Diverse perspectives on victims having diverse perspectives on sentencing

Regular readers know I am a fan and supporter of giving crime victims the opportunity and right to have their voices heard throughout the sentencing process.  Some of the reasons why are effectively articulated in a recent post by Paul Cassell at The Volokh Conspiracy, "Why crime victims need their own voice in the criminal justice process." Here is an excerpt from the post responding to a common concern expressed by defense attorneys (and noting one of my own recent posts):

I have also heard defense attorneys argue against victim participation by claiming that this is ganging up on the defendant — double counting the prosecution’s view by adding in the victim’s view.  Here again, that’s not quite right.  While victims often are aligned with prosecutors, other times they may align with defense attorneys.  Victims’ interests are not necessarily the same as prosecutors’ interests.  Indeed, restitution may be an area where victims and defendants could make common cause.  While prosecutors focus on long prison terms, victims are often worried about receiving compensation for their injuries.  Victims might prefer, for example, a sentence under which the defendant is placed on work release and can make payments towards restitution instead of one that simply locks him up and throws away the key.  Doug Berman has made exactly this same point about U.S. v. Paroline & Amy, explaining in a recent post that shifting our focus away from purely punitive criminal justice responses is why he is cheering for Amy to win a complete victory before the Supreme Court.   My former law clerk and now federal defender, Benji McMurray, has expanded on this point at length in “The Mitigating Power of a Victim Focus at Sentencing,” 19 FED. SENT’ING RPTR. 125 (2006).

A notable example of the potential mitigating impact of victim input about sentencing is emerging in a Colorado capital case, about which Andrew Cohen has written in this notable new Atlantic piece headlined "When Victims Speak Up in Court — in Defense of the Criminals; A death penalty case in Colorado has generated an unusual fight between a district attorney and two parents who oppose capital punishment against the man who murdered their son." Here is how the article starts:

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

The immutable trio that once existed in criminal cases — judge, prosecutor, and defendant — now almost always resembles a quartet.  Victims have a voice — and they use it. All 50 states now allow some form of "victim impact statement" at sentencing.  Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact.  But these efforts almost always fail.  Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state?  What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son?  What responsibility does the prosecutor have in that case? What obligations do the courts have?  Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child.  Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer.  The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues.  But I haven't been able to find a single victims' right advocate who believes that's true.

Of course, it is not always (and perhaps not even often) that a victim's voice will be for realtive leniency, as this local news segment from Massachusetts highlights.  This piece is headlined "Victims' Families Want Tougher Sentencing For Juvenile Offenders," and it sets up recorded interviews this way:

The judicial system is designed to disregard emotion. Only the letter of the law matters. But a ruling handed down last week by the state Supreme Judicial Court stirred up a lot of emotion. Following the lead of the US Supreme Court, the SJC ruled mandatory life sentences for juvenile murderers are unconstitutional. The decision set the minimum time served at 15 years, and now the families of some murder victims are making an impassioned plea to keep those killers locked up longer.