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October 2, 2009

"Victim’s letter lessens attacker’s prison sentence"

The title of this post is the headline of this local Wisconsin story, which provides another reminder that seriously attending to the interests of crime victims may sometimes result in reduced sentences. Here are the details:

A Winona man was sentenced Thursday to 6-1/2 years in prison for his role in a random and violent mugging. Joshua Lee Duden, 24, pleaded guilty in September to aiding and abetting aggravated first-degree robbery. Prosecutors dismissed a first-degree assault charge in exchange for the plea.

Judge Mary Leahy said she was prepared to sentence Duden to the maximum prison time allowed under state sentencing guidelines — 93 months — until she read a letter from the victim. The man wrote that he didn't think Duden, or his two co-defendants, deserved prison time.  He wasn't bitter, and had compassion for his attackers.  "I don't know where that (compassion) comes from, but he's got it in him," Leahy said. "I don't think I could say that to you if you'd done that to me."...

Assistant County Attorney Kevin O'Laughlin argued Duden should be sentenced to 93 months in prison.  According to the police version of the attack, he said, Duden laughed as the assault went on. Duden failed to take responsibility for his actions during the course of his criminal proceedings, O'Laughlin said.

Of course, the on-going controversy over the Roman Polaski case provides a high-profile example of the reality that victims sometimes are interested in an outcome that differs from what prosecutors and other members of the public demand.  On the Polanski front, I received this e-mail yesterday from a thoughtful colleague who has long been troubled by how victims are treating in the modern criminal justice system:

I’ve been thinking about the person most ignored in the Polansky arguments right now, his victim, and about how she’s a very good example of the hypocrisy that our prison-first-and-always advocates show on the utility of victim preferences and testimony.  She received a civil judgment against Polansky, settled out of court, moved on apparently successfully with her life, and has expressed her displeasure both at the case being brought up again in the media and about his being prosecuted at this time.  Were we to believe the usual advocates of the sanctity of the victim, that should make what happens further cut-and-dried.  Instead, she is a footnote in all the commentary, on both sides.  No real point, just an observation and a request that she be kept in mind the next time we hear from tough, tough, tough proponents doing it all in the name of victims. She’s a perfect example of how victims are only useful to prosecutors if they serve the proper purposes.

October 2, 2009 at 10:22 AM | Permalink

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Comments

Query: Should ACA Kevin O'Laughlin be equitably barred from invoking the preferences of the victim(s) as justification for a harsh sentence in future cases? Would any defense attorney actually make that argument, or would it be too antagonizing to the court?

Posted by: Observer | Oct 2, 2009 10:47:26 AM

One proposed victim's right is, of course, the right to counsel. The victim rights movement is a Trojan horse to generate lawyer jobs. The letter hurts the interests of this defendant's future victims. It is an ex parte communication, not subject to cross examination. The plaintiff is the people and not the victim. The letter comes from some emotional need to appear virtuous. Who knows if it is based on pastoral advice, to generate credits in heaven. It is posted here only because it seeks to get the lawyer client back on the street and busy again, as soon as possible. It is problematic, but the pro-criminal biased lawyer will never disclose that candidly.

Posted by: Supremacy Claus | Oct 2, 2009 11:07:38 AM

Your correspondent is mistaken if he thinks the victim in this case has been forgotten. Her position is *the* reason CJLF has not come out with vocal support for the extradition. We have noted on the C&C blog our disdain for the people who would minimize Polanski's crime, but that's it.

The fallacy of your correspondent's position lies in drawing inferences from the dearth of commentary regarding the victim. But being the center of attention is precisely what she does not want.

