Vox: All Posts by Rachel Marshallhttps://cdn.vox-cdn.com/community_logos/52517/voxv.png2019-01-30T16:10:00-05:00https://www.vox.com/authors/rachel-marshall/rss2019-01-30T16:10:00-05:002019-01-30T16:10:00-05:00Roger Stone shows how much better it is to get arrested when you’re rich
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<img alt="Roger Stone" src="https://cdn.vox-cdn.com/thumbor/RAtEdaLTW6W8zaAoI0rt5mO8LBc=/167x0:2834x2000/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/62969094/GettyImages_686971834.0.jpg" />
<figcaption>Roger Stone, a former political adviser to President Donald Trump, speaks during a visit to the Women’s Republican Club of Miami. | Joe Raedle/Getty</figcaption>
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<p>Stone is getting perks my clients never would.</p> <p id="fSl1nb">Early Friday morning, 29 heavily armed federal agents swarmed the home of Roger Stone, arresting him abruptly following his <a href="https://www.lawfareblog.com/document-indictment-roger-stone">indictment</a> on seven federal counts ranging from witness tampering to obstruction of justice. Despite the dramatic circumstances around his arrest and the severity of his charges — particularly the charge of witness tampering — Stone walked out of jail the same day as his arrest on a <a href="https://thehill.com/policy/national-security/426972-federal-judge-orders-roger-stone-to-be-released-on-250k-bond">$250,000 promissory bond</a>, which means he promises to pay that amount only if he fails to comply with his terms of release.</p>
<p id="6cgQxW">Stone, a former political adviser to Donald Trump, <a href="https://www.politico.com/story/2019/01/27/roger-stone-arrest-mueller-fbi-1128612">attacked</a> special counsel Robert Mueller’s decision to have him arrested by an FBI SWAT team rather than allowing him to self-surrender. Mueller argued that doing so was necessary because of the high risk that Stone would destroy evidence or tamper with witnesses were he tipped off. Indeed, just last year, following his release on bail pending charges also brought by Mueller, Paul Manafort, another former Trump adviser and lobbying partner of Stone, <a href="https://www.theguardian.com/us-news/2018/jun/15/paul-manafort-trump-campaign-chair-custody">was sent back to jail after he</a> tried to tamper with witnesses while released on bail. </p>
<p id="JVU3Ni">You would think that the real risk of Stone tampering with evidence would make him the poster child of pretrial incarceration. Yet Stone, like many defendants in federal court without criminal records and charged with nonviolent offenses, was released after signing a simple bond. The fact that he was considered risky enough to warrant such a dramatic arrest but was released on bond so quickly is a reminder of the deep disparities in who is typically allowed to walk free after an arrest and who is not — as well as how differently state and federal courts work when it comes to pretrial release. </p>
<p id="5kVd4z">I’m a public defender in Oakland, California. My clients’ experiences in state court could not differ more from those of Stone’s in federal court. Most of my clients are victims of a flawed bail system that allows the rich to buy their freedom while the poor remain in jail. Though many of my clients live in poverty, their bail typically constitutes amounts that would be unfathomable for them to come close to paying. </p>
<p id="2QyIAi">In federal court, by contrast, often defendants who are released sign promises to pay rather than actually posting money to the court or a bondsman in order to be released. (Part of the reason for this is the resources the federal government has in some districts to assess and monitor defendants while their case is pending; state courts usually don’t have these resources, so judges tend to use incarceration and bail to ensure defendants return to court.) </p>
<p id="eqp325">What troubles me most, though, is that Stone’s release on the day of his arrest likely would have happened even if he were charged in state court, where what separates those who are incarcerated from those who are released usually comes down to financial status. Every day I see disparities in the way our criminal justice system treats the rich and privileged versus how it treats the poor and marginalized — disparities much starker in state courts, where the vast majority of people are prosecuted and where bail plays a more prominent role. </p>
<p id="xe1mMf">In state courts, white, wealthy, and powerful criminal defendants, like Stone, are routinely released after posting some form of bail. It’s worth noting that in state courts, this often happens even where violence is alleged: Take <a href="https://www.nytimes.com/2018/05/25/nyregion/harvey-weinstein-arrested.html">Harvey Weinstein</a>, who easily posted $1 million bail on multiple charges of sexual assault in New York state court despite facing the possibility of life in prison.</p>
<h3 id="morPZZ">How the bail system disadvantages low-income people</h3>
<p id="JC0y22"><a href="https://www.vox.com/2016/8/24/12590060/doj-bail-unconstitutional">As I’ve written previously for Vox</a>, the bail systems in most state courts wages war against the poor by forcing them to remain in jail while those with resources can buy their freedom. Because the amount of bail is not determined in proportion to someone’s ability to pay, people with affluence or wealthy connections manage to get out of jail, while low-income defendants remain incarcerated, even when bail is relatively low. This broken system causes many to languish in jail simply because they are poor. </p>
<aside id="HaGFxa"><div data-anthem-component="readmore" data-anthem-component-data='{"stories":[{"title":"Bail reform, which could save millions of unconvicted people from jail, explained","url":"https://www.vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-inequality"}]}'></div></aside><p id="p7ftgB">It’s easy to understand the toll that incarceration places on people while they are in jail, but there is actually a broader impact: the effect it has on whether those people plead guilty. Prosecutors and judges often capitalize on the desperation of people in jail. The way to virtually guarantee someone will settle a case is to offer a literal out; plead guilty and get out of jail — sometimes weeks, months, or even years after the pretrial incarceration began. </p>
<p id="SzwxYP">Throughout my career, I have encountered countless clients, including innocent ones, who decided to plead guilty simply because doing so would get them out of jail sooner than even winning at trial would. And, of course, because people in jail are often desperate to resolve their cases, they frequently get worse<em> </em>plea deals than those with the financial resources to post bail. </p>
<p id="AIytHf">Out of jail, by contrast, there is time and greater opportunity to work every angle until the best outcome is achieved. Sure enough, within hours of his arrest on Friday, Stone was trying to do just that, calling in to a far-right radio show, professing his innocence, and <a href="https://twitter.com/ddale8/status/1088850330752819200">imploring listeners to contribute $2 million to his legal defense</a>. As photos of Stone lounging with lawyers after his release reveal, the attorney-client relationship can also better flourish without jail barriers limiting access; this can often mean better outcomes in trial. </p>
<p id="9V74l8">I don’t blame my clients, who have loved ones just as important as those in Stone’s life, for making decisions that get them out of jail. But I do blame a system that forces them to weigh their immediate freedom against their long-term futures. Because those plea deals my clients take simply to get out of jail will haunt them forever — not only by limiting their options in life, but even by increasing their bail should they be arrested again. The cycle continues. </p>
<h3 id="bOhjKV">Thoughtful bail reform is necessary</h3>
<p id="I4kLgo">Recent bail reform efforts nationwide give some hope that our country is heading toward change. Prominent members of Congress have recently taken up measures to reform bail in federal and state court. Yet many of these efforts still miss the mark; <a href="https://www.politico.com/magazine/story/2018/08/29/california-abolish-cash-bail-reformers-unhappy-219618">in California</a>, for example, a recent bail reform bill signed by then-Gov. Jerry Brown is likely to lead to even more<em> </em>incarceration, not less. The bill creates a presumption in favor<em> </em>of incarceration for even many low-level offenses and misdemeanors for which people were frequently released (or given low bail) in the past. </p>
<p id="XNTTW8">The bill also leaves judges with far too much discretion to decide whom to incarcerate; under the new law, <a href="https://www.sacbee.com/opinion/op-ed/article217018990.html">experts</a> predict that judges will choose to release folks who, like Stone, are wealthy and privileged, and detain (without any possibility of release before the conclusion of the case) those who are not. It also relies on a risk assessment tool likely to further racial disparities by weighing factors that tend to be proxies for race, such as likelihood of future police contact, which of course, happens disproportionately in communities of color, which the police tend to target. That’s why criminal justice reform advocates, including the <a href="https://www.aclunc.org/news/aclu-california-changes-position-oppose-bail-reform-legislation">American Civil Liberties Union</a> and the NAACP, opposed the final bill, which is currently <a href="https://www.sfgate.com/bayarea/article/California-law-abolishing-bail-is-put-on-hold-13539946.php">on hold following challenges by the bail bond industry</a>. </p>
