The XX Factor

Mandatory Minimum Sentences for Rape Are the Wrong Response to the Brock Turner Case

Longer sentences are the wrong answer to the problem of rape.

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Brock Turner, the former Stanford swimmer who was sentenced to six months in prison for raping an unconscious woman, is scheduled to be released for good behavior on Friday, after serving half his allotted jail time. There’s a bit of poetic justice, then, in the fact that California state legislators passed a bill on Monday that would institute a three-year mandatory minimum sentence for anyone convicted of penetrating an intoxicated or unconscious person.

One could see this as a sign that stopping rape is finally where it belongs on the liberal agenda. There’s just one problem: The same is true of repealing mandatory minimum sentencing laws—which, after helping create our present era of mass incarceration, have become a rare and promising point of bipartisan convergence. Not for the first time in the case of Brock Turner, progressives have allowed one righteous cause to eclipse another. In June, liberals across the country, appalled by Turner’s lenient sentence, clamored for the impeachment of the judge who imposed it. (Santa Clara County Superior Court Judge Aaron Persky ultimately put in for a transfer to civil court earlier this month.) As Slate’s Mark Joseph Stern wrote trenchantly at the time, we should fear “the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence.”

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The legislators behind the new bill seem to believe they can have it both ways. “One of the things I’ve learned over 14 years in the legislature is that everything is nuanced,” Loni Hancock, the Democratic state Senator who represents Berkeley, said in an interview with the L.A. Times. “It’s very hard to say never a mandatory minimum or always a mandatory minimum. In this particular case, I feel to bring the cultural change that we want, it has to be underscored that, ‘Fellows, this really isn’t behavior that’s going to be tolerated.’”

But staunch anti-rape activists are among those arguing that there is no “nuanced” way to impose inflexible sentences. “We share in the outrage at Mr. Turner’s actions, but worry that this law could cause more harm than good,” wrote Feministing editor and Know Your IX co-founder Alexandra Brodsky and former Yale Law School classmate Claire Simonich in the New York Times. Their piece warns:

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Because criminal laws are written expansively, mandatory minimums shift sentencing power from judges to prosecutors, who can effectively choose the sentence when they decide which of a range of eligible charges to bring against a defendant. And while defendants can appeal judges’ opinions, decisions made by prosecutors are nearly impossible to challenge.

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Although mandatory minimums were meant to reduce disparities, in practice they hurt the populations some reformers sought to protect. Minorities and people with lower incomes are more likely to be arrested, and then more likely to be charged with crimes that carry higher mandatory minimums than others who commit the same act.

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With mandatory minimums, the privileged can still get off easy. Leading victims’ groups oppose mandatory minimums in part because judges and juries may be less likely to convict at all if they are uncomfortable with imposing a long sentence on a “sympathetic” (read: white and wealthy) person.

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Mandatory minimums are not only unjust, but expensive—another consideration for California, which spends approximately $64,000 per incarcerated person per year, and has been struggling to downsize its overcrowded penitentiary system. Voter initiatives reclassified some former felonies as misdemeanors in 2012, and the legislature reduced penalties for certain drug crimes in 2014. Studies suggest the state has essentially been throwing away the money spent on lengthening prison terms: Research has shown that while making punishment more certain seems to deter crime, making sentences harsher does not.

California’s bill is waiting on Governor Jerry Brown’s desk, and he hasn’t indicated yet whether he plans to sign. But he vetoed 11 bills that would have created new crimes last year, expressing doubts about whether embroidering the penal code would help make the criminal justice system “more human, more just and more cost-effective.” Brown should have the same questions about the bill before him now. It’s an outrage that Turner will be released on Friday, but it would be a greater travesty if he ushered this bill into law.

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