A media and social media lynching that were witnessed by the entire nation. Calls for Persky to resign or face a recall election over the case continue to this day.

What is often overlooked when the public hears about the terms of a sentence, is the gravity of probation, and how perilously close a violation could be, which triggers a lengthy prison comittment.

Before retiring as a career public defender I handled hundreds, if not thousands, of felony probation violations. I can attest to the fact that young offenders, closely supervised on felony probation, frequently fail to make it through formal probation unscathed.

The numerous potential pitfalls of formal probation are an important reason why the six-month initial county jail sentence cannot be viewed in a vacuum. To understand the severity of the punishment, one must understand the part probation plays in the overall sentencing scheme.

Defendants, who may have initially received what appears to be a light sentence for a serious crime, often end up serving some, if not all, of the maximum prison time they could have received at the time of the original sentencing. 

In Turner’s case, this means if he violates probation he could well end up serving a prison sentence of three to 10 years, or more — hardly a slap on the hand.

Given the infamous cause celeb status that this case has achieved, Turner is now one of the most reviled defendants in American. He will undoubtedly be closely scrutinized on probation. Turner will be on a very short leash.

A defendant on probation is spared prison only so long as he agrees to severe limits on his freedom. The terms and conditions of probation define the quality and limits of a defendant’s freedom. 

Even a minor violation — e.g., failure to report to your probation officer, even on one occasion, or a one-time violation of a no drug or alcohol condition — can result in the revocation of probation and imposition of a previously suspended prison sentence. 

So what does three years of formal probation really mean in the context of the Brock Turner case? Based on the nature of Turner’s convictions, the terms and conditions of his probation are multiple, complex, restrictive and appropriately oppressive.

As an example, while on probation, Turner was ordered by Persky to participate in and complete an approved sex offender program, of not less than one year, and up to the entire three-year term of his probation. His failure to complete this program, or for that matter any other program ordered by the court, would trigger a revocation and a potential prison sentence.

As part of the sex offender program, Turner will be required to submit to polygraph exams to monitor and ensure compliance with the program.

As a further public safety measure, Turner will be required to waive his psychotherapist-patient privilege, allowing his therapist to speak directly to Turner’s probation officer re his progress or lack thereof.

Turner must register annually as a sex offender for life, and each time he changes his residence. He must reregister within a few days of moving. Failure to register in a timely manner would be both a new crime, allowing for the potential of new charges and a separate prison sentence, and a violation of his current probation.

Turner must submit to drug and alcohol testing to ensure he is complying with the terms of his probation, that he not consume alcohol or drugs, or frequent places where alcohol is sold or consumed as a primary business.

He must waive his Fourth Amendment rights, to be free of illegal and warrantless searches, and thus submit to random searches and seizure of his person, vehicle and place of residence, at any time.

Upon an alleged violation of probation, Turner, would be returned to court to face a hearing. Unlike with a new offense, there is no right to a jury trial when charged with a probation violation. A judge sitting alone hears the matter.

To find a violation the judge need only determine that the evidence proves the violation by a preponderance of the evidence, not proof beyond reasonable doubt, as required at a jury trial.

If the judge, after hearing evidence of the alleged violation, concludes that Turner has in fact violated his probation, the judge can then sentence him to the maximum sentence, he faced at the time of the original sentencing.

In my experience, judges assigned to hear probation violations are some of the most putative jurists on the bench. Need I say, that given the media attention and wave of vitriol directed at Tuner, he will be the closest watched probationer in America.

Given the dizzying probationary maze faced by Turner, it is hard to quarrel with Persky’s initial sentence.

As a society ruined by the scorch of over incarceration, it is critical that we have judges who have the discretion to encourage a rehabilitative model-first approach, while at the same time imposing severe conditions of probation that maximize public safety and protect us from truly violent predators.

The sentence in the Turner case more than adequately balances both the public safety and the rehabilitative purposes of probation.

Many of the same progressive voices who have spoken out long and passionately against over incarceration, mass incarceration, the disproportionate sentences imposed on the poor and people of color, are now doing an about face in the Turner case.

They are shouting out that more of the same cruelty and barbarism should have been handed down in the Turner case. The same mentality that has brought us to our current failed state of mass incarceration.

Instead of blindly demanding that a white male elite be sentenced to prison for his first offense, the better logic is to demand the same measure of justice and mercy, for similarly situated defendants of color and the poor. We must look to rehabilitation and restorative justice first, and harsh and unforgiving prison sentences, only where absolutely necessary.