<p id="DOSUtz">Instead of crafting a solution that will jail more<em> </em>people, we need thoughtful bail reform focused on reducing pretrial incarceration, eliminating the existing racial and socioeconomic disparities in our jails, and ensuring no one is jailed simply for being poor. </p>
<p id="ypKuPW">After all, in a country in which Roger Stone, in spite of all the compelling reasons to be concerned over his release, is allowed to fight his case from outside the confines of a jail cell, then surely the many defendants who pose no such risk should be allowed to do so as well.</p>
<p id="NuUV2Z"><em>Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.</em></p>
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https://www.vox.com/first-person/2019/1/30/18203801/roger-stone-arrested-richRachel Marshall2018-06-06T14:20:01-04:002018-06-06T14:20:01-04:00The recall of the judge who sentenced Brock Turner will end up hurting poor, minority defendants
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<img alt="Judge Aaron Persky poses for a photo with a sign opposing his recall in Los Altos Hills, Calif." src="https://cdn.vox-cdn.com/thumbor/gSGwyX9DYqNdD2eN29tCfyhPidM=/161x0:2929x2076/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/59976167/AP_18153073645147.0.jpg" />
<figcaption>Judge Aaron Persky poses for a photo with a sign opposing his recall in Los Altos Hills, California. | AP Photo/Jeff Chiu</figcaption>
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<p>I’m a public defender. Here’s why the recall vote is no progressive victory.</p> <p id="iB7TAw">Many people were outraged by the light sentence given to Brock Turner, the former Stanford swimmer, after his sexual assault conviction: a mere six months (of which he served three). The sentence inspired a national debate. On Tuesday, voters in Santa Clara County voted to recall Judge Aaron Persky, who imposed that sentence. </p>
<p id="3sF6wl">That is a terrible mistake, whether or not you agree with the sentence. </p>
<p id="qVKgO9">This was the first successful recall in California in almost 90 years. Though the recall only involved one judge, its impact will be felt nationwide. </p>
<p id="ylbXbm">It sends a dangerous message to judges everywhere: If we don’t like one decision you make, you’re out. That represents a terrible threat to judicial independence and highlights the problems with electing judges — or subjecting appointed judges to reelection. They need the protection to think independently, even if they sometimes make decisions we don’t like. </p>
<p id="lh4Xc4">I am not arguing that Turner’s sentence was the right one. Indeed, as a public defender, I am all too aware of the racial and class disparities in sentencing that redounded to Turner’s benefit. <a href="https://www.vox.com/2016/6/9/11889472/stanford-sexual-assault-brock-turner">I have previously written</a> about the ways privileged criminal defendants often are rewarded precisely because of their privileges. (One need look no further than Harvey Weinstein, who easily posted bail and did not spend a day in jail after his arrest.) But allowing an uninformed public to punish a judge for one unpopular decision jeopardizes the integrity of our entire system.</p>
<h3 id="49S9Rh">I’ve seen firsthand how the Judge Persky episode is affecting judges’ behavior</h3>
<p id="aOtNX7">Long before this week’s vote, the recall campaign’s impact had been felt in courtrooms across the country, where judges became increasingly cautious about exercising discretion, worried that they might be punished for leniency. In my work as a public defender in Oakland, California, I have observed how the recall effort has changed judges, whether consciously or not, making them more timid about taking risks on defendants who deserve mercy. </p>
<p id="jLuByT">I have also heard stories from other lawyers. One told me that after earning an acquittal for a young client with no criminal record, he was told by the judge how relieved he was by the decision, which meant the judge would not have to sentence him. The judge clearly felt the young man did not deserve a harsh sentence, had he been convicted, but he was worried about creating a “Brock Turner problem” for himself, he said.</p>
<p id="8c4NGA">Given that the criminal justice system disproportionately targets and prosecutes the poor and people of color, the ones who suffer from judges feeling pressured to sentence harshly are not people with privilege like Turner, but those without privilege. </p>
<p id="lN6XTS">Judges have always had more incentives to punish harshly than leniently, and elections only increase these pressures. A <a href="https://www.brennancenter.org/sites/default/files/publications/How_Judicial_Elections_Impact_Criminal_Cases.pdf">Brennan Center for Justice study</a> found that when judges are approaching reelection, they are more likely to impose harsher penalties. This is common sense, given that judges who have sentenced a defendant harshly rarely make the news. </p>
<p id="y6eXBK">That is no small thing; in this country, we have an epidemic of wrongful convictions, yet never have I heard of a public outcry to recall or vote against a judge who presided over a case in which an innocent client was convicted or sentenced. In contrast, as we have just seen, a sentence perceived as too light not only will make headlines but could cost a judge his job. </p>
<p id="OgQIL9">Most judges nationwide are appointed, not elected. (In federal courts, that’s exclusively true.) Despite this, in many state courts, even appointed judges must run for reelection. And many judges are also subject to recall proceedings at any time. </p>
<p id="thtv0F">When judges are looking over their shoulders, worried about losing their jobs if they enrage the public, the fairness of our system is compromised. Judicial independence is especially important because the public is often wrong, particularly on a local level. </p>
<p id="C6DzeP">Consider the example of desegregation. After <em>Brown v. Board </em>declared school segregation unconstitutional, the Supreme Court left much of the implementation of desegregation orders to local federal judges. Many Southern whites remained deeply committed to segregation and were infuriated by the decision. If those federal judges had to worry about elections, or about being recalled by a racist local community, few judges would have ordered schools desegregated. </p>
<h3 id="v3cSvj">There are plenty of ways to hold judges accountable — including term limits</h3>
<p id="9n0EWv">Eliminating judicial reelections would hardly mean the end of judicial accountability. Judges would continue to be reviewed by judicial commissions, which review complaints about judges and determine whether to sanction them, and would still be subject to appellate review — and, in extreme cases, impeachment. And ending the public’s role in reelecting judges would not mean we’d have to go all the way in the opposite direction and grant appointed judges lifetime tenure. </p>
<p id="dnx5f0">State legislators should consider imposing term limits on judges, which would ensure that fresh faces and perspectives would be added to the bench. But even without the imposition of term limits, the nominal accountability that reelections offer is far outweighed by the erosion of judicial independence that public elections cause.</p>
<p id="MxR1bJ">The recall campaign was led by people <a href="http://padailypost.com/2018/02/14/law-professor-leading-judge-recall-isnt-attorney/">lacking any criminal law experience</a>. Many lawyers who have actually appeared before Judge Persky in criminal cases describe him as a thoughtful, smart judge. Even the head prosecutor where Persky presided opposed the recall, noting that Persky was not actually known for leniency and that “most judges in California would have done the same thing” in sentencing Turner. (Indeed, Persky followed the probation department’s sentencing recommendation.)</p>
<p id="8CsFTp">The California Commission on Judicial Performance <a href="https://cjp.ca.gov/wp-content/uploads/sites/40/2016/08/Persky_Explanatory_Statement_12-19-16.pdf">reviewed</a> Persky’s decision in the Turner case, along with others that recall supporters identified, and found no evidence of bias. Recall supporters pointed to other defendants Persky had sentenced to more time than Turner as evidence of bias, but the examples revealed a lack of insight into how criminal courts operate. </p>
<p id="g6vuuS">For example, recall supporters pointed to the <a href="https://www.independent.co.uk/news/world/americas/stanford-rape-case-judge-aaron-persky-brock-turner-latino-man-sentence-a7110586.html">harsher sentencing of a Latino man in a sexual assault case</a> Persky had presided over. But that defendant had pleaded guilty after plea negotiations, rather than after a trial. As anyone practicing criminal law knows, it is rare for judges to interfere with plea bargains.</p>
