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April 23, 2007

Some reasons why victims' rights can and should be progressive

Ncvrw07banner120x240I was disappointed to see that Barry Boss in this Washington Post commentary and Jeralyn in this post at TalkLeft have celebrated the start of National Crime Victims' Rights Week (details here) by reinforcing the old trope that there is a zero-sum game between the interests/rights of crime victims and the interests/rights of criminal defendants. 

The reality of victims' rights and interests are much too varied and nuanced to assume that giving more rights to victims will be detrimental to the interests of criminal defendants.  In fact, there are lots of reasons why those generally concerned about harsh and oppressive criminal justice systems (and especially harsh and oppressive sentencing systems) ought to embrace and extol victims' rights  Let me explain with some particulars:

1.  Some minor crimes that can often lead to unduly long sentences do not have obvious victims (e.g., minor drug, gun, and obscenity possession charges, underage consensual sex).  Greater emphasis on the rights and interests of real crime victims could and likely would lead to less emphasis on unduly harsh prison terms for minor crimes without obvious victims (like Morton Berger's 200 years for downloading child porn in Arizona or Genarlow Wilson's 10 years for consensual oral sex in Georgia).

2.  Many crime victims seek punishments and remedies that are much less harsh than sought by the state.  Victims of economic crimes often would rather have defendants out working and paying restitution rather than rotting in a prison cell.  Also, as noted in stories discussed here and here, some crime victims will actually make formal and public pleas for leniency (though prosecutors will rarely give voice to these victims).

3.  Victims' interests seem to be at the very center of the restorative justice movement, which seem to me to be a pretty progressive (though perhaps unduly optimistic) effort to reform modern criminal justice realities.

Some recent related posts:

April 23, 2007 at 04:36 PM | Permalink


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» Defendant v. State and Victim from a public defender
Apparently, victims rights week started yesterday. Already, the blogosphere has come out on different sides. First, theres this article in WaPo which cautions against giving victims too much of a role in the legal system. Victims deserve ... [Read More]

Tracked on Apr 23, 2007 9:43:58 PM


I think you're right that many of the sentences that seem unduly harsh are those that lack obvious victims.

White collar offenders are a major exception (Ebbers, Skilling, Olis). In those cases, there's usually no dispute that bad things happened where the defendant worked, and it's always easy to trot out victims who can plausibly claim they were harmed. The question is the extent to which the defendant should be blamed for it. An Enron victim can only testify to the overall harm caused by the scandals there, not to what Skilling in particular did to cause it.

I always get the sense, though, that the Victims' Rights movement is a one-way street. Prosecutors will trot out victims when it helps their case. When it doesn't, they'll trot out other explanations for the harsh sentences they favor.

Posted by: Marc Shepherd | Apr 23, 2007 4:48:51 PM

Well Marc, thank you very much for giving support for the concept of the lazy and/or vengeful prosecutor. Feel free to call us bureaucrats to really cast us in a negative light. I do not know what facts you use to "get the sense" that we only bring out facts that help our objective but if it is empirical data, please include the following. As a prosecutor, I can tell you I have actively sought victim input at sentencing even when the opinion suggested a sentence below what I thought the law or the facts required. This is true even in my, thankfully few, media cases. In California, the law requires the opportunity for victim input at sentencing. I as a prosecutor comply with the law regardless of whether the victim plans on recommending a sentence below that I think appropriate.

Enron, and other high publicity cases are not necessarily indicative of the norm. Further clouding the issue is whether new organizations are accurately reporting the legal proceedings. In my personal experience, they rarely do.

Posted by: David | Apr 23, 2007 8:28:01 PM

200 years for downloading child porn is absurd, yes, but is it correct to say that there was no victim?

Posted by: questionable | Apr 23, 2007 9:19:18 PM

I have to disagree, Professor. While I believe that victims should be involved in the judicial process, I am of the mind that the involvement should be rather limited. There are several factors (at least at the state level) that go into plea offers - only one of which is the victim's demand - that it may not be possible for the state to conduct meaningful negotiations. If the victims demand the utmost sentence for their respective offenders, then I suspect we might see a sharp rise in the number of trials.

Ofcourse, the prosecutors office should solicit the opinion of the victim, I think to make them a participant in the proceeding - as some states are legislating - is to skew the fine balance achieved in most jurisdictions.

Posted by: Gideon | Apr 23, 2007 9:21:01 PM

At some level, ANYONE can claim that there is a victim of any crime. Even drug crimes. It is just a matter of where you want to draw the line.

To involve victims in child pr0n prosecutions and sentencing creates a number of problems which nobody wants to solve.

Let’s say that we could present the testimony of each subject of pr0n at every sentencing. Let’s also ignore any confrontation of hearsay problems. Since pr0n can be duplicated almost indefinitely, does the subject have to appear at every sentencing. Or does the prosecutor, like the “producers” and “distributors” of child pr0n get to select the most “compelling” victim statements and use them again and again to inflame juries or judges?

What about “victims” of child pr0n that don’t particularly care? Are defendants entitled to track them down and present their statements about how their lives were not impacted (or, in the case of Traci Lords, their careers were enhanced). Or what about “victims” whose lives have gone downhill, but they like them?

