Contributor, The Volokh Conspiracy

A judge’s decision to sentence a former Stanford University swimmer to just six months in jail for sexually assaulting an unconscious woman has sparked outrage. The sentence has struck most observers as far too lenient.  (Doug Berman’s post on the case makes the point as nicely as anyone — although the true “must read” here is the extraordinarily powerful victim-impact statement from the victim.) But is there any objective way, beyond a “gut check,” to demonstrate that the sentence is too low?

One possible approach is to consider what sentence the swimmer would have received in other jurisdictions for the same offense. The federal system offers the possibility of a comparison, because it has a detailed set of sentencing guidelines for just about every conceivable crime. Here we can look to 18 U.S.C. Sec. 2242, which makes it a felony punishable by a sentence of up to life in prison for a person to “engage[] in a sexual act with another person [while] that person is … physically incapable of declining participation in, or communicating unwillingness to engage in that sexual act ….”  Of course, federal crimes require a federal jurisdictional hook. So this felony applies to such acts that take place “in the special maritime and territorial jurisdiction of the United States”  — e.g., a federal enclave such as a military base.

The federal sentencing guidelines strongly suggest that the swimmer’s six-month sentence was far too short.  The general federal sentencing guideline for violating Section 2242 (found in Section 2A3.1) is a level 30, which translates (for a first-time offender) into a recommended sentence of 97 to 121 months — more than one order of magnitude higher than the six-month jail sentence imposed. To be sure, this is a recommended sentence for a sex crime on a federal enclave. But it is hard to see any real difference, for these purposes, between such a crime on, for example, a military base or the Stanford University campus.

The federal sentencing guidelines also provide a useful contrast to the reasons reportedly given by the California judge for giving the swimmer such a lenient sentence.  For example, the judge noted that the offense was the swimmer’s first. But the sentencing guideline just discussed recommends a 97-month minimum sentence for a first-time offender. The judge also noted that the defendant was intoxicated at the time of the crime. But here again, the federal sentencing guidelines take a different approach. The guidelines (Section 5K2.13) exclude a downward departure where “the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants.”

The guidelines similarly rule out the idea that the swimmer should have received credit for “accepting responsibility” for his crime, but only after a jury trial that traumatized the victim. The guidelines recognize a downward adjustment to recommended sentences for those who accept responsibility (Section 3E1.1), but explain that the adjustment is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”

The guidelines also rule out any suggestion that a victim in such circumstances should in any way be blamed for the crime. The guidelines permit a downward departure only where “the victim’s wrongful conduct contributed significantly to provoking the offense” (Section 5K2.10). Here there is no suggestion of wrongful conduct that somehow “provoked” the offense, much less significantly provoked the offense.

As someone who has familiarity with the federal sentencing system, this analysis of the federal sentencing guidelines appears to confirm my gut instinct — six months is a sentence far too lenient for the serious violent crime that was committed.  And in another article, The Post has suggested the same conclusion by collecting general sentencing statistics for all the states suggesting that the average state sentence for rape is about 11 years.

So what conclusions can we draw from what appears to have been a serious injustice? One corrective, raised as a possibility by former federal prosecutor Bill Otis, is that California should adopt mandatory minimum sentences for sex crimes such as this.  But mandatory minimum sentences raise their own risks of injustice, as the Weldon Angelos case that I was involved with points out. Another possibility, already being explored by some in California, is to recall the judge. But in the absence of any evidence of a pattern of problems, I am skeptical that a judge should be removed from office for a single decision. And even recalling a judge changes little beyond that one courtroom. In fairness to the judge, it should also be noted that the recommendation he received from the probation office was apparently for a short jail term

I hope reformers in California think more broadly than targeting one individual and try to determine whether the system itself malfunctioned. One possible corrective would be changing California’s sentencing guidelines for cases like this one so that they more closely follow the federal guidelines described above. And perhaps something needs to be done, short of imposing mandatory minimum sentences, to require judges in cases like this one to give stronger reasons before they impose such lenient sentences in sexual assault cases. I don’t know enough about the details of the California sentencing system to offer concrete proposals. But clearly something is amiss in California when conviction for such a terrible crime can lead to such a shockingly light sentence.