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I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.

On the morning of June 12, 2016, a small plane circled over Stanford University’s commencement ceremony trailing a banner reading, “Protect Survivors. Not Rapists. #PerskyMustGo.”

I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.

On the morning of June 12, 2016, a small plane circled over Stanford University’s commencement ceremony trailing a banner reading, “Protect Survivors. Not Rapists. #PerskyMustGo.”

The plane’s voyage was commissioned by feminist group UltraViolet to protest former Stanford swimmer Brock Turner’s six-month sentence handed down by Santa Clara County Superior Court Judge Aaron Persky in 2016 for sexually assaulting an unconscious woman on campus the previous year. The sentence ignited an outcry and an effort to recall Judge Persky. Over 1 million people have signed a petition to remove Judge Persky, and even members of Congress have joined the chorus. Now, Santa Clara County Assistant District Attorney Cindy Hendrickson is running to replace Judge Persky should his recall go before voters.

There have been a few voices criticizing the recall movement. Some have warned that the effort could threaten judicial independence by pushing judges to buckle under pressure from public opinion in individual cases. Others have warned that the recall could scare judges into giving harsher sentences to all defendants, which would likely disproportionately affect underprivileged and minority defendants. And others have pointed out that the recall effort creates a tension between feminist anti-rape advocacy and other progressive, anti-carceral social justice movements.

But with few exceptions, those critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do.

In a Washington Post op-ed, Stanford law professor Michele Dauber charged that Judge Persky “had to bend over backward to award Turner such a light sentence.” More recently, Professor Dauber has re-affirmed that criticism on her Twitter account, describing Turner’s punishment as a “minimum sentence” handed down to a “white affluent” athlete. Professor Dauber and many others have also mistaken the sentencing process as Judge Persky demonstrating “empathy for the criminal.” At Turner’s sentencing hearing, Judge Persky considered statutory aggravating and mitigating factors and sentencing criteria. These factors included Turner’s age (he was 19 at the time of the offense), lack of criminal record, intoxication, letters of support, remorsefulness, and — much lamented by Professor Dauber and other pundits — the effect the felony conviction would have on his life.

As is common practice, Judge Persky based his sentencing determination not on Turner’s athletic ability, gender, or race, but on the recommendation of his probation officers. Further, Judge Persky was authorized by the California Penal Code to depart from the statutory minimum sentence — two years, in this case — after considering Turner’s lack of criminal history and the effect of incarceration. Judge Persky determined that a prison sentence would have a “severe impact on him. And that may be true in any case. I think it’s probably more true with a youthful offender sentenced to state prison at a . . . young age.” Contrary to Dauber’s assertion that Judge Persky “had to bend over backwards” to lightly punish Turner, he tailored the sentence to best serve justice, not merely to churn out a one-size-fits-all sentence.

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds. And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates like Dauber have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged. Turner owes court fees and is required to pay the victim restitution. He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination. If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence. He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity. As a convicted felon, he will not be allowed to own a gun.

And far from rehabilitating offenders like Turner, prisons leave people “worse” than when they went in. At the Santa Clara County jail, where Turner served time, three corrections officers were charged with murder in the beating death of a mentally ill inmate; this attack was just part of a string of allegations of violence committed by the the jail’s corrections officers. If Turner had been sent to prison, experts say, it’s likely that he could have been released back into society with exacerbated mental health issues, trauma, and further exposure to crime that would result in higher odds — not lower — that he would commit future crimes.

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often leadto homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious. By imposing a three-year mandatory sentence, the law removes judicial discretion. “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter. Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom. History shows police gatekeeping in cities like PhiladelphiaSt. LouisBaltimoreClevelandDetroitNew Orleans, and New York City. In recent years, police have regularly closed casesbefore doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law. For a sexual assault case, it is a rare success. More punishment isn’t always the best or most just response. Nor does it necessarily provide justice for victims. And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

Correction: This story previously indicated that Turner’s felony conviction would preclude him from voting. This is not the case under California law and the article has been updated to reflect that.

Not in Vain: Our Failure to Curb Misconduct Undermines John Thompson’s Legacy

Not in Vain: Our Failure to Curb Misconduct Undermines John Thompson’s Legacy

For criminal justice reformers, a surprisingly positive year was stained by the loss of a legend. Early in October, John Thompson, a prominent advocate for holding prosecutors accountable for misconduct, passed away at the age of 55. Mr. Thompson spent 14 years on Louisiana’s death row for a murder he did not commit. Prosecutors had intentionally hid blood evidence that would have exonerated him in an unrelated trial for carjacking. He was convicted of that crime, then did not testify in his own defense at the murder trial for fear the earlier conviction would have been used against him. Years later, when a dogged investigator discovered this suppressed evidence — just 30 days before Mr. Thompson’s scheduled execution — both convictions began to unravel. Mr. Thompson eventually won a new trial and was acquitted in 2003, 18 years after he was first convicted.

