Herschella Conyers & Jonathan Masur, "Brock Turner and Sentencing in Sexual Assault Cases: A Debate"

Does Judge Persky’s lenient sentencing decision merit impeachment? Are mandatory minimum prison terms appropriate for convicted rapists? Should victim impact statements be permitted in sentencing hearings? Is lifetime sex offender registration too harsh of a punishment?

Presented on October 26, 2016, by the Domestic and Sexual Violence Project, ACS, and Defenders.

Transcript

Speaker 1 (00:02):
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.

Alison Frost (00:20):
Hello, everybody. Thank you so much for being here. My name is Alison Frost, I am the president of the Domestic and Sexual Violence Project. And on behalf of the DSVP, I want to thank our co-sponsors, the American Constitution Society, and also Defenders. I'd also like to thank and introduce our speakers today. On the left you'll find professor Jonathan Masur, who is a graduate of Stanford University and Harvard Law School. He clerked for Judge Richard Posner on the Seventh Circuit and Chief Judge Marilyn Hall Patel in the Northern district of California before becoming a Bigelow fellow at the law school where he's currently a tenured professor. Professor Masur's research and teaching interests include patent law, administrative law, behavioral law, economics, and criminal law. Here to my left, we have professor Conyers who received her bachelor's degree from Uchicago across the midway and her J.D. From the law school.

Jonathan Masur (01:12):
After law school, she served as an assistant public defender, a supervisor, and a deputy chief in the office of the Cook County Public Defender. She then joined the law school's Mandel Legal Aid Clinic, where she has co-run the criminal and juvenile justice clinic for more than 23 years- or been a part of it rather. So, let's get started. On March 30th, Brock Turner, a star swimmer at Stanford University was convicted of three counts of felony sexual assault for penetrating an intoxicated and unconscious 22 year old woman. The three counts were (1) assault with intent to commit rape of an intoxicated or unconscious person, (2) penetration of an intoxicated person, (3) penetration of an unconscious person. All three charges under California law required Brock Turner to register as a sex offender for life and the first made Turner presumptively probation ineligible unless there were unusual circumstances.

Jonathan Masur (02:14):
The charges carried a potential sentence of 14 years in prison. Prosecutors recommended six years in prison. Probation officials recommended that the court exercise discretion and made the finding of unusual circumstances in order for Turner to be given a moderate County jail sentence, which is usually four to six months. And then on June 2nd, Santa Clara County Superior Court Judge Aaron Persky sentenced Turner to six months in the Santa Clara County jail to be followed by three years of probation. He was also ordered to register as a sex offender and participate in a sex offender rehabilitation program. Turner was released after three months in jail for good behavior. First question, was that sentence too harsh, too lenient? What are your thoughts?

Herschella Conyers (03:03):
Well, I think it might be a mighty fine sentence. I think I'm probably in the minority with that opinion. I looked at the judge's findings. I thought he did a good job of trying to weigh the pros and cons. He followed the law, it seems to me. It's not an illegal sentence, in fact. So to put it in context: one, I think most of our sentencing laws are too harsh. We over-sentence people every day, all day. We can talk later about, you know, who should get the break because I think that's part of the issue here, but the plain and simple fact of the matter is that we incarcerate people-- most people-- just long enough for them to not have any life left in any meaningful way. Even in misdemeanor cases, I think we incarcerate way too much. So it seemed like a life sentence. But the, to me, it was fine unless I hear something different and we can talk about remorse and all that. But my initial position is that it was a mighty fine sentence.

Jonathan Masur (04:19):
So Professor Conyers and I were talking before this panel started and we agreed that we're probably going to agree on maybe more than Alison wants us to. But this is one area where I think we disagree. And we disagree, even though I agree with much of what Professor Conyers said in a lot of her premises. So I think it's absolutely right that sentences across the board in this country are too high for a very large number of crimes and that in general, we are incarcerating too many people for too long for for offenses that are non-violent and not deserving of that level of punishment. But that's not this crime. And I don't think that the fact that we're sentencing some other people to too much time in prison means that we should then sentence someone who committed a crime like Brock Turner did to much less.