<p id="4B7FA6">In addition, recall that supporters have handpicked other cases of perceived leniency, but the only trend among these cases is that Persky appeared to believe in second chances for young offenders, and was often focused more on rehabilitation than punishment. In general, this is something many Americans now say they want from a justice system that for too long has been overly reliant on incarceration. </p>
<p id="tYlaGR">Judges are not lawmakers. They are not elected to implement policy or to respond to social movements. The only way to guarantee they don’t is by insulating them from public opinion. The recall of Judge Persky is already causing harm, but we can limit future harms. </p>
<p id="ghIqcD">The only way to prevent judges from allowing their rulings to be swayed by the public is to change laws that allow them to be recalled.</p>
<p id="Ug6GkJ"><em>Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.</em></p>
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https://www.vox.com/first-person/2018/6/6/17434694/persky-brock-turner-recall-california-stanford-rape-sentencingRachel Marshall2018-01-25T13:00:04-05:002018-01-25T13:00:04-05:00The moment the judge in the Larry Nassar case crossed a line
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<img alt="Judge Rosemarie Aquilina reads a letter from former Michigan State University and USA Gymnastics doctor Larry Nassar during the sentencing phase of his trial, January 24." src="https://cdn.vox-cdn.com/thumbor/PyzMzXr9tk5gWl4fmU-4oAwmjV0=/267x0:4000x2800/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/58453143/GettyImages_909770606.0.jpg" />
<figcaption>Judge Rosemarie Aquilina reads a letter from former Michigan State University and USA Gymnastics doctor Larry Nassar during the sentencing phase of his trial, January 24. | Jeff Kowalsky/Getty Images</figcaption>
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<p>Nassar’s victims deserve an advocate. But that advocate shouldn’t be a judge.</p> <p id="I4w7f6">Many of us have watched in horror as victim after victim testified at the sentencing hearing for Larry Nassar, the doctor who pleaded guilty to molesting US gymnasts under his care. Though Nassar had admitted to molesting seven victims, Judge Rosemarie Aquilina opened the courtroom in this phase to anyone wishing to speak, including victims of Nassar who were not part of the official case. </p>
<p id="khgHZU">Ultimately, there were more than 160 witnesses, including numerous Olympic athletes, who gave gut-wrenching testimony about his effect on their lives. </p>
<p id="uOksjE">On Wednesday, Judge Aquilina sentenced Nassar to 40 to 175 years in prison — a sentence she assured him means he will die in prison, since it will be served subsequent to a 60-year sentence in another case for possession of child pornography. “I have signed your death warrant,” she announced.</p>
<p id="D3h6pS">Throughout the sentencing hearing, Aquilina was praised for her compassion towards victims, and her comments Wednesday <a href="https://twitter.com/hashtag/JudgeRosemarieAquilina?src=hash&ref_src=twsrc%5Etfw">drew further exultant commentary</a>. But her words to Nassar should make us uncomfortable. That’s because, perhaps without realizing it, Aquilina overstepped her bounds as a judge and adopted the role of victim advocate. </p>
<p id="RiB8BT">She told Nassar, “It is my honor and privilege to sentence you,” and observed, at one point: “Our Constitution does not allow for cruel and unusual punishment. If it did … I would allow some or many people to do to him what he did to others.” </p>
<p id="gNARZW">That is a human reaction, but it is one you’d expect to be expressed by a victim rather than a judge. (Many observers, including me, heard the “do to him what he did to others” line as a not-so-coded expression of a hope that Nassar would be raped in prison.) </p>
<p id="IY8zI1">Our nation’s constitutional principles remain deliberately very distinct from biblical notions of “an eye for an eye,” but her statement had a clear Old Testament flavor. As a public defender, I may be especially attuned to such line blurring. But it is simply unfitting for a judge to broadcast such personal contempt for a defendant in her court, no matter how awful his deeds.</p>
<p id="VEIQjK">Throughout the proceedings, which were televised, Aquilina essentially transformed herself into a champion for a movement. It is understandable to feel empathy for previously voiceless victims, especially ones whose testimony took such bravery. But there are crucial distinctions between judge and advocate, and she traversed those lines repeatedly. </p>
<p id="unxYGU">She talked to victims as though she were their confidante, telling one, “The monster who took advantage of you is going to wither, much like the scene in <em>The Wizard of Oz</em> where the water gets poured on the witch and the witch withers away.” </p>
<p id="Abdgvl">She passionately thanked victims and called them “superheroes.” As a result, she has been profiled around the country — including in a New York Times piece titled, <a href="https://www.nytimes.com/2018/01/23/sports/larry-nassar-rosemarie-aquilina-judge.html">“Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge.”</a> </p>
<p id="11efLc">The movement to end sexual abuse is undeniably important, and it has fresh momentum as a result of the #MeToo movement. The judge’s comments may seem reasonable in light of Nassar’s actions — sexually abusing young girls as young as 6, abusing his power both as a doctor and as a representative of the Olympic team. He himself is hardly sympathetic, at one point suggesting his accusers were seeking press attention. (Although he later said, “There are no words that can describe the depth and breadth for how sorry I am for what has occurred.”)</p>
<p id="XRSu0M">But no matter how good Aquilina’s intentions, for a judge to make herself the face of a social cause poses a threat to the fairness of our system. We rely on judges to ensure that people’s lives are decided by neutral, independent arbiters who impartially evaluate the evidence and apply the law. That’s the only way we can trust in a system that has such awesome power to take away people’s liberty. </p>
<p id="UV76vt">To be clear, I am not challenging whether the sentence Aquilina imposed was the right call. The problem is not the lengthy sentence; it’s the way she positioned herself throughout the sentencing proceedings. </p>
<p id="rYriN9">It may be hard to see why this matters. But, again, as a public defender, I am concerned when judges use individual cases to send broader social messages. </p>
<p id="ZiDDCT">I fear this tendency creates ripple effects among judges around the country, causing them to avoid exercising discretion in sentencing because of fear of public wrath if their sentences are perceived as insufficiently harsh. And it’s clear that in general, long prison sentences — whether the result of judicial discretion or legislatively mandated minimum sentencing — end up disproportionately hurting the poor and underprivileged.</p>
<p id="KBJmCD">By aligning herself so closely with the victims and so clearly rooting against Nassar, Aquilina also reinforced the dangerous idea that judges can and should be in sync with public sentiment. </p>
<p id="OitOJj">In some ways, this is an easy case for such an alignment, given the horror of Nassar’s acts. But easy cases get us in trouble; they lead us down a slippery slope. What happens the next time, when the evidence is less clear? What happens when there is doubt as to guilt but a judge allows empathy for victims to drive decisions? </p>
<p id="SdE6xs">And what happens even when there is <em>not </em>doubt about guilt but good reason for a judge to opt for a sentence less than the maximum? I worry about future defendants who <em>shouldn’t</em> get sentenced harshly but may face judges too swayed by their own emotional reaction to victims — or too eager to be lauded by the public as a “fierce advocate” — to remember their role in the courtroom.</p>
<p id="I1fbI1">In our criminal justice system, victims don’t decide their perpetrators’ sentences, because victims (understandably) cannot be objective. Relatedly, the public shouldn’t get to decide which cases sufficiently offend us to warrant a judge abandoning impartiality. </p>
<p id="CTqGb9">Judges wear plain, unadorned robes. They don’t wear college insignia, sports emblems, or any other markers of allegiance. That’s by design, as judges represent absolute neutrality. We must hold judges to that standard in every case, not just some. That’s the only way we can ensure our system is fair. </p>
<p id="LBhbJq">That’s not for Larry Nassar’s benefit. It’s to protect everyone else.</p>
<p id="oROjV7"><em>Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.</em></p>
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https://www.vox.com/the-big-idea/2018/1/25/16932656/judge-aquilina-larry-nassar-line-between-judge-advocate-sentencingRachel Marshall2016-09-09T09:10:07-04:002016-09-09T09:10:07-04:00Get angry about Brock Turner’s crime. But don’t use it as a reason to pass bad laws.
