UPDATE, September 30, 3:04 p.m.: Gov. Jerry Brown (D) signed the bill into law Friday, saying in a statement, “As a general matter, I am opposed to adding more mandatory minimum sentences. Nevertheless, I am signing AB 2888, because I believe it brings a measure of parity to sentencing for criminal acts that are substantially similar.”
High-profile cases like Brock Turner’s can give rise to bad public policy, which is what advocates contend will happen if California’s governor signs a bill imposing mandatory jail time for certain sexual assault crimes.
AB 2888, introduced in the fallout surrounding Turner’s sentencing, closes what its authors describe as a loophole in current law, which allows a judge to sentence a perpetrator of sexual assault to probation if the victim was unconscious or “unable to resist.”
Turner was found guilty in March of three felony counts of sexual assault of an intoxicated and unconscious person. The former Stanford University swimmer was released from jail last week after serving half of a six-month sentence. The penalty was almost universally condemned as too lenient.
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In Turner’s case, Santa Clara County Superior Court Judge Aaron Persky ignored recommendations from prosecutors, who wanted to put Turner behind bars for six years.
But advocates argue that legislating mandatory punishments disproportionately affects people of color and the poor, swells an already overburdened prison system, and fails to deter criminals.
Natasha Minsker, attorney and director of the ACLU of California Center for Advocacy and Policy, said in an interview with Rewire that AB 2888 is “a headline-news type of bill that we’ve seen over and over in California.”
State sentencing laws on sexual assault hinge on the notion of physical force. Under current law, sexual assailants who don’t use “physical force” may be sentenced to probation, rather than jail time. And the current law makes a distinction, saying that “physical force” is not present when a victim is unconscious. That means someone who sexually assaults an unconscious person won’t necessarily face jail time.
It’s a legal distinction that state Assemblyman Evan Low (D-Silicon Valley), one of AB 2888’s authors, called “absurd.”
“Current law actually incentivizes rapists to get their victims intoxicated before assaulting them,” Low said in a statement. “Rapists like Brock Turner shouldn’t be let off with a slap on the wrist.”
AB 2888 is one of multiple measures arising out of widespread outrage over the Turner case, as Rewire has reported.
But advocates say limiting sentencing discretion is bad public policy.
“The problem is it’s not limiting discretion, it’s shifting it from the judge to the prosecutor,” Minsker told Rewire.
Minsker said prosecutors then use that discretion as leverage in plea deals. People with low incomes are disproportionately swept up in these deals because they typically can’t come up with bail, Minsker noted, “and pleading is the fastest way for them to get out of custody in many circumstances.”
Meanwhile, the privileged won’t necessarily be brought to justice under the new legislation.
“With mandatory minimums, the privileged can still get off easy,” Alexandra Brodsky, a senior editor at Feministing, and Claire Simonich, both Yale Law School graduates, recently argued in the New York Times.
As they noted, “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.”
And research indicates that mandatory minimum sentences don’t deter crime. The National Institute of Justice, summarizing a large of body research, wrote that the certainty of being caught—rather than mandatory sentences—is one of the strongest crime deterrents.
Minsker said more alternatives to incarceration, not mandatory sentences, are what’s needed.
“Giving the judge and district attorney a wider range of alternatives where we can punish behavior, we can address misconduct, and also address the underlying cause—to get a person back on path to rehabilitation and make sure they don’t offend again,” she said. “Prison makes people better criminals, and what we want to do is make them better community members.”
Brown has until the end of the month to sign or veto the measure.