Before retiring as a public defender, Aram James handled thousands of probation violations. In his essay, he writes that to fully evaluate Judge Persky’s sentence of Brock Turner, the public needs to account for what being on probation really means to those convicted of a crime.
Former Stanford student and potential Olympic swimmer Brock Turner, a 19-year-old freshman at the time of this incident, was convicted in March of three felonies: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. The victim was a 22-year-old female college graduate, from another university, who attended the same alcohol-fueled Stanford fraternity party as Turner.
On June 2nd, Judge Aaron Persky of the Santa Clara County Superior Court, the same judge who presided over the trial, and after reviewing and considering a very detailed probation report prepared by a senior female member of the Santa Clara County Probation Department — including statements from the victim and defendant, and numerous letters attesting to Turner’s good character — sentenced Turner to six months in the county jail, with three years of formal probation. The sentence imposed was entirely consistent with the probation officer’s recommendation. Turner had no prior record.
The perceived leniency of Persky’s sentence set off a near public lynching of both the defendant Turner and Persky. A media and social media lynching that were witnessed by the entire nation. Calls for Persky to resign or face a recall election over the case continue to this day.
What is often overlooked when the public hears about the terms of a sentence, is the gravity of probation, and how perilously close a violation could be, which triggers a lengthy prison comittment.
Before retiring as a career public defender I handled hundreds, if not thousands, of felony probation violations. I can attest to the fact that young offenders, closely supervised on felony probation, frequently fail to make it through formal probation unscathed.
The numerous potential pitfalls of formal probation are an important reason why the six-month initial county jail sentence cannot be viewed in a vacuum. To understand the severity of the punishment, one must understand the part probation plays in the overall sentencing scheme.
Defendants, who may have initially received what appears to be a light sentence for a serious crime, often end up serving some, if not all, of the maximum prison time they could have received at the time of the original sentencing.
In Turner’s case, this means if he violates probation he could well end up serving a prison sentence of three to 10 years, or more — hardly a slap on the hand.
Given the infamous cause celeb status that this case has achieved, Turner is now one of the most reviled defendants in American. He will undoubtedly be closely scrutinized on probation. Turner will be on a very short leash.
A defendant on probation is spared prison only so long as he agrees to severe limits on his freedom. The terms and conditions of probation define the quality and limits of a defendant’s freedom.
Even a minor violation — e.g., failure to report to your probation officer, even on one occasion, or a one-time violation of a no drug or alcohol condition — can result in the revocation of probation and imposition of a previously suspended prison sentence.
So what does three years of formal probation really mean in the context of the Brock Turner case? Based on the nature of Turner’s convictions, the terms and conditions of his probation are multiple, complex, restrictive and appropriately oppressive.
As an example, while on probation, Turner was ordered by Persky to participate in and complete an approved sex offender program, of not less than one year, and up to the entire three-year term of his probation. His failure to complete this program, or for that matter any other program ordered by the court, would trigger a revocation and a potential prison sentence.
As part of the sex offender program, Turner will be required to submit to polygraph exams to monitor and ensure compliance with the program.
As a further public safety measure, Turner will be required to waive his psychotherapist-patient privilege, allowing his therapist to speak directly to Turner’s probation officer re his progress or lack thereof.
Turner must register annually as a sex offender for life, and each time he changes his residence. He must reregister within a few days of moving. Failure to register in a timely manner would be both a new crime, allowing for the potential of new charges and a separate prison sentence, and a violation of his current probation.
Turner must submit to drug and alcohol testing to ensure he is complying with the terms of his probation, that he not consume alcohol or drugs, or frequent places where alcohol is sold or consumed as a primary business.
He must waive his Fourth Amendment rights, to be free of illegal and warrantless searches, and thus submit to random searches and seizure of his person, vehicle and place of residence, at any time.
Upon an alleged violation of probation, Turner, would be returned to court to face a hearing. Unlike with a new offense, there is no right to a jury trial when charged with a probation violation. A judge sitting alone hears the matter.
To find a violation the judge need only determine that the evidence proves the violation by a preponderance of the evidence, not proof beyond reasonable doubt, as required at a jury trial.
If the judge, after hearing evidence of the alleged violation, concludes that Turner has in fact violated his probation, the judge can then sentence him to the maximum sentence, he faced at the time of the original sentencing.
In my experience, judges assigned to hear probation violations are some of the most putative jurists on the bench. Need I say, that given the media attention and wave of vitriol directed at Tuner, he will be the closest watched probationer in America.
Given the dizzying probationary maze faced by Turner, it is hard to quarrel with Persky’s initial sentence.
As a society ruined by the scorch of over incarceration, it is critical that we have judges who have the discretion to encourage a rehabilitative model-first approach, while at the same time imposing severe conditions of probation that maximize public safety and protect us from truly violent predators.
The sentence in the Turner case more than adequately balances both the public safety and the rehabilitative purposes of probation.
Many of the same progressive voices who have spoken out long and passionately against over incarceration, mass incarceration, the disproportionate sentences imposed on the poor and people of color, are now doing an about face in the Turner case.
They are shouting out that more of the same cruelty and barbarism should have been handed down in the Turner case. The same mentality that has brought us to our current failed state of mass incarceration.
Instead of blindly demanding that a white male elite be sentenced to prison for his first offense, the better logic is to demand the same measure of justice and mercy, for similarly situated defendants of color and the poor. We must look to rehabilitation and restorative justice first, and harsh and unforgiving prison sentences, only where absolutely necessary.
The vengeful model of sentencing has proven over and over again to lead to recidivism, overcrowded prisons, and little or no true comfort or safety, for the victims.
We should support Persky’s rehabilitation-motivated sentence, as an extension of the progressive movement’s call, for an end to our country’s failed mass incarceration polices.
(A version of this article was originally published in the Daily Journal.)