Remarkably, the only lawyer who ever suffered any consequences for this injustice was Michael Riehlmann, who revealed that one of the prosecutors who tried Mr. Thompson had confessed on his deathbed that he intentionally suppressed evidence. (Riehlmann received a public reprimand). No one involved in Mr. Thompson’s actual prosecution was ever held accountable for this ethical and legal lapse.

Mr. Thompson later sued the Orleans Parish District Attorney’s Office for damages. His civil suit resulted in a $14 million jury verdict in his favor — $1 million for each year he spent on death row. In 2011, the Supreme Court overturned that verdict in a bitterly divided and controversial 5–4 decisionthat reached the puzzling conclusion that Mr. Thompson had not sufficiently proved a pattern of constitutional malfeasance.

In part due to John Thompson’s tireless work on behalf of victims of prosecutorial misconduct, Americans have started paying attention to the enormously powerful role that prosecutors play in our criminal justice system. That heightening awareness includes a growing recognition that prosecutorial misconduct is a serious problem. Misconduct is generally defined as breaches of constitutional and professional ethics rules, encompassing a range of behavior, including suppressing exculpatory evidence, making improper arguments during closing statements, and failing to correct a witness’s false testimony. It is distinct from bad judgment or troubling charging practicesthat are also serious concerns about prosecutorial behavior. While prosecutorial misconduct often contributes to wrongful convictions like John Thompson’s, these actions implicate more than conviction integrity; they strike at the constitutional legitimacy of the system. A recent report by the Innocence Project identified 660 judicial findings of misconduct in cases from five states between 2004 to 2008. The report is part of a growing body of research that points to the importance of making prosecutorial misconduct a significant priority for criminal justice administration.

However, once identified, the question of what to do to address prosecutorial misconduct remains a challenging one. While it seems obvious that prosecutors who engage in misconduct should face some consequences, the nature of those consequences remains elusive. This is surprising in some ways; after all, we know where the prosecutors are, we have proof of their misconduct (at least in some subset of cases), and one might even assume that enforcers of rules would be motivated to abide by them and see others in the profession reprimanded for disrespecting them. Unfortunately, prosecutorial accountability is a myth.

State bar organizations themselves have done very little to shame misbehaving prosecutors. The disciplinary bodies almost never pursue prosecutors, let alone punish them. Courts, too, have historically gone easy on prosecutors. The Supreme Court has made it effectively impossible to seek civil damages against individual prosecutors who commit misconduct and the offices that supervise them, cloaking prosecutors with absolute immunity. In criminal cases in which a defendant establishes that the prosecutor has violated his rights, courts employ doctrines that make it unusual to grant new trials or impose any other remedy. This is often because they do not want to give criminals a “windfall” or disturb convictions they think are otherwise solid.

If judges and state bar organizations have failed, it is no surprise that prosecutors themselves have done even less in terms of self-policing. While the Supreme Court once observed that truly terrible prosecutors could be criminally charged — by other prosecutors — for wrongdoing, such charges have led to imprisonment only once. Prosecutors often insist they can discipline themselves within their offices. However, there is no evidence that such internal discipline actually happens in any regular or meaningful way. If an ethics-focused prosecutor were elected to lead an office, there may be some hope for internal accountability. But, in the vast majority of offices, District Attorneys have other priorities, like securing high conviction rates and harsh sentences for violent offenders.

Why do so many of these potential avenues for holding prosecutors accountable fall short? For starters, their immense power within the criminal justice system can be intimidating. Individuals are afraid to make complaints because they don’t want to draw a district attorney’s ire. Defense attorneys often worry that raising hell will hurt their ability to negotiate favorable plea deals for their current and future clients. Even judges generally shy away from calling out prosecutors (with a few important exceptions). In fact, a great number of criminal court judges are former prosecutors, so there may be personal ties at play in addition to a strong sense of shared professional identity. And, substantial obstacles make it difficult for District Attorneys to transform office cultures that widely presume the guilt of defendants and seek to win convictions regardless of the constitutional costs: cognitive biases; the drive for professional advancement; and a reluctance to give up power.

Moreover, the sheer number of different institutions with the theoretical capacity to discipline prosecutors represents a classic diffusion of responsibility problem. Nobody takes ownership. Fingers point in every direction. Prosecutors capitalize on this diffusion, inevitably defending themselves in one forum by arguing that another forum will take care of whatever problem may exist. (Consider this summary in the National District Attorney Association’s amicus brief in a civil liability case).

