As a public defender in Oakland, California, what troubles me most about the sentence handed to former Stanford student Brock Turner is not the mere months he will do in jail — it's that his privileged life was used to justify it.
A probation officer recommended leniency for Turner, who was convicted of three felony counts of sexual assault, because of his lack of prior convictions. That may sound like an objective measure, but it ignores the reality that it's easy for a privileged person like Turner to avoid the criminal justice system entirely.
Too often, police, prosecutors, and judges make decisions about what kind of people "belong" in the criminal justice system based on how closely they can relate to the person who has committed the crime.
When the judge who sentenced Turner looked at him, he saw a person with whom he has a lot in common: white, attending Stanford (where the judge in this case graduated from — and where I also attended), a top-ranked swimmer, wearing a suit, and with similarly successful family and friends rallying to support him.
To the judge, Turner doesn't "look" like he belongs in the system at all. Thus, it was easy for him to have compassion for Turner.
By contrast, when police, prosecutors, and judges see my clients — always poor and frequently people of color — it's easy for them to think, consciously or not, that that person deserves to be locked up because he or she seems to have a lot in common with others who have been locked up.
The vast majority of my clients grew up without any semblance of privilege. Many are from poor neighborhoods that didn't connect them with the same opportunities — educational, professional, extracurricular — that Turner takes for granted.
Turner's father issued a statement bemoaning how punishing the "20 minutes of action" of his child's 20-year life was a "steep" price to pay. Those statements are not only tone-deaf, they also reflect the way most privileged people who have never encountered the justice system react when confronted with its awesome power.
Suddenly they realize the system's harshness. They realize it's overly focused on punishment rather than rehabilitation. They realize the system ignores individual humanity and frequently makes it more likely someone will commit future crimes, instead of less.
But what Turner's father missed is that Turner's case is the anomaly. He is an example of the benefits our system affords those with resources. He could afford to post bail (which most of my clients charged with far less serious offenses cannot), allowing him to fight his case out of custody. He could testify to a jury without fear they would be prejudiced against him because of his race. He could afford to hire experts to support his defense.
And, most importantly, he reaped the tremendous benefit of white privilege by a judge who didn't seem to be able to imagine someone like Turner in prison.
Yet at the same time that this judge demonstrated compassion for Turner, so many other white judges have little trouble sentencing poor people of color to prison for far less serious crimes.
Consider the other crime Turner committed before he assaulted his victim: underage drinking. That night was probably not his first time illegally consuming alcohol. But privileged people like him get a pass for that crime.
Indeed, that and similar crimes are deemed excusable because the people who do it are in college and that's what you do in college. Many of us have committed that crime or something similar, and our lives are seldom ruined because of it.
Turner's case is the anomaly. He is an example of the benefits our system affords those with resources.
Our society excuses some criminal acts — particularly on college campuses — and chooses not to police those crimes or the places they occur. That choice disproportionately benefits people of privilege. Turner is not a member of a heavily policed community, so any crimes he might have committed would likely not have been caught or, like his drinking, would have been excused.
Contrast that with where my clients live: heavily policed, low-income communities, where it is much harder to escape law enforcement contact. This does not mean people in low-income communities are any more likely to commit crimes; they are just more likely to have been arrested and, therefore, disproportionately punished.
For example, a 2009 Human Rights Watch report found that people of color and white people are equally likely to use or sell drugs, yet people of color are more likely to be arrested.
And along with the higher rates of arrest come longer sentences; in 2014, the American Civil Liberties Union identified numerous racial disparities in sentencing — including the fact that black male defendants receive longer sentences than whites arrested for the same federal offenses and with similar criminal backgrounds.
I have clients who could be great athletes, scholars, leaders — but they didn't get their talents cultivated, didn't go to elite universities, didn't get every opportunity in the world. But when they are convicted of a crime, a judge slams them for their lack of privilege, their inability to point to a string of successes.
So they do six months for a victimless crime. Six months for using drugs. Six months times three, or four, or 10. California Health and Safety Code 11351.5, a charged offense I see daily in my practice, punishes having just a handful of rock cocaine with the intent to sell with up to four years in prison. Just one prior adds three more years in prison.
But then Turner, a student at an elite university in a prestigious athletic program, was rewarded with leniency precisely because of his privilege. He had every opportunity going for him and was given the benefit of the doubt because of it.
All of my clients' lives would be unimaginably different had they been born in the very circumstances Turner lived in. Yet that goes mostly unrecognized when they appear before our legal system.
Meanwhile, Turner benefited twice: first from his white and economic privilege that helped him live a life sheltered from the criminal justice system; and then again from those same privileges leading to a non-prison sentence.
Let me be clear: I am not advocating for harsher penalties for anyone. Instead, I want the humanity of all people, regardless of background, to be recognized in sentencing.
I hope judges and jurors will recognize the role privilege plays in determining who gets punished — and how. I hope that this case pushes prosecutors, judges and jurors alike to recognize their own biases, to realize the impact of favoring those who look like them and, even worse, the devastation of punishing those who don't more harshly.
It is time for our system to treat all people with fairness, compassion, and humanity — not just the privileged.
Rachel Marshall is a public defender in Oakland California, where she handles felony cases. She graduated from Brown University and Stanford Law School.
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