How one Minnesota judge handles sexual assault sentencing

Judge Judith Tilsen
Judge Judith Tilsen
Evan Frost | MPR News

There's been a major public outcry in the past week over the light sentence handed down by a California judge for a rape conviction.

More than a million people have signed a petition to remove the judge who sentenced Brock Turner to six months in prison and probation — much less than the prosecution's recommendation of a minimum of six years in prison for his felony charges. Such charges can carry up to 14 years.

Ramsey County District Judge Judith Tilsen joined All Things Considered host Tom Crann to talk about how judges in Minnesota consider sentences.

Tom Crann: A lot has been made of Brock Turner's sentencing statement that he provided, and especially the victim's statement in the case. And I'm wondering: How much of a role do statements like that — either from the defendant, or a victim's impact statement — play in what you consider when you consider a sentence?

Judge Tilsen: When we're considering a sentence here in Ramsey County or in the state of Minnesota, we have Minnesota guidelines, of course, and I'll talk about that a little bit later.

But the specific question is: I want to know the whole picture.

So the defendant's statement makes a difference in the sense that, if I have someone who is very remorseful and taking responsibility, I will respond differently than someone who is laughing or grinning or thinks it's all a joke.

So that's going to affect how I respond.

So is that statement a verbal or oral statement in court? Or is that a written statement to you?

For the defendant, it's usually verbal. I have gotten written statements. Sometimes I get them ahead of time, and they've failed to give them to their attorney, so we always have to deal with that, but usually it's an oral statement in court.

And victims sometimes write statements, sometimes want to read them themselves in court, sometimes want somebody else to read them.

But the question how does it affect me? It really depends.

I always listen to what the victim has to say. And sometimes it does have something to do with what I might sentence.

You know, many victims, if it's a very serious case, they want blood for blood.

We don't have execution in Minnesota, you know. They want, "off with their heads" and we can't — obviously, that's outside of our laws.

You've brought with you a couple forms that are used in court. And one of them has room for a victim's statement, but also educational background, family background, other charges, alcohol and drug use, psychological, medical assessment, that sort of thing. This would be filled out for every defendant?

For every felony in Ramsey County, we get a pre-sentence investigation. Probation has somebody fill that out.

So, I want to know before I sentence somebody some background about the person. And that gives me some significant information.

As you said, it has all these different areas that are filled in, including their criminal history. It's a verified criminal history.

I get a sentencing guidelines worksheet attached to that — we have guidelines in the state of Minnesota.

I get their family background, their marital status, numbers of kids. I get information about their drug use, their treatment — if any — history, their need for treatment, their mental health.

I get a lot of information that I use in sentencing.

The other thing that I wasn't aware of until this case in California: The number of letters — or statements, if you will — from the defendant's family, friends, coach, that sort of thing. How often is that part of the information that you receive?

It's not, certainly not in every case, and anecdotally I would say less than half. But it is not that unusual, either.

In certain cases, particularly if it's a younger defendant who's looking at prison, the family and aunts and uncles parents siblings cousins all want to say [things about the person].

It's actually not that unusual.

I don't think, for me, and I'm speaking personally, that it has a huge affect on me when somebody who knows somebody who knows somebody who knows this person is saying, "You should give this kid a break."

I always read it. I always pay attention. And it doesn't really sway me very much.

Without revealing a case, can you recall a time where a statement worked either for or against the defendant, from a parent or someone close?

I can't recall a specific time when it worked for or against.

And I know we've said we're not going to talk about a specific case. But I have been known to talk to family members, saying, "I know that you really care about this young person" — I say "young person" as a young adult — "and good for you for caring. That means that this person may be able to actually make use of treatment or rehabilitation efforts. And I'm glad of it."

And yet I wouldn't say it sways me so much, but I respond to it, usually.

I want to talk about the other grid you brought with you. This is a very specific grid for sentencing guidelines, for sexual assault and for other crimes, as well. Tell us what would be on that grid, and how strict those guidelines are for you.

So, we in Minnesota have the Sentencing Guidelines Commission, which puts out the sentencing guidelines.

You'd have to look at the grid to understand it. Jurors are always interested in this after they've reached some kind of verdict. And I explain to them that across the top of the grid is the criminal history score, and not every prior case is one point. Some charges are way heavier than others.

And then across the side of the grid is the charge itself.

And, literally, a judge can go across the top, verify criminal history score. What is the charge? What is the presumptive sentence?

I'm looking at criminal sexual conduct in the second degree, for example, [with a criminal history score of zero, no prior convictions. And the second degree, straight across ... and the range is 90-108 months. And I can sentence, without departing from the guidelines, anywhere within that grid.

Now, I'm going to get all these letters, that we've just been talking about. And somebody wants me to do less, and of course the victims — usually, not always — want me to do more.

I cannot go up from this sentencing guideline grid without specific findings that are made by a jury about aggravating factors. I can go down from this grid if I find mitigating factors. I don't need a jury to find those things.

What would those things be, you might ask?

The person is in need of treatment — and amenable to treatment. So, the person has shown me, to my satisfaction, that they are going to make use of treatment.

What do I mean by treatment?

Chemical health treatment — like, they are an addict — mental health treatment, and of course we have sex offender specific treatment.

I will say that you can get many of those things in prison. People like to argue about the quality of that. But I can't speak to that. I don't have those figures in front of me.

But I often do depart downward. I understand there have been studies in the state about how certain judges respond. I don't know my numbers, but any time I depart downward, I have to report.

And I send that in to the Sentencing Guidelines Commission, and they keep track of all the departures.

This is not something that is done lightly. But there still is judicial judgment here, or your discretion involved, right?

Absolutely. And I need to be able to trust my own judgment.

But I want to say something about that. I might, as a judge, feel more sympathy or empathy toward a defendant who looks or acts like me. And we as judges have to be very aware of that, and what implicit biases we might have.

So when a defendant comes in and they say he's just graduated from college and he's got a good job and he's been in the community for 20 years, and so we want you to give him a break, I might want to know: Is this somebody who's the first person in his family ever to graduate from college? He's never been arrested before and he's been in the inner city and he's black? (Because we know statistically young black men get arrested more.) And is he the first person in his family to ever hold a job for more than a month?

As opposed to the same person who comes in, who also might be black, it isn't about race. You know, he's fourth-generation law school, and he works in his family business, and so he's had a job since he was 14, because he could sweep the floor in his dad's business.

You know, those are different people, even though the facts are the same.

I want to footnote: The Sentencing Commission guidelines say you cannot decide based on employment or how long they've been at their residence, but I'm telling you, people do.

Right now in the state, there's a campus sexual violence prevention summit. As a judge who deals with criminal cases, what do you make of the calls that campuses should have procedures regarding sexual assault? Is that something that should be left to the court system, or is that something that you think universities can come up with a procedure that's actually effective?

That's an interesting question that I actually haven't put a lot of thought to.

I'm not sure it's appropriate for me to say, so I'm going to answer personally.

I think all of us as community members should have a policy about assaults, sexual assaults, that happen around us.

Historically, we have stories where there's been a sexual assault and people have watched or walked by or closed their windows, they don't want to hear the screams, and do nothing.

And I certainly think that's not right. So, a campus is a community. And I don't know what policies or rules they should have. But as a community, I think we all need to have policies.

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