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My First Post -- Crime Victim's Right to Be Heard:

Well, it's nice to be aboard. I'm excited to be a part of this great group — thanks Eugene for thinking of me.

I noticed that when I was introduced as a co-conspirator, a few readers wondered whether I really left my old job as a federal district court judge here in Salt Lake City mainly to do pro bono crime victims' litigation and research on similar subjects. Well, actually, yes I did.

Providentially, my last day on my old job I picked up a copy of the Salt Lake Tribune to read a story entitled something like "Crime Victims Denied Day in Court." The article was about Sue and Ken Antrobus, whose daughter Vanessa was murdered at the Trolley Square massacre last February. For more about Vanessa (the first in her family to graduate from college), go to her memorial website. I now represent them on crime victims' issues — pro bono, since they have limited income.

Vanessa was murdered with a Smith & Wesson .38 handgun, criminally sold to Sulejman Talovic by Mackenzie Hunter. Hunter, a cocaine user at the time, had previously stolen the handgun. Here are the salient facts: Talovic approached Hunter, asking for help getting a handgun. He explained that he was 17, and therefore couldn't buy one legally. Hunter asked why he wanted to buy a handgun, and Talovic said it was to rob a bank. (Hunter apparently claims he thought this was a joke.) Knowing full well that it was a violation of criminal law to sell to Talovic, Hunter sold the handgun and seven months later Talovic committed the largest mass murder in modern Utah history.

Talovic was killed that night (by an armed, off-duty police officer). Hunter was later prosecuted here in Utah by federal prosecutors, who charged him with felony illegal sale of a handgun to a minor "knowing and having reasonable cause to know" that the handgun would be used in a crime of violence. After Hunter pled guilty to the misdemeanor version of this charge (no allegation of knowing, etc.), Sue and Ken sought my help to make a "victim impact statement" on behalf of their daughter at his sentencing. Under federal law — the Crime Victims Rights Act, 18 USC 3771 — they entitled to do so if Vanessa was "directly and proximately" harmed by Hunter's crime. The district judge held that she was not so harmed — and also declined to use his discretion to hear from them at sentencing.

Under the CVRA, crime victims are entitled to file for a writ of mandamus in the Court of Appeals, and we did so last week with this document.

Unfortunately, last Friday, the Tenth Circuit ruled against the Antrobuses

The Circuit said that when Congress authorized crime victims to petition for a "writ of mandamus," it did not intend for victims to have ordinary appellate rights like other litigants. Rather, the Circuit thought that the mandamus jurisprudence required that the crime victim's claim be "clear and indisputable." In doing so, the Tenth Circuit specifically rejected rulings from the Second and Ninth Circuits that crime victims' were entitled to ordinary appellate review. Under that demanding standard, the Circuit thought this was a "difficult" case, but concluded that the Antrobuses had not shown their entitlement to speak in court was clearly proven.

Judge Tymkovich, concurring, wrote separately to say that the process in the case had been unfair to the Antrobuses. The "bank robbery statement" that I mentioned above, was disputed by the defense, and the district court seemingly concluded that it had never been made — a fact that majority then used against the Antrobuses. Judge Tymkovich thought that the Antrobuses should have received a better opportunity to discover information about that statement.

On Monday, we went back to the district court to seek discovery on the issue of whether the government had information in its file proving the bank robbery statement. My former colleague Judge Kimball, a very thoughtful judge who moves his cases rapidly, ruled against us in a written opinion a matter of minutes, and then sentenced Hunter to 15 months in prison (the low end of the applicable sentencing guideline range.)

So there you have it — we will be back to the Tenth Circuit shortly, asking for rehearing on the question of whether crime victims should be rendered second class citizens in the federal courts — lacking ordinary appellate review of their claims — and seeking review of Judge Kimball's decision to deny the Antrobuses any information about whether Hunter and Talovic discussed a bank robbery during the gun sale — again, a right that other litigants routinely receive.

I will have more to say about all this ... after I see what the readers think. No one should be surprised that, imho, Sue and Ken should have their day in court.

OrinKerr:
Welcome, Paul -- very glad to have you with us.

Quick question about the Crime Victims Rights Act: If a victim impact statement is filed, is there anything that requires the trial judge to consider it or factor it into the sentence in any particular way? One obvious concern would be that if there isn't, then the district judge who won't allow the statement to be filed in the first place is also likely to ignore it if the higher court eventually orders it be filed.

Of course, I assume I can get the answer in your casebook, but I figured I'd take the lazier path.
1.16.2008 12:44am
NYU 3L:
It seems to me like in this case at least, the majority is right. The Antrobuses can't prove that they're "crime victims" under the statute without further evidence, unless we want to set the rule that whenever a gun is sold to the minor, any damage done is a proximate harm of the sale--which seems like a bad idea to me. If you had evidence to prove the stronger version of the offense, the one that required knowledge, then the Antrobuses should win.

But to get that knowledge, they'd need discovery, and it opens up a huge can of worms to give crime victims discovery to prove elements that would justify a stronger charge than what the defendant pled to. It would essentially require that every plea bargain be approved by at least 3 parties rather than two, and good luck getting crime victims to agree to lighter sentences in most cases.

So, my take:

The majority is right as to the merits of the case.
The concurrence is right as to seeing the problem, but overlooks the consequences of the remedy it wants.
1.16.2008 12:57am
kiniyakki (mail):
Two thoughts/questions. First, how much/little would a judge take a victim statement into consideration anyways? Any sense as a former judge and a person who works in this area?

Second, does victim's rights put a "eggshell victim" into criminal law that isn't apprpriate? Now, instead of looking at the crime, an additional issue is that the perpetrator must take the victim as they find him/her. Is this proper?
1.16.2008 1:09am
Dilan Esper (mail) (www):
On the standard of review issue, blame Congress. They provided for expedited review but didn't specifically specify the standard, and by saying it was mandamus review (rather than providing for an expedited interlocutory appeal), they left open the argument that the Tenth Circuit accepted.

I can see the other side too-- that the purpose of invoking mandamus was to ensure fast review, not to set a high standard of review. But Congress passed an ambiguous statute, and the case could have gone either way.
1.16.2008 1:21am
Kovarsky (mail):
welcome.

so to be clear - the split is on whether the express availability of an extraordinary writ (mandamus) implicitly limits the availability of ordinary appellate remedies.

but an element of mandamus relief in an appeals court is always that other, adequate appellate relief is unavailable? i don't know the interplay between mandamus and appellate relief in this particular context, but i find the jurisprudential side of this problem relatively easily to resolve. there are all sorts of situations where grants of mandamus rights implicitly preclude appeals (denials of motions for arbitration in many jurisdictions, for example).

i should mention that, from a policy perspective, i have some problems with that result. but i think the phrase "second class citizens" is a little strong, if the justification is just that they lack the appellate remedies available to the government, which is formally the party in a criminal case.

out of curiousity, what would the standard of review be on an appeal - how much less stringent would it be than the abuse of discretion standard on mandamus?
1.16.2008 1:24am
Guest101:
Welcome, I'm sure we'll all benefit from your posts and I look forward to reading more of them.

That said, isn't it a bit excessive to suggest that the Tenth Circuit's ruling makes "second class citizens" of crime victims when, under common-law principles of standing, they lack any right to participate in criminal proceedings at all? That is to say, if before the CVRA, the federal courts were not required to offer crime victims the right to participate in any criminal case, isn't it a bit ungrateful to now complain that the statute has been interpreted to deny crime victims the full procedural rights made available to actual parties? If we accept the common-law view that the primary "victim" of a criminal offense is the sovereign rather than the individual (which may be a controversial understanding but cannot, I think, be fairly described as a legal fiction), what justification is there for the view that anything less than full participation in a criminal proceeding diminishes the interests of individual victims? Isn't the vindication of victims' interests what civil proceedings are for?