Posted by: Kent Scheidegger | Oct 2, 2009 12:35:06 PM

One proposed victim's right is, of course,
the right to counsel.
The victim rights movement is a Trojan horse
to generate lawyer jobs.
The letter hurts the interests
of this defendant's future victims.
It is an ex parte communication,
not subject to cross examination.
The plaintiff is the people and not the victim.
The letter comes from some emotional need
to appear virtuous. Who knows
if it is based on pastoral advice,
to generate credits in heaven.
It is posted here only because it seeks
to get the lawyer client back
on the street and busy again, as soon as possible.
It is problematic, but the pro-criminal biased lawyer
will never disclose that candidly.

Posted by: Supremacy Claus the Poet | Oct 2, 2009 1:33:40 PM

Why is it that the only time we hear about the importance of the victim's views on this site is when those views favor leniency? Is the victim less entitled to deference in the far more frequent instances in which he favors a stern sentence? On what theory is the victim's moral standing different, depending on whether it's the prosecution or the defense who's going to like what he says?

Posted by: Bill Otis | Oct 2, 2009 2:28:34 PM

Bill, I often mention victims wanting toughness, especially in the white-collar setting in which we often hear more from victims without a prosecutorial intermediary.

That said, I do often try to note and stress concrete examples of victims who seek leniency because I sense there is a common misperception (especially among folks on the left) that giving victims many more independent and enforceable rights in the criminal justice system will lead to harsher sentences.

In fact, I think the reality is the opposite: I think giving victims more independent and enforceable rights in the criminal justice system will alter the patterns of sentences in a variety of unpredictable ways. I tend to highlight victims want leniency stories in the hope that readers can get a more dynamic and accurate perspective on the reality of what serious victim engagement with the criminal justice system might mean.

Posted by: Doug B. | Oct 2, 2009 2:47:12 PM

That's quite amusing Bill. Let me see if I understand your point. Cruel and vindictive prosecutors routinely ignore the wishes of victims when it doesn't suit their personal or political agenda. When people point out that fair is fair and that the knife cuts both ways, those same prosecutors whine and complain about the cruel and vindictive being oppressed. That takes gall.

The reason that this blog (thank God) promotes a complete view of victim's rights is because *no one else does*. I wonder whether you or Kent even bothered to call the prosecutor in this case and colleague to colleague explain to his that he was out of line for advocating for a sentence greater than what the victim wanted.

"Assistant County Attorney Kevin O'Laughlin argued Duden should be sentenced to 93 months in prison."
"The man wrote that he didn't think Duden, or his two co-defendants, deserved prison time."

Clearly this is a case where the prosecutor ignored--nay trampled--the wishes of the victim. As a professional colleague did you call him to account, mano-a-mano. No? Then I think you are farking hypocrite.

Posted by: Daniel | Oct 2, 2009 2:51:16 PM

"I wonder whether you or Kent even bothered to call the prosecutor in this case and colleague to colleague explain to his that he was out of line for advocating for a sentence greater than what the victim wanted."

I have never called a prosecutor to try to influence his decision either way, and I never intend to.

Posted by: Kent Scheidegger | Oct 2, 2009 3:18:04 PM

Doug --

"I think giving victims more independent and enforceable rights in the criminal justice system will alter the patterns of sentences in a variety of unpredictable ways."

I don't want the law to be unpredictable. The more predictable it is, the better. For unpredictable we can go to the lottery, which I view as the opposite of law.

Beyond that, victims already have "independent and enforcable rights," in tort, as OJ Simpson found out. They can't put Simpson in jail -- the state having a monopoly on that power -- but a $33,000,000 judgment ain't bad. They might even be able to collect some a part of it, at least if OJ doesn't pull a Polanski and then get the liberal Hollywood establishment to yelp in his behalf.

"I tend to highlight victims want leniency stories in the hope that readers can get a more dynamic and accurate perspective on the reality of what serious victim engagement with the criminal justice system might mean."

It might be more dynamic, but with all respect it isn't more accurate. By loading up on the victim-seeks-leniency stories, you obscure the fact that the great majority of victims OPPOSE leniency. Those suffering from some variant of Stockholm Syndrome are a small minority.

