Stanford Case Shows Danger of Judicial Discretion

Stanford Case Shows Danger of Judicial Discretion

When Congress returns this month, will the summer uproar over a Stanford swimmer’s six-month sentence for sexual assault affect the criminal justice reforms being advanced by a bipartisan coalition of U.S. senators?

In that California case, 20-year-old Brock Turner was convicted by a jury of three counts of felony sexual assault against an intoxicated and apparently unconscious woman. The prosecutor asked for a sentence of six years, but in June the judge sentenced him instead to six months in jail. Turner is scheduled to be released today after serving only three months.

Though his decision was widely criticized for being too lenient, the judge, Aaron Persky, exercised the discretion allowed him by California sentencing law. And, ironically, it’s precisely such “judicial discretion” that advocates of federal sentencing reform want more of.

When a version of the Sentencing Reform and Corrections Act legislation was passed in the Senate Judiciary Committee in October 2015, Committee Chairman and Republican chief co-sponsor Charles Grassley spoke of the need to reduce “over-incarceration” resulting from current sentencing law that judges are required to follow and sentencing guidelines that they are required to consider. According to Democrat sponsor Patrick Leahy, mandatory-minimum sentences unfortunately “remove discretion from our criminal justice system.” And Deputy Attorney General Sally Quillian Yates testified at a hearing in the Senate Judiciary Committee that judges should be given more latitude so that sentences could be “tailored to the facts and circumstances of the crime.”

Marc Mauer of the Sentencing Project, the group that advocates for “alternatives to incarceration,” testified at the same hearing that sentencing reform for federal crimes would “restore a greater measure of discretion to federal judges.” And Families Against Mandatory Minimums (FAMM), the influential lobby for imprisoned criminals — and a prime supporter of the current legislation — has long advocated for virtually untrammeled judicial discretion in sentencing. As FAMM says: “Give judges discretion to fit the punishment to the individual. Because judges have an intimate and impartial understanding of each case, only they — not legislators, prosecutors, or defense attorneys — should determine appropriate sentences based on the facts of the crime.”

However unpopular, the Turner sentencing hearing was, in fact, a model of what advocates of judicial discretion are seeking. There was a thorough review of Turner’s life. 39 people wrote letters to the judge on his behalf. Turner addressed the court himself. The victim submitted a long statement. As part of its lengthy analysis, the California state probation office recommended six months based on state sentencing guidelines. In stating his considerations in open court, the judge went into great detail, and in imposing the sentence, took into account Turner’s youth, intoxication at the time of the crime, and lack of a criminal record. He then asked, “is state prison for this defendant an antidote” to the seriousness of the crime? His approach sounds exactly like what the senators are now advocating for federal sentences.

Opposition to the sentencing has gone beyond the furious public outcry. The district attorney in the Turner case subsequently chose to file a new and different sexual-assault case before another judge. And, in an unprecedented act, a number of prospective jurors refused to sit in a jury pool in another case tried before the presiding judge in the Turner case. A group is now seeking enough qualifying signatures to put a referendum on the November ballot aimed at recalling the judge from office.

The Turner case brings back to mind the even more notorious 2013 case in which drunk Texas teenager Ethan Couch killed four people while driving. The prosecution asked for a sentence of 20 years, but the sentencing judge, citing expert testimony about Couch’s having “affluenza,” sentenced him only to probation and therapy. Affluenza is a purported psychological condition caused by excessive affluence and consumption. Couch came from a wealthy family.

30 years ago, public sentiment supported the notion that equal sentencing — not individualized sentencing — leads to fair and just results. The federal government, subsequently followed by almost all the states, set the standard with the passage by Congress in 1984 of the Comprehensive Crime Control Act. As stated in the original Guidelines Manual (1987) published by the Congressional Sentencing Commission, the legislation had as its major purpose to “narrow…the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.”

But equalized sentencing according to statutory guidelines is now being dismantled under a new consensus shared by both parties in Congress, the Department of Justice, the federal Sentencing Commission, several states, and a host of outside groups — including conservative ones. The irony is that, under this new consensus, there’s no obvious basis for criticizing the Turner and Couch sentences. On the contrary, that kind of individualized sentencing based on judicial discretion is exactly what’s being called for.

The problem is that “discretion” can appear subjective or even arbitrary. And defendants whose families have the resources to put on costly, sophisticated, and elaborate sentencing presentations — as in the Couch case — may have an unfair advantage. Finally, giving judges maximum discretion concerning criminal sentencing is arguably undemocratic. With no knowledge of or expectations about what sentences are legal and appropriate, it’s impossible for the public to exercise any role in monitoring the decisions of the judiciary?

If we want to avoid more unfair, arbitrary, or unjust sentences, we might want to reconsider criminal justice reform.

Thomas R. Ascik recently retired as a federal prosecutor.

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