The College Fix

You could define America in the 1980s by a handful of things: Reagan and Gorbachev, Gordon Gekko, Sweatin’ to the Oldies.

And, of course, mandatory-minimum sentencing, partly a reaction to the perception that liberal judges were letting off criminals (often minorities) with light sentences. “Tough on crime” was a reliable Republican talking point.

Mandatory minimums have been in retreat for a while as reform-minded conservatives join with traditional liberals in a rethinking of the prison system.

Lawmakers in Nebraska, no hotbed of liberalism, just voted overwhelmingly to abolish mandatory sentences for certain crimes. Canada’s Supreme Court just ruled such sentences for illegal gun possession were “cruel and unusual,” and hence unconstitutional.

Guess who’s running against this tide?

California liberals.

As the Washington Examiner‘s Ashe Schow notes, the Golden State not only requires students accused of sexual misconduct to prove their innocence, but now Assemblyman Das Williams and a handful of other Democrats want to make sure their lives are ruined when they can’t do that:

The mandatory minimum would be a suspension of two years for students found responsible for sexual assault [under Williams’ bill]. But bear in mind that the burden of proof already lies with the accused, thanks to California’s “yes means yes” law. Accusers do not have to provide any proof that that they failed to give consent or were unable to consent due to incapacitation, and now a guilty finding would carry a minimum punishment under this new proposal.

It would apply to both public and private colleges in the state, which would lose state funds for student financial assistance if they don’t apply those punishments, The Huffington Post reports:

“One of the really big problems we’ve seen is perpetrators getting slaps across the wrist,” said Sofie Karasek, a UC Berkeley senior and sexual assault activist. “Schools need to send the message that it’s not OK to perpetrate these crimes against other students or anyone.”

Ironically, one activist tells HuffPo this could harm victims:

S. Daniel Carter, an expert on campus sexual violence policies who works for the nonprofit VTV Family Outreach Foundation, said he worries legislation like Williams’ bill will prevent victims from coming forward. …

Carter explained he’s worked with victims who did not want their assailants removed from campus for a variety of reasons, including social backlash and a desire to avoid a hearing. If mandatory removal leads to fewer assaults being reported, he said, more perpetrators could get away without facing any consequences.

Reason‘s Elizabeth Nolan Brown notes how outdated this approach is as well:

Williams proposal seems well-intentioned but misguided, its priorities and incentives skewed. These are exactly the kind of conditions that gave birth to the mandatory minimimum [sic] prison sentence movement. In the 1980s and 1990s, state and federal legislators started rapidly escalating the criminal penalties for various drug offenses, and one of their favorite way to do this was through mandatory minimums, legal requirements that take sentencing discretion away from from judges in favor of an inflexible, statutorily parametered punishment for anyone convicted of a particular crime. Recently, criminal justice reformers in both major parties have been keen on scaling back these mandatory minimums, which have largely driven up prison populations without driving down drug use. But even as mandatory minimums for (at least some) drug penalties are on the way out, lawmakers and activists continue advocating statutory sentencing enhancements for sex-related crimes.

Shoot-first, ask-later activists might also want to consider what Brooklyn College history professor KC Johnson has written: Light sentences may reflect disciplinary panels’ own ambiguity about whether an accused student committed what a reasonable person would think of as “sexual assault.”

Writing about Yale’s most recent sexual-assault report this winter, Johnson says the school would be crazy not to give a harsher punishment to an actual rapist:

Of the “sexual assault” cases that went through the formal resolution process, only one ended with a conviction and expulsion—suggesting that only one of the thirteen instances in the report involved what would commonly be understood as rape. (Other punishments for students found culpable of sexual assault ranged from short suspensions to probation; it’s inconceivable that Yale would keep any of these students on campus if they had actually committed a rape, as opposed to being found guilty of a “more expansive definition.”)

Do these second-wave “tough on crime” crusaders really care about whether they permanently brand innocent people as rapists for the rest of their lives, just as harsh drug sentences have eroded African-American family life?

Has none of them ever had an ambiguous sexual encounter that could just as easily have ensnared them in a kangaroo-court proceeding? Did any of them read California’s new affirmative-consent law?

A previous generation of liberals would have been horrified at these institutional injustices whose rationales lie in outdated gender stereotypes of helpless young women.

Greg Piper is an associate editor at The College Fix. (@GregPiper)

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IMAGES: William Murphy/Flickr, Office of the California Assembly

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