Posted by: Bill Otis | Oct 2, 2009 3:18:32 PM

"As a professional colleague did you call him to account, mano-a-mano."

BTW, I really don't see how either Bill or I could have engaged him hand-to-hand, as we are both a long way from Wisconsin. You don't seriously expect us to travel there, do you?

Posted by: Kent Scheidegger | Oct 2, 2009 3:21:47 PM

Victims who support leniency must be suffering from Stockholm Syndrome? Is that really what you believe, Mr. Otis? Can you not even imagine a reality where some victims -- even a small minority -- believe that their victimizers deserve lighter punishment than what our justice system provides for?

Posted by: William O. Rights | Oct 2, 2009 3:27:17 PM

Daniel __

"That's quite amusing Bill."

Always happy to brighten your day.

"Let me see if I understand your point. Cruel and vindictive prosecutors routinely ignore the wishes of victims when it doesn't suit their personal or political agenda."

I assume you have a catalogue of unmentioned specifics suporting this rant posing as a factual assertion. What's in the catalogue?

"Clearly this is a case where the prosecutor ignored--nay trampled--the wishes of the victim. As a professional colleague did you call him to account, mano-a-mano. No? Then I think you are farking hypocrite."

First, I am not a professional colleague. I am retired from the Department of Justice.

Second, modesty counsels deferring to those who know the case more thoroughly than I. (Modesty counsels you to do the same, but somehow I doubt that will happen).

Third, I am in no position to "call [a prosecutor] to account," and if a were, I would scarcely do it for his representing his client -- i.e., the state -- rather than something that you apparently fail to understand is NOT his client -- i.e., the victim.

Fourth, whether you think from your anonymous perch that I am a hypocrite is of no interest to me. This site is not about remote personal assessments, even if you had standing to make one, which you do not.

Fifth, when you calm down, perhpas you could answer the two questions you pushed past in your ardor:

Is the victim less entitled to deference in the far more frequent instances in which he favors a stern sentence?

On what theory is the victim's moral standing different, depending on whether it's the prosecution or the defense who's going to like what he says?


Posted by: Bill Otis | Oct 2, 2009 3:39:50 PM

Fantastic, Bill Otis. If the victims behave as you want them to, they're on firm moral ground. If they disagree with you and favor leniency, they're suffering from "some variant of Stockholm Syndrome." That kind of paternalistic BS is unfortunately common among right-wingers, who seem to always know what's best for others, even more than the others do.

Posted by: BSB | Oct 2, 2009 3:40:44 PM

BSB--

Yes, yes, the name-calling seems to be in vogue today.

Preferring a different path, let me ask you the same questions I asked Daniel:

Is the victim less entitled to deference in the far more frequent instances in which he favors a stern sentence?

On what theory is the victim's moral standing different, depending on whether it's the prosecution or the defense who's going to like what he says?

Indeed, I'll add a third question. If the prosecutor in a death penalty state believes that the case warrants a punishment less than death, but the victim's family wants capital punishment, should the prosecutor be bound by the family's wishes?

In answering that question, I hope you won't fall into the trap of the "paternalistic BS [which] is unfortunately common among [left]-wingers, who seem to always know what's best for others, even more than the others do."

So what's your answer?

Posted by: Bill Otis | Oct 2, 2009 3:50:20 PM

Kent --

I'm a little over the hill to be taking on prosecutors or anybody else in Wisconsin "mano-a-mano," as Daniel demands, but I suppose I should be flattered that he thinks I'm such a tough dude.

Posted by: Bill Otis | Oct 2, 2009 4:04:17 PM

“Is the victim less entitled to deference in the far more frequent instances in which he favors a stern sentence?”

Actually, I think the wishes of the victim – whether for a stricter sentence or for leniency – should not be a major factor in sentencing. The law of sentencing should operate independently of what the victims want. What if you steal from me and I want you to be burned to death? That might satisfy me, but it shouldn’t be the basis of sentencing law.