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<figcaption>Justin Sullivan/Getty Images</figcaption>
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<p id="yP2skU">Two seemingly unrelated cases in the news this week share a troubling link. <a href="http://www.vox.com/2016/9/2/12736418/brock-turner-jail-release">Brock Turner</a>, 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. </p>
<p id="cPtsvK">Just days later, the <a href="http://www.nbcnews.com/news/us-news/man-admits-abducting-killing-jacob-wetterling-missing-minnesota-boy-1989-n643506">Jacob Wetterling case</a> — 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. </p>
<p id="1x32tN">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. </p>
<h3 id="19vu88">How Jacob Wetterling’s tragic disappearance inspired our current sex offender registries — which even his mother now decries</h3>
<p id="RJjWcT">Jacob Wetterling’s disappearance in 1989 led to misguided and overly harsh sex offender registration laws enacted literally in his name: The <a href="https://www.law.cornell.edu/topn/jacob_wetterling_crimes_against_children_and_sexually_violent_offender_registration_act">Jacob Wetterling Act</a>, 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, <a href="http://www.citypages.com/news/patty-wetterling-questions-sex-offender-laws-6766534">Wetterling’s own mother, Patty</a> — 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. </p>
<p id="R4H8i8"><a href="http://www.vox.com/2016/7/5/12059448/sex-offender-registry">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.</a> 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 <a href="http://www.casomb.org/docs/Challenge_of_Locating_Programs_3-17-16.pdf">recent report</a>, have found that sex offenders are less likely to reoffend than almost any kind of offender. </p>
<p id="P3pAQd">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.” </p>
<h3 id="tVcgEn">Justified anger about Brock Turner is driving bad public policy</h3>
<p id="4XFK0N">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.</p>
<p id="jugFWb">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. </p>
<p id="21xIhY">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. </p>
<p id="hmlEUC">Yet the Ramirez case not only involved someone convicted of a <em>different </em>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.</p>
<p id="doULRe">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. </p>
<p id="ubqcy2">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<em>. </em>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 <em>all </em>criminal defendants — who are disproportionately people of color — and more people imprisoned for longer periods by judges far more reluctant to exercise discretion. </p>
<h3 id="B2x0KR">Why harsh sentencing laws are a bad idea — even for crimes as terrible as rape </h3>
<p id="agJbYT">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, <a href="http://www.reuters.com/article/us-california-rape-bill-idUSKCN1142G9">Democratic Assembly</a><a href="http://www.reuters.com/article/us-california-rape-bill-idUSKCN1142G9"> member</a><a href="http://www.reuters.com/article/us-california-rape-bill-idUSKCN1142G9"> Bill Dodd, insisted</a>, “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.”</p>
<p id="8tbpgR">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. </p>
<p id="RedpU4">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. </p>
<p id="UZSkat">Mandatory minimum sentences are also only imposed if one is actually <em>convicted </em>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? </p>
<p id="HtWxTi">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 <a href="https://www.ncjrs.gov/pdffiles1/Digitization/137910NCJRS.pdf">US Sentencing Commission has explained</a> 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.”</p>
<p id="qT4Apo">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. <a href="http://www.vox.com/2016/6/9/11889472/stanford-sexual-assault-brock-turnerr">Most people in the criminal justice system could not be more different than Turner and could not face more different outcomes</a>. 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. </p>
<p id="iEhuM9">But mandatory minimums also deprive judges of the very reason we have <em>people </em>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 <em>should</em> have discretion to think about the context and circumstances of a case; they <em>should </em>have the ability to trust their informed judgment in making sentencing decisions. </p>
<h3 id="jU5Hit">California’s Three Strikes Law: a case study in what happens when a tragedy drives public policy</h3>
<p id="rXg1C6">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. </p>
<p id="T0ZUE3">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 <a href="https://law.stanford.edu/stanford-justice-advocacy-project/">Stanford Justice Advocacy Project</a> — 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. </p>
<p id="Z79D7G">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.</p>
<p id="Us8xAx">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.</p>
<p id="AWBROv">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. </p>
<p id="S5C0KP"> <em>Rachel Marshall is a public defender in Oakland California, where she handles felony cases. She graduated from Brown University and Stanford Law School.</em></p>
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https://www.vox.com/2016/9/9/12854930/brock-turner-jacob-wetterlingRachel Marshall2016-08-24T08:00:03-04:002016-08-24T08:00:03-04:00America’s bail system is a war on the poor. Let’s get rid of it.
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<figcaption>A bail bondsman in Houston, TX | <a href="https://www.flickr.com/photos/royluck/"><strong>Roy Luck</strong></a></figcaption>
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<p id="OuQIf4">The Department of Justice did something groundbreaking last week: It declared our nation’s <a href="https://thinkprogress.org/doj-says-jailing-poor-for-being-poor-unconstitutional-be7f5711473f#.k7bpmr7h0">bail system unconstitutional</a>. In a brief filed in support of a class-action lawsuit challenging the bail system, the DOJ held that jailing people who are facing charges unless they can afford to post bail impermissibly discriminates against the poor.</p>
<p id="iAg353">As a public defender in Oakland, I know all too well how much our bail systems are used as a way to lock up the poor while allowing the wealthy to avoid jail. Every day, I see jails full of people who would be free if they simply had a few more dollars to post bail. Our nation’s bail system allows those with money to buy their way to freedom while others sit in cells simply because they are poor. </p>
<p id="VnffAe">The bail system is founded on a simple but flawed concept: People need a monetary incentive to ensure they return to court. When someone comes to court after being arrested, a judge reviews the charges, the person’s prior convictions, the person’s likelihood of fleeing, and any public safety risks, and then decides whether to release the person on his own promise to return to court, whether to deny bail altogether, or whether to grant bail. If bail is set, an accused person can post cash to get out of jail, and so long as he makes his court appearances, he will get the money back at the end of the case. </p>
<p id="7YIeO1">Of course, most people don’t have large sums of money readily available to post bail. As a result, in many parts of the country those in jail rely on the commercial bond industry. A bondsman will post bail on someone’s behalf but will charge 10 percent of the total amount even if the person beats the case.</p>
<p id="ywMnMW">And there are many people who cannot afford even the bail bondsman’s 10 percent rate — and so must stay in jail for days or weeks as they await trial. Today there are almost <a href="http://www.bjs.gov/content/pub/pdf/cpus14.pdf">750,000</a> people in local jails (not prisons), most of whom are awaiting trial. Our jails swell with poor people never convicted of anything.</p>
<h3 id="mqvKKI">“Jane”: A case study in how the bail system hurts poor people</h3>
<p id="NydNZR">Let me tell you a story about a former client of mine, whom I will call Jane (not her real name; although she has given me permission to share her story, I have changed all names and some identifying details). Jane was dating a man who, unbeknownst to her, was married. Late one night, Jane was at her boyfriend Bob’s home when he left on an errand. Moments later, Jane heard pounding on the door and windows, and screams outside the house. </p>
