Mimesis Law
20 November 2019

Victim’s Rights Wrongly Expands Into Three More States

November 15, 2016 (Mimesis Law) – Last Tuesday many Americans participated in the secular sacrament of voting. About half the voters were disappointed and the other half pleased over how the Presidential race ended. Among the dissatisfied folks, a number of them have responded by protesting or crying. Not sure what difference it makes now, but everyone to their own.

Besides the election for President, there were a number of other issues being considered around the country. Eight states legalized marijuana to one degree or another. Plus, Ohio legalized medical marijuana to avoid a ballot issue prevailing. Another three states had referenda on the death penalty. The advocates of the death penalty prevailing in all three cases. And three states passed constitutional amendments addressing victim’s rights, joining about 30 states, which have already passed similar amendments.

Paul Cassel described these amendments as follows:

These amendments are rooted in the simple idea that victims of crime deserve a role in the criminal process. For convenience, I link here the texts of the amendment for Montana, North Dakota, and South Dakota respectively.

A number of these provisions are benign if not saccharine, such as “[victims] be reasonably protected from the accused and any person acting on the accused’s behalf….” Others have a questionable relationship to the underlying matter, like “The right to privacy, which includes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction to which the victim consents….” In states that have criminal depositions, these provisions appear to eliminate them. The due process and confrontation clauses are so eighteenth century.

As can be seen, the amendments parallel constitutional protections for criminal defendants with rights for crime victims.

This is a curious parallel. The State is formally accusing the defendant of wrongdoing. So, the defendant has rights against the State. As a general matter, the State does not have pre-conviction “rights” over defendants, though the State does enjoy some “powers” over the accused, such as arrest and compulsory attendance. Usually the victim and the State are on the same side, so you could stretch the analogy to treat a victim in many of the same ways as the State. But it’s not coherent to use this analogy to say the victim should have rights against the defendant.

Generally, the defendant is the defendant because the victim made an accusation. From there the State takes over and acts on behalf of the community—not as a publicly funded attorney for the victim. As such, they are not a party as we would think of it, thus lack rights as a party.

Under these amendments, defendants and victims would be guaranteed the rights to notice of court hearings, to attend those hearings, and to speak when appropriate, for example, at proceedings for bail, plea bargains, and sentencing. Victims would also receive rights to have their case proceed without unreasonable delay, to be notified when an offender is released or escapes, to have judges consider their safety before granting bail, and to restitution from a convicted offender.

Again, victims should be able to be heard at sentencing and attend hearings. But the victim has no recognized legal interest in the criminal charge. In that light, it’s not clear why they should be given a right to be heard. A guy three counties over cannot demand to be heard in a zoning hearing. Ralph Nader cannot demand to be heard in ever products liability cases involving automobiles. The right to be heard is ordinarily tied an interest in life, liberty, or property.

None of that is to say the victims should be excluded—they shouldn’t. Yet treating victims as if the criminal case is personal to them can lead to confusion. Consider a murder case where a defendant presents a plausible self-defense argument and is willing to take a manslaughter charge. The State is responsible for gathering the evidence, paying salaries, and trying the case. The calculus sometimes looks different from the victim’s stand, i.e. let’s go for broke; he should fry in hell. Fortunately, my office is good in working with victims, and rarely is there tremendous friction. Yet, some of these types of provisions interject the potential for conflict into many cases.

These rights restore victims to their original place in the criminal justice system. When the Constitution was drafted, victims could actively pursue criminal cases, even serving as their own private prosecutors. Over time, the victims’ role diminished, leaving them with little protection in government-driven prosecutions. * * *

At the threshold, this assertion is dubious. Even if you could privately fund law enforcement and prosecution, it was still directed through the legal system, including institutions like grand jury. To be sure, private prosecution was part of the Greek and Roman system, but much of English criminal law flowed from the crown and later Parliament. It is a much more bureaucratic affair, replete with manly wigs.

Part of the deal of having a functioning centralized state is revenge and private prosecutions are prohibited. Even those that have a romantic notion about intra-tribal dispute resolution, acknowledge that revenge is the way inter-tribal crimes were dealt with, before the centralized state. The victims may feel vindicated at the end of a State prosecution, but it’s not truly revenge. Unlike revenge, the State, through laws, determines the scope, type, and duration of punishment. As much as a victim of crime may want a flaying, it’s not going to happen.

It’s not at all clear, then, why putting victims and defendants on the same footing is appropriate. One faces the crushing coercive power of the State; the other does not.

It’s absolutely terrible to be a victim of crime. No one likes to be a victim of theft, nor does anyone want a loaded gun pointed at them. Accordingly, it is always wise and appropriate for prosecutors to communicate with victims. Showing up at court to find out your case pleaded out weeks ago is infuriating.

Indeed, Cassel explains that this is the motivation behind these amendments:

The growing number of state amendments, along with the federal law, reflect a national consensus that victims belong inside the criminal justice process — with a voice in decision-making.

While all states have some statutory protections for crime victims, not all of these statutes are readily enforceable. The result, as Harvard Law Professor Laurence Tribe has observed, is that existing victims’ rights provisions have too often failed in the face of bureaucratic habit, traditional indifference, or the potential for conflict with the rights of the accused — even when defendant’s rights are not genuinely threatened.

Protecting the rights of crime victims can be done without in any way harming the rights criminal defendants.

The last sentence is all about what you consider to be harm. Forcing a defendant to sit in jail and lose a job because the victim demanded no bail is harm. If, like in Ohio, the primary purpose of bail is to ensure appearance, then it is a doubly questionable proposition. Similarly, the defendant will be forced to “pay” for representation and associated costs like ankle monitoring through trial when the plea deal is blown up.

Defendants are often the victims of other crimes, which may have contributed to the present criminal charge. And it’s the job of defense counsel to argue that as mitigation. Prosecutors may be on the same side as the defendant’s victim, but they are not the victim’s avenger. Nor does the entire coercive power of the criminal justice system operate as a right to an individual person.

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