In a recent law review article I wrote, published by the Lewis & Clark Law Review, I make a few practical suggestions for change. While none is a panacea, these ideas could help push forward the discussion. (Several have been raised before, and I cite to the originators in my piece). I based my suggestions on insights provided by deterrence theory — a theory that has not worked wonders in the crime control context in part because of our current justice system’s fixation on severe punishments rather than certain ones. Nonetheless, I believe these could contribute more to prosecutorial accountability.

To start, the diffusion of responsibility needs to be addressed. Of the existing modes of accountability, the only ones that have a meaningful chance of succeeding are criminal courts reviewing claims of misconduct made by defendants and professional disciplinary bodies. It would of course be wonderful if the Supreme Court overruled the lawless doctrine of absolute immunity for prosecutors, or if the new wave of progressive district attorneysembraced a transparent and rigorous system of internal discipline. But we should not construct a system around these slippery hopes.

One of the most profound insights from deterrence theory is that the shame of being punished is often more potent than the punishment itself. A page can be pulled from the current struggle against workplace harassment and everyday misogyny; that movement has revealed the transformative power of transparency and public information-sharing. Because shame matters, state disciplinary bodies should publicize prosecutorial disciplinary outcomes to lawyers and judges. Right now, they tend to bury decisions in online repositories and the back pages of monthly bar publications that sit on law office coffee tables.

Criminal courts also need to take seriously their own roles in policing misconduct. They are the first and sometimes only authorities who see the evidence. They should name names, and identify prosecutors who have broken the rules in opinions, rather than gift them the privilege of anonymity. Judges should also exercise their ethical duties to refer prosecutors who commit misconduct to the disciplinary body, something the Eleventh Circuit just recently did. And, of course, better information-sharing between the criminal courts and state disciplinary bodies could make both modes more effective.

These proposals are modest, to be sure. If someone harbors skepticism about the very institutions that have permitted or facilitated the status quo’s accountability deficit, I do not blame them (and, in fact, join them). But, as the winds of change seem to be blowing, I am confident that more people will look for solutions. It very well may be that the best solution is a new concept altogether — perhaps an independent commission — or an even more dramatic intervention that we have not yet seen. For the moment, incremental change, such as pressing courts and attorney disciplinary bodies to publicly disclose information, is more plausible, at least on a large scale. While hardly a comprehensive approach, taking such a step would move us toward honoring John Thompson’s legacy in a lasting way.

Bidish Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans. The views and opinions expressed in this commentary are Mr. Sarma’s and do not necessarily represent those of In Justice Today.

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Setting the Record Straight on Predictive Policing and Race

West Midlands Police from West Midlands, UK [CC BY-SA 2.0]

Setting the Record Straight on Predictive Policing and Race

In a thoughtful and poignant piece in the New York Times, Bärí A. Williams described her concerns about racial bias in predictive policing software and the effect such software might have on her own family. In response, Andrew Guthrie Ferguson published an excellent article on In Justice Today that clarified some of the points raised in Ms. Williams’s article, including a discussion of our study about the potential impact of predictive policing in Oakland, California. Our study demonstrated the potential for predictive policing software to perpetuate historical biases in enforcement. Professor Ferguson describes our study as “hypothetical” because the algorithm we used isn’t typically used for drug crimes and Oakland doesn’t use the software. While Professor Ferguson raises some interesting points, we would like to take this opportunity to provide more context to our decision to focus on drug crimes in Oakland in our study and further unpack the broader conclusions of our study.

Critics of our study have previously raised questions about the appropriateness of using drug crime data for generating forecasts using Predpol’s software, as Predpol has not been used for forecasting drug crimes. However, this claim misses the critical argument of our study and ignores recent attempts by both police departments and the federal government to further expand the scope of place-based predictive policing to include drug crimes.

The key point of our Predpol study is that virtually all predictive policing models (even person-based models such as Chicago Police Department’s heat list) use crime data from police departments. But police department data is not representative of all crimes committed; police aren’t notified about all crimes that happen, and they don’t document all crimes they respond to. Police-recorded crime data is a combination of policing strategy, police-community relations, and criminality. If a police department has a history of over-policing some communities (which often tend to be communities of color) over others, predictive policing will merely reproduce these patterns in subsequent predictions. This is true even for models that claim racial neutrality because they say they do not explicitly include race variables in their model (which Predpol does on their website).

To demonstrate this point in our study, we needed to illustrate how predictions generated by a predictive policing algorithm (in this case, Predpol’s algorithm) compared against an alternative, likely more accurate, representation of the locations of all crimes committed, including those which are not observed by police. As we point out in our study, we chose drug crimes because it allowed for the use of public health data on illicit drug use to serve as a point of comparison. For other categories of crime, such as property crimes or violent crimes, it is more difficult to establish alternative points of comparison.