<p id="4D5Mwb">The terrified Jane grabbed a knife to protect herself. She heard a window break and people outside. When she opened the door, two women angrily confronted her in the dark. “Who are you?” one of them demanded. “I’m Bob’s girlfriend,” Jane explained. “Well, I’m his wife!” the woman responded. A violent fight broke out — Jane claimed the two women attacked her first, and they claimed she attacked them — and things got bloody. </p>
<p id="G4OBDT">Jane had a great self-defense case. Although there was dispute over who started the fight, Jane was the one alone and inside when multiple people confronted her in the dark after banging on the doors. There was a great deal of helpful evidence on Jane’s behalf, including the fact that she was the one to run out to a neighbor’s house to call 911. </p>
<p id="fdFUxe">Jane’s family was able to post her bail of $35,000 for her with a bond agency early in her case. But a judge then raised her bail after the prosecutor pointed out that the alleged victim’s injuries were severe. Jane was taken back into jail, where I met her for the first time. I could only talk to her through a glass wall. </p>
<p id="j64hPK">Jane was devastated by her arrest. She was set to graduate from adult school in a few weeks, and she had an 8-year-old daughter to whom she was desperate to get home. But her family simply could not afford the new bail amount of $130,000.</p>
<p id="qbZCdC">Because Jane was eager to get out of jail as soon as possible, she was adamant about moving the case along as quickly as possible. So we set it for a speedy preliminary hearing. Jane stayed in custody as we fought the case aggressively at a preliminary hearing with the information my investigator had gathered quickly. Jane sat next to me at the hearing, wearing a jail jumpsuit. After the hearing, in which a judge found enough evidence to set her case for trial, Jane wanted to continue to fight her case. Yet just a few weeks after the hearing, a prosecutor offered her a deal: Plead guilty and get out of jail immediately. </p>
<p id="vAcnDP">Jane faced two choices. She could get out of jail right away by pleading guilty to a crime she knew she did not commit — and which she was confident she could win at trial. Or she could fight the case and stay in jail for months until her case could go to trial. The choice was simple for her — she chose the route that would get her back right away to her daughter and home and school. </p>
<p id="DU5yP2">As a result, she not only has a felony on her record but is on felony probation, which means she is vulnerable to being sent to state prison if a judge (without a jury) finds that there is even just a 51 percent chance (a much lower standard than the “beyond a reasonable doubt” standard) that she had violated probation in any way, no matter how minor. </p>
<h3 id="aWv3Sz"> “Joan”: A case study in how a middle-class person can navigate the bail system just fine</h3>
<p id="KidllM">Now imagine a very different story: the story of a hypothetical client I will call Joan (a composite drawn from numerous cases). Joan was involved in an incident nearly identical to Jane’s. But Joan is from a middle-class family that was able to come up with the money to post bail. When the judge later raised her bail because of the severe injuries, Joan agreed to pay for an ankle monitor to allow her to remain out of jail, rather than posting more money. The monitor cost $20 a day, which Joan could afford.</p>
<p id="R3u52i">Since Joan was out of jail and there was a great deal of investigation to do, she and her lawyer decided at her first court date to waive her right to a speedy preliminary hearing until they had all the necessary information. They also set up a meeting to talk about the case and her options, and to visit the scene of the crime together. </p>
<p id="mskifl">Meanwhile, Joan went back to school. Just a month after her arrest, she received her high school degree. Her lawyer brought to court photographs of the smiling Joan in her cap and gown hugging her daughter while holding her diploma. Upon her lawyer’s recommendation, Joan also began doing community service. She began looking for a full-time job now that she had her degree.</p>
<p id="cklds4">Meanwhile, the investigator had located a neighbor of Bob’s, who had a surveillance camera that caught part of the incident. It captured the two women pounding on the door for what turned out to be 15 full minutes. </p>
<p id="o0yxT8">Joan came to court dressed in a suit for her next court date. She handed her lawyer a stack of character letters, all of them describing her as a wonderful community member. There was one from her daughter’s teacher, one from her pastor, and even one from an ex-boyfriend, who talked about how he never saw Joan display any violence in her life. </p>
<p id="wS3w31">Her lawyer showed the prosecutor the letters and the video, but the prosecutor still wanted Joan to plead to a felony. He offered her a felony with no jail time, but Joan wasn’t interested. “I can’t have a felony on my record. I am looking for a job,” she explained. Her lawyer set the case for another court date to try again. </p>
<p id="jxUjZF">Meanwhile, Joan continued to thrive and her lawyer continued to build her defense. The defense investigator had finally succeeded in locating Bob, who had been dodging her, and he admitted that he had invited Joan over that night. He provided a helpful statement, which the defense turned over to the prosecutor. The investigator also secured a statement from the neighbor who had called 911. He stated that he’d observed on numerous occasions that Bob’s wife had a violent temper.</p>
<p id="A2ujz0">At the next court date, based on the new information, the prosecutor offered Joan a misdemeanor with no jail time. Joan turned down the offer, and her lawyer set the case for a preliminary hearing. At the hearing, her attorney was able to attack the prosecution evidence with the information she’d gathered. Although a judge did find enough evidence to go forward with the case, he made a long record about what a close call it was and how it seemed like it could have been self-defense. The case was set for trial. </p>
<p id="OodaLb">Meanwhile, Joan had gotten a full-time job, and her employer submitted a character letter for her. On the day of trial, the prosecutor agreed to allow her to attend some anger management classes and then have her case dismissed in one year if she stayed out of trouble. A year later, Joan’s record was clean. </p>
<p id="YHXdNu">Although Joan is not a real person but a composite of many of my clients who fought their cases out of jail because they could afford to post bail (or were released on their own by a judge), the contrast between Jane and Joan is real. The only difference between them is money. Every day, innocent people plead guilty simply because they cannot afford bail. Every day, people who are out of jail get better plea deals than people in jail. Every day, people with money receive better results from the criminal justice system than do the poor. </p>
<p id="9CrBaN">The different outcomes of Jane and Joan can be blamed on our country’s bail system. </p>
<h3 id="5wzwqj">Bail is not the only way to prevent an accused person from fleeing</h3>
<p id="bCXBaq">If bail is truly designed to prevent an accused person from fleeing, there are far more efficient and equitable ways to do so. After all, some places, like Washington, DC, have almost eliminated monetary bail altogether. Instead, a pretrial services program evaluates individual risk levels and decides what kind of supervision to provide to ensure someone returns to court. </p>
<p id="2qQYlI">For example, if someone is deemed a flight risk, he can be ordered to wear an ankle monitor, which will track his location with far more precision than just seeing if he appears on the day of court. Ankle monitors — which in Oakland cost around $20 to $30 a day — are far less costly than incarceration; in Alameda County, it costs an average of more than $142 a day to jail someone. And electronic monitors carry the added advantage of alerting the system to someone skipping town immediately — as opposed to having to wait until a next court date to see if an accused appears.</p>
<p id="Mu0fOB">The truth is if someone is looking to flee, he is probably going to flee regardless of whether there is money at stake. Indeed, for someone with a lot of money, the money posted for bail may be insignificant. For another who struggled to post bail through a bondsman, he probably wouldn’t be able to pay the bondsman the remaining 90 percent of the bond anyway, even if he did skip town, so even if the bondsman comes after him for the rest of the money, it will be difficult to recover it from someone with nothing. </p>
