Mandatory Minimums Won’t Ensure People Like Brock Turner Go to Prison

On Friday, Brock Turner is scheduled to be released from jail. The 22-year-old former Stanford swimmer was convicted of sexually assaulting an unconscious woman behind a Dumpster in March and has spent the past three months in a county jail. His sentence has been widely regarded as too lenient, and a group of lawmakers has set out to ensure that never happens again.

On Monday, the California State Assembly unanimously passed legislation that requires mandatory minimum sentences for those convicted of sexual assault regardless of the condition of the victim.

Current state law requires a minimum of three years’ prison time in cases of rape and sexual assault when the use of force is present. In cases of sexual assault in which the victim is unconscious or intoxicated, judges can invoke judicial discretion to allow some of that time to be served as probation. A.B. 2888 would prohibit suspended sentences for those convicted of rape or sexual assault against an unconscious or intoxicated person. It awaits a signature from Gov. Jerry Brown before it becomes law.

“Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case,” Assemblymember and coauthor of the legislation Bill Dodd said in a statement. “Our bill will help ensure that such lax sentencing doesn’t happen again.”

Although prosecutors recommended a six-year prison sentence for Turner because his victim was unconscious, Santa Clara County trial judge Aaron Persky was able to use judicial discretion and sentenced Turner to six months (he was released early for good behavior) in county jail. Had this legislation been in place, Turner would have spent a minimum of three years in prison.

To lawmakers like Dodd, the bill closes a loophole that treated the rape of an unconscious person like a lesser offense. But to some rights organizations, the bill expands a one-size-fits-all sentencing that disproportionately affects people of color and fuels mass incarceration.

“Mandatory minimums actually increase racial disparities in our criminal justice system,” Natasha Minsker, director of the ACLU of California Center for Advocacy and Policy, told TakePart. “Even though the very intent here is to have greater uniformity in sentencing, the practical reality is actually the opposite.”

Mandatory minimum sentences gained popularity during the height of the war on drugs, forcing judges to abdicate their ability to consider mitigating circumstances that may warrant a lesser penalty. In part, the intention was to eliminate a person’s background from being considered in sentencing. However, a 2011 report from the United States Sentencing Commission found that black and Hispanic men were subject to mandatory minimums charges most often.

That’s because the bias that can come out in judicial discretion is simply transferred to prosecutors.

“If a prosecutor wants someone to not go to prison, they offer a plea deal to a different charge,” Minsker explained. “If a prosecutor wants someone to go to prison, they pick a charge with the mandatory minimum prison sentence, and then there’s nothing the judge can do about it.”

A 2013 report from Human Rights Watch found that prosecutors strong-armed defendants into pleading guilty to drug charges by threatening to pursue more severe charges and longer sentences if they went to trial. Without a judge being able to intervene in sentencing, many defendants simply couldn’t risk a trial and the extra years in prison they’d face if convicted. Indeed, defendants who were convicted of drug charges had sentences that were, on average, 11 years longer than for those who pleaded guilty, Human Rights Watch found.

Rather than do away with judicial discretion, Minsker suggested tackling implicit bias within mitigating and aggravating factors that judges are meant to consider in sentencing.

“If you have a higher level of education or you are actually in school, that’s considered a mitigating circumstance.... You can understand in the abstract why that is, but of course that benefits white people and wealthy people,” Minsker said. “And of course, African Americans have been profiled and arrested over and over again and have lengthier rap sheets, and that’s used against them in sentencing.”

In the Turner case, Persky examined mitigating factors to arrive at the set of penalties. He took into consideration Turner’s age, his level of intoxication at the time of the crime, and his lack of criminal history. Although many felt these factors did not warrant an absence of prison time, opponents of mandatory minimums caution that not all cases are alike.

“There are people who have severe mental illness, people who are developmentally disabled, people who themselves have a history of sexual abuse or victimization that if you know all these things and were to take them into account, there may be good reason that a person should not go to jail. But the judge has no choice,” Minsker said. “It’s totally understandable that people want Brock Turner to go to prison and spend more time in custody, but he won’t. The one person we know who’s not going to go to prison is Brock Turner, and the people we don’t know, the faces we can’t picture...those are the people who will go to prison.”