Recently I was talking about the Brock Turner case on Twitter & a friend asked me to discuss it more in depth in a blog post. So, as requested, that's what I'm discussing today. I take requests now!
So first up, some background details since my friend has actually missed all the hype about this case. Brock Turner was recently convicted of sexually assaulting a woman. Both he & the woman were (are?) in college. It was a pretty bad assault. Two other guys happened to come up on Turner digitally penetrating the victim while she was passed out behind a dumpster & in pretty rough shape. Turner tried to run away when the other guys came up, but if I remember correctly, one of them was able to catch him.
He went to trial & was convicted. After trial (and after most guilty pleas) the defendant usually goes through a pre-sentence investigation of some kind, where a probation agent meets with the defendant & gets info about them & makes recommendations to the court as to what an appropriate sentence should be. The court can follow those or not. In Turner's case, the recommendations were that he be given probation. The state was asking for prison time. The judge went with the recommendation for probation & sentenced Turner to 6 months in jail (he ultimately served 3) followed by probation. The judge noted that Turner was an athlete & that it would be detrimental to his future if he went to prison & that he felt like the probation recommendations for probation were more appropriate.
The entire online world subsequently lost its collective mind over this sentence. There are efforts to have the judge removed from office bc of his ruling in the case. California, where the case took place, passed a law just recently as a result of the case mandating a specific amount of incarceration for a conviction like this in the future, so as to prevent a judge from doing something similar in the future.
So, that's the background info that led to my Twitter conversation about the case. Now onto the discussion portion.
I'm very much in the minority on this, but I don't support the backlash against the judge in this case, or the effort to remove him, or the new law requiring incarceration. I firmly believe judges should have discretion to craft what they determine are appropriate sentences for people. I loathe mandatory minimums. Mandatory minimums are a lazy way of handling the criminal justice system.
Mandatory minimums (referring to laws that require a mandatory minimum amount of time that has to be served if convicted of a specific offense) treat defendants like widgets on a factory line. Everyone gets treated exactly the same no matter what. In theory, that sounds great. No concerns about racism bc everyone gets the same sentence. No concerns about economic disparities bc everyone gets the same sentence. Etc.
The problem is that every case is different, every victim is different, every defendant is different, every set of circumstances is different. Yet mandatory minimums want to treat it as if every case is exactly the same. And the legislature makes mandatory minimums as a way of preventing a judge from making a thoughtful decision about a sentence. It's just, "well, you get this sentence bc it's a mandatory minimum." It's much more streamlined than actually parsing through information & making a decision. That's why it's lazy.
Let's do an example here of why mandatory minimums that treat everyone the same are problematic.
Scenario 1: A 29 year old man breaks into a home & violently assaults the people inside with a gun & gets convicted of a felony level offense for burglary & assault. Goes to prison, gets out. He has a long criminal history of violent offenses. Shortly after getting out of prison, he purchases from a friend a stolen gun that's been modified into a sawed off shotgun, which is illegal. He plans to go break in & assault another family. Because of his felony convictions, he's unable to use or possess a firearm.
Charge: Felon in Possession of a Firearm
Mandatory minimum: 5 yrs in prison
Scenario 2: An 38 year old has a prior juvenile adjudication for a burglary from when he was 14. No other prior criminal history other than his juvenile adjudication. Family man, working full time, went to college, etc. He has struggled with depression for most of his life & one day it gets into his head that he should end things. He tells his friend he can't take it anymore & is going to kill himself. He takes his friend's gun & leaves. Friend calls the police to prevent him from killing himself. Police manage to find him before he hurts himself. Unbeknownst to him, his prior juvenile adjudication makes him a "felon" for purposes of the Felon in Possession of a Firearm law. Therefore, he is unable to use or possess a firearm.
Charge: Felon in Possession of a Firearm
Mandatory minimum: 5 years in prison
Now, those are two very, very different defendants with very, very different facts in their cases. But the mandatory minimum law doesn't care. It requires that both of those men go to prison for 5 years. It makes no difference that one man had a violent criminal history & the other had one juvenile adjudication. It makes no difference that one man was going to hurt others & the other was suicidal. Mandatory minimums do not care.
And in many places, the judges cannot do anything other than give the mandatory minimum, regardless of the circumstances of a case. In Minnesota, judges can depart from the mandatory minimums, but it is the defendant's burden to show why the judge should & it's extremely hard to get the court to do it. In all my time as an attorney, I have only gotten one once unless it was a part of a plea agreement. The requirements are that the court give the mandatory minimum in almost all cases.
The problem is that people & cases are widely different. Not everyone should get the same sentence, even if it's the same charge. In an effort to treat everyone the same, the law has become extremely draconian & unfair.
Judges are in a position to evaluate the person as a whole & the case as a whole. They have the opportunity to hear from multiple people in the case, including the probation officer, the prosecutor, any victims, the defense attorney & the defendant. They get to see confidential info on the defendant, like medical records, mental health records, treatment records, etc. They get to decide what an appropriate sentence is for a particular defendant in a particular case after reviewing multiple pieces of information. A judge may decide that one person should receive a more lenient sentence than another person or a more harsh sentence. That's the role of judges, to decide the sentence. That's judicial discretion.
Mandatory minimums strip judges of their discretion. It doesn't matter what the facts are or what the information is. Everyone is given the same sentence, regardless of whether it's appropriate or not in a given case. It's a cookie-cutter solution to criminal justice.
I'm sure people will say that without mandatory minimums, people will "get off" or not have consequences. But mandatory minimums are a sledgehammer solution. In an effort to make sure no one who should get a harsh sentence avoids punishment, the laws end up hammering people who don't deserve that severe of a punishment.
Judges are supposed to use discretion. They are supposed to craft sentences they feel are appropriate for a particular case & particular defendant. If we continue to chip away at judges' discretion & force them to give everyone the same sentence regardless of the situation, we may as well just get rid of judges altogether, since we'll just be an assembly line justice system, fully automated, no need to review each case individually. And that is a scary way of doling out "justice."