Essentially, this would place the sentencing body in the role of a moral arbiter of the victim. They would judge how much the victim could have resembled themselves.

Posted by: S.cotus | Apr 23, 2007 9:52:00 PM

S.cotus, are you sure your name isn't Gratiano?

Posted by: federalist | Apr 23, 2007 10:11:03 PM

We have taken a few steps from the victim having no rights to having a restricted set of rights. Victims have the same rights as anyone else to lobby the legislature to pass new laws or to alter the penalties for existing laws (the difference is they are more likely to be heard). Far too often laws are passed in a fit of legislative hysteria driven by public outrage over a heinous crime or a horrific accident. I think many of the harsh penalties are the result of that process with lobbying by victims playing a relatively minor role.

Posted by: John Neff | Apr 23, 2007 10:43:54 PM

the claim that crime victims seek a lesser penalty than the government belies my 15 years of experience. and, often, the 'victim' in a case is not as victimized as professor berman suggests.

Posted by: christopher pagan | Apr 24, 2007 11:51:23 AM

Well Marc, thank you very much for giving support for the concept of the lazy and/or vengeful prosecutor. Feel free to call us bureaucrats to really cast us in a negative light.

I was not suggesting that prosecutors are lazy or vengeful. I was merely suggesting that prosecutors are not normally in the business of recommending outcomes that favor the defendant — any more than defendants' counsel are in the business of recommending outcomes that favor the prosecutor.

Posted by: Marc Shepherd | Apr 24, 2007 12:17:59 PM

On a day-to-day basis, prosecutors will recommend outcomes that produce some benefit for the defendant, or at least is agreed-to by the defendant. But, also on a day-to-day basis, prosecutors disagree. But guess what? We only care about the contested issues.

Posted by: S.cotus | Apr 24, 2007 1:50:29 PM

Doug, those are great points.

I would note, though, that the presumption of innocence is endangered by vesting alleged victims with the power to meet with the prosecutor, affect the course of the case, etc.

Posted by: rothmatisseko | Apr 24, 2007 5:17:16 PM

Roth, Can you elaborate on that. How does the “power” to meet with the prosecution, alter the presumption of innocence.

Posted by: S.cotus | Apr 24, 2007 7:44:33 PM

S., a question for an answer: why should someone who is only alleged by the State to have been victimized by the defendant have a right to meet with the prosecutor? Until that specific defendant is proven guilty BRD of harming that specific victim, that victim's standing in that defendant's case is speculative at best.

Posted by: rothmatisseko | Apr 24, 2007 10:19:54 PM

Roth, first of all, victims do not have the "power" to meet with prosecutors, at least not in California. Second, what lawyer, prosecutor or otherwise, would not want to meet, or at least talk to, their own witnesses? My job is to prosecute defendants who have committed a crime. Witnesses, which includes victims, are necessary to acheive that end. A thorough evaluation of their proposed testimony is often done in a meeting with them. Is there something wrong with that? Shockingly, we are as capable of evaluating the credibility of victims as a jury. Some may say more so, but that might open a can of worms so lets just go with as capable.

All of this discussion somewhat ignores the point of victim's rights. What are these rights? The right to be informed of signicant proceedings. The right to speak to the Court at sentencing. The right to make their feelings known to an overworked, or maybe even lazy, prosecutor or judge who just wants to settle the case. Who could really argue with these things? The right to compensation from a convicted defendnant for their loss. How does this concept invade on the defendant's Constitutional rights?

I absolutely agree that if we assist victims in feeling that they have a say in the process the more confidence they and the public will have in the system and the more tolerant they and the public will be in the concepts of rehabilitation and mercy. The more removed victims are, the angrier they will be and even though they will not affect the outcome of an individual case, they may be more likely to vote to remove the DA or the Court's discretion entirely. We certainly could go too far and let victims dictate the outcome of a particular case, or prevent the executive's exercise of discretion or the offer of a plea bargain. I am unaware of any jurisdiction that permits such interference with the prosecutorial function.

My experience, contrary to Pagan's remarks, is that victims do recommend less than prosecutors do on occasion, especially when it comes to California's three strikes law (in the Bay Area) and the new offense is not violent. In the vast majority of cases, victims do not involve themselves at all. Experience also tells me that when victims become directly involved it is an extremely useful reminder that there is a real cost to crime that cannot and is not adequately represented by reading it in a report. This is especially true when we see the same story but different players every day. Really, what is so wrong with hearing what they have to say?

Posted by: | Apr 25, 2007 3:11:05 AM

Even if it's the case that victims will sometimes argue for lower sentences in specific cases, as David suggests, victims are used by the legislature for basically one purpose only: to push for tougher and more comprehensive criminal laws. The way Polly Klaas' family was used to pass California's Three Strikes law is an example of this.

So though I agree with Prof. Berman and David, in theory, that emphasizing the perspective of victims can help humanize the justice system, the actual political reality often *is* more of a zero-sum game. Events like National Crime Victims' Week play into that political reality primarily by increasing support for legislators who favor tough sentences, evidentiary rules that aid prosecutions, and spending on prisons. Not saying that's good or bad -- it's just the bottom line as a political matter.

Posted by: Alex | Apr 25, 2007 5:48:58 PM

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