Tag: Brock Turner

When collateral consequences drive the sentence: The David Becker case

In the wake of the Brock Turner case, a new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party.  As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege.  However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences. Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime.  Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation.  If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing. The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record. As in most states, Massachusetts requires only those who are convicted of sex offenses to register, and sex offender registration obligations are imposed by operation of law at the moment of conviction.  However, a Massachusetts court may choose to waive the registration requirements either upon a motion from the prosecution, or sua sponte if the sentence includes no immediate term of confinement. If Becker were convicted and a term of imprisonment were imposed, as prosecutors had recommended (and as many of critics of the disposition would have preferred), then he would have been required to register as a sex offender for 10 to 20 years, regardless of whether he served two days or two years. His educational, employment, and housing opportunities would all have been severely diminished, he would have suffered the severe social stigma reserved for sex offenders, and, at just 18 years old, his chances of leading a normal successful life would have declined significantly.  Because registration would be imposed by operation of law, Judge Estes would have been powerless to mitigate those consequences. This was not lost on the judge, who addressed the severity and automatic nature of sex offender registration explicitly at Becker’s sentencing hearing.  When the prosecution suggested that Becker could pose a risk to college classmates, Judge Estes interjected, saying: He’s not going to college if I adopt your recommendation. He’s going to jail and he’ll be a sex offender, and he’ll register for at least the next 20 years – I don’t think he’ll go to college at all. But the judge was also aware of the many other collateral consequences that would follow a conviction, even if probation were imposed and registration were waived.  After acknowledging the persuasiveness of the of the victim’s request for leniency (in which she said she did not want to “be responsible for ruining his life”), Judge Estes stated: If I found him guilty at this point, it would slam a lot of doors. [] There have already been significant collateral consequences to simply being charged with the offense in the first place. (The consequences of being charged became even more apparent when the University of Dayton, the college that Becker was set to attend, pulled his scholarship after the controversy erupted, even though no judgement of conviction had been entered.) Under Massachusetts law, Judge Estes could only keep those doors ajar by declining to convict Becker.  As in most states, Massachusetts judges have no authority to mitigate individual collateral consequences of conviction, so the only recourse available to a judge that believes the collateral consequences of a conviction would be too severe is to avoid conviction with a CWOF. If it seems that David Becker got off easy, it may be because Judge Estes’ hands were tied when it came to crafting a disposition that addressed the collateral consequences Becker would be subject to.  Deferred adjudication mechanisms like Massachusetts’s CWOF were created specifically to provide defendants with a second chance, and they are essential tools in the administration of justice; but they are also blunt tools that are not necessarily appropriate in every situation and can result in “all or nothing” decision-making. If sentencing judges had broad authority to mitigate individual collateral consequences by ordering relief from mandatory consequences (as provided for in the latest revision of the Model Penal Code) or issuing certificates of relief or rehabilitation to address discretionary ones, then one can envision a judge in Judge Estes’ position being more willing to enter a conviction and impose at least some jail time.  Regardless of whether that would have represented justice for Becker, his victim, or the public, the ability to mitigate individual collateral consequences would have given Judge Estes much more latitude to craft a disposition that most would agree fit the crime.   You can find more information about the availability of deferred adjudication mechanisms, including Massachusetts’ CWOF, in our state-by-state restoration of rights guides here.   Read more