<p id="Kvvn5R">Indeed, it is not as though the only consequence of missing court is forfeiting one’s bail. When someone misses court or flees an area, a judge not only places a warrant out for his arrest but that person can be charged with a new crime for failing to appear in court, or absconding. Certainly the threat of having to do jail time and facing a new charge is far worse than losing money. So it is clear that bail isn’t really about ensuring court appearances.</p>
<p id="Q9G6AD">But even if one believes money can be a sufficient incentive to get people to court, how do we justify a system that sets standard bail without considering a person’s actual ability to pay? If we want to set bail amounts based on the nature of a person’s criminal history and the severity of the charged offense, why not tie those factors to a <em>percentage </em>of someone’s assets and income, rather than on a static number? Instead of establishing one amount of bail per crime, we should do an evaluation of what percentage of that person’s income provides sufficient incentive to come to court. </p>
<p id="bpzzu6">Sure, there are some crimes (like murder) that society may determine should <em>never </em>merit bail, regardless of income. But for most crimes, don’t two people with identical criminal histories and charges who only differ based on their economic statuses deserve different bail amounts? If Jane had a total income of $20,000 and Joan had an income of $200,000, wouldn’t it be far more equitable — as well as effective — to set bail at $2,000 for Jane and $20,000 for Joan than to set it at $20,000 for each of them? </p>
<p id="qaySei">By establishing a one-size-fits-all bail system, what we have really done is set up a one-size-fits-the-rich system, whereby those with money have little difficulty posting bail, while the poor have no ability to pay and are trapped in jails as a result. If we really believe people need a financial incentive to come to court and want to ensure that <em>all </em>people have an interest in returning to court, a proportionate bail system would be the answer.</p>
<h3 id="i0Pm3W">Our bail system perpetuates our nation’s war on poor people</h3>
<p id="ySgzOE">What becomes painfully clear from looking at our bail system is that it is not designed to be either efficient or fair. Instead, our bail system exists as a way to perpetuate our nation’s war on poor people. Our criminal justice system “trusts” the wealthy more and gives them benefits my clients never see. Chief among them is the farce of a fair and equal bail system that ultimately lets the wealthy out of jail for nearly all but the most serious crimes, while poor people remain in jail for even the most minor ones. </p>
<p id="enGdpo">What makes this all the more infuriating is that the right to be free from “excessive bail” is so fundamental to our nation’s values that our founders included it in our Bill of Rights. How did we get to a place so far from what our founders envisioned?</p>
<p id="p9du3I">This year marks 40 years since the passage of the <a href="http://uscode.house.gov/statutes/pl/89/465.pdf">1966 Bail Reform Act</a>, which was intended to ensure that the criminal justice system didn’t jail people facing charges simply because they were poor. The bill shifted the factors federal judges considered in setting bail and created a presumption that those charged with non-capital offenses should be released. If a judge determined that the person needed additional incentives to come to court, the judge could impose additional conditions designed to ensure attendance in court. </p>
<p id="dsrFjg">Yet the 1970 and ’80s brought with them heightened fear of crime, and in 1984 a new federal bail reform bill passed, this time allowing judges more leeway to consider things like “community safety” in setting bail or even denying bail altogether. The bill changed the presumption away from release in certain offenses and led to increased bail for many people. Meanwhile, each of the 50 states developed their own vastly different approaches to bail, ranging from cash bail systems to bondsmen-centered industries to the DC. approach that barely uses bail at all. </p>
<h3 id="wGFlza">Why we need to get rid of our bail system altogether</h3>
<p id="t0UuX6">Forty years after the Bail Reform Act, the DOJ’s powerful statement against the bail system is mobilizing a new push for bail reform. But we need to go further than reform. We need to eliminate our bail system altogether. </p>
<p id="AXQ24T">By eliminating our bail system, we need to create a presumption of release for those arrested for all but the most serious offenses. To support that release, we need rigorous and well-resourced pretrial services agencies whose sole task is ensuring that the accused show up in court. Well-funded pretrial service programs — like those used in DC — can best evaluate individuals charged with offenses and determine what those individuals need to return to court. </p>
<p id="tBYvx0">Some will need little incentive to return, and a gathering of some contact information in case they miss court will suffice. Others may require an assigned pretrial services employee to monitor them regularly and check in to ensure they are attending required programs or classes while their case is pending. Still others may compel electronic monitoring so that the courts can keep close tabs on them as their case progresses. </p>
<p id="DYbmfz">The focus, however, needs to be not on imposing requirements for the sake of them (after all, these are people who have not been found guilty of any crime, so punitive requirements are inappropriate) but on meeting each individual’s needs to get them back to court. To do this successfully, pretrial service programs need to be well-staffed and well-resourced, with the focus always on helping people make their court dates and not on burdening them with unnecessary requirements.</p>
<p id="u0b2yq">Although this dramatic change would require a great deal of upfront costs, the success of DC’s program demonstrates it is well worth it. Since DC instituted its pretrial services program in the 1990s, about <a href="https://www.psa.gov/?q=data/performance_measures">90 percent of those facing charges show up to their court dates and 98</a><a href="https://www.psa.gov/?q=data/performance_measures"> percent</a><a href="https://www.psa.gov/?q=data/performance_measures"> avoid any arrests for violent offenses while their cases are pending</a>. </p>
<p id="CVhWif">And DC has saved close to $400 million a year by avoiding jailing costs for those who are facing charges. Indeed, these kinds of pretrial services programs may even prevent future crime by connecting people to housing and treatment that make them less likely to commit future offenses.</p>
<p id="a7Nsrj">Robert F. Kennedy (who was United States attorney general at the time) named our current problem back in 1964, when he <a href="https://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-04-1964.pdf">testified</a>, “The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail.” As Kennedy said, “One factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money.” </p>
<p id="DDzRwL">Forty years later, not enough has changed, and my clients remain in jail simply for being poor. Yet the DOJ’s briefing is a huge step toward progress in the area of bail. Let’s embrace their call for radical change and push for the elimination of bail altogether. It’s time to start a real war on poverty — and end the war on the poor.</p>
<p id="9dW2WB"> <em>Rachel Marshall is a public defender in Oakland</em><em>,</em><em> California, where she handles felony cases. She graduated from Brown University and Stanford Law School.</em></p>
<p id="article-body"><strong><a href="http://www.vox.com/first-person">First Person</a></strong> is Vox's home for compelling, provocative narrative essays. Do you have a story to share? Read our <strong><a href="http://www.vox.com/2015/6/12/8767221/vox-first-person-explained">submission guidelines</a></strong>, and pitch us at <strong><a href="mailto:firstperson@vox.com">firstperson@vox.com</a></strong>.</p>
https://www.vox.com/2016/8/24/12590060/doj-bail-unconstitutionalRachel Marshall2016-07-05T08:00:03-04:002016-07-05T08:00:03-04:00I'm a public defender. My clients would rather go to jail than register as sex offenders.