On the other side of the coin, if you murder my father and I say “I didn’t like him anyway; please set the murderer free,” that should be entitled to little or no deference as well.

“On what theory is the victim's moral standing different, depending on whether it's the prosecution or the defense who's going to like what he says?”

I’m not sure I get what you’re asking here. I don’t think the victim’s “moral standing” changes depending on who's asking the question.

"Indeed, I'll add a third question. If the prosecutor in a death penalty state believes that the case warrants a punishment less than death, but the victim's family wants capital punishment, should the prosecutor be bound by the family's wishes?"

No, of course not. See my answers above.

“In answering that question, I hope you won't fall into the trap of the ‘paternalistic BS [which] is unfortunately common among [left]-wingers, who seem to always know what's best for others, even more than the others do.’”

Your copy and paste skills are formidable.

I take it from your questions that you assume that I believe victims should only be heeded when they call for leniency. Obviously, that’s not the case. I note that you did not respond to my specific objection to your assertion that any victim who calls for leniency is suffering from a mental disorder.

Posted by: BSB | Oct 2, 2009 4:07:38 PM

William O. Rights --

Yes, I can imagine it. Imagination is a wonderful thing, and a balm for facts that are often more mundane and less pleasant.

One of these facts is that Stockholm Syndrome is real, and you wisely do not claim otherwise.

Posted by: Bill Otis | Oct 2, 2009 4:11:24 PM

BSB --

"Actually, I think the wishes of the victim – whether for a stricter sentence or for leniency – should not be a major factor in sentencing. The law of sentencing should operate independently of what the victims want."

Thank you for this concession. I largely agree, although I would not say that sentencing should operate "independently" of the victim's wishes. In my view, those wishes should be given a respectful hearing by the court and prosecutor, but should not be controlling.

"Your copy and paste skills are formidable."

Actually they're not that good, but they're good enough to show that the words you used against me can be turned with equal effect against you.

"I note that you did not respond to my specific objection to your assertion that any victim who calls for leniency is suffering from a mental disorder."

That's because I never said that I was talking about ANY victim. The word "any" is yours, not mine. I might also note in this regard that you prudently don't deny that a variant of Stockholm Syndrome is in fact lurking in some of these cases.


Posted by: Bill Otis | Oct 2, 2009 4:29:52 PM

Last word from me, as I have actual work to do.

I would imagine that the number of crime victims suffering from Stockholm Syndrome is vanishingly small. Yes, "some," but very, very few. Typically, as you may know, the syndrome applies to hostages held for long periods of time, a quite uncommon occurrence. Even among long-term hostages, the syndrome is not universal.

In the vast majority of cases in which a victim urges leniency for the defendant, I would guess that no Stockholm Syndrome (or any variant) is involved.

If you have any studies or other factual data to support your view, I'd be interested in seeing it.

And the word "concession" is typically used when one admits that someone on the other side of an argument is correct. Since I never argued that victims should be a major factor in sentencing, I "conceded" nothing by stating that they should not.

Posted by: BSB | Oct 2, 2009 4:41:13 PM

Mr. Otis, I will flatly deny that any variation of the Stockholm Syndrome is ever the cause of a victim's desire for leniency. A broad assertion like yours should be backed up with proof, and you have none. And you are certainly no psychologist.

Let's pause for a moment and consider how profoundly you have insulted crime victims. According to you, if a victim's notion of just punishment is less than the government's, the victim must be mentally ill.

A victim's desire for leniency is much more likely to come from a belief in the power in redemption, from a reasoned belief that sentencing laws are too harsh, from simple forgiveness, or from some combination of the above. It seems that you, Mr. Otis, lack the ability to conceive of such things.

Posted by: William O. Rights | Oct 2, 2009 5:07:47 PM

Bill.

To answer your questions.

Yes.
No theory.

