The Media has blown up lately regarding the discrepancy between the sentencing of the Vanderbilt football player and Stanford swimmer who both recently received convictions for crimes stemming from a sexual assault on an unconscious person.

People are enraged on both sides of the equation. Implying that skin color played a part.  Why did the black man receive such a larger sentence than the white man? Why would one judge give probation while another gave a 15-25 year sentence to serve at a hundred percent?

Well, let’s start at the beginning. The facts of both cases are nearly identical. However, the law in both cases is completely different. While I am an attorney in Tennessee, I can only imagine the law, as far as sentencing is concerned, in other states is similar.

The jury found the Stanford Swimmer guilty of “intent to commit rape of an intoxicated person,” “penetration of an unconscious person,” and “penetration of an intoxicated person.” This allowed for the judge to issue a sentence based on those charges. The range of punishment I believe he was facing was 3-14 years (The prosecutors in that case were only asking for 6). When sentencing a defendant, there are significant guidelines that a judge should follow. The judge should not be swayed by public opinion or media outcry. The judge’s personal opinion or feelings should not affect their ruling. Simply put, the judge is there to apply the law.

In Tennessee the law is such that the shortest sentence within the range should be the presumptive sentence. Meaning if the range is three to six years then the judge should assume the sentence is three years and only depart from that if certain specific “enhancing factors” are found. The crime itself is not to enhance the punishment as the legislature specifically set the punishment for that crime at the intended  range. Furthermore, in Tennessee the judge is required to consider alternative sentencing in eligible cases. Again, this is the action of the Legislature, not the judge. The Legislature determines which crimes can receive probation and which sentences require a sentence to serve. With these factors considered and no personal opinion, the judge must issue a sentence. The sentence issued to the Stanford swimmer is harsher than minimum, under Tennessee law.

By contrast, the Vanderbilt football player went to trial and the jury convicted him of aggravated rape (The fact that the victim is unconscious enhances a rape Charge in Tennessee, a fact that is again determined by the legislature, not the judge). The range on this charge is 15-25 years at 100% (meaning the defendant must serve the entire sentence without parole). The Judge has no discretion to sentence outside of this range. This Range for this offense is again determined by the legislature, not the judge. The absolute most lenient sentence the judge can issue is 15 years to serve at 100%. To put this in perspective the one judge sentencing 15 years is the lightest punishment allowed by law and the 6 months to serve is harsher than the law requires.

The disconnect in the sentences is not the fault of the Judge in each case but instead, the legislature defining the crime and setting punishment range. There is no question the result is not fair, however the rulings appropriately apply the relevant law. The judges in both cases seem to have applied the law correctly. There can be no allowance within the law for a judge to issue rulings based on personal belief or media attention. The issue is with the law. The Legislature holds within its power the ability to outline punishments for crimes. The judge has no authority to defy the legislature when the law is constitutional, and as of yet, I am unaware to any constitutional challenge to either ruling. Ultimately the public outcry against the judges may be unfounded. Both judges applied their State’s law correctly.  The issue arises from the law and punishment created by the legislature, not by the judge interpreting it.