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Two seemingly unrelated cases in the news this week share a troubling link. Brock Turner, the infamous former Stanford student who was convicted of sexual assault of an unconscious woman, was released from jail after three months last Friday, reviving outrage over his months-long sentence.
Just days later, the Jacob Wetterling case — in which a young Minnesota boy was abducted, assaulted, and murdered 27 years ago — came to a close, as his long-suspected murderer confessed to the crime.
What these cases have in common is the way each has galvanized public support for bad criminal justice policy in the names of the victims. Like so many times before in recent American history, the public response to each of these tragic crimes has been to demand overbroad policy change. As a public defender, I’ve witnessed the harm that can happen when we allow understandable anger over an isolated tragedy to guide broad policy reform.
How Jacob Wetterling’s tragic disappearance inspired our current sex offender registries — which even his mother now decries
Jacob Wetterling’s disappearance in 1989 led to misguided and overly harsh sex offender registration laws enacted literally in his name: The Jacob Wetterling Act, which Congress passed in 1994, required each state to maintain sex offender registries or lose federal funding. After learning of the breadth of the registry and the ways in which sex registration made it harder for people to rehabilitate, Wetterling’s own mother, Patty — who is a champion for missing children — also became a voice for scaling back the very laws that had been passed in response to her son’s disappearance. She realized that the overbroad sex registration system enacted bore little relationship to preventing the kinds of violence that had been committed against her son.
Sex offender registration laws have resulted in the lifetime punishment of people who have committed even minor, nonviolent offenses even though the laws fail to make communities any safer. Much of the foundation for the registration laws stems from misinformation about sex offenders; numerous studies, including those cited in the California Sex Offender Management Board’s recent report, have found that sex offenders are less likely to reoffend than almost any kind of offender.
Indeed, evidence shows that sex offender registration laws actually make communities less safe by preventing offenders from achieving the kind of stability — such as housing or employment — that make them less likely to reoffend. Yet sex registration laws have only become increasingly restrictive in the years since Jacob Wetterling’s disappearance, with residency restrictions and other punitive measures enacted around the nation. As Patty Wetterling has wisely observed, in enacting tough sex registration laws, “we let our anger drive us.”
Justified anger about Brock Turner is driving bad public policy
Anger appears to a driving force today too: Public outrage over the Brock Turner case has been channeled toward a push for the enactment of bad public policy. The outrage over what Brock Turner did is real — but that doesn’t mean we should empower it to create new policy without taking a broader, more nuanced look at the way the criminal justice system plays out in most cases.
Two big pushes for change have arisen from the Brock Turner case — each one sorely misguided. The first and most visible has been a recall effort focused on removing the trial judge from the case — Judge Aaron Persky — from the bench. (Recall supporters remain unsatisfied with Persky’s request to move to civil court, arguing he would still be biased against women in that forum). The movement spread quickly in the weeks following Turner’s sentencing, with over a million signatures collected.
In many ways, the focus on Persky has been misdirected. Recall supporters have largely ignored the fact that Judge Persky was following the recommendation of the probation department to impose a nonprison sentence. Supporters of the recall movement have also unfairly compared other sexual assault cases heard before Judge Persky to the Brock Turner case, arguing for example that his harsher sentencing of Raul Ramirez, a person of color alleged to have committed a similar offense, showed racial bias.
Yet the Ramirez case not only involved someone convicted of a different crime than Brock Turner, but it was a case that resolved in a plea deal negotiated by the prosecution; to compare presiding over a plea deal to a sentencing after a trial reflects a lack of understanding of the way the criminal justice system works. But that’s what happens when we empower a righteously angry but ill-informed public: Without the inside knowledge of more than just one case, unfair assumptions prevail over careful analysis. And, worse, bad policy emerges.
But what’s of far graver concern from the recall movement is the larger impact of the movement on judges nationwide. Judicial recalls are rare, so it isn’t hard to imagine how alarming the movement to oust Persky has been to other judges around the country. The takeaway message is clear: Be tough in sentencing or face public wrath.
The recall effort instructs judges to be careful in exercising discretion. After all, there is little public outcry when people like my clients (mostly low-income people of color) are sentenced routinely to decades or longer in prison. So from a judge’s perspective there is little to gain and much to lose when displaying discretion in sentencing. The recall movement’s perverse result will not be greater compassion for victims of sex crimes, but instead will be less compassion for all criminal defendants — who are disproportionately people of color — and more people imprisoned for longer periods by judges far more reluctant to exercise discretion.
