empathy and leniency

Judge Aaron Persky empathized with Brock Allen Turner and could easily imagine what it would be like to lose sports fame (as Persky enjoyed), to lose a Stanford education (as Persky enjoyed), to lose the sort of easy success and high regard that a young, reasonably affluent Stanford graduate (like Persky was) can expect as a matter of right.  Judge Persky could easily imagine how dramatically different a state prison is from Stanford frat parties, and how calamitous was Turner’s fall.  That’s how Judge Persky convinced himself to hand such a ludicrously light sentence for such a grotesque violation of another human being.

But most people fed into the criminal justice system aren’t champion athletes with Stanford scholarships.  Most aren’t even high school graduates.  Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge.  Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn’t make bail?  How many can empathize with someone more likely to sleep by a dumpster than exit a frat party next to one?  They can conceive of the humiliation of being on the sex offender registry after getting into an elite university, but can they conceive of the humiliation of being stopped, frisked, detained, and beaten with impunity because of the color of their skin?  Experience teaches that the answer is usually no.

This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him.  No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky.  Judges take their youth as a sign that they are “superpredators,” not as grounds for leniency.  If you tell a judge that they aren’t a danger to others, the judge will peer over his or her glasses and remark that people who rape unconscious girls in the dirt are self-evidently dangerous, and don’t be ridiculous.  Judges don’t think that a good state prison stretch will have too severe an impact – after all, what are they missing, really?

— Ken White