Jonathan Masur (05:05):
You know, if this classroom- if you were sitting in this classroom one day and it was 90 degrees and then you came in the next day and it was 50 degrees, you wouldn't say like, "Oh, well that averages out to about the right temperature." You would say, "no, that was bad in both directions and it should be corrected in both directions." So the statutory sentence for a single count of forcible sexual penetration-- which is one of the crimes that Brock Turner was convicted of-- carries a prison term of three, six or eight years. That's what the legislature thinks is a sufficient punishment for the sort of crime that was committed, that he committed. And so he was sentenced to just six months at that time in prison and then the other three years, the way they got to the statutory requirement of three years was just sentencing him to the three years of probation. So he's out walking around, he just has to not commit any crimes. To my mind, you know, it's hard to talk about these things in the abstract because like, what's the fair value a crime committed against someone?

Jonathan Masur (05:58):
But I think when we look at this sort of in the context of sentences handed down for other types of crimes and in the context of what this act meant to the victim, six months to me seems plainly inadequate. You know, people who are convicted of nonviolent property crimes like burglary, or even a forcible crime like robbery or assault and battery are typically sentenced even on their first offense to much more time in prison than that. And that's even in cases when we don't think that the harm to the victim is quite as direct as it was here. And I think that there could be no doubt from the, you know, sort of very moving statement that the victim gave at the trial. We can talk more about victim impact statements, that the victim was very severely impacted by what had happened to her.

Jonathan Masur (06:40):
And I think that the law should recognize that and it should be sending a message that what Brock Turner did was was not acceptable and not allowable. And I guess I'll just say one of the things about how the judge arrived at the sentence, you know, a big part of the rationale for the sentence that the judge adopted was that Brock Turner had already suffered in lots of other ways. He had been expelled from school. He was going to lose his chance to maybe compete in the Olympics someday. You know, his sort of very otherwise very bright future had been diminished. I guess I think that those things are correct, probably as a matter of fact, but I don't think that those things are legitimate reasons to sentence him to less time in prison. You know, that's not how we want our judicial system to work, where we ask, you know, how bright is your future and how much will this cost?

Jonathan Masur (07:28):
Would we discount sentences, then, for people who had bright futures and were going to be able to achieve greater things. So that's just like sentencing discounts for people who are wealthy and privileged across the board. And somehow, you know, if your future were not so bright, we had a criminal defendant who didn't have a great education and it wasn't going to be a champion swimmer, that person, all of a sudden deserves more time in prison because they have less to lose on the outside. That strikes me as backwards and incomprehensible. So you know, I think the sentence itself is wrong and I think that the methodology for arriving at the sentence is wrong as well. And I say all that against a background of agreeing with Professor Conyers that in many other cases, especially nonviolent drug offenses, we are sentencing lots of people to prison terms that are too long.

Alison Frost (08:14):
Would you like to respond? Or we can move on...

Herschella Conyers (08:16):
Briefly. So let me say this, I agree. I don't think you should get the white privilege discount when they get sentenced. That's just a shorthand term I would use. But what struck me about this case was how stunningly most of us are unaware or look over that that happens every day. First of all, Judge Persky didn't just pull this out. It was a recommended sentence, so we can try and center on Persky but before we do, let's look at what we don't look at. This happens constantly in every courtroom I've ever been in. It's backwards, you know, but I don't think Judge Persky was anymore out of line than judges I see every day, some I just looked in the face this morning. So if we're really gonna talk about it, then what we've got to talk about is what is appropriate sentencing for an offense, even for violent offenses, and how are we going to deal with it? Also, just as a backdrop, let me say this: we've spent-- in our clinic-- several years now looking at adolescent brain development, as it relates to sentencing.

Herschella Conyers (09:33):
And despite the fact that he is privileged and-- can we get over the swimmer stuff? There is something to be said about the commission of an offense, even a violent offense, as an adolescent, even an older adolescent, that suggests that we should punish less harshly than one might imagine from a full grown adult. All of the neuroscience, all of the social science, and in fact, now the United States Supreme Court says "yes, it does matter the age of the perpetrator." Although we don't like to admit it 18, 19, 20 year old, mostly men, but women also, are likely to offend for any number of reasons that does not predict their future productivity, their future social engagement, their future responsibility, and their future conduct. So I think that that has to be taken in context and I am looking at this case in that context. I don't think that being privileged and white necessarily exempts Brock Turner from adolescent brain development. I don't think his brain was probably any more developed in the ways that it needed to be not to commit felonies and most people on college campuses, I might say, commit felonies. But we'll talk about that some other time. So also in that context.