Another, completely separate thought that just occurred to me, inspired by kiniyakki's post above: is there any room in the 3553(a) factors for consideration of a victim impact statement? Perhaps the victim impact would go to the seriousness of the offense?
1.16.2008 1:28am
SupremacyClaus (mail) (www):
Mr. Cassell:

Your title misleads and insults the intelligence of the public. You represent survivors, untapped, potential lawyer customers. The victim is deceased and took all rights to oblivion, courtesy of the criminal, the pal of the criminal lover lawyer. You propose a thinly disguised pretext to increase lawyer employment. Period.

If you wanted to reduce victimization, you would not advocate an explosion in legal procedure. You would advocate an explosion in the death penalty, to reduce the number of vicious predators by attrition.
1.16.2008 1:38am
LTEC (mail) (www):
Do victims benefit from having such rights, and therefore such responsibilities? Instead of sentencing guidelines, the only way a victim can get justice is by putting on a good show in court? Sort of "queen for a day" (if you remember the horrible old program). And if a murder victim has no friends or family to cry in court for him, then presumably this is a reason to let the criminal off with a smaller sentence?

The State should be determining sentencing with some clearly specified leeway for judges. The victims have suffered enough. Only one group benefits from "victims' rights", and it's not criminals and it's not victims.
1.16.2008 1:45am
Lior:
Welcome to the blog!

As an extension to your post, could you explain how the Antrobuses could have anything to contribute to the criminal case? They were not witnesses to the crime and don't know anything about the criminal. How can any information about the personal life of the victim be relevant to the guilt or penalty of the criminal? Assume that, instead of Venessa Antrobus, the victim was a homeless woman with no family or friends, or a well-liked celebrity. Should that affect the penalty for the crime?
1.16.2008 1:50am
hawkins:
Welcome, and please just ignore idiots like SupremacyClaus.
1.16.2008 2:12am
CrazyTrain (mail):
Your title misleads and insults the intelligence of the public. You represent survivors, untapped, potential lawyer customers. The victim is deceased and took all rights to oblivion, courtesy of the criminal, the pal of the criminal lover lawyer. You propose a thinly disguised pretext to increase lawyer employment. Period.

Umm, there are going to be plenty of crime victims who do not die. . . .

If you wanted to reduce victimization, you would not advocate an explosion in legal procedure. You would advocate an explosion in the death penalty, to reduce the number of vicious predators by attrition.

Regardless of whether you think the current death penalty system is too slow, I don't think it's inconsistent to think that the state should be careful before executing people and still think that crime victims deserve to be heard in sentencing. . . . Maybe I am just thinking too much like a lawyer though . . .
1.16.2008 2:19am
Dave N (mail):
Supremacy Clause,

I am not sure where you are coming from. Though he can certainly defend himself, Judge Cassell has expressed views in support of the death penalty.

I would also reiterate that the perpetrator was killed by police, so there was no death penalty to seek.

To Judge Cassell, welcome. As a University of Utah College of Law graduate (before it was named in honor of S.J. Quinney), I look forward to your insights. I certainly hope you carry forth the traditions of the late Ron Boyce and have at your fingertips relevant cases decided by obscure courts in the preceding 48 hours (which Professor Boyce did in the pre-Internet era, no less).

And more importantly, for the sake of your clients in this case, I hope they eventually do feel like they had their day in court. Victims are too often marginalized in our system--so keep up the good fight.
1.16.2008 2:20am
BruceM (mail) (www):
Welcome to the blog.

I am and will always continue to be horrendously bothered by the notion that victims should have "rights" in court. Victims usually have the right to file a civil suit against the (usually judgment proof) criminal defendant for an intentional tort. But in terms of the criminal defendant's criminal case, victims should not be allowed within 100 miles of the courthouse except when testifying. They have NOTHING to add, nothing to contribute, their "feelings" about the crime and how they believe it affected them are entirely irrelevant and already taken into account in the penalty for the crime (i.e. a 1st Degree Felony presumes greater victim impact than a Class B Misdemeanor).

Another issue I have with "victim impact statements" is the fact that, in my experience, the most vile, nasty, vengeful statements demanding the maximum sentence and complete retribution are made by "victims" with christian crosses hanging around their necks. Sorry. You can't have it both ways. Jesus would not give a victim impact statement. He would forgive the defendant and either ask that the charges be dismissed or offer absolutely NO COMMENT on what should be done to the defendant. You can't be a Christian and give a victim impact statement. Yet it's the self-professed Christians who love the idea and are behind laws like the CVRA. Extreme hypocrisy.

The final problem I have with "victim's rights" is defining who is a victim. Sure, the parents of a murdered child are "victims" but what about the child's siblings? What about his cousins? Third cousins twice removed? Best friend at school? Remember when Eric Cartman received BFF standing on behalf of the deceased Kenny. Is there a presumption that family is a "victim"? What if an estranged parent, who never paid child support and never spoke to his child, decides he wants to get victim status? Can the family is victim presumption be rebutted?

Yes, "victim's rights" sounds good, but it's not good at all. And if victims are going to participate in trials, they should, at minimum, be treated like a co-party and the rules of evidence and procedure should apply to them (i.e. Rule 11, the rules of hearsay--they should be deemed a party opponent to the defendant, and they should be able to be held in contempt just like any other party).

If I am to understand that a bright, well-respected, and even-minded federal district judge left the bench to advocate for and pursue "victim's rights" I am saddened and befuddled. Sorry. Sure there are sob stories out there about how criminals affect their victims. Who cares? That's why criminals are prosecuted to the fullest extent of the law in this country with extremely harsh penalties and more people in prison than any other country in the history of planet Earth. Victims should shut the hell up and stay at home. They have no standing to show up to court to whine and cry and scream and bitch and make demands of the Justice System, and it is a travesty of justice to bestow such standing to them.

And let me just cut off the question asking if I've ever been a crime victim. Yeah, I had my bike stolen when I was a kid. But no, neither I nor anyone close to me has ever been the victim of a violent crime. And if my opinion would change if I were to be such a victim, that's just the more reason why my opinion should be kept out of court. It's so insanely biased, so insanely prejudiced and prejudicial, that it would cause me to want to taint the trial/sentencing of a criminal defendant by unfairly interjecting myself into the adversarial system. Neither drunk drivers nor the victims of drunk driving should be speaking about what sentences drunk drivers should get. Only disinterested people should have a say in the matter. Ditto with criminal defendants (though the criminal defendant always has a constitutional right to allocute to the court before sentence is imposed).

But I'm sure we'll have victims writing defendants' presentence investigation reports and guidelines calculations by the end of the decade. Logic and dispassionate reason have no chance of winning here. We live in a nation of victims where "victim" status is highly sought after and highly regarded. It's the most desired form of attention.
1.16.2008 2:34am
Kovarsky (mail):
victims are generally receive zealous representation by the United States or a State prosecutor, and the entire bureaucracy at that person's disposal. the phrase "victims' rights" mucks up what it is that is a right and what it is that is a policy preference.

victims have no right to an attorney, to a trial before a jury of their peers, to effective assistance of counsel, to be exempt from cruel and unusual punishment by the state.

they have civil remedies for wrongful deaths, assaults, and all other sorts of conduct that also doubles as a "crime." but these are not "rights" in the sense that we mean when we are talking about criminal defendants.

i think what people mean by "victim's rights" is essentially a movement to promote non-rights-based roles in criminal trials where advocates perceive that the accused has too much procedural protection. this isn't a petty point about nomenclature. the point, as i interpret it, is less one about the actual rights of "victims" (or in this case, the family members of victims) than it as about rights for criminal defendants that "victims rights'" advocates consider excessive.
1.16.2008 2:39am
Eugene Volokh (www):
Folks: SupremacyClaus has long been banned from this site. This was for past misconduct unrelated to the most recent comment, but the ban remains in effect. I didn't delete his comment because someone responded to it, but I've blocked the IP address from which it was posted, and hope that no future comments will come.
1.16.2008 2:43am
BruceM (mail) (www):
I meant to say "Ditto with criminal sentences" not "ditto with criminal defendants" (mea culpa).
1.16.2008 2:43am
BruceM (mail) (www):
Kovarsky: I think you're on the right track but it's more insidious than that. They really want Victim's Bills of Rights and all sorts of laws bestowing actual "rights" to victims. The right to speak at the defendant's sentencing is the most contentious. But there are others... The right to be kept informed of the proceeding. The right to speak at parole hearings, the right to speak at probation revocation hearings, the right to speak to the prosecutor (many of whom are pestered 12 times a day by the "victims"), the right to communicate with the defendant's probation/parole officer, the right to speak at bail hearings, the right to hold up signs, wear t-shirts and buttons in court expressing hatred for the defendant, and many others. At the end of the day, victims want to be a quasi-party to participate in the criminal defendant's trial to advocate against the defendant's interests at all points in the proceeding, in addition to the prosecutor -- but with none of the ethical, legal, or procedural constraints with which a true party to the proceedings would have to comply. Victim's rights is a cloaked method of furthering the prosecutor's power and influence over the criminal defendant at every stage of the proceedings.