The vengeful model of sentencing has proven over and over again to lead to recidivism, overcrowded prisons, and little or no true comfort or safety, for the victims. 

We should support Persky’s rehabilitation-motivated sentence, as an extension of the progressive movement’s call, for an end to our country’s failed mass incarceration polices.

(A version of this article was originally published in the Daily Journal.)


Related Media:

How Our Limited Options for "Justice" Around the Brock Turner Sentence Only Punishes Communities of Color

Stanford Law School Graduates Submit Letter to Reconside Recall Effort of Judge Persky

Bail or Die: The Choice of a Detained Man in a Broken Jail 

About Aram James

Aram James is a former public defender and is a co-founder of the Albert Cobarrubias Justice Project.

This article is part of the categories: Community  / Economy  / Law & Justice  / Politics 
This article is part of the tags: Brock Turner  / Judge Persky  / judicial independence  / mass incarceration  / probation  / probation violation  / Stanford 

Comments

Word.

Mr. James' cogent article has truly made me reconsider. I originally thought Brock Turner got off too easy. I now see how hard a set of requirements he has.

His life has truly gone from one of a carefree student athlete to one of a criminal on the run. He has to watch his every step in several categories as ably explained by Mr. James. He is no longer able to live as selfish and carefree a life as he did before. He has to look over his shoulder for at least the next three years and in some areas-- for the rest of his life.

I do take issue with Mr. James' emphasis on rehabilitation. Where will he (and his father) get a less entitled attitude? Maybe they'll just blame the victim, the system, the personnel that were involved-- and learn nothing.

But as to severity of sentence and many long term reminders-- some for the rest of his life-- I agree with Mr. James. The sentence is more detailed and demanding than it first appeared.

But the main thing in all this is what has been learned?

I still question what the perpetrator learned from the experience. The statements he and his father made seemed like they thought he was being unjustly punished for some innocent fun that was his right. He seems to be suffering from an undiagnosed case of excessive male privilege.

What part of the sentence will help him get his head in a better place? He has to learn to value the safety of women. And their emotional input. I know that is very challenging, hard to navigate, and maybe hard to read--- but dealing with an intoxicated, passed out woman is not the answer.

If it's assured cooperation that he wants, professional sex workers provide that. And working girls can take care of themselves and their needs a lot better than an intoxicated, passed out party drinker.

I'd like the sentence better if it included attitude testing every three months.

I don't NOT feel sorry for the woman he assaulted. I just now feel sorry for him. He did wrong. He was selfish. And now we have even more damage done by his selfish and demeaning actions-- this time to the perpetrator. I refer to the restrictions Mr. James has laid out.

Thank you Mr. James for examining these issues and advancing the conversation.

May I begin by saying, that I agree completely with Stanford law professor Michelle Dauber that under California criminal law, the sentencing of Brock Turner was far, far too lenient.

I was brought close to tears by the final three paragraphs of the twelve page letter written by the victim of his crime, and feel heartfelt sympathy and complete solidarity with her.

I cannot argue with the reasoning or logic of Aram James. Nor was I ever a supporter of the lynch mob mentality against Brock Turner or Judge Aaron Persky.

Brock Turner may have to be unbelievably careful, if he is to avoid prison. Given his reported abuse of drugs and alcohol, if the requirements of his probation are not onerously enforced, that is exactly where he belongs, that he may never again harm another woman.

If he is given probation in California, it must be emphasized, that two-thirds of the inmates in the state prison system in this state are there, because of probation or parole violations.

If Brock is to remain completely abstinent of both illicit drugs and alcohol without going into a Twelve Step program, he has an unbelievably miserable three years to which to look forward.

If he is an addict or alcoholic, he has a very difficult choice to make between sobriety and recovery or prison, institutions, and/or death.

And, if so, he is still so young, until his life becomes unlivable and intolerable enough, only then may he become amenable to full rehabilitation and a hopeful and promising future.

May Brock one day understand how his victim has been harmed and has suffered as a consequence of his actions and decisions.

And may the survivor of his heinous crime heal over time, and may she one day come to forgive him, which would come sooner, if he could show any remorse for how she so exquisitely detailed, what had so cruelly been taken from her by Brock that cold, dark night.

I enjoyed reading your article very informative about brock's case and the judicial system. I also enjoyed the insight into the probation in detail.

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