Alison Frost (11:05):
Maybe we should go into Judge Persky's rationale a little bit further. So first, he sort of described needing to overcome the statutory limitation on probation and one of the ways you can do that is if the defendant is youthful or aged and has no significant record of prior criminal offenses. Once he then sort of moved past that limitation, he had to look to sort of other statutory criteria affecting probation and one of those factors, which I think the media may have misportrayed lightly-- they made it sound like it was something that Persky brought up himself-- but it is actually written into the statute as a factor to consider is the likely effect of imprisonment on the defendant and his or her dependence. And Judge Persky stated "obviously a prison sentence would have a severe impact on him and that may be true in any case. I think it's probably more true with a youthful offender sentenced to state prison at a young age." I guess, could you talk about, further, about age and to what extent it is appropriate for it to be considered and whether it was appropriate to consider it the way that Judge Persky considered it?

Herschella Conyers (12:21):
I think he got that part right. And I think, if you go through the entire list, he balances various considerations. All again, annunciated in the statute. So again, this is not illegal. But yeah, I think that's where we should be headed, actually, in terms of our sentencing policy. That we should presume that the younger the offender, the less harsh the sentence should be. That it should be given with that in mind. And from what I hear and I've read- the internet is crazy with this stuff. But, you know, they were saying "well, no, it's not right, because he had tried drugs in high school." Again, I just don't think anybody in this room would want to get sentenced with more because they had tried drugs in high school. Maybe it's just me, but I'm just saying. So no, but I think that this is absolutely serious.

Herschella Conyers (13:30):
And in terms of how we're going to punish people, some of the research suggest that we are not, for lack of a better word, fully morally responsible until about age 25. I probably disagree with that, but I do think that at 19, we are not fully aware of both the consequences to the victim and the longstanding consequences. And then, for me, and this goes with age, we have to look at what we have taught our children up until the age of 19 or 20 or 21 that as adults, they either repudiate or adopt. But it's also perfectly clear to me that Brock Turner grew up in a sexist, woman denigrating society that Brock didn't create all alone.

Jonathan Masur (14:26):
So, I mean, I certainly agree that as a general matter, youth is a good reason to sentence people to less time. And that, you know, we should try not to completely ruin someone's life with a prison sentence, especially if they're young. You know, that was pursued to some degree here. You know, the prosecution asked for six years when they could have asked for much more than that. Again, the minimum sentence, typically for this sort of crime is three years. What he got was three years of probation as opposed to actual prison time. So I think the question is not, you know, should we have thrown the book at him given that he's 18 years old? But should we had given him something that looked more than a tap on the wrist? I mean, a slap on the wrist feels even a little bit understated.

Jonathan Masur (15:07):
And I guess I would say about this, you know, it's true that he is still a teenager. On the other hand, you know, he's old enough to vote, he's old enough to drive, he's old enough to be sent to war. So, you know, as a society, we entrust 18 year olds with quite a lot of responsibility, all things considered. And let me just say, sort of in defense of 18 year old men who have been, much and rightly maligned in a lot of cases. The world is full of 18 year old men who know that what Brock Turner did was completely wrong and know that that sort of thing can't be allowed. And so I think that to sort of excuse it, by saying, you know, this is a product of his age and and his circumstance is a little too much. You know, there are plenty of other people who have grown up into those circumstances who knew that what he was doing was wrong and who would never have done such a thing themselves.

Jonathan Masur (15:54):
And so I think it's for that reason why he deserves to be sentenced more harshly. And in addition, I would say it's precisely to preserve the appearance that this is wrong, that he deserves to be sentenced more harshly. You know, the sentence of six months, and we can talk about the extent to which we should be using prison sentences inflicted on particular individuals to send messages to society at large. But the sentence that was pronounced on him sends the message that this isn't really much of a crime, actually. He may have been convicted of a few counts, but it doesn't really amount to very much and he shouldn't really be punished all that much for it. And it's, I think it's precisely the sending of that message that will encourage future Brock Turner's. And that's part of what creates the need for a harsher message even imposed on someone as young as he was.