It's sad, but in this one realm it is fortunate that so many crimes are victimless. The vast majority of federal criminal cases (drugs, guns, unlawful re-entry) won't have a victim, so those criminal defendants will still be able to have a fair trial that comports with the Sixth Amendment.
1.16.2008 2:56am
Kovarsky (mail):
i don't have time to analyze both decisions consistent with the judge's position, but here they are

<b>(second circuit)</b>
<i>This Court has often characterized a writ of mandamus as an “extraordinary remedy.” United States v. Coppa (In re United States), 267 F.3d 132, 137 (2d Cir.2001). Ordinarily, this Court grants mandamus relief when the district court has usurped power or clearly abused its discretion. See Bulow v. Bulow (In re von Bulow), 828 F.2d 94, 97 (2d Cir.1987) (stating that the “touchstones” for exercise of mandamus are a showing of “usurpation of power, clear abuse of discretion and the presence of an issue of first impression”). Accordingly, “ ‘mere error, even gross error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ.’ ” In re “Agent Orange” Product Liability Litigation, 733 F.2d 10, 13 (2d Cir.1984) (quoting United States v. DiStefano, 464 F.2d 845, 850 (2d Cir.1972)). Pursuant to this standard, the petitioner must usually demonstrate: (1) the presence of a novel and significant question of law; (2) the inadequacy of other available remedies; and (3) the presence of a legal issue whose resolution will aid in the administration of justice. Coppa, 267 F.3d at 137-38; In re United States, 10 F.3d 931, 933 (2d Cir.1993).

Under the plain language of the CVRA, however, Congress has chosen a petition for mandamus as a mechanism by which a crime victim may appeal a district court's decision denying relief sought under the provisions of the CVRA. See 18 U.S.C. § 3771(d)(3) (“the movant may petition the court of appeals for a writ of mandamus”); § 3771(d)(5)(B) (“A victim may make a motion to re-open a plea or sentence only if ... the victim petitions the court of appeals for a writ of mandamus within 10 days ....”). It is clear, therefore, that a petitioner seeking relief pursuant to the mandamus provision set forth in § 3771(d)(3) need not overcome the hurdles typically faced by a petitioner seeking review of a district court determination through a writ of mandamus.</i>

<b>(9th circuit)</b>

<i>However, we need not balance the usual Bauman factors because the CVRA contemplates active review of orders denying victims' rights claims even in routine cases. The CVRA explicitly gives victims aggrieved by a district court's order the right to petition for review by writ of mandamus, provides for expedited review of such a petition, allows a single judge to make a decision thereon, and requires a reasoned decision in case the writ is denied. The CVRA creates a unique regime that does, in fact, contemplate routine interlocutory review of district court decisions denying rights asserted under the statute. We thus need not balance the Bauman factors in ruling on mandamus petitions brought under the CVRA; rather, we must issue the writ whenever we find that the district court's order reflects an abuse of discretion or legal error. The Second Circuit has come to the same conclusion. See United States v. Rigas ( In re W.R. Huff Asset Mgmt. Co.), 409 F.3d 555, 562 (2d Cir.2005) (holding that “a petitioner seeking relief pursuant to the mandamus provision set forth in § 3771(d)(3) need not overcome the hurdles typically faced by a petitioner seeking review of a district court determination through a writ of mandamus”). We are aware of no court of appeals that has held to the contrary.</i>

A legal error is usually an abuse of discretion, so I don't have that much trouble with the ninth circuit's logic. But that would be based on a normal understanding of mandamus review, not some mandamus review modified by the purposes of the statute, as Kozinski implies in this passage. Just because the statute provides for expedited mandamus review and specifies that jurisdiction to issue writs of mandamus exists, I see not reason to believe that the statute modified the substantive standard on appellate review. If Congress wanted to provide the functional equivalent of interlocutory review, it could have done it quite easily - by making such review available.

if anything, the specification of mandamus review might be read as relaxing ordinary mandamus requirements that a petitioner show that the writ be in aid of that court's appellate jurisdiction (or even, contrary to my own belief, the requirement that the petitioner show no adequate remedy at law) - but not the substantive standard for the review of underlying issue challenged in the mandamus petition.
1.16.2008 2:57am
Kovarsky (mail):
Kovarsky: I think you're on the right track but it's more insidious than that. They really want Victim's Bills of Rights and all sorts of laws bestowing actual "rights" to victims.

BruceM, I'm confident that we're on the same page here. To be clear, I am trying to say that the movement is not seeking to vindicate rights, it is seeking to create them. That is certainly consistent with the promotion of the statutory entitlements that you catalogue.
1.16.2008 3:02am
MalibuDrew (mail):
Prof. Cassell,

Thank you for joining the Conspiracy. It's not likely that I will agree with you on much, but, given your often displayed intelligence, wisdom, and integrity, I will almost always respect your opinions. (More likley than not, when I don't respect your opinions it will be because I'm a bit hot under the collar on a particular issue.) Thanks again for adding your voice to the fray.

Drew
1.16.2008 3:59am
arbitraryaardvark (mail) (www):
Was Talovik still 17 at the time of the shooting?
A question for the commenters: if I understand correctly, 17 year olds are part of the federal unorganized militia. Do they have second amendment rights to keep handguns? I take no position on this, just wondering.
1.16.2008 5:55am
Tracy W (mail):
Why are the Antrobuses taking this court case? What do you they hope to gain?

I have every sympathy for the Antrobuses, who clearly suffered a terrible loss. But given that Sulejman Talov is already dead, I fear the courts have nothing to offer them.
1.16.2008 7:41am
Sean M:
I made this comment in a thread on Decision of the Day, that I'll repeat here:

It seems odd that Congress would use the word "mandamus" when it means "ordinary appellate review." I am sure that the drafters out there with their law degrees could say the latter if that's what they meant.

What's more, with action having to come in 72 hours, it seems more likely that the statute was meant to swat down obvious errors (mandamus review) rather than debatable issues the Court of Appeals happened to disagree with (appellate review). If it was the latter, the 72 hour timetable for a reasoned opinion seems rather stingy to the Court of Appeals.
1.16.2008 8:16am
alias:
Does Prof. Cassell or anyone know of a good primer on the victims' rights movement?

My understanding from law school is that the extent of victims' rights in criminal cases is limited essentially to (1) the right to restitution in some cases, (2) the right to sue for damages in a separate action, like the Goldmans did in the OJ Simpson case.

I always thought that the theory of criminal law was that the "victim" (or at least the party in interest is the state), and that the point of this is that criminal law is about enforcing the social contract, not about revenge.

It seems to me that giving victims a "day in court" in criminal cases would undermine that notion, and it would also raise questions about how the system is run now. For example:

1. What happens in cases where there are hundreds or thousands of victims (e.g. the Enron cases)? Do they each get separate counsel and a place in the criminal case? That sounds unmanageable and unnecessary.

2. Does the victims' rights movement undermine the case for prosecuting so-called victimless crimes? E.g. if the "victim" becomes a regular party to criminal cases, will everyone have to explicitly acknowledge in small drug cases that "there is no victim"?