Why harsh sentencing laws are a bad idea — even for crimes as terrible as rape
And if the effect of the recall movement isn’t to scare judges out of using discretion in sentencing, there is now a push, based on the Turner case, to take away judicial discretion altogether. Just around the time Turner was released from jail last week, the California legislature passed a bill imposing a three-year mandatory minimum prison sentence for those convicted of penetration of an intoxicated or unconscious victim. One of the bill’s drafters, Democratic Assembly member Bill Dodd, insisted, “This bill is about more than sentencing, it’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”
But harsh sentencing laws do not protect victims, nor do they have the power to change cultures. Harsh and inflexible sentencing laws only contribute to our nation’s mass incarceration epidemic. Take the federal criminal system, where the prison population has ballooned since the imposition of mandatory minimums for drug offenses in the 1980s as part of the War on Drugs. The shift toward mandatory minimums in the federal system has played a huge role in our nation’s mass incarceration problem.
Mandatory minimums may constrain judges, but they also award more power to prosecutors — already the most powerful players in the criminal justice system. Two people who commit similar acts can be charged with wildly different offenses depending on the prosecutor’s choices about what charges to file. Mandatory minimums don’t eliminate discretion in sentencing — they just shift that discretion to the prosecutor, who retains the sole power to determine the charges filed and the charges someone can plead to.
Mandatory minimum sentences are also only imposed if one is actually convicted of the charge. Anyone charged with a mandatory minimum offense therefore faces tremendous pressure to accept a plea deal to plead to another charge without that minimum. If someone is innocent of the charge carrying a minimum, he’s in a bind: Should he go to trial and risk losing and then facing a judge whose hands are tied at sentencing, regardless of the circumstances of the case?
Or, more likely, should he just try to resolve his case through a plea deal to another charge that won’t carry a mandatory minimum? Most people facing charges with mandatory minimums are pressured to plead guilty simply because of the charges, and regardless of their own innocence or guilt. As the US Sentencing Commission has explained in a 1991 congressional report, “the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip.”
Nor will mandatory minimums prevent discrimination against people of color or the poor; to the contrary, they may in fact perpetuate the benefits the privileged experience in the system. Most people in the criminal justice system could not be more different than Turner and could not face more different outcomes. Poor people and people of color are disproportionately likely to be arrested and charged with crimes compared to wealthy, privileged, and white Americans. As a result, the more mandatory prison time we impose onto those facing charges, the more prison time we are really imposing on poor people of color in a system that already incarcerates them at outrageously disproportionate rates.
But mandatory minimums also deprive judges of the very reason we have people serve as judges and not machines. We don’t want judges to be afraid to use discretion. That shouldn’t be the lingering takeaway from the Brock Turner case. Instead, we should be demanding that judges use discretion more broadly and in favor of people from all backgrounds, not just those familiar to them. After all, judges should have discretion to think about the context and circumstances of a case; they should have the ability to trust their informed judgment in making sentencing decisions.
California’s Three Strikes Law: a case study in what happens when a tragedy drives public policy
The injustice of mandatory minimums is illustrated by another bad, overbroad law created in response to one tragedy. In 1994, California’s Three Strikes Law passed with over 70 percent of the vote in the wake of the brutal murder of 12-year-old Polly Klaas, who was kidnapped from a sleepover and murdered by a repeat offender who had recently been released on parole. Her father aggressively campaigned for the law, which classified certain crimes deemed somewhat arbitrarily as “serious” or “violent” as “strikes.” A second serious or violent “strike” would double a sentence, but a third strike, which could be for something as minor as a theft, would carry a 25-year to life mandatory sentence.
The Three Strikes Law resulted in shockingly harsh punishments for even minor crimes. During my time in law school, as a student in the Stanford Three Strikes Clinic — now the Stanford Justice Advocacy Project — I represented a man whose first two strikes were two unarmed burglaries he committed on the same day when he was 18. He was sentenced to 25 years to life for his third strike years later; he stole a $40 pair of pants from Sears and then tried to return them to use the money to buy a car seat to take his newborn child home from the hospital.
For that minor offense, he was sentenced to spend up to his whole life in prison. Fortunately, the clinic took his case and we were able to get him resentenced and released — after he had already spent well over a decade in prison over a pair of pants.
The harsh reality of the Three Strikes Law came to a head when in 2012 — over 20 years after the law passed — Californians voted overwhelmingly to scale back the law and limit the number of life sentences over minor offenses. Much like Patty Wetterling’s realization that misguided anger had driven the creation of bad sex offender registration laws, California voters realized that the real impact of Three Strikes Law was not just preventing crimes like the murder of Polly Klaas — instead, it was locking people up for life over minor crimes. Justice for Polly didn’t result from injustice for so many others.
We know how this story goes: We’ve seen it with Jacob Wetterling and we’ve seen it with the Three Strikes Law. When we react rashly to a tragedy by pushing through poorly conceived policy, we are likely to suffer for decades from the unintended consequences of that law. Let’s be thoughtful and deliberate before rushing to enact major policy responses to isolated crimes, no matter how angry they make us. Most of the people calling for policy changes in response to Brock Turner are well-meaning and rightfully seek to enhance protections for women and prevent sexual assault crimes. But it’s our responsibility not to allow that good will to create bad law.
Rachel Marshall is a public defender in Oakland California, where she handles felony cases. She graduated from Brown University and Stanford Law School.