Herschella Conyers (16:40):
Two points. One, I think we should raise the age in all of that. I don't think we should send 18 year old boys to kill each other. I think we should raise the age of drinking and well, ask me next month what I think the age should be of employment. [Audience laughs]

Herschella Conyers (16:59):
And I can see where those are different things, but the other point of the slap on the wrist- and yes, you know, I'm a defense lawyer. I just don't know how- it makes me nervous for people to think that somebody locked in a cage for three months is a slap on the wrist. I don't know how registering as a sex offender for the rest of your life is a slap on the wrist. That, in devastating ways, you know, where a person can live. I do not know if in fact, under the registration laws, should somebody ever marry Brock Turner, and somebody will, can he go to school and pick up his kid's report card? There's more to this. And, you know, I hope never to spend one day in jail. I don't think three months in jail is a slap on the wrist.

Herschella Conyers (17:56):
If three months in jail will not deter you, you won't be deterred by three years. That's the first thing. And secondly, along with the research, Brock Turner knew he should not sexually assault a woman. I mean, there's no way you catch him on a sober day in a classroom and say, "Brock, do you think rape is a good thing?" He's going to say you can't do that. He knows that. But this was not a sober Brock Turner. This was a drunk 19 year old Brock Turner. And I don't think that we can minimize. Again, how do we help make Brock Turners? Cause this kid certainly would know that's inappropriate. But we tell them it's fine to go get sloppy drunk and the inhibitions are not just as strong and that really cannot be disputed.

Herschella Conyers (18:55):
We all know when we drink, somethings seem like a good idea at the time that the next morning we think, "what was I thinking?" This is not a singular experience. And that's why I don't like making this into a singular experience. The sad, bad news is this is happening all around this country on college campuses, on high school campuses, and graduate schools and every place else where you have men and women. So I don't think this is a deterrence issue. I don't think we have sent a message to anyone that sexually assaulting a woman is okay. I think we all can agree that sexually assaulting a woman is not okay. And from what I read of his conduct, it was totally reprehensible. I'm not excusing his conduct. He should be punished. The question is how long, how severely, and for what, and are there factors that the judge took into account that are legitimate factors that should be taken into account, when you decide to sentence someone? Because from my perspective, you know, one night locked in a cell is like something I try to avoid at all costs, it's punishment.

Herschella Conyers (20:16):
And three years probation, he has more to do than just not commit another crime. He has to report to a probation officer. He has to take classes. He has to take sex offender classes. Those were things that psychically impact people also. And I'm not suggesting he should not. I have no problems with the three years probation. It could even be longer, but this is not a slap on the wrist in my opinion.

Jonathan Masur (20:45):
Can I say a couple of things?

Alison Frost (20:45):
Sure, is it about alcohol? I have a question about that.

Jonathan Masur (20:48):
Can I say something about alcohol? [Audience laughs]. I don't know what the limits of this are. Okay. So I guess three points quickly on the alcohol. You know, he knew, even given whatever drunken- first of all, you know, as students who've taken criminal law learn and as students who will be taking criminal law will learn, being drunk is no excuse for committing a crime of any sort or under any circumstances. In addition to that, he was well aware even in whatever drunken state he was in, that he was doing something wrong as evidenced by the fact that he gets up and runs the minute that he's discovered by a couple of graduate students. So I don't know what to make of that, exactly. But I don't think that this is the sort of thing where he understands right from wrong and he just drunkenly is going to go do the wrong thing.

Jonathan Masur (21:30):
Like for whatever reason, he thought that he was entitled to this or allowed to do this at least in some state of the world. Let's see, your second point. So professor Conyers has said a couple of times that this happens all the time, which I think you said at first about judges, sentencing people like this. And you're absolutely right that he was sentenced in accordance with what the probation officer recommended. Judges, of course, can take the recommendation of the probation officer fully, they can disregard it completely, they can do whatever they want. But he was sentenced in accordance with the probation officer said and you're absolutely right. That type of thing happens in courtrooms all across the country, every day, lenient sentences like this are handed out to people like Brock Turner all the time, all over the place.

