How Rage Fuels the Incarceration State

Brock Turner, the Stanford University student convicted of sexual assault last summer, left jail after serving three months of his six month sentence, setting off a firestorm of outrage and protest in the popular media over his light sentence. Amidst the rage, no one seems to be asking the more important and fundamental question: what purpose would a longer sentence serve? The evidence, and the nature of his assault, suggest it wouldn’t do much.

Prosecutors attempted to paint Turner as a predator, a menace to society, but based on the publicly available evidence Turner seems more like an immature teen unable to handle the freedoms and responsibilities that come with being an independent adult. I am unaware of any evidence of prior accusations of rape. Most of the “evidence” of predation that readers have pointed me to have been articles that report instances of an inebriated Turner aggressively trying to pick up women at parties, groping them, grinding while dancing, and engaging in other obnoxious, lewd, and inappropriate behavior. Offensive? Absolutely. Sexual assault? Yes, with certainty. Rape? Not in the details that have been publicly revealed.

I’ve asked many good students who have been seniors in my classes why their GPA hovers around a C average, and their reply all too often is: “I made poor choices as a freshman.” They may have been lucky. In  Turner’s case, the consequence of not coming to grips with progressively abhorrent behavior was a criminal trial, conviction, jail time, a permanent ban from the sport that got him into Stanford, lifetime registration as a sex offender, and the knowledge that he came close to destroying another human being and damaged many others along the way.

But this still does not implicate him as a predatory rapist. He may be a rapist, but it’s not clear his behavior was predatory. A wayward teenager whose life is spinning out of control is not a predator in the conventional understanding of the word—someone who identifies a target, adopts and then implements a strategy for attacking them. Predators are calculating, systematic, and focused. That doesn’t appear to be Turner. Yet, unfortunately, in cases of sexual assault, prosecutors are faced with few options other than trying to maximize the potential for securing prison sentences and are, unjustly, almost forced to construct a narrative of the serial rapist and predator to secure that conviction. Juries are notoriously reluctant to incarcerate offenders for sexual assault, and the reasons require a book-length treatment (some of the reasons are explored in my book Unsafe on Any Campus?). But just because a prosecutor says it’s so doesn’t make it true.

A second justification for incarceration is punishment—imposing a consequence for inappropriate and destructive behavior. While more rational, this justification rests more on intuition than evidence. Punishment isn’t an end in itself. Rather, it’s intended to deter future offenses.

Unfortunately, research supporting punishment as a deterrent to future sex offenses is weak at best, and very well may be nonexistent. (See research reported in academic studies here, here, and here for examples of this growing literature.) Rape and sexual assault, like domestic violence, are often crimes of passion or emotion, a drive for dominance and control, not rational thought. These motivations don’t respond well to the cost-benefit calculus of prison-based punishment. Turner’s crimes were committed while he was intoxicated and less capable of making rational judgement, suggesting that punishment in and of itself is unlikely to be effective in changing future behavior.

That leaves us with a third justification for a longer jail time or a prison sentence: restoring some sense of justice, or fairness, to the victim. Yet, this is where the criminal justice system may fail sexual assault and rape victims at the deepest levels. Few cases result in a conviction on the underlying sexual offense charge, the trials are too removed from the human harm created, and most cases never go to trial.

Moreover, prison time isn’t necessarily what victims want. The victim’s statement to the court in the Turner case was remarkably clear about what justice meant for her, even though this part of her statement has been virtually ignored in the public discussion. On page 10 of her statement, she says: “Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward.” She didn’t want Turner to “rot away in prison.” She knew that Turner had already done irreparable harm to her, her family, and her siblings. She could not be fully restored physically or emotionally, and lengthy time behind bars wouldn’t address that harm. On page 11, she writes: “I also told the probation officer that what I truly wanted was for Brock to get it, to understand and admit to his wrongdoing.”

For the victim (and she is not alone), justice looked like four fundamental elements, two of them acts by Turner (not the criminal justice system, prosecutors, or even victim advocates). First, she wanted a conviction to vindicate the truth of her story. Second, she wanted some punishment, if for no other reason than to emphasize the gravity of his crime. Third, she wanted Turner to sincerely recognize to her and publicly admit the harm he caused. She wanted him to take responsibility for the human damage he had inflicted through his choices and bad behavior. Fourth, she wanted him to stop harming people.

The criminal justice system, however, isn’t set up for justice to be restored in this way. Its adversarial approach inevitably forces prosecutors to construct and hammer home the sociopathic narrative while defense attorneys force their clients to deflect blame and responsibility. The verdict is either/or, not “Someone has been harmed, so let’s take responsibility for the behavior and figure out how this won’t happen again.”

So where does the push for longer sentences come from? A poor understanding of the actual relationship between incarceration and accountability is certainly one source. Turner’s defense mocked any sense of justice, deflected from an opportunity to admit his guilt, consciously gamed the legal system to his advantage, further attacked her through the narrative of the defense’s case, and did everything he could to escape consequences for his actions. These tactics naturally incite rage, and that rage will be channeled into the most simple and recognized form of judgement available: punishment for the perpetrator. Longer prison sentences are the easy, tangible goal.

What’s different about this case is that the rage is socialized: Anti-interpersonal violence advocates, commentators, and pundits are raging, and they are raging against the persistence of a significant social problem without an obvious solution, raging against the injustice of rape and sexual assault, raging against a criminal justice system incapable of addressing the harms created by sexual assault, raging against universities and communities that seem to want to wash this injustices under a rug.

The solution to the college sexual-assault problem, however, will not be found in running eighteen- and nineteen-year-olds through personality tests and incarcerating the ones that are deemed too immature to handle the freedom of college. Rather, the solution will be found in holding students accountable for their immature, obnoxious, harmful, and destructive behavior before it gets to the point that their actions become criminal. That is a much harder and more complicated task than most commentators recognize, but it’s necessary to successfully address the issue of campus sexual assault without a further ineffective expansion of the Incarceration State. As readers of this blog know, I have outlined the steps toward this objective in a previous blog post and in the concluding chapters of Unsafe on Any Campus? College Sexual Assault and What We Can Do About It.

Samuel R. Staley is a Research Fellow at the Independent Institute and Managing Director of the DeVoe L. Moore Center in the College of Social Sciences at Florida State University. He is a contributing author to the Independent books, Property Rights: Eminent Domain and Regulatory Takings Re-Examined and Housing America: Building Out of a Crisis.
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