My instincts are to disagree with Judge Cassell's views on this, but I'm optimistic that this will be a good discussion.
1.16.2008 8:34am
Floridan:
Although the idea of "victims' rights" has an emotional appeal, I can find no intellectual justification for the concept.

For an extreme view of victim's statement, the AMC channel is having a Charles Bronson Death Wish marathon this week.
1.16.2008 8:53am
Kent Scheidegger (mail) (www):
"Does Prof. Cassell or anyone know of a good primer on the victims' rights movement?"

Try this
1.16.2008 9:01am
Waldensian (mail):
I'm very interested in reading Judge Cassell's contributions. And no way am I going to call him "Paul." :)

Vanessa was murdered with a Smith &Wesson .38 handgun, criminally sold to Sulejman Talovic by Mackenzie Hunter. Hunter, a cocaine user at the time, had previously stolen the handgun.

We need stricter gun control laws to prevent tragedies like this!! Oh, wait....

Well, certainly the last thing you want is for law-abiding citizens who have passed criminal background checks to be carrying concealed handguns in public:

Talovic was killed that night (by an armed, off-duty police officer).

Sorry, I just couldn't resist the low-hanging fruit.

On the actual topic at hand, I too have serious misgivings about granting rights to victims in criminal proceedings. In the event of a conviction, I would give them the right to submit a written statement to the judge to be considered (or ignored) by the judge prior to sentencing. And that's it. Allowing them to engage in the appellate process, under any circumstances, strikes me as a truly bad provision of current law.
1.16.2008 9:21am
CrimsonTribe:

That said, isn't it a bit excessive to suggest that the Tenth Circuit's ruling makes "second class citizens" of crime victims when, under common-law principles of standing, they lack any right to participate in criminal proceedings at all? That is to say, if before the CVRA, the federal courts were not required to offer crime victims the right to participate in any criminal case, isn't it a bit ungrateful to now complain that the statute has been interpreted to deny crime victims the full procedural rights made available to actual parties? If we accept the common-law view that the primary "victim" of a criminal offense is the sovereign rather than the individual (which may be a controversial understanding but cannot, I think, be fairly described as a legal fiction), what justification is there for the view that anything less than full participation in a criminal proceeding diminishes the interests of individual victims? Isn't the vindication of victims' interests what civil proceedings are for?



In law school, I did a direct reading project on the development of criminal law under the common law. I found the topic interesting, but I don't have any real opinion on "victim's rights." I don't have a perfect memory of what I learned, so I welcome comments/corrections from people with more information on the subject. Still, here's what I do remember:

It's not exactly correct to say that victims have no common law standing in criminal matters. In early Anglo-Saxon, pre-Norman England, there was no strong state that could be said to be the victim of a crime. To the extent a sovereign became involved in "criminal" matters, the crime was against him or his authority. Private vengeance was the norm, and criminals were generally "punished" by their victim or their victim's family. Killers could be killed in retribution, or forced to pay the were-gild, with different prices for eorls, ceorls, etc.
As the Anglo-Saxon kingdoms coalesced and became the English state, private justice became less accepted. I don't remember if it was the late Anglo-Saxon kings or the Normans who really introduced the concept, but the idea of the "king's peace" allowed the sovereign to intervene in what had been previously private matters. The idea was that the king had a duty to his people to maintain peace, and that crimes breached that peace. Thus, a criminal wasn't just harming the victim, but also defying his king. The offense to the king allowed the sovereign to step in and involve the state in criminal matters, generally in the form of sheriffs delegated to enforce the king's peace. The rights of victims to exact vengeance were gradually limited, because many of their own efforts at retribution could also be seen as breaches of the peace. The power and role of the state increased steadily thereafter, but keep in mind that the state apparatus for prosecuting criminals is a relatively recent development. Sure, if you commited a crime against the king, one of his officials would "prosecute" you, but most regular crime between "everyday" citizens required a lot of involvement from the victim to make sure that there was some sort of prosecution.
1.16.2008 9:22am
Edward Lunny (mail):
"arbitraryaardvark"...Ownership of handguns is restricted to those 18 years of age and older, not withstanding other statutory restrictions of ownership. Also, in many, if not all, states persons under the age of 18 must be accompanied by an adult when in possession of a handgun and engaged, or traveling to, legal hunting/shooting events or programs.
1.16.2008 9:29am
alias:
Thanks, Mr. Scheidegger... I should have caught that in Prof. Kerr's comment.
1.16.2008 9:35am
PatHMV (mail) (www):
To respond to BruceM's criticism of "victims' rights" in general... hogwash!

There remains a great deal of discretion in sentencing ranges, particularly now that the guidelines have been made "advisory." the crime is not, cannot be, isolated from the victim, and some crimes do indeed have a much greater impact on the victim in ways which are legitimate for the justice system to consider.

Take burglary, if I may be excused a personal example. Burglary is generally a nasty crime; it leaves people feeling unsafe in their own homes. But it can be even worse than that. When my infant sister died, many years ago, the fact that her funeral would be out of town was printed in her obituary. Some opportunistic burglars saw that information, in the obituary of the death of a child under the age of 2, about a week before Christmas, and decided to burglarize our house on the day of the funeral, because they knew the house would be empty. It is entirely proper that the particular cruelty of their crime be punished more severely than some random burglar striking while the victim is on vacation.

On a professional level, I once prosecuted a thief, an embezzler, a former lawyer who stole large sums of money from clients who trusted him. He stole, from the victims for which I was prosecuting him, maybe a total of $300,000. Now a guy who steals $300,000 from a Donald Trump, I could live with a sentence of a few years. But in this case, the $300,000 represented the life savings of 2 generations of a family, including a disabled World War I veteran. As a result of the theft, the family was split, because the siblings believed that the immediate victim must have been in cahoots with the thief. The victim had worked HARD all his life, in order to save for retirement, but instead of enjoying his retirement playing with his grandchild, he had to work as a security guard until he died. We had a victim impact hearing in that case; I required it as part of the plea deal, even though I probably could have gotten the guy 2 or 3 more years on a straight plea. I subpoenaed the brother and sister to come, so that they could talk about the impact on him, and so that they could hear first hand that their brother was entirely innocent. To this day, I think that that was the most important case I ever handled, that I did more good for that family than I did in any other case I prosecuted.

On another level, Bruce, keep in mind that we form government to do things which otherwise we would be left to do ourselves. We don't, as a rule, undertake private vengeance in this country because we expect the government to take care of it for us. Criminal punishment is not JUST about deterrence, or removing the offender from society. It is the justice system, and part of justice involves balancing the actions of the criminal and the effects on the victim. A system where the victims are removed, kept isolated, ignored (i.e., too much of our system today) is a system not concerned with any concept of justice. Worse, it is a system which encourages honest, decent people to think that the law is not there for them, doesn't protect them, doesn't look out for their interests. That's wrong. We go to court, we prosecute criminals, particularly violent criminals, because of what they did to particular individual human beings, the "victims" of the crime. We cannot and should not ignore them in the process.
1.16.2008 9:39am
Carolina:

A question for the commenters: if I understand correctly, 17 year olds are part of the federal unorganized militia. Do they have second amendment rights to keep handguns? I take no position on this, just wondering.


Yes, per 10 U.S.C. 311, 17 year old males are members of the unorganized militia. It would make an interesting argument.
1.16.2008 9:48am
CrimsonTribe:

Although the idea of "victims' rights" has an emotional appeal, I can find no intellectual justification for the concept.