Jonathan Masur (22:10):
And then you also said this sort of thing happens on college campuses all the time, which I am quite sure is true as well. I guess the question in my mind is like, which direction should that push us? Right? This is obviously being perpetuated. The reason why this is happening all the time is because the people engaging in that conduct think at some level that they should be allowed to get away with it. And that it's not really so bad, it's not really quite a crime. And, you know, to your point, Professor Conyers, about three months versus three years, I think there's an enormous amount of force to that point. And I don't think that, you know, Brock Turner's not sitting there with his California penal code in front of him, like looking at what the likely sentence will be and how much he's going to be punished.

Jonathan Masur (22:52):
I think that the way that we translate criminal punishment into changes to behavior and culture is more diffuse than that. So when people like Brock Turner are sentenced to longer terms in prison, when they're sentenced more harshly, then that causes other people to look at it and say, you know, "aha, like somebody thinks that's really bad that you better not do that." And so the message among, you know, Brock Turner's friends and his fraternity brothers and the people who were egging him on at school is not, you know, "Hey, you can go do this. It's fine. Go ahead. Like, this is the privilege of being you." The message is "be very careful. Don't go out and take advantage of someone who is drunk or incapacitated or unconscious because boy, the ramifications can be extraordinarily severe." The very fact of punishing someone like this sends that message and allows it to filter down through the peer group or through whomever Brock Turner is getting his information from. And then last point about sex offender registries.

Jonathan Masur (23:50):
Here I completely agree with Professor Conyers. I don't think that a sex offender registry should force people to register for the rest of their lives. I think there are a lot of different problems with sex offender registries. One is that they're vastly over-inclusive. You can get on a sex offender registry by engaging in public urination or all sorts of other crimes that we would barely even consider sex crimes, I would say. And that seems to me wrong. And I think it's also wrong that this is a tag that's going to follow him for the rest of his life. I do believe that people should be able to pay their debt to society and get a fresh start. And in fact, I think that our failure as a society to reintegrate people who've been convicted is one of the greatest problems, one of the greatest failings, of our criminal justice system.

Jonathan Masur (24:30):
So I don't think that he should be registered as a sex offender for life. If the judge had said, you know, "I think it's a problem that sex offenders have to register for the rest of their lives. I think that that is an enormous source of punishment. And so for that reason, I'm going to sentence every single sex offender who comes into my courtroom to a lower sentence." You know, I don't know if I would agree with that, but I would at least think that that was a cognizable explanation, but that of course is not the least bit at what happened here. That's not what Judge Persky did.

Herschella Conyers (25:01):
Just one word about deterrence and it may be-- again, anybody else in here born and raised in Illinois? Okay. Alright. How many governors have gone to the penitentiary? It hasn't deterred one of them, right? Many of them are still doing time. These are grown men. That's not how deterrence works and it's especially not how it works in a 19 year old. I mean, what you've got to do, and you're right, is create a group, a category, a class of young men and women that not only talk about it but also create a culture where when you see two drunk 19 year olds, somebody says "this may not end well." And we teach each other how to intervene appropriately. And they've done a study on, you know, training and intervention and it's distressing to me how many young people said they've seen stuff like that.

Herschella Conyers (26:07):
And they would not intervene. They did not know what to do to intervene. That's where deterrence comes from, because my guess is that Brock Turner-- and even the articles that I've read-- nobody expected that that's what a rapist looks like. He's not looking at the penal code because he doesn't think it applies to his conduct. And we're not looking at the penal code because we don't think it applies to our conduct. When we in these cocoons and the question is in the cocoons of higher education, what are we going to do to make an environment and a culture that really does deters? What deters students is our peer respect. What people think about us on campus, how we conduct ourselves, nobody in this room is really concerned about what the penal code says. We take our cues and we respond accordingly and we change our conduct according to what it is we say to each other every day. And when you say to each other at a frat house- I was stunned. You know, I guess I figured out maybe several years ago when they was talking about this, wasn't, you know, another drunken hookup. If there is a culture of drunken hookups, you're going to have some trouble, people. You are going to have some trouble even if the police are not called. And most rapes are not reported, right? So again, what are we looking at? Do we want to make more women report it or do we want to also start looking at those baseline things that make us act in ways that, again, we would prefer not to act. And how do we change that behavior? Thank you.

