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October 6, 2015

"Federalism, Federal Courts, and Victims’ Rights"

The title of this post is the title of this notable new article by Michael Solimine and Kathryn Elvey available via SSRN. Here is the abstract:

A striking development in American criminal justice in the past forty years is the widespread adoption and acceptance of the rights of victims, at both the federal and state levels.  A notable exception to this innovation has been the repeated, unsuccessful attempts, continuing to the present day, to pass a Victims’ Rights Amendment to the U.S. Constitution.  The considerable scholarly literature on the VRA has not rigorously examined the putative need for the VRA from a federalism perspective, a task this article undertakes.

The article examines the history of the victims’ rights movement, and of the repeated attempts to pass the VRA.  We argue that both supporters and critics of the VRA have not convincingly addressed federalism issues raised by the potential adoption of the VRA.  In contrast, we argue that functional principles of federalism suggest that the VRA and nationalization of victims’ rights is unnecessary.  On the other hand, we argue that there is one way that the federal government can recognize state development of victims’ rights. In habeas corpus actions in federal court, challenging state court convictions, we argue that victims of state crimes should be permitted and encouraged to participate in those proceedings, in ways not generally permitted to date.

October 6, 2015 at 09:47 AM | Permalink


1) Again, the victims rights movement is a lawyer Trojan Horse. What advocates want is lawyer representation of victims at taxpayer expense.

2) Victims are upset. We know that obvious information already. It does not help them to boohoo their grief in a public display.

3) It violates the Rules of Evidence by inflaming passions.

4) It violates by the Sixth Amendment by denying cross examination.

5) It violates Fifth Amendment Due Process by failing to enumerate the benefits of the crime to the victim. Such benefits should mitigate the sentencing of the defendant. So a daughter is boohooing the loss of her crack dealer father. Is it fair if we do not bring out that his murder ended her years of being sexually molested by him?

6) It wastes the time of the court with self evident information.

How about these more substantive victims rights? These have no advocates for here, nor among the rest of the lawyer profession. Why? Because Victims Rights is a code for Lawyer Employment. These reduce lawyer employment despite being real, and not false lawyer propaganda.

1) the right to not be victimized by the incapacitation of violent criminals at a young age, most reliably by death

2) the right to have the police and prosecutors have duties to individual citizens rather than to the jurisdiction, so that their carelessness may be compensated in tort litigation

3) the right to be left alone by government when no harm results from a behavior, for example, the 14 year old girl whose 18 year old boyfriend is arrested, despite her pleas and those of her family who love him as a son. She has to wait for him to get out so they can get married.

4) the right to commit crimes against oneself with no harm to anyone else, without getting prosecuted. A girl sexting a picture of herself wearing a bath towel high on her chest, showing shoulders, is prosecuted for the production of child porn.

5) the right to adequate police protection if a member of a minority

Posted by: Supremacy Claus | Oct 6, 2015 10:26:36 AM

I have represented many persons in capital habeas proceedings. In the "end" (i.e., federal court of appeals)you finally figure out it is not about the defendant-petitioner and not about the victim -- instead it is about the claim which involves the deprivation of federal rights afforded a defendant. Giving victims a voice in federal habeas is cathartic but should have no substantive difference in the outcome. Federal rights exist independent of the victim. That said, if a victim's family came forward and opposed the death penalty, I, as an advocate, would front-street those facts at every opportunity.

Posted by: ? | Oct 6, 2015 9:19:13 PM

?--your post is true, as far as it goes. First of all, victims do have the right to have federal habeas actions happen with speed. Second of all, let's not forget that "federal rights" is a pretty elastic concept in the hands of many federal judges. So when, for example, federal judges (or Justices) allow capital defendants to shift their arguments on appeal (as was done in Mpales v. Thomas--an utterly ridiculous decision) or whine like Justice Sotomayor did in the Buck v, Thaler case, they can, and should, be called out for ignoring victims.

By the way, why Maples v. Thomas was ridiculously decided was that (a) counsel did get notice and (b) up to that point, abandonment had a willfulness component to it in order to excuse the missing of a deadline. The failure to make an appeal in Maples was the result of a comedy of errors that was ordinary, garden variety negligence, which had previously been chargeable to the defendant.

Posted by: federalist | Oct 7, 2015 1:29:20 AM

?. While you are here, can you explain why an affirmed appellate court finding of inadequacy of representation should not be a finding of lawyer negligence per se? Such a doctrine would have a trial for lawyer malpractice begin with arguments over the value of the damages.

Posted by: Supremacy Claus | Oct 7, 2015 12:24:30 PM

"In the "end" (i.e., federal court of appeals)you finally figure out it is not about the defendant-petitioner and not about the victim -- instead it is about the claim which involves the deprivation of federal rights afforded a defendant."

"In the real end," it is not about defendant federal rights, whose number is infinite. In the end, it is about a multi$billion dollar appellate lawyer business. This is rent seeking with no value added, and only social toxicity.

"Rent seeking" is a phrase by intelligent, white, middle class people that would be called "stealing" if done by others.

The Supreme Court abolishes the death penalty. The death penalty appellate business ends. Thousands of lawyers are streeted. Oops. The Supreme Court then allows the death penalty, but only in the dozens, and only after decades. An effective death penalty would dispatch thousands of violent predators a year, and immediately after review for factual innocence by investigation experts (police, not lawyers). If an exoneration resulted, the errors of the system would then be investigated like an air crash (multiple factors meeting at the same time and place), and system wide remedies would be instituted to reduce future errors across the nation.

It is not abolition. It is not effectiveness. It is rent seeking.

Posted by: Supremacy Claus | Oct 7, 2015 12:43:57 PM


Posted by: Joe | Dec 21, 2015 4:05:21 PM

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