In that order.

I totally disagree with BSB that sentencing should operate largely independent of the wishes of the victim. I think it's that attitude or position that is responsible for much of the reason our sentencing system is so messed up.

But I think something more. I think that some people fool themselves into thinking that most people don't know what forgiveness is because they can't imagine it themselves. Most prosecutors don't get into that job because they are the forgiving types. Part of the reason I am so willing to say yes to the first question you ask Bill is because I think it's a prosecutor fantasy that most people want sterner punishments than the law allows. We only hear about those cases because that fits the myth that that prosecutors need to promote to justify their own attitude. I think that in a true "free market" of victim's rights you would see about 3/4 favoring leniency. But I don't think that most prosecutors have any interest in participating in such a system.

BTW, I don't believe that in any case (harsh or no) should the desires of the victim be *decisive*. But I do think they should carry weight. Personally, in the case at hand I probably would have gone even lower than the judge and went to maybe three years. But even I would have ignored the wishes of the victim to the extent that he wanted his abusers to have no jail time.

Posted by: Daniel | Oct 2, 2009 6:20:43 PM

The circumstances of the crime matter too. This crime was random, and it's the type of crime that could happen again. Thus, the victim's view should be of lesser importance.

The amount of influence that a victim should have varies from case to case, and it's a complex analysis.

Re: polanski, the LA DA cannot let this drop. That's unfortunate for the victim, but the state simply cannot tolerate those who flee like he did.

Posted by: federalist | Oct 2, 2009 7:11:16 PM

Prof. Berman: Doesn't Cunningham apply Apprendi to the states? Assume this letter reading is lawful, at what point should it take place? Shouldn't the jury be hearing the letter? I am not asking a sarcastic question. I would like your explanation of why a request for leniency is permissible outside the hearing of the jury, and not a request for enhanced sentencing by careful review and extensive reporting of the prior history by the probation department.

Posted by: Supremacy Claus | Oct 2, 2009 8:45:57 PM

William O. Rights --

"I will FLATLY deny that ANY VARIATION of the Stockholm Syndrome is EVER the cause of a victim's desire for leniency. A broad assertion like yours should be backed up with proof, and you have none." (Emphasis added).

For a broad assertion lacking proof, I could scarcely compete with your first sentence.

"And you are certainly no psychologist."

I never claimed to be, nor does it take a psychologist to know facts about psychology, as you surely understand.

"Let's pause for a moment and consider how profoundly you have insulted crime victims."

First, I am unaware of how you became commissioned to speak for crime victims. When did that happen?

Second, I will happily compare my record of dealing with crime victims over my years as an Assistant US Attorney to any record you might claim for yourself. Which would be..................what, exactly?

"According to you, if a victim's notion of just punishment is less than the government's, the victim must be mentally ill."

Well not really, but I can see why you want to cast my supposed beliefs in your words rather than the ones I used.

"A victim's desire for leniency is much more likely to come from a belief in the power in redemption, from a reasoned belief that sentencing laws are too harsh, from simple forgiveness, or from some combination of the above."

Not to mention getting paid off by the defendant or his lawyer, as was widely acknowledged right on this forum to have happened in the Dante Stallworth manslaughter case.

"It seems that you, Mr. Otis, lack the ability to conceive of such things."

My abilities as a human being are entirely unknown to you. My abilities as a lawyer may be discerned from reading decisions in the dozens of cases I argued before the Fourth Circuit. If you find a single one that so much as hints that I was vindictive or in any other way unfair, please cite and quote it and I'll be more than happy to discuss it with you, notwithstanding that you conspicuously offer no similar means of assessing your professional balance.

Posted by: Bill Otis | Oct 2, 2009 11:10:33 PM

Prof. Berman: Victim letters and Apprendi/Blakely/Booker/Cunningham. Any analysis?

Posted by: Supremacy Claus | Oct 3, 2009 10:17:04 PM

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