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<p>When I first became a public defender, I believed the worst punishment that my clients would face would be time in jail. Since then, I've learned that incarceration is not the only — and perhaps not the worst — punishment the criminal justice system can impose. The registration requirements imposed on those convicted of sex offenses are unfairly harsh and punitive, though few recognize them as such.</p>
<p>I had always assumed that sex offender registration was limited to those who committed the most egregious and dangerous offenses. I had also trusted that the <a target="_blank" href="http://www.nytimes.com/2003/03/06/us/the-supreme-court-sex-offenders-justices-reject-challenges-to-megan-s-laws.html">Supreme Court</a> was right when, in 2003, it stated that sex offender registration laws are not punishments but merely administrative requirements to protect public safety.</p>
<p>But I realize now that many of my clients would choose to take on more jail time, more fees — anything to avoid being labeled a sex offender for life. That's because our current sex offender registration laws apply an unbending and inhumane one-size-fits-all approach that does not prevent future sex crimes and in fact makes us all less safe.</p>
<q>The registration process appears designed to make people fail. The rules are so complicated that few non-attorneys can keep up with them. </q>
<p>The <a target="_blank" href="http://www.meganslaw.ca.gov/sexreg.aspx">first registry</a> began in 1947, when California started tracking sex offenders by requiring them to notify police of their whereabouts. For nearly 50 years, only four other states followed suit, until a handful of high-profile child murders in the 1990s began fostering a cultural fear of "stranger danger." In spite of evidence that most sex offenses happen by those known to the victim, this developing panic over the image of nearby, lurking sex offenders led to broader sex offender laws.</p>
<p>In 1994, Congress passed the <a target="_blank" href="https://www.law.cornell.edu/topn/jacob_wetterling_crimes_against_children_and_sexually_violent_offender_registration_act">Jacob Wetterling Act</a>, which was named for a missing boy assumed — but never proven — to have been kidnapped by a local sex offender living in a halfway house. The law required each state to maintain sex offender registries or lose federal funding. In 1996, <a target="_blank" href="http://www.nj.gov/njsp/spoff/megans_law.html">Megan's Law</a> — named for a 7-year-old who was raped and murdered by a neighboring, repeat sex offender — passed in New Jersey; it required public release of sex offender registry information, which Megan's mother argued would have kept her daughter alive. Just two years later, President Bill Clinton <a target="_blank" href="http://www.cnn.com/ALLPOLITICS/1996/news/9605/17/clinton.sign/index.shtml">signed a federal version</a> of the bill into law.</p>
<p>Since then, additional sex offender restrictions — including those limiting where sex offenders can live — have emerged across the country. Legal challenges to the registries have failed; in 2003, in <i>Smith v. Doe </i>and <i>Connecticut Department of Public Safety v. Doe</i>,<i> </i>the US Supreme Court decided that sex offender laws — including public notification of sex registry information — are constitutional. As a result, there are now over 800,000 people registered as sex offenders in the US.</p>
<p>Here's what I wish more people understood about sex offender registries.</p>
<h3>Far too many people have to register as sex offenders</h3>
<p>The category of crimes that require one to register as a sex offender in California — which has more registered sex offenders than any other state— is a grossly<b> </b>overbroad one. It encompasses those who, have been convicted of sexual assault, but also people who committed even minor, misdemeanor conduct. There are the crimes one would expect to see labeled as serious<b> </b>sex offenses — rape, child molestation, sexual assault — but there are also offenses like peeing in public, which can qualify as indecent exposure. Similarly, grabbing someone's butt or masturbating in one's own car also qualify as sex registerable offenses, even though they are punishable as misdemeanors. We may not want to legalize those behaviors, but forcing someone to be labeled a sex offender for life over a misdemeanor that is only punishable at its maximum by six months in county jail is excessive.</p>
<p>The state nonetheless treats all members of this "sex offender" class harshly, regardless of the underlying offense. All "sex offenders" must comply with strict requirements, including regular registration, residency restrictions, and lifetime consequences damaging their personal and professional lives long after they've served their time, including the public shaming of having their names, faces, and addresses plastered online by the government. Reasonable minds may differ about whether some of these restrictions make sense for the most violent offenders, but that's only a fraction of the people affected by sex offender laws.</p>
<h3>Complying with the sex offender registry rules is a huge challenge</h3>
<p><b> </b></p>
<p>The registration process appears designed to make people fail. The rules are so complicated that few non-attorneys can keep up with them. In California, a former sex offender with a steady place to live must register annually for life. But whenever he moves, he must register within five days of relocating (it's only three days in some states). If he suddenly becomes homeless (likely because he can't get a job with the public label "sex offender") he must register as homeless within five days and then reregister as homeless every 30 days. In Georgia, it's even worse: A homeless sex offender must register every time he changes sleeping locations within just 72 hours. <b></b></p>
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<img alt="A man hands out information to neighbors, warning them to stay away from the home of a sex offender in the neighborhood." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/5GJMS1xdPBKDKtPkFzcKwOhHtmI=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/6743629/GettyImages-483028587.jpg">
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<p><a target="new" href="http://www.vox.com/2016/7/5/11883784/sex-offender-registry">Why the sex offender registry isn't the right way to punish rapists.</a></p>
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<p>Registering itself is a cumbersome process. Oakland Police Department's current voicemail message for sex registration-related inquiries states that in order to register, one must make an appointment at least a <i>month </i>in advance. It is hard to understand how one can be expected to register within five days of changing addresses if an appointment takes a month to set up.</p>
<p>And even if one secures an appointment, he must often wait many hours at the police station — jeopardizing any job he was lucky enough to find — to be seen for the appointment. And when the appointment begins, there are rarely interpreters around or people to assist with reading the technical language. So even if you are, like many of my clients — homeless, mentally ill, and too poor to own a phone — you are nonetheless expected to either call a police station or show up in person, make an appointment over 30 days in advance, wait for hours at the police station on your appointment day (hardly a comfortable place for most of us, let alone someone with a criminal record), read and understand legal jargon on lengthy documents, and continue to do so every few weeks <i>for the rest of your life</i>.</p>
<p><i> </i></p>
<p>The lifetime registration requirement in many states means that there are people being arrested for failing to register who are elderly and whose offenses dated back decades. I perused the Department of Justice's website for sex registrants listed within a mile of my office in Oakland and found that the average age was 61, with several offenders in their late 80s still listed and required to register. With age comes memory loss — which often means trouble remembering to register. As a result, I've had clients who continue to get arrested regularly for failing to register simply because they cannot remember to do it as frequently as they are required to and end up back in prison, where their health continues to deteriorate.<b></b></p>
<p>The real problem emerges once someone fails to register — which can be frequent for people who are homeless, disabled, or elderly. Failing to register is itself a crime — frequently a felony — meaning the punishment for failing to register can be more severe than the punishment for the actual offense. In Georgia, for example, failing to register is a felony carrying a sentence anywhere from a year to <i>30 </i>years in prison. Yet, the registration laws are notoriously complex in ways that make compliance all but impossible for many who are required to register.</p>
<p>Take, for example, a man I'll call Mario (to protect his confidentiality), who was represented by the Stanford Three Strikes Project several years ago. Mario was a sex registrant because, as a teenager, he inappropriately touched a fully dressed boy on two occasions. After serving his sentence with a clean prison record, Mario was released to a halfway house where he was doing extremely well. He was diligent about registering — to the point that his parole agent complained that he was contacting him <i>too</i> often.</p>
<p>When the funding dried up for the halfway house, Mario learned he would have to leave. He contacted his parole agent and asked how he was supposed to register as homeless, and the parole agent told him that he thought he had 30 days to register. It is true that homeless people must register every 30 days, but Mario becoming homeless for the first time counted as a change of address — which required him to register within just five days.</p>
<p>Eleven days after he became homeless the police asked Mario about his status and arrested him for being six days overdue in registering. Not only was he back in jail, the prosecutor was seeking a <i>life sentence</i> under the Three Strikes Law. A judge ultimately refused to sentence Mario as a three-striker, but he was convicted of the failure-to-register felony and was back in the system — for not knowing laws that even his parole agent did not know.</p>
<h3>There's no proof sex offender registries work</h3>
<p>Supporters of sex registration laws claim they promote public safety by ensuring that police can track offenders' whereabouts and keep them away from children. But no evidence supports the premise that public safety is thereby enhanced in any way; to the contrary, registration laws frequently lead to homelessness, instability, and more time in prison, all of which lead to a greater risk of future crimes.</p>
<q>My heart has been broken by working with clients who offended decades ago and then lived on the straight and narrow for an extended time</q>