Alison Frost (28:14):
So I'm glad we talked about alcohol. That was one of the other factors in the sort of balancing test that Professor Conyers mentioned that Judge Persky considered, he said he didn't rely on it heavily but it was part of what he based his decision on. Another factor that came up, which Professor Conyers also raised earlier, was remorse. And Judge Persky said, "you have Mr. Turner expressing remorse, which I think, subjectively is genuine." And Jane Doe not seeing that as a genuine expression of remorse because he never says, "I did this. I knew how drunk you were. I knew how out of it you were. And I did it anyway." And that, "I don't think that bridge will probably ever be crossed." Do you have any just quick thoughts about sort of remorse? I guess about Judge Persky's comments on remorse and sort of what qualifies as remorse and what doesn't?

Jonathan Masur (29:19):
Well, I mean, I guess I certainly don't agree with him that Brock Turner was expressing remorse. I mean, it sounds to me like he was expressing remorse to have found himself in that situation. You know, his position throughout the trial was that she consented to it, even though she was unconscious and unable to consent. And it seems like that wasn't just a litigating position, he came to believe that. And then maintained afterwards, as far as he knew, she had consented. And so there was no crime to apologize for in his mind and that's why he sort of talked about the culture of drinking and so forth afterwards. So I don't think that he expressed particular remorse, but I guess I would say also that I don't necessarily think that the amount of remorse expressed should be much of a factor in deciding whether someone's sentenced at all.

Jonathan Masur (30:02):
You know, the fact that Brock Turner is behaving like this after the trial makes me think less of him, but I don't know if it makes me think that he deserves a longer sentence for that reason alone. You know, sometimes remorse can be a good indicator, it tells you whether the person actually acknowledges that they've done something wrong and it gives you information about whether they're likely to offend again in the future. And that I guess could be useful. But too frequently, remorse and whether you're able to express remorse is just about whether you have a good lawyer who's coached you appropriately. Whether you can get family members to write letters in talking about what a good person you are and really whether you've reformed yourself. And all of that, I mean, number one, I think it's a lot of it's just a false front put up by the defendant to try to acquire a more lenient sentence, not a real expression of of feelings and sentiments.

Jonathan Masur (30:48):
And number two, again, you know, it tilts the scales in favor of people who have good lawyers and can afford good lawyers and also in favor of people who have, you know, a couple dozen family members and friends and relatives who will write letters or be persuaded to write letters on their behalf. And those, I don't think, are valid reasons for deciding who gets to be sentenced to more time or less. So I don't see Brock Turner as especially remorseful, but also I don't see that as a particularly compelling reason to sentence him more harshly.

Herschella Conyers (31:16):
This may be a little off the Mark, but it goes to I think what Professor Masur said. This case for me really sort of like the clash of the Titans and Brock Turner's family seems to have hired competent lawyers and I don't like to trash trash lawyers, but part of it- I thought was just stunning, the questions that they got away with, but the flip side of remorse is victim impact. And this is an extraordinary victim impact statement. It was a well prepared statement. There were parts of it. I found sort of stunning for some, in some ways. And as I read this, the other thing that occurred to me is that the media should apologize to this poor woman. I have never read as much gory unnecessary detail. And even if you read her impact statement, a great deal of her pain, as she says, comes from reading the newspaper and finding out the position of her clubs and her parents having to read the newspaper.

Herschella Conyers (32:28):
I don't see any reason why the media should have gone into that type of detail. That felt totally transgressive to me, just reading the media reports of it, which again, I think is sort of prurient. I think it goes to a culture of hype and that you have, if you will, extraordinary victim which makes me nervous also. A less articulate victim, a less connected victim might not be able to get 12 pages out and read them well in open court. And so I think that this whole media circus around this was one of the most offensive things that I have ever seen. There was just no reason to put the events of that night in the detail in the media that was put out there.

Herschella Conyers (33:37):
Generally speaking, I don't think most of us know remorse. I think we've watched way too much TV to figure out if people are, you know, crying crocodile, tears, or whatever, what remorse is. I think remorse is very personal and for some people it's hard. And again, I think it's very difficult for men to express remorse. We don't teach boys to have feelings or emotions. They're not, you know, most of you would rather pluck your eye out, than weep openly openly in a public space. So I don't give remorse that much credit. I actually thought that the judge's comments were rather thoughtful. Brock Turner and this young woman are never going to see eye to eye on this one. They're never going to see eye to eye on this one. And again, maybe because I'm a criminal defense lawyer, I don't know where or what. I'm a little troubled that people are certain that she never gave consent. I'm not disputing the fact that she was unconscious. I'm troubled about, I don't know if anybody knows, and that includes Brock Turner, although he was, you know, last man standing to tell the tale, knows what the heck happened out there. Nobody seems to know how they got to the dumpster. And except for the men who found her, it seems to me, her sister wasn't able to fill in details that, you know, as a juror or as a defense lawyer I think I would like. But that said you cannot-- in this case, the victim impact.