Here's one thought. If you don't believe governments have any inherent powers, there is no justification for arguing that a government must have power to punish crimes between individuals. You can certainly justify giving government that power, but it is not a given. You could form a government that exists solely to regulate economic activity, without giving it power to punish for crimes like murder. You could certainly argue that the victim of a crime (or their family) is in the best position to deal with the criminal. They can evaluate the harmful effects and are motivated to seek the remedy they deem proper. Society could develop norms that regulate retribution, so that victims who are do not seek reasonable vengeance are then subject to more vengeance from the original criminal and/or other repurcussions from society as a whole. I am extremely doubtful that this could ever produce a stable society, as feuds would be likely to get out of hand. Still, if government is given the power to regulate crime, you could argue that the victims are losing their right for private vengeance. Yes, they are gaining the benefit of a more stable society, but those benefits are spread society-wide; it may make sense to throw the victims a bone and allow them a chance to make their voice heard.
One analogy I thought of was to eviction of tentants. Under the common law, Landlords had broad self-help rights to evict delinquent teants. In the interests of avoiding breaches of the peace and giving more protections to tenants, many (all?) states have limited self-help rights of landlords, but threw them a bone by allowing expedited court hearings.
1.16.2008 9:50am
TruePath (mail) (www):
I also have issues with victim impact statements.

In particular they seem, especially in cases like this, to undermine fundamental principles of justice and fairness. Most importantly the idea that people who commit the same crime should do the same time. The guy who sold the gun in this case did no more wrong than any other guy who sold a gun to a minor to use in a bank robbery so why should he do more time because he (unforeseeably) happened to be the one who sold it to the mass murderer. The reason we punish people who sell guns illegally in the first place is because of the risk they will be used to kill someone thus without the victim impact statement they are already being punished for the risk that their act would lead to horrible consequences. It's deeply unfair to punish two people who put the public at the same risk differently because in one case the risk actually materialized.

This is my primary issue with victim impact statements. My secondary issue is that they undermine the principle that everyone is equal before the law. Aggravating and mitigating factors have a place in punishment but one of those factors shouldn't be whether your victim was a pretty white girl or a black man. Certainly the law shouldn't punish killing orphans any less than killing people with a large family. Yet the only way that victim impact statements make sense is if you believe that criminals who kill people with sympathetic families should be punished more than those who kill people who are alienated from their families and all of whose friends are satanists or otherwise unsympathetic.

Finally, I worry that involving the victim's family in the court process is harmful to them. I realize they desire this chance to get revenge but, especially in death penalty cases, it seems that this can cause them to reexperience their pain. Given some of the research suggesting that people who have compassionate loving thoughts are happier I wonder if merely getting into the revenge business might make people less happy (even if they want it). Ultimately if you don't think these worries are warranted why not let the victim's family actually carry out the death penalty in death penalty cases?
1.16.2008 10:03am
Respondent:
FWIW, I think the most underepresented group in the criminal justice system are the families of criminal defendants and convicts. Like the families of crime victims, they have committed no crime and stand to lose a lot at the end of the day. Of course crime needs to be punished, but I think that additional emotional effects of crime on vitims not already considered in the day to day legal process is more than cancelled out by the additional emotional impact excessive punishment has on convicted criminals' families. The United States already has the most punitive criminal justice system in the western world, largely due to the same concerns that Professor/Judge/Blogger Cassell now represents. To potentially further increase punishment on top of our already highly puniitve system does more damage to the families of wrongdoers than justified by the peace of mind gains to victims that have largely already been factored in in the first place.
1.16.2008 10:06am
Sean Sirrine (mail) (www):
Hey there Judge Cassell,

Just wanted to drop a line to say "good job" on pushing the USSC to fix the crack vs. cocaine sentencing issue. (I heard you speak on this issue and others at Lewis &Clark in November.) It looks like they finally paid attention to what you and other judges had been saying about sentencing. Now if they'd only pay attention to your opinion on the increased penalty for gun possession.

Regards,
Sean Sirrine
1.16.2008 10:15am
Just Dropping By (mail):
With all respect to Judge Cassell, I just don't see how someone could read this statute and say that it isn't intended to make the appeal subject to the ordinary standard of review for a writ of mandamus:

18 U.S.C. § 3771(d)(3) (emphasis added):

The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.

Also, while this is an appeal to authority, it bears mention that the panel here (Hartz, Tymkovich, and Gorsuch) is one of the most intellectually rigorous panels you can draw in the Tenth Circuit. (It could also be mentioned that all three judges are George W. Bush appointees.)
1.16.2008 10:26am
TruePath (mail) (www):
PatHMV:

I think you make a compelling case for including evidence in sentencing about how the crime was committed. For instance in the situation you gave the jury should hear at sentencing that the defendants choose to commit the burglary right before Christmas or based on information that the family would be away at a funeral. However, this is no reason to have the victim testify as to actual harm. These criminals should be punished just the same if you had happened to win the lottery that day so your Christmas wasn't ruined as if you had just lost your job so their robbery was a particularly awful blow.

I agree that it matters whether the criminal choose to steal from poor retirees or Donald Trump but it's only those choices the criminal actually knowingly makes that should be relevant to the sentence. Moreover, I would argue that the idea that how sympathetic you (or your family) happen to be makes a difference in the quality of justice you receive is a much worse harm to the concept of justice than the idea that victims aren't directly involved in the process.

--------

Note that my real problem here is that it is a victim impact statement. In general the way a court should work is to present the evidence in the most probative and least inflammatory fashion possible while here we are doing the opposite. Presented with abstract facts (this criminal choose to steal from elderly retirees) we can abstract away our biases or the sympathetic pull of unforeseen consequences of the criminals actions. On the other hand tear filled statements of victim impact make it almost impossible to ignore the emotional pulls of sympathy and feeling for the victim.

This is particularly problematic because we know that even people who aren't (consciously) racist tend to feel more sympathy for those with the same skin color. Similarly women tend to feel more sympathy for other women (and maybe vice versa), religious people have more sympathy for co-religionists and people in a certain cultural tradition have less sympathy for those in others. In short by making it a matter of emotional sympathy we make justice a matter of how easily we can put ourselves in the shoes of those testifying to impact and thus give a worse quality of justice to those who are less mainstream.
1.16.2008 10:27am
Ralph Phelan (mail):
I find it hard to believe that Congress intended to grant the right to a full appelate review in 72 hours. Is that even physically possible?
1.16.2008 10:31am
Adeez (mail):
"I worry that involving the victim's family in the court process is harmful to them. I realize they desire this chance to get revenge but . . . it seems that this can cause them to reexperience their pain. Given some of the research suggesting that people who have compassionate loving thoughts are happier I wonder if merely getting into the revenge business might make people less happy"

Spot on TruePath! If I may add: forgiveness per se goes a long way toward making people happier. It ain't easy, but neither is law or exercise. Yet, constantly practicing it makes one happier and healthier. I know this'll go over many commenters' heads here, but although I've had my issues with both Al Sharpton and Pope John Paul, they both promptly forgave the people who tried to take their lives (and almost succeeded). That's something we should all strive toward.
1.16.2008 10:43am
Adam J:
TruePath - I think you are unduly worried about prejudice. You do of course realize that the victim impact report is used only for sentencing purposes, and that sentencing is done by the judge. I don't think many judges are likely to be so swayed by the victim that they will start giving disproportionate sentences. And while this is a legitimate concern, I think its far more important that the victim be heard, as it can be a very cathartic and healing event for them, they deserve to be involved in the justice process.
1.16.2008 10:49am
GV:
Why is appellate review a one-way street here? An alleged victim gets to request a writ, but the defendant doesn't? And the alleged victim is entitled to a decision with 72 hours? The defendant gets neither of those two protections, so who is being treated like a second-class citizen?
1.16.2008 10:54am
PatHMV (mail) (www):
And who is to provide evidence of that information, TruePath? Do we sanitize it, say that the information can be provided to the judge, but only in a coldly-written affidavit, reviewed by a prosecutor to be stripped of emotion before being presented to the court?

No. The government exercises this power, as it does most if not all of its powers, on behalf of the individual citizens. The actual impact a crime has on the actual victim is relevant if for no other reason than that the government's power to prosecute and punish the criminal stems from the victim and the wrong done to the victim. The government prosecutes the criminal not just because he has "breached the King's peace," but because he has done real harm to a real person.