<p>The myth that those who commit sex crimes are more likely to reoffend is pure fiction; numerous studies, including those cited the California Sex Offender Management Board's <a href="http://www.casomb.org/docs/Challenge_of_Locating_Programs_3-17-16.pdf">recent report</a>, noted that sex offender re-offense rate is actually <i>lower</i> than any crime other than murder. Indeed, research shows that only about 5 percent of new sex offenses were committed by previous sex offenders.</p>
<p>My heart has been broken by working with clients who offended decades ago and then lived on the straight and narrow for an extended time. How does it happen that after all those years of obeying the law, these individuals end up reoffending? All too often the answer has everything to do with the sex registration requirements. These individuals had been put back in system because of some (often hypertechnical) failure to register — and that incarceration then threw their lives (jobs, relationships, housing, etc.) into havoc. So they end up as my clients because, with their lives upheaved, they predictably went on to reoffend.</p>
<p>A <a href="https://www.hrw.org/report/2007/09/11/no-easy-answers/sex-offender-laws-us">2007 Human Rights Watch report</a> determined that sex offender registries do not prevent sex offenders from committing future sex crimes; data show that the best way to prevent crimes — particularly sex crimes — is to promote stability and security for past offenders. Ripping that all away by incarcerating them for failing to register only leaves the public at risk.</p>
<h3>Registries aren't the only requirement for sex offenders — they're also restricted as to where they can live</h3>
<p>These registration requirements are heavy; but they're still only a piece of our punitive sex offender regimen. On top of all the registration requirements, many states severely limit where anyone labeled a "sex offender" may live. This often means that any sex offender is barred from living within some distance (typically somewhere between 500 feet and 200 feet) of a school, playground, bus stop, or even gym.</p>
<p>In Miami, Florida, local residency restrictions are so harsh — prohibiting sex offenders from living with 2,500 feet of any place children are likely to gather — they have rendered sex offenders homeless; because of the requirements, offenders have nowhere to live, other than remote, isolated places, like under a bridge or on train tracks. This doesn't exactly provide the support and stability research shows they need to avoid future sex offenses.</p>
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<p><a target="new" href="http://www.vox.com/2016/5/23/11722634/ferguson-effect-richard-rosenfeld">Did protests over police shootings cause a rise in murders? A researcher says … maybe.</a></p>
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<p>Imagine someone convicted of a minor sex offense, who moves in with his family to a home carefully chosen to be far enough away from restricted areas. He's doing well, in a rehab program, getting treatment for his behaviors, progressing, looking for a steady job. Suddenly he learns that a part-time daycare center has opened up down the block, so he can't continue to stay at his home. He becomes homeless and loses all the support he had relied upon to get back on track.</p>
<p>Now that he is homeless, his chances of successfully complying with our draconian registration laws are slim, and his risk of arrest for failure to register is high. Not only that, but his instability and lack of support are likely to cause him to commit a new crime. Because of sex offender laws, someone who was doing well after serving his sentence for a crime is suddenly on a one-way path back to prison.</p>
<p>Although California is beginning to loosen these residency restrictions for some offenders following a California Supreme Court case declaring a San Diego blanket residency restriction unconstitutional, many offenders are still subject to these arduous residency restrictions both in California and in other states. The requirements vary widely; in Illinois, someone convicted of a sex offense cannot step foot on a forest preserve, which qualifies as a park.</p>
<p>Some states have recently begun to recognize that residency restrictions frequently push people into homelessness, where they are more likely to commit crimes, and have eliminated them altogether. The former chairman of the Texas House Correction Committee, Ray Allen, who had once fought for tougher sex offender laws, has noted that "we cast the net widely to make sure we got all the sex offenders. Now, 15 years on, it turns out that really only a small percentage of people convicted of sex offenses pose a true danger to the public."</p>
<p>Even some prosecutors have come to recognize how misguided residency requirements are. Earlier this year, a California bill that would have allowed for local discretion to increase residency requirements was defeated early on after a group including the Alameda County District Attorney and the attorney general's office opposed it, noting that the restrictions "actually increase the risk of sexual recidivism." <b></b></p>
<p>Being deemed a sex offender for life carries with it other unwritten penalties. Not only is it infinitely more difficult to get a job or a place to live once one has been labeled a sex offender, but many mental health programs and drug or alcohol rehabilitation programs have policies banning sex offenders. Again, this lack of support and services only furthers the chances that these individuals will end up committing future crimes.</p>
<h3>The Brock Turner case is not representative of most sex offender cases</h3>
<p>Even though lawyers and policymakers recognize that strict sex offender laws are counterproductive, many politicians continue to cling to false narratives of the dangers of sex offenders — the same fearmongering that led to the expansion of sex offender laws in the 1990s. Atypical cases like Brock Turner's further fuel that sentiment and drum up support for tough sex offender laws. As a result, despite the lack of evidence demonstrating any public benefit to sex offender laws, these stigmatizing, burdensome, and unfair laws persist.</p>
<q>Many politicians continue to cling to false narratives of the dangers of sex offenders — the same fearmongering that led to the expansion of sex offender laws in the 1990s</q>
<p>What makes us great as a society is our ability to apply reason to a vast body of research and knowledge. Yet the fury over the Brock Turner case has created a risk that we shift toward harsher penalties for sex offenses, without looking closely at what kinds of crimes are included in that category. We must avoid "one-size-fits-all" labels for those convicted of a broad range of offenses.</p>
<p>We know that the proven methods of protecting public safety involve moving away from monitoring and shaming those who have committed past offenses, and focusing on ways to prevent sex crimes on the front-end, and on meaningful reentry programs that assist people coming out of prison to get jobs, housing, and support. They may not provide the quick-fix satisfaction that politicians love to sell — but they are the only thing proven to work.</p>
<p><i>Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School. </i></p>
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<p><a href="http://www.vox.com/first-person" target="new">First Person</a> is Vox's home for compelling, provocative narrative essays. Do you have a story to share? Read our <a href="http://www.vox.com/2015/6/12/8767221/vox-first-person-explained" target="new">submission guidelines</a>, and pitch us at <a href="mailto:firstperson@vox.com">firstperson@vox.com</a>.</p>
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https://www.vox.com/2016/7/5/12059448/sex-offender-registryRachel Marshall2016-06-09T08:00:05-04:002016-06-09T08:00:05-04:00I’m a public defender. What if my clients got the same treatment as Brock Turner?
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<p>As a public defender in Oakland, California, what troubles me most about the sentence handed to <a target="_blank" href="http://www.vox.com/2016/6/7/11866390/brock-turner-stanford-sexual-assault-explained">former Stanford student Brock Turner</a> is not the mere months he will do in jail — it's that his privileged life was used to justify it.</p>
<p>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.</p>
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<h4>More on Brock Turner</h4>
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<p><a href="http://www.vox.com/2016/6/6/11871228/brock-turner-rape-race" target="new">The media's racial double standard in covering sexual assault cases</a></p>
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<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>Turner's father issued a statement bemoaning how punishing the <a target="_blank" href="http://www.vox.com/2016/6/8/11876580/stanford-sexual-assault-father-letter">"20 minutes of action"</a> 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.</p>
<p>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 <i>more</i> likely someone will commit future crimes, instead of <i>less</i>.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<q>Turner's case is the anomaly. He is an example of the benefits our system affords those with resources.</q>
<p>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.</p>
<p>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.</p>
<p>For example, <a target="_blank" href="https://www.hrw.org/news/2009/04/10/drug-policy-and-human-rights">a 2009 Human Rights Watch report</a> 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.</p>
<p>And along with the higher rates of arrest come longer sentences; in 2014, the American Civil Liberties Union identified numerous <a target="_blank" href="https://www.aclu.org/sites/default/files/assets/141027_iachr_racial_disparities_aclu_submission_0.pdf">racial disparities in sentencing</a> — including the fact that black male defendants receive longer sentences than whites arrested for the same federal offenses and with similar criminal backgrounds.</p>
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<p>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.</p>
<p>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.</p>
<p>But then Turner, a student at an elite university in a prestigious athletic program, was rewarded with leniency precisely <i>because </i>of his privilege. He had every opportunity going for him and was given the benefit of the doubt because of it.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>It is time for our system to treat all people with fairness, compassion, and humanity — not just the privileged.</p>
<p><i>Rachel Marshall is a public defender in Oakland California, where she handles felony cases. She graduated from Brown University and Stanford Law School. </i></p>
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https://www.vox.com/2016/6/9/11889472/stanford-sexual-assault-brock-turnerRachel Marshall