Ampersands – Brock Turner & conflicts of justice

I recently had the chance to meet with one of the leading international experts on the treatment and punishment of people who have committed sex offenses. I noticed she has a small tattoo of an ampersand on the inside of her wrist. I keep thinking of that ampersand as I read Brock Turner rage memes, which I both hate and find so satisfying. Ampersand: This difficult fact is true AND this other, seemingly contradictory fact is also true. It’s difficult to hold all of it at the same time– fury against the man who raped an unconscious woman behind a dumpster, AND relief at the rare flash of humanity and mercy extended to him in our otherwise unrelenting carceral system, AND anger about the race and class context of that mercy. Our current sex offense policies thwart accountability by perpetrators, re-traumatize victims of sexual assault, foster racialized implementation of laws, decrease public health and public safety in our communities, and, despite their failures, cost us billions of dollars each year. In short, it’s a crisis. California’s sex offense laws are deeply flawed and uniquely regressive. We are one of only four states with lifetime, universal sex offense registration, regardless of the offense involved, regardless of the risk for reoffending. The registration requirements for someone who created child pornography a few years ago are the same as someone convicted of a flashing offense 40 years ago who hasn’t re-offended since. We put children on the sex offense registry despite the mountains of neurological, criminogenic, and humanitarian reasons we shouldn’t. The human cost to those directly impacted and their communities is incredibly high. The government experts, including law enforcement officials responsible for enforcing these policies, agree that the financial cost of these failed policies is untenable. When we waste our resources unsuccessfully trying to monitor more than 100,000 people, the vast majority of whom have been found to pose no risk to their communities, we don’t have the resources left to implement sophisticated strategies to address the real threats to public safety. Solving this crisis calls for challenging conversations that lead to nuanced policies. But this work isn’t as instantly gratifying as engaging in internet clap back or reading about the heroic Swedes who round out this case framed as a perfectly binary tale of good versus evil. My ampersands at this moment, likely to have evolved again by tomorrow: (1)   The power of the survivor in this case—her brains, her strength, her righteous rage—launched this firestorm. Maybe Stanford should put up a marker in her honor at every location on campus where a sexual assault has been reported. & (2)   If I had a teenage son who raped a woman behind a dumpster and was facing a sentence of decades of rape and violence in prison, I can imagine that I might stand before a judge and say things—anything—to try to prevent it. Things that might reveal ugly truths about my character and expose my ignorance, or, my desperation might degrade my character. And my enduring love for my child could co-exist with an expectation that my son acknowledge the horrific, rending impact of his acts on his victim and her loved ones, and an expectation that he bear the full impact of a legal punishment justly imposed on him. & (3)  I have witnessed the transformative power of restorative justice and the reflexive harm of vengeance. And I begrudge no victim the right to fanaticize about personal retribution, about committing uncomplicated acts of rage and sorrow. The racism and sexism in Mr. Turner’s case — The internet tells me that I’m not the only one who wants to smash the racist patriarchy starting with the male Turners. We all have our own imagined methods. & (4)   By contrast, government actors—the judges and prosecutors who enforce our criminal justice policies—must balance retributive punishment and equity and rehabilitation and containment and deterrence and public safety and constitutional guarantees. Regardless of the ways in which the judge in this case failed to strike the right balance, I feel heartache about the call to impeach him. The judge’s ruling feels so unjust because of his gender, race, class privilege, and alma mater, which means he can’t be fair in any case, and this is true irrespective of his complete judicial record or the mitigating factors that by law he was required to weigh in this case. Ask Judge Gonzalo Curiel how this kind of thinking undermines the rule of law. & (5)   I have witnessed unlawful bias, and sometimes racialized or gendered rage directed at me and/or the people I am representing in criminal courtrooms. I’m done debating whether institutional racism is a cornerstone of the US justice system just as I’m done debating whether climate change is real. Next steps? Support victim advocacy groups that understand a carceral response to violence harms everyone, including victims. Be brave, lawyers, about systematically striking judges whose unjust rulings or conduct in courtrooms result from unlawful bias. Show up in courtrooms: For jury duty in whatever way you will and for participatory defense in support of survivors of sexual violence and defendants who are subjected to unjust rulings. And not just for defendants who are factually innocent or are charged with low-level, non-violent, non-sexual offenses. We can only really measure justice in our system by how it functions in the most difficult cases. & (6)   Our own unconscious biases undermine the movement to end sexual violence. Every day I see RAP sheets that remind me that we—through our elected prosecutors acting in our names—criminalize and incarcerate adult and child victims of sexual violence and sex trafficking who have been arrested for prostitution. The race and class of a victim of sexual assault—her perceived value to society—dictates outcomes in the criminal justice system and airtime in the media (including on our own Facebook pages) just as Mr. Turner’s privilege dictated his. We must also show up for these victims of sexual violence whose voices have not yet been as powerfully amplified as the woman’s who launched this conversation. The work of thinking and talking in ampersands is tricky. This morning I had to text an apology to a friend after we had a conversation about this case as we were dropping off our children at school. I worried that I opened old wounds, was too strident, disclosed too much about my own experiences, didn’t leave room for her expertise borne from a personal experience of a sexual assault she survived on a college campus decades ago. It’s all too close to the bone, for all of us. But we have muddle through it, carefully and with love because it’s the only way to achieve policy change that decreases sexual harming and increases justice for the people who are disproportionally impacted by our current policies. And we have to live with the bedeviling truth that once we are successful in reforming these policies for those who most deserve change, we will also have made things more just for unrepentant, privileged rapists. And that is, for so many complicated reasons, a good thing.     Read more