And Adeez, yes, some victims become trapped and suffer additional harm because they aren't able to forgive those who have done them wrong. I've seen many people so affected by violent crime that their entire life is destroyed, becaues they become obsessed with the crime or the criminal or just their loss. I support voluntary efforts towards the "restorative justice" model, because I think on the whole it can benefit both the criminal and the victim. But the victim, in most cases, didn't do anything wrong.

The current system as often practiced goes so far to remove the victim from the process that the victim feels entirely unconnected with the case, and is left with no sense that justice has been done at all. They are left confused by the entire thing. Most victims I've encountered experience a great catharsis simply by being given the opportunity to have their day in court, the opportunity to directly confront the criminal who harmed them.

I remember one pardon hearing I attended, for a murderer. It was the practice of the Pardon Board at that time to give the victim (or the family of murdered victims) ample opportunity to speak. For this one family, it was the FIRST TIME IN 20 YEARS that they had had a chance to actually confront the man who killed their loved one, to tell HIM what impact he had had on their lives. For them, it was a tremendous, and empowering, moment. Sadly, he was too far gone into hell to gain any benefit from it, but I've seen other criminals who actually began to truly understand how horrible their actions were as a result of similar confrontations.

The justice system is for human beings, not robots. It cannot and should not be reduced to a series of algebra formulas.
1.16.2008 11:00am
mls:
Once the appellate court addresses the merits, what effect would their ruling have on civil suits against gun manufacturers/sellers by victims of gun violence? If Vanessa is "directly and proximately" harmed by the gun seller's crime, as the statute requires, is it too far a leap to then hold the manufacturer/seller liable in tort? Especially in a case where it is unclear whether the seller actually knew the gun was to be used in a crime of violence (a bank robbery)? He sold a gun to a minor, the minor killed someone (actually many someones) with it, and each victim is now "directly and proximately" harmed by that sale to a minor?
1.16.2008 11:02am
Dave N (mail):
I echo the sentiments of PatHMV. Well said.

I would note that victtms, unschooled in the American justice system, look at the prosecutor as "their" attorney. They do not understand why a case is negotiated or why something else was done and why "their" attorney betrayed them. They often leave court feeling like they were not heard and "the system" failed them.

Do I think that crime victims should have a veto over how a case is resolved? No. Do I think that crime victims should have a voice at sentencing hearings and should be notified by the prosecution of important court dates? Absolutely.
1.16.2008 11:05am
Waldensian (mail):

Yes, per 10 U.S.C. 311, 17 year old males are members of the unorganized militia. It would make an interesting argument.

It's a bit of a stretch, isn't it? For example, 10 U.S.C. 311 also doesn't exclude ex-felons from the unorganized militia (so far as I can tell), but I'm aware of no viable constitutional argument that ex-felons are entitled to own firearms.
1.16.2008 11:39am
Lior:
@Adam J: In some cases (capital cases, for example), sentencing is actually done by the Jury. In any case, even though judges are less likely to be swayed by emotional testimony that is no reason to allow testimony which is wholly emotional.

@PatHMV: Testimony about the factual circumstances of the crime is not "victim impact" testimony.

In general, it seems to me that "victims rights" seems to be about the feelings of the victims. Perhaps by giving them an opportunity to confront the criminal, perhaps by giving them the ability to praticipate in the prosecution. But this seems to me to be a misuse of these proceedings. Sentencing, parole, and pardon hearings are all about the criminal. Using them for other parties' therapy is rather unfair. Meeting with the prosecutor -- fine. Testifying at a hearing -- only if they can offer relevant factual information.
1.16.2008 11:40am
Lior:
Pat: could you explain why empowering crime victims is a proper function of a parole hearing?
1.16.2008 11:42am
gasman (mail):
Query for the lawyers.
1 )Is the victim impact statement subject to any fact-finding or cross-examination or is it unrebutable by the defendant (granted a tricky proposition rebuting how someone feels)?
2 )Is the statement similar to sworn testimony, such that false or deliberately misleading statements would subject the person providing the statement to perjury charges? Is there any incentive for the victim to not inflate issues or outright lie?
3) If it were determined later (presuming the statement was not available to the defendant for fact verification at sentencing) that it was factually incorrect or had unverifiable statements, would the defendant be permitted at least a new sentencing hearing? (again, incentivising the victim to stick with verifiable facts)
1.16.2008 11:51am
Student:
I'm relieved I'm not the only one a little queasy over a victim's impact statement, just as it bothers me to have judges consider "aggravating factors" in sentencing when those factors weren't proven at trial. If it is going to affect the sentence it ought to be subject to the rules of evidence and the criminal standard of proof, subject to cross examination and the whole nine yards. Otherwise the protection of the jury trial is gutted.
1.16.2008 11:53am
Dave N (mail):
I look at victim impact statements as being the victim analogy to the defendant's right of allocution.

While my state allows victim impact statements to be unsworn, when the victim is testifying to factual matters (the amount of restitution owed, for example) then I believe the better policy is to put the victim under oath.

In my state, even otherwise inadmissible evidence can be introduced at sentencing, as long as the evidence is not "suspect or highly impalpable." I also trust a judge to cut through the chaff in making sentencing decisions.
1.16.2008 12:01pm
Adam J:
Lior- Capital cases is the only example actually.
1.16.2008 12:04pm
Ken Arromdee:
Given some of the research suggesting that people who have compassionate loving thoughts are happier I wonder if merely getting into the revenge business might make people less happy (even if they want it).

The way to maximize happiness for the victim is to inject him with opium for the rest of his life. If hypnosis actually worked as it does in movies, we could even hypnotize the victim to forget that he's a victim. That would certainly increase his happiness.

We don't do things like that because we don't really consider maximizing happiness to be good. We value other things such as facing our problems and dealing with unpleasant truths. We even have a word for not doing that--it's called "denial". A victim who wants what you call revenge is expressing a preference to avoid denial, even if denial is more pleasant.
1.16.2008 12:04pm
PatHMV (mail) (www):
In general, it seems to me that "victims rights" seems to be about the feelings of the victims. Perhaps by giving them an opportunity to confront the criminal, perhaps by giving them the ability to praticipate in the prosecution. But this seems to me to be a misuse of these proceedings. Sentencing, parole, and pardon hearings are all about the criminal. Using them for other parties' therapy is rather unfair. Meeting with the prosecutor -- fine. Testifying at a hearing -- only if they can offer relevant factual information.


It's not in the slightest unfair. Part of "justice" is making whole, as best as can be done, the person against whom the crime was committed. There are two reasons for that. One is for the victim, for the reasons I've noted earlier. Two is for the criminal. I've seen a LOT of criminals, and in my experience, the difference between the truly rehabilitated ones that aren't likely to commit more crimes and the others is that the rehabilitated ones have come to understand just why what they did was so bad, just what a terrible impact it had on the victims. At the heart of most criminals is a supreme selfishness, a lack of empathy and understanding of the consequences of their actions on others. Being confronted by the victim, hearing from the victim first hand, can be a key component of reaching that criminal, of turning him around.

The factual question of guilt or innocence should certainly be decided dispassionately. No person should be convicted of a crime based solely on an emotional appeal to punish "somebody." But once that guilt has been dispassionately determined, the punishment for the crime must take into account the actual harm that he caused.
1.16.2008 12:07pm
Adam J:
Student- Judges have long held great discretion when deciding criminal sentences. I think having aggravating &mitigating factors that the judge has to enumerate is actually a good thing, because it requires the Judge to articulate just exactly what has gone into his decision, giving far more transparency into the sentencing process &limiting the arbitrary nature of sentences.
1.16.2008 12:08pm
Adam J:
PatHMV - wow, this might be the first time I agree with you on these boards. Nice set of posts.
1.16.2008 12:18pm
ejo:
I'll be crass-I pay taxes to fund prosecutors and US Attorneys. While the concerns of the victim/survivor are important, the prosecutor is not their lawyer. I want the prosecutor to act as an attorney for society, not private counsel for a crime victim (or alleged crime victim-I see instances where the victim advocate wants to get involved in pre-conviction situations, with veto power over the plea deals). The justifications I see for post-conviction involvement don't extend to involving them pre-conviction. Unless they want to fund the prosecutors themselves and not use my tax dollars, I don't think their role should be any greater than any other citizens.
1.16.2008 12:19pm
Philistine (mail):
Allowing victims discovery does seem a bit overboard to me. If victims are allowed discovery—should the criminals be allowed to seek discovery of the victims to attempt to rebut either their testimony or their status as a victim?