Herschella Conyers (35:22):
You cannot sort of let the same thing happen in terms of punishing people because of the victim's special characteristics.

Alison Frost (35:35):
So we've touched on a bunch of different factors led Judge Persky kind of into the direction he went with sentencing. One of them actually was media attention. He said that it has not only impacted the victim in the case, but also Mr. Turner. So that was one of the factors kind of pushed him to choose the sentence that he chose. But now Professor Conyers has raised this issue of victim impact statements. Mr. Professor Masur, do you have any thoughts on whether they should be allowed in the courtroom during sentencing hearings?

Jonathan Masur (36:09):
I basically agree with Professor Conyers about that for essentially reasons that parallel what I said about remorse just a second ago. You know, I think as a general matter, it doesn't make any sense to allow victim impact statements. It privileges people who have the education and the ability to express themselves more eloquently. It devalues the lives of people who are not able to speak for themselves in the same way or the lives of people who do not have family or other affected parties who can speak for them if the victim is someone who's been murdered. I do think at the same time that when you are a legislature or a sentencing commission or a judge and you're deciding on what sorts of punishments you should attach to crimes, you should be out talking to victims and trying to understand the impact of those crimes on victims.

Jonathan Masur (36:53):
So when the California legislature writes a statute that says that "people who commit this crime should be sentenced to three, six or eight years," I hope that they're doing that having spoken to lots of people who have been victims of that particular crime. So they have a sense of how much harm someone is doing when someone perpetrates that crime. So I very strongly believe in taking the impact on victims into account when deciding on sentencing, sort of at the wholesale level, just not on a case by case basis when it comes to, you know, which victim can get into court and represent themselves the best and the ways that that introduces, you know, further skew in our justice system. I guess I just want to say one other thing about consent, particularly about what Professor Conyers said. So, you know, I mean, he was convicted by unanimous jury beyond a reasonable doubt for having penetrated her without her consent.

Jonathan Masur (37:45):
And so if we're not going to believe at that point that she didn't consent, I don't know when we're ever going to believe to anyone when they say they didn't consent. Secondly, you know, the way the law works, if someone consents to intercourse and then they pass out unconscious, it's not like that consent continues until the person wakes up. They have to be consenting the whole way along. Unconsciousness, you know, vitiates any sort of prior consent just as saying yes and then saying no eliminates it. You know, somebody says yes, and then five minutes later they say, no, that vitiates the prior consent as well. So even if, you know, even if we were to somehow inexplicably to me, doubt her claims that she never consented, that consent is gone the minute that she's too drunk or too incapacitated to ever consent again for herself. So to my mind, you know, this issue of drunkenness and so forth that Judge Persky brings up is going right down the wrong road.

Alison Frost (38:38):
So you're talking about sort of the wholesale level. One objection to Judge Persky's sentence- the sentence that he chose is that it was inconsistent with current California law. So the law at the time was such that there was a mandatory minimum for sexual assault for rape that was forcible but not for rape when the victim was incapacitated. And so there was a bill that was actually just signed into law quite recently that provides for a mandatory minimum for that latter class of cases as well. Thoughts on that bill, on whether that should have been passed?

Herscella Conyers (39:18):
I think it was a rush to judgment cause I agree. I think that our legislators should act more thoughtfully and should actually conduct probably more public hearings. There's gotta be a way to get the pulse of what, in fact, we think appropriate sentencing should be. They had a perfectly good statute on the books and it had carved out, I thought, a fairly nice exception that allowed for judicial discretion in these matters because it was always the case or a case that says "maybe this is inappropriate sentence, maybe three years." So I'm not going to support mandatory minimums. They changed the law in California as a direct result of this case. So I don't like media legislation. I think it lacks thoughtfulness. And again, this may be the cynic in me. I firmly believe that there will be, five years from now, another Brock Turner.

