Another day, another case in which a US judge hands down an extremely lenient sentence to a white, privileged rapist with a ‘bright future’ ahead of him. Cue fury, with people rising up to demand a harsher sentence and push for a recall to get the judge off the bench. We saw this with judge Aaron Persky and Brock Turner earlier this year, and now it’s Patrick Butler and rapist Austin Wilkerson in the spotlight in a legal case that’s gone viral.
There are a number of striking parallels between the two cases: The victims both gave impassioned, powerful statements asking for justice in their cases. The rapists were both white, young, and involved in athletics (Turner as a swimmer, Wilkerson as one of the people who handles Colorado University’s mascots). Both women were unconscious and unable to consent. In both cases, the judges handed down very light sentences on the grounds that they were rehabilitatable, that they’d suffered enough, that everyone needed to move on. In both cases, it was clear that their status as young, white college students played a profound role in their sentencing.
In response to situations like these, there’s often a huge outpouring of support for longer prison sentences, or even mandatory minimums, in rape cases. Across the US, judges enjoy considerable discretion when it comes to sentencing, and while they can hand down the recommended sentence, they can opt to change their minds. This discretion is in part designed for parity purposes, allowing judges to spare people from unnecessarily harsh sentences, but it can go the other way, too.
But this conversation, the push for more prison time for rapists, is the wrong conversation to be having. The liberals who proudly shout about rapists getting off easy do not seem to understand that they are feeding the prison-industrial complex in the United States, a massive entity with a gaping maw that is ever hungry. As a prison abolitionist, I don’t believe in imprisoning anyone, for any crime, and prefer a restorative justice approach, focused on getting to the root of the harm done and working to ameliorate it. The United States, however, runs on a retributive justice model, and many liberals and progressives have bought into that model, wholly believing that the best punishment for rape, or murder, for other horrific crimes, is to throw someone in prison (where, among other things, rapists themselves are often raped).
Prison does not make good on crimes. Prison is instead a hugely profitable industry in the United States driven by a combination of incredibly racist legislative and sentencing practices as well as, yes, the cries of liberals who like the smell of blood in the water. It’s paradoxical to see progressives angrily protesting disparities in drug sentencing, correctly arguing that the structure of drug law in the US is heavily racialised and tends to disproportionately put men of color in prison, and then turn around and demand more prison time for other crimes — because mandatory minimums for rape are racialised as well, given how law enforcement investigate and prosecute rape cases.
Do they not understand that the harm here is not just inquity, but prison itself? Drug policy in the United States is absolutely racialised and oppressive, and involves practices that profile people of color and trap them both in the prison system and in a vicious cycle of law enforcement profiling. The United States needs to reform its drug laws. But it also needs to rethink prison.
The victims in both of these cases called for prison time, and understandably: That’s the framework they’ve been led to believe will create justice. In this instance, Wilkerson’s victim discussed the fear and anxiety she experienced, and her terror at the thought of being in an environment where her rapist might be present. Her solution was to ask for prison time, requesting that the judge show the same level of mercy her rapist did on a March night in 2014, which is to say, none. Her victim statement is clearly tugging at heart strings as people respond to the case to cry foul over her rapist’s minimal sentence.
But when liberals agitate for more prison time, for more prisons, it sends a dangerous message. It doesn’t just feed the prison-industrial complex. It’s also a grim reminder that liberals have apparently forgotten the incredibly high cost of mandatory minimums. During the height of the drug war in the 1990s, many states passed mandatory minimum sentencing laws, requiring judges to mete out harsh sentences without any discretion. Those same laws caused the prison population to surge, and they ruined lives. Two decades later, some states are starting to painstakingly undo these laws, but it’s a challenging and tangled mess.
The problem here isn’t that Wilkerson is spending two years on work release and then gets to go free. The problem is that rape culture and racism are pervasive in the United States, and also that we don’t have a judicial framework that actually prizes justice. Wilkerson does need to participate in a process that will bring justice to his victim, and will make her feel like this case, which has brought her untold suffering over the last two years, has an outcome that is satisfactory. A jury convicted him, he is definitively guilty, and he needs to be held responsible for his actions — that’s not in doubt.
But when liberals cry foul about short sentences and scream that sentences should be adjusted and judges should be taken from the bench, what I hear is the same bloodthirsty reasoning that created the huge prison population in the United States and all of its accompanying problems. I don’t favour leniency for rapists any more than anyone else does, but I also know that simplistic calls for ‘justice’ can have dangerous consequences.
Photo: Bill Bradford/Creative Commons