He Saw Himself

An excerpt from Mimesis Law as seen in Vox -

BROCK ALLEN TURNER: THE SORT OF DEFENDANT WHO IS SPARED “SEVERE IMPACT”
by Ken White

June 8, 2016 (Mimesis Law) — Ten years ago my firm represented a kid on a minor drug charge. This kid played an instrument – for the sake of this story, let’s call it a xylophone. He approached the xylophone like he approached geometry, by which I mean he often showed up for it and probably wouldn’t fail it.  But by the time we were done writing about that kid in the sentencing briefs, he was the most xylophone-playing motherfucker ever to walk the Earth.  He was the YoYo Ma of xylophones, someone whose skills would make angels weep and the doors of fame and success slam open.

We didn’t do that because people who play xylophones are less criminally culpable than people who don’t. We did it because a defense attorney’s challenge is to humanize their client at sentencing. Judges process dozens of defendants a month, or a week, or even a day.  If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad.  It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection.  Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth.  At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate.  It’s harder to send a man into a merciless hole when you relate to him.

Empathy is a blessing.  But empathy’s not even-handed.  It’s idiosyncratic.  Judges empathize with defendants who share their life experiences – and only a narrow and privileged slice of America shares the life experiences of a judge.

That’s one reason that justice in America looks the way it does.

Last week Santa Clara County Superior Court Judge Aaron Persky sentenced Brock Allen Turner to six months in jail.  Turner will probably do half of that – about the length of a single quarter at Stanford University, where he was a student.  Most people think that was an appallingly and unjustly lenient sentence for what Turner did: brutally sexually assaulting a drunk, unconscious young woman behind a dumpster outside a party.

Judge Persky clearly empathized with Brock Allen Turner.  Turner was a championship swimmer and a Stanford student; Judge Persky was a Stanford student and the captain of the lacrosse team.  Judge Persky said that sending Turner to prison would have a “severe impact” on him, that he did not believe that he would be a danger to others, and that he was young.  Turner’s victim was not spared a severe impact, despite her youth and lack of criminal record.  Her statement was harrowing. Her sentence is lifelong.

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