If parents were estranged from a child (or suppose one or both had sexually abused the child)—is that discoverable in a murder of a child case to allow the suspect to either argue they should not be considered "victims" or rebut their impact testimony?
1.16.2008 12:29pm
PatHMV (mail) (www):
Adam, thanks.

ejo... have you been the victim of a crime? Has anybody you know been a victim of a serious crime? Why are THEY paying tax dollars? When you're a taxpayer and you've been paying taxes out the yin-yang for your entire life, and suddenly you're the victim of a crime and the prosecutor seems more concerned about "the system" and some abstract set of principles rather than righting the wrong done to you, then suddenly you REALLY wonder what you've been paying taxes for.

Ken Arromdee... Would you tell a rape victim to her face to just "get over it"? Tell a mother whose son has been gunned down to just forget about it and move on with her life? It is certainly possible to move past even such horrible events, but not by just flicking a switch. Confronting the criminal, seeing first hand that he is no longer a threat to you, is part of the process which allows the victim to "get over it" and move on with their lives.

As I suggested earlier, many victims just want to be listened to. They understand perfectly well that the guy can't be drawn and quartered just to make them feel better. But they expect, and deserve, to be a part of the process, to be heard. That's what courts are all about, giving each of us who have had wrong done to them an opportunity to be heard. In my experience, if you give someone a chance to be heard, even if ultimately you aren't able to give them what they want, they go away from the experience more or less satisfied, because they feel they "had their day in court."
1.16.2008 12:31pm
Ralph Phelan (mail):
Unless they [victims] want to fund the prosecutors themselves and not use my tax dollars, I don't think their role should be any greater than any other citizens.

Maybe they should be given that option, in cases where the prosecution is going to drop or plead down their case due to lack of resources. It would open a can of worms, of course.
1.16.2008 12:35pm
Ralph Phelan (mail):
seeing first hand that he is no longer a threat to you, is part of the process which allows the victim to "get over it" and move on with their lives.

This can be achieved by watching him get ahuled away after the guilty verdict.

BTW, I fully support laws to keep victims informed of the progress of their case, and of what happens to the person who victimized them (particularly when he's getting released.)
1.16.2008 12:38pm
PK:
Adam J. and Lior: And technically it's kind of misleading to suggest that juries have discretionary sentencing authority in capital trials, given that their role is limited at the sentencing stage to finding aggravating and mitigating factors and they don't have the discretion to impose a sentence of, say, 30 years instead of death.
1.16.2008 12:40pm
PatHMV (mail) (www):
Ralph, no, it really can't, based on my observations and experience, any more than a criminal's right to confront his accuser can be satisfied by allowing an affidavit into evidence.
1.16.2008 12:45pm
Philistine (mail):

Lior- Capital cases is the only example actually. [Ed: of sentencing by a jury]



Actually, there are a few (5 or 6, IIRC) States which allow jury sentencing in non capital felonies.
1.16.2008 12:48pm
alias:
PatHMV writes:


As I suggested earlier, many victims just want to be listened to. They understand perfectly well that the guy can't be drawn and quartered just to make them feel better. But they expect, and deserve, to be a part of the process, to be heard. That's what courts are all about, giving each of us who have had wrong done to them an opportunity to be heard. In my experience, if you give someone a chance to be heard, even if ultimately you aren't able to give them what they want, they go away from the experience more or less satisfied, because they feel they "had their day in court."



This is true, but why must the victims' day in court be in the form of participation in the criminal trial, including discovery and motion practice and that sort of thing? Why can't they get their day in court through a civil suit or in the proceedings concerning restitution?

As for the part about victims needing to be listened to and heard, that's also certainly true, but why must they be heard by a court and by the perpetrator instead of, for example, by a therapist or counselor of some kind?
1.16.2008 12:48pm
PatHMV (mail) (www):
Well, I don't know that they need discovery and motion practice. But why, when their tax dollars are being used to prosecute the criminal based on the crime he committed against them, shouldn't they be allowed to participate at the sentencing phase of the criminal case? Why should they, having spent all those tax dollars to a government whose police forces didn't keep them from getting robbed or murdered, have to fork over thousands more to a private lawyer to sue a deadbeat, broke criminal?

As to your last question, because the perpetrator is the one who did the wrong. I think it's safe to say that most therapists recommend confronting, in some fashion, the people you feel have wronged you. Telling a therapist "I feel powerless after the stranger broke into my bedroom and raped me" is very, very different from looking the rapist in the eye and saying "you raped me you son-of-a-bitch, and that made my life hell, but you have no power over me now because you're going to rot in jail for the rest of your life, you rotten piece of garbage." One is cathartic, actually helps you get the anger out of your system and move on, the other is not. As to why the court should hear? For all the reasons I've given previously in this thread.
1.16.2008 12:54pm
Bob from Ohio (mail):

So there you have it — we will be back to the Tenth Circuit shortly, asking for rehearing on the question of whether crime victims should be rendered second class citizens in the federal courts — lacking ordinary appellate review of their claims — and seeking review of Judge Kimball's decision to deny the Antrobuses any information about whether Hunter and Talovic discussed a bank robbery during the gun sale — again, a right that other litigants routinely receive.


Kinda sums up the whole emotion only arguments for victim rights.

The Antrobuses are not litigants in the criminal proceding. File a civil suit and they can get discovery like any other litigant.

The Antrobuses got a Court of Appeals panel to decide their case within 72 hours. How many parties in Federal Court get that speed of action?

Congress passed a law so the courts will have to deal with cases like this even though it is a total waste of judicial resources. It is an uncommonly silly law though, even for Congress.
1.16.2008 12:55pm
PLR:
At 1:21...
But Congress passed an ambiguous statute, and the case could have gone either way.

With the relevant statutory language being that the victim must be "directly and proximately harmed" in the conjunctive, I have to agree with the Court of Appeals. Proximate harm is present, but direct harm is not, especially given the passage of seven months' time.

Normatively speaking I think victims' rights are a nice thing to have, even though they don't seem essential to a functioning criminal justice system.
1.16.2008 1:00pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 01/16/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
1.16.2008 1:00pm
Dave Barry:
Does anyone else think "The Antrobuses" would be a great name for a rock band?
1.16.2008 1:05pm
CrimsonTribe:
I recognize that it's a state-by-state basis, but generally speaking, what rights do crime victims have to restitution? How often do crime victims (or their families) seek civil relief?

Maybe one possible pro-victim reform could be making it easier and cheaper to pursue civil actions against the criminals and more likely that victims collect on awards. I tend to agree that the role of the prosecutor should only be to look out for the interests of society in general. Still, I feel there should be some avenue for crime victims to confront the criminal and get redress for damages.
1.16.2008 1:05pm
Adam J:
Philistine - That's right, I heard about that. I've heard it generally works pretty poorly, as juries inevitably believe that the crime as juries have no experience whatsoever evaluating whether the crime in front of them is more or less severe then other crimes.
1.16.2008 1:07pm
Francis (mail):
PatHMV:

It seems to me that you are conflating two very separate concepts:

1. Confrontation. You believe that the justice system should include a step, presumably post-conviction, in which the victims can tell the defendants (and someone else -- judge, parole board, prosecutor, whoever prepares the pre-sentencing report) about the impact of the crime on their lives.

OK, I guess.

2. Sentencing: You also believe that the impact of the crime on the victims should be taken into account.

Absolutely not. That is the role of the legislature. If the State wants to establish different categories of crimes based on the net worth of the victim, or the emotional weakness of the victim's family, that needs to be done through legislation, not through appealing to a judge's emotion.

