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February 22, 2014

"The State’s Victim: Should the State Grant Rights and Privileges to the Families of Death Row Defendants?"

The title of this post is the title of this notable student note by Michelle Tomes now available via SSRN. Here is the abstract:

This Article argues that the friends and family of the person condemned to death are victims of the state, which chooses to charge the defendant with a capital crime.  Due to the trauma, stress, and the need of support services, the state should define the families of the defendants as victims.  Additionally, Part I of this article outlines the victim’s rights movement and the problems that come from society not considering the families of defendants as victims. Part II of this article defines why the state should consider the family of the defendants as victims.

Part III of this Article will argue that the state should allow contact visits with the inmate as a recognized right to the defendant and the defendant’s family. Additionally, Part III will argue that the new category of victims deserve equal access to support as the victims of crime, and will supply evidence that supports the introduction of execution impact evidence on behalf of the defendant.

February 22, 2014 at 04:19 PM | Permalink


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Posted by: Steve Prof | Feb 22, 2014 5:12:54 PM

And what would these rights entail?

Posted by: federalist | Feb 22, 2014 8:34:11 PM

Trickle down rights is what these are. I have a mom and so because I have sinned and am castigated and going to be killed my mom has some rights. Well, I can see how she can have the right to visit the inmate. Even on the day he is killed by the People of the Great State of Texas or whatever State. The right to visit an inmate or a condemned inmate should be respected. Whats next? Food stamps?

Another aspect of this is what does mom and dad owe society for putting the criminal on the streets? Where was Trayvon's dad as he was growing up? Living at home with Trayvon? I don't think so. Teaching him how to wear a hoodie? Maybe. Being a family member of a criminal is a two way street. You owe the rest of us for putting the punk on the street. You get the right to visit him when he is locked up. Period.

Posted by: Liberty1st | Feb 22, 2014 10:04:03 PM

Prof. Berman's concern for victims is limited to the right to file an impact statement. He has never advocated for the right to not be victimized at all. This impact statement right is Trojan Horse for lawyer employment, since they will need representation to navigate the complicated legal system and at taxpayer expense. The judge promoting this right has never answered these problematic objections.

1) The Supreme Court has called these attestations, and allowed them. Whatever the fiction the Court is imposing, these impact statements are ex parte testimony not subject to cross examination. They are inflammatory. They are trivial and self evident, it upsetting to be victimized. Is there anyone over five who does not know or disagrees with that last statement? They violate the Fifth Amendment Due process right.

2) If the defense will get a right to present family impact statement against the death penalty, the prosecution should have a right to present the long list of offenses and abuses committed against the parents, the children, and the spouses of these ultra-violent predators. Relatives should be allowed to testify about these prolonged victimization by this monster, whose death will bring them comfort, safety, and a sense of justice served.

Posted by: Supremacy Claus | Feb 23, 2014 1:23:12 AM

Liberty1st, it is interesting/really strange that given all of the examples of actual criminals you could cite, you cite Trayvon Martin?? Here is a kid who most people view as not a criminal at all, and at a minimum, if he did break any law, it was by responding violently to a confrontation initiated by someone else. It's not like he was out looking to commit a crime. He was buying skittles. This SSRN article may be ridiculous, but the fact that you reflexively use it as an opportunity to spout some kind of thinly veiled "all young black men are criminals" take is pretty sad.

Posted by: anon | Feb 24, 2014 10:28:46 AM

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