Unfortunately, critics’ focus on the type of data used in the analysis distracts from the broader point that the collection of police recorded crime data, regardless of specific crime category, is inherently biased by the institutional context under which it is collected; those biases will be perpetuated, in turn, by predictive policing models that rely on police-recorded data. Further, although PredPol may not be used to police drug crimes, it certainly has been used by some jurisdictions to allocate resources to police other crime types that suffer from similar statistical bias induced by the highly discretionary nature of enforcement. For example, in Weapons of Math Destruction, author Cathy O’Neil details the UK city of Kent’s use of the PredPol software to predict nuisance crimes and found that, much like in our study, the software suggested the same set of locations over and over again.

Lastly, despite the larger predictive policing vendors such as Predpol claiming not to predict the location of drug crimes, there is an active push by governments to do so. For example, a recent National Institute of Justice crime forecasting challenge offered over $1.2 million in cash prizes for teams that could best predict the locations of future categories of crimes. Among these groups to be predicted was “street crime,” one subcategory of which is vice crime, which includes drugs, gambling, prostitution, etc. In fact, teamsled by Predpol co-founder George Mohler (team PASDA) and Hunchlab Lead Data Scientist Jeremy Hefner won multiple cash prizes in the competition using their models to predict the location of these crimes. Even if PredPol and similar software is not currently being deployed to predict drug crimes, it is clear that people closely associated with the organizations are not on principle opposed to doing so — given their participation in developing software for the NIJ challenge to do exactly that. Cities such as Hamden, CThave explicitly requested that Predpol and other commercial predictive policing vendors submit bids for a contract to predict gang activity and drug crimes. And, with the increased concern within the Trump administration about the growing opioid crisis, it is reasonable to assume that more cities will look to predictive policing to grapple with this issue.

As to Professor Ferguson’s point about Oakland’s use of Predpol, it ignores the reality that in their Fiscal Year 2015–2017 budget, the city of Oakland had, in fact, approved $158,400 over two years for the Oakland Police department to purchase and implement Predpol. However, a report from Motherboard foundthat the police department canceled the contract after an internal committee could not find credible evidence that Predpol reduces crime, combined with the committee’s concerns — substantiated by studies such as ours — that predictive policing could have a disproportionate impact on minority neighborhoods.

This raises a critical point often missed in the debate about either person or place-based predictive policing: Even if we hypothetically had bias-free data, would it reduce crime? In their highly regarded report on predictive policing, the technology think tank Upturn points out that, “although system vendors often cite internally performed validation studies to demonstrate the value of their solutions, our research surfaced few rigorous analyses of predictive policing systems’ claims of efficacy, accuracy, or crime reduction.” The only study to finding meaningful crime reduction is the study conducted by Predpol itself in Los Angeles and Kent (UK). But, as the Motherboard articlepoints out, the reduction in crime claimed in the study may have been spurious, as LAPD’s crime statistics show other divisions that were not using Predpol also saw crime reduction as high as 16 percent during the same period.

We appreciated Professor Ferguson’s nuanced take on the different risks of each type of predictive policing software, and we agree that Chicago’s heat list is very concerning from a human rights perspective. However, it is naive to believe that predictive policing vendors will be able to self-regulate merely by voicing concerns about the potential harms of these tools. What is needed are clear guidelines for algorithmic transparency and accountability, which allow independent groups to evaluate the efficacy and potential harms of predictive policing and other algorithmic tools. Currently, many vendors view their algorithms as proprietary technology and are allowed by police departments to have opaque rule and procedures that govern which researchers or groups are permitted to conduct evaluations of their technology.

But the status quo is beginning to change. It was only because researchers associated with PredPol published an academic paper that included their algorithm — a move towards transparency we applaud — that we were able to complete our study. Further, many agencies have sought to move away from third-party commercial vendors and opt for tools built in-house or in collaboration with universities that make their source code and evaluations public. Newer predictive policing companies such as Civicscape have committed to algorithmic transparency by publishing a version of their source code on the online code repository Github, and pledged not to use their tools to predict drug crimes because of concerns that the bias present in crime data is too difficult to model out of their predictions. At the legislative level, New York City recently passed a bill to create a task force to evaluate the city’s use of automated decision systems, with the aim of eventually creating procedures by which agencies could provide source code and testing for all systems such as predictive policing. Hopefully, efforts like these will become the norm and will help communities across the country feel more confident in the potential of using data and machine learning to address pressing public safety issues.

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