Herscella Conyers (40:22):
And what they're going to do is they will charge him with something lesser. There are ways around all of this if you are in the system so that he will be charged with some sort of misdemeanor. Because you're not guilty of anything until the state's attorney tells you what you're charged with. And the state's attorney's offices, they make these determinations and they make these determinations often using the same sort of standards that Judge Persky used here, if you think, a white privilege standard. And they also tend to overcharge which again, the state's attorney's recommendations. Not always, there are some state's attorneys that are fine, but you must also know that a state's attorney's recommendation depends on whether or not you decide to go to trial. If you decide to go to trial, especially in a case like this, and they realize that there's going to be a lot of media buzz, their recommendations going up, people, these are not necessarily principle decisions. It's been my experience. So this probably would have gone away for something less than six months in jail. If there were two different people. Similarly, I'm just saying

Jonathan Masur (41:54):
I'm happy to sort of waive my right to reply just to preserve more time for questions.

Alison Frost (41:58):
Great. Yeah. We want to leave time for questions. One last question, before we open it up, it's just about the recall and impeachment efforts. If you could maybe tell us a little bit about, first, whether you believe judges should be elected in the first place, given that they are? When is it appropriate for them to be recalled? What is it appropriate for them to be impeached?

Jonathan Masur (42:20):
Okay. I do not believe that judges should be elected. I think they should be appointed for long terms. I do not believe that there should be recall provisions where the democratic process can get involved and monkey with this sort of thing. That being said we live in a world in which judicial elections occur and which recall processes are available. States allow judges to be recalled in this sort of fashion. So I think the question is what's the best way to move forward, given that that's the case. And I do not think that the best way to move forward is to sort of unilaterally oppose all recall efforts, even in cases like that, because we recall efforts are happening. So in the last hundred years or so there have been 49 attempts to recall governors in the state of California.

Jonathan Masur (43:06):
And most notably when Gray Davis was recalled and Arnold Schwarzenegger was elected. There have been 27 attempts to recall California Supreme court justices. And we don't know how many attempts to recall lower court judges because California doesn't keep good records of it, but we can imagine many such attempts. So it's going on. And you can probably imagine who is getting recalled, right? The judges who are subject to these recall efforts are judges who are probably seen as, you know, sentencing nonviolent drug offenders too leniently or something like that. So it's people who believe in harsher sentences for everyone who are probably using these recall efforts more aggressively. So what's the proper response to that? Well, one response could be no recall ever, you know, we should oppose the recall efforts here. Another response could be that if this mechanism is going to be employed, it should be employed across the board. It should be employed against people who sentence privileged white defendants like Brock Turner too leniently just as it's employed against judges who sentence nonviolent drug offenders and defendants of color too leniently.

Jonathan Masur (44:07):
And it might be that if it's used and applied across the board, that will be a clue to everyone that maybe it shouldn't exist at all. Whereas if we just allow sort of, you know, people who have one view about criminal justice to use the recall methodology and to try to explore judicial elections to their benefit that might be a way for them to try to preserve the system forever. If it's a tool that only your side uses, why wouldn't you want to keep it in place for good? So I'm in favor of moving to a world in which none of this exists, but I don't think that the way to get there is to sort of unilaterally disarm it, to not employ it in the case where it might seem appropriate because other people are already doing the same elsewhere.

Herschella Conyers (44:45):
Yeah. Well, my research suggested that out of the judicial recalls, none of them have been successful in California and few other places. And part of it is because I think, and this is a stunning example of what doesn't usually happen. They don't get enough votes. People just simply lose interest. It's not that big of a thing, but I don't like the political notion of recall because a judge makes a decision that you disagree with. That makes me very nervous. But he's up for retention this year. And that seems to me that that's sufficient. That if this means that much, everybody go vote and say, do not retain Persky and he can go find himself another job. It seems to me. And the notion of judicial appointments, historically, they have not proven to be as democratic as we would hope as reflective of the general population, which also raises some issues. So I'm torn. I would like to see competent judges and the political process sometimes can dilute the competency of the person if it's all just about getting enough signatures. But the notion of a nonpartisan and ethical judicial panel to make nominations in a perfect world would probably be the better way to go.

Speaker 1 (46:29):
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