Revisiting the Brock Turner Case

In 2016, Brock Turner, a former swimmer at Stanford University, was convicted of sexually assaulting an unconscious woman outside of a fraternity party. Two passersby saw the nineteen-year-old freshman thrusting upon an immobile, partially unclothed woman, next to a dumpster, and restrained him while they called the police. At Turner’s sentencing hearing, the woman, known in court proceedings as Emily Doe, read a victim-impact statement that addressed him directly: “You don’t know me, but you’ve been inside of me, and that’s why we’re here today.” BuzzFeed published the entire statement, which went viral.

The Santa Clara County Superior Court judge, Aaron Persky, sentenced Turner to six months in jail, three years of probation, and lifetime sex-offender registration, saying that a longer prison term “would have a severe impact on him.” (The maximum sentence that Turner could have received was fourteen years in prison.) The leniency of the sentence, along with Doe’s viral statement, ignited widespread fury. Soon afterward, Michele Dauber, a professor at Stanford Law School, launched a campaign to remove Persky, an elected trial judge, from his job, through a recall election.

No attempt to recall a trial judge had even made it on the ballot anywhere in the country since 1982, and no California judge had been recalled since 1932. But the emergence of the #MeToo movement spelled doom for Judge Persky. He was successfully recalled, in 2018, by a wide margin. Dauber said, at the time, “We voted that sexual violence, including campus sexual violence, must be taken seriously by our elected officials, and by the justice system.” The precepts of Black Lives Matter, too, seemed to support the campaign, insofar as mercy shown to a privileged, white male Stanford student appeared to be an instance of racially disparate treatment. As Dauber wrote in the Washington Post, “It is the very fact that judges like Persky often exercise ‘discretion’ in favor of defendants like Brock Turner that preserves a system in which poor and minority defendants receive long sentences.” In an e-mail to me, Dauber added, “The fact that Turner’s victim was an Asian-American woman of color made refuting the Persky campaign’s spreading of rape myths and falsehoods even more important, given that research indicates survivors of color may be less likely to be believed.”

The anti-Persky campaign also drew liberal critics, who anticipated that a movement to remove a judge for being insufficiently punitive in a criminal case would bring troubling unintended consequences. The retired judge LaDoris Cordell, a feminist who, in the nineteen-eighties, became the first Black woman judge appointed in Northern California and, later, an elected superior-court judge in the same county as Persky, participated in a campaign against the recall. She said, at the time, “I’m opposed to it because I believe this recall is terrible for racial justice.” She and others believed that it would make judges less independent and, in particular, more afraid to be lenient. Such reluctance would breed more punitiveness and harm Black and Latino defendants, who are severely overrepresented in the criminal-justice system.

That debate inspired two political scientists, Sanford C. Gordon of New York University and Sidak Yntiso of the University of Chicago, to study the impact of the Persky-recall campaign on criminal sentencing. They set out to determine whether the recall campaign changed judges’ behavior, and how it affected racial disparities in the sentences that judges imposed. This past October, the two scholars published their study, which relied on data from nearly twenty thousand sentences issued by more than a hundred and fifty California judges, between 2015 and 2018. They found that, immediately after the public announcement of the Persky-recall campaign, judges began imposing sentences that were roughly thirty per cent longer on average, across the board. Those increases maintained preëxisting racial disparities. In other words, even though the Persky-recall campaign aimed to raise consciousness about white privilege, the additional years in prison were disproportionately imposed on Black and Hispanic people. And, even though the campaign focussed on sexual assault, the study found that the increased sentence lengths were primarily driven by nonsexual crimes, and possibly by nonviolent crimes.

These findings lend support to a sober new documentary, “The Recall: Reframed,” by Rebecca Richman Cohen, which aired on MSNBC on March 19th, and is streaming on NBC. It takes a critical look at the Persky recall, through the lens of mass incarceration. Richman Cohen, who teaches at Harvard Law School, began researching and shooting “The Recall: Reframed” before the pandemic, but she told me that the racial-justice uprisings of 2020 “opened the doors to having a much more nuanced conversation”—one that would not necessarily pit advocacy for sexual-assault survivors against the movement to end mass incarceration. “It really made space to see how you could care deeply about both of those things and frame them in a way where they didn’t work against one another,” she said.

Richman Cohen’s film features interviews with prominent opponents of the recall, including Cordell, who says that she realized, at the time of the campaign, that “the community, the public, the media” were “being misled, and those of us who know this need to speak out.” The public narrative of those advocating for Persky’s removal—that he had a pattern of giving light sentences in cases of violence against women—was built on five “cherry-picked” cases, out of hundreds, over ten years, Cordell argues. But, in her e-mail, Dauber wrote, “A disturbing number of Persky’s cases show poor judgment in matters involving gender-based violence, particularly when the perpetrators were college athletes.” She pointed out that, in one case, Persky agreed to delay sentencing for a defendant convicted of felony domestic violence so that he could play football at the University of Hawaii; in another, involving an alleged gang rape by members of the De Anza College baseball team, Persky allowed images of the alleged victim at a party months later in sexually provocative poses.

Even though Santa Clara County prosecutors had advocated for Turner to receive a longer sentence, they also chose not to appeal, because they believed that Persky had been fair in his rulings at trial, and had used his sentencing discretion lawfully and consistently with what the probation department had recommended. Those prosecutors appear in the documentary as opponents of the recall, on the ground of judicial independence. Alaleh Kianerci, the prosecutor who secured Turner’s conviction, notes, “If we were to recall every judge we disagree with, we would have no judges.” Jeff Rosen, the district attorney, asks, “What if that judge is deciding whether these abortion regulations are lawful, and the judge is in a place where a lot of people don’t like abortion?” He explains that we wouldn’t want the judge to say, “I know what people here think, so I’m going to do what they want.”

Rosen appeared in a campaign ad against Persky’s recall, but, in 2016, he also used the notoriety of Turner’s sentencing to successfully advocate for mandatory minimum prison sentences for defendants convicted of sexual assault. A California state lawmaker who sponsored the bill told the Times that “it took the lax sentence in the Brock Turner case that drew international scorn to get this done.” If that law had been in place when Turner was sentenced, he would have received a minimum of three years in prison. On the same day as the mandatory-minimum law, the state legislature also passed a statute expanding the definition of rape. Under that law, Turner’s assault of the victim, which involved digital penetration, could have been considered rape. (Notably, Dauber, who led the anti-Persky recall campaign, did not support the mandatory-minimum legislation. Dauber told me that she “felt that tying the hands of all California judges in response to the bias of one judge was wrong,” especially “given the research showing the relationship between mandatory minimums and mass incarceration.”)