Personally, I would not want the justice system to discount a rapist's time simply because the victim was a prostitute. The unsavory nature of the victim should not work to the benefit of the criminal.
1.16.2008 1:09pm
PatHMV (mail) (www):
Francis... the legislature has recognized that one size does not fit all crimes by allowing for a range, sometimes a very large range, of sentencing options for a given crime. In Louisiana, for example, armed robbery is punishable by from 1 to 99 years in prison, with the discretion left entirely in the hands of the sentencing judge. It's not possible to categorize before hand all the different ways that a particular crime could be unusually harmful, horrendous, or wrong. This isn't just about "emotion." We as a society make value judgments like that all the time. It is worse, in the eyes of most people I suspect, that the burglars targeted my parents' home to take advantage of their being out of town because my infant sister was being buried. Legislation can't be so specific as to account for that, but that doesn't mean that it's merely "emotion" to view that as a worse crime than breaking into a home which is unoccupied because the owners are on vacation. It's a matter of value judgments.

I would point out, too, that this thread began with Professor Cassell's post about the interpretation of legislation passed by Congress expressly stating that the victims have certain rights. Most legislators of late have been pretty clear in declaring that the impact of the crime on the victim SHOULD be taken into account. Opposition to this comes not from the legislature but from defense attorneys and some judges and prosecutors, who view it as intruding on their turf.
1.16.2008 1:17pm
alias:
PatHMV writes:

I would point out, too, that this thread began with Professor Cassell's post about the interpretation of legislation passed by Congress expressly stating that the victims have certain rights.


1. This is what Prof. Cassell said initially:

So there you have it — we will be back to the Tenth Circuit shortly, asking for rehearing on the question of whether crime victims should be rendered second class citizens in the federal courts — lacking ordinary appellate review of their claims — and seeking review of Judge Kimball's decision to deny the Antrobuses any information about whether Hunter and Talovic discussed a bank robbery during the gun sale — again, a right that other litigants routinely receive.

I haven't read the opinions on the other side of the circuit split, but the Tenth Circuit's opinion seems correct--when Congress uses terms like "mandamus," it generally means those terms to apply with all of the attendant legal baggage including the standard of review. Perhaps this means that victims are "second-class" parties to criminal cases, but why shouldn't they be?

2. PAtHMV also writes:

Most legislators of late have been pretty clear in declaring that the impact of the crime on the victim SHOULD be taken into account. Opposition to this comes not from the legislature but from defense attorneys and some judges and prosecutors, who view it as intruding on their turf.

With the possible exception of Bruce, I think many people agree that the victim should have some role (and that the CVRA gives them a role), and the debate is about how extensive that role should be, and under what circumstances the victim's wishes should trump the prosecution's or the accused's wishes. I would imagine that opposition to the victims' rights movement comes, not only from people protecting their turf, but also from people who think that the purpose of the criminal court system isn't personal catharsis.
1.16.2008 1:39pm
hattio1:
Adam J and PatHMV,
I second what other commenters have been saying. The victims may feel a need to confront the wrongdoer, but why should that play a part in what the system does? The question is, does it advance the cause of justice? You believe it does because you see justice as including how the victim is treated. I have to disagree with you. Again, civil suits are available (though of course, many defendants are judgment proof).
Secondly, PatHMV, you say you were a prosecutor and how important victim involvement is. Did you consider it just as important when the victim did not want to press charges or wanted the charges dropped? Unless you're different than every prosecutor I've known, the answer is no. And that's the problem, for most prosecutors, the victims statements are only important when the victim is saying exactly what the prosecutor wants them to say. When the "victim" is cooperating with the defense, all of a sudden they become much less important.
So, for all those who want victim impact statements and for the victim to have a place at the trial, how about making it fair? How about requiring the prosecutor to drop the charges when the victim wants that? Sauce for the goose and all.

Finally, one last point. Somebody said that the victim only has a place post-conviction. At least in my jurisdiction, this is not true. Specifically the prosecutor is required to attempt to contact the victim before a change of plea (COP). Even though by statute, the DA is only required to make "reasonable" efforts, I've had judges continue COP because the victim was not reached....even when the agreed to sentence was already served.
1.16.2008 1:47pm
Mike G in Corvallis (mail):
In general, it seems to me that "victims rights" seems to be about the feelings of the victims.

Well, yeah. But is the unwanted, forcible induction of extremely unpleasant feelings something that should be discouraged and/or remediated? To tie in another perennial topic:

In general, it seems to me that "waterboarding" seems to be about the feelings of the victims.
1.16.2008 1:48pm
Dave N (mail):
Adam J. and Lior: And technically it's kind of misleading to suggest that juries have discretionary sentencing authority in capital trials, given that their role is limited at the sentencing stage to finding aggravating and mitigating factors and they don't have the discretion to impose a sentence of, say, 30 years instead of death.
No, not quite. In most jurisdictions the the jury in a capital trial has two tasks at sentencing: 1) determine whether statutory aggravators outweigh any and all mitigation; and 2) even if the aggravators outweigh the mitigation evidence, determine whether the defendant should be sentenced to death.

I would note that if the jury finds that mitigation outweighs aggravation, the inquiry ends with respect to death eligibility. I would also note that if the jury decides a defendant should not be sentenced to death, it either imposes the sentence itself or makes a recommendation as to what the sentence should be other than death.

With respect to the remainder of the posts--PatHMV has expressed my views eloquently. Consequently, I will resist all urges to bloviate.
1.16.2008 2:05pm
Lior:
@Dave N:
I look at victim impact statements as being the victim analogy to the defendant's right of allocution.

Isn't sentencing supposed to be about the defendant? If the victims have information about the defendant or about the crime, then they should certainly provide it. Information about the victim which is not directly connected to the crime cannot be relevant to considerations about the punishing the defendent, unless:

@PatHMV:
Part of "justice" is making whole, as best as can be done, the person against whom the crime was committed.

Are you seriously arguing that a criminal's sentence should be chosen, in part, to improve the feelings of the victims? That likeable victims deserve more "justice" than unlikeable ones?

@PatHMV:
That's what courts are all about, giving each of us who have had wrong done to them an opportunity to be heard.

Perhaps it's because I'm not a lawyer (not all opponents of "victims' rights" are criminal defense lawyers), but I thought that courts were about resolving conflicts? If you want to be heard you can convene a press conference, speak at the town square, distribute leaflets, publish a blog, write the criminal a letter, et cetera. The courts are there for a particular government function: resolution of disputes. Lawyers would have the public believe that unless you got to say it in court (while employing a lawyer), you didn't get your say (somehow it doesn't count otherwise). But this isn't the case. In fact, the victims can get their day in court by suing the criminal for damages.
1.16.2008 2:07pm
ejo:
there isn't a person out there who has not been somehow the victim of a crime, be it property or something else-so emoting about the poor victim really doesn't advance the cause much. I don't want to pay for the private crusades of victims. I don't want to give veto power over plea deals or the circumstances of a case to unaccountable victims. hattio1 hit the nail on the head as to the degree that prosecutors use "victims" for their own purposes. I can give one concrete local example here in Illinois-the alleged victim in R. Kelly's case is not interested in prosecuting him and will not testify at his case. Shouldn't the prosecution, under this system of privatizing the criminal justice system, drop all charges?
1.16.2008 2:11pm
Adam J:
hattio1- why shouldn't justice include seeing how badly the victim was harmed by the crime?
1.16.2008 2:16pm
Dave N (mail):
PatHMV, you say you were a prosecutor and how important victim involvement is. Did you consider it just as important when the victim did not want to press charges or wanted the charges dropped? Unless you're different than every prosecutor I've known, the answer is no. And that's the problem, for most prosecutors, the victims statements are only important when the victim is saying exactly what the prosecutor wants them to say. When the "victim" is cooperating with the defense, all of a sudden they become much less important.
I can't speak for Pat, but I can speak for myself as a prosecutor.

There are two distinct issues here. First, when crime is committed, society has been wronged. Thus, the prosecution is acting as society's agent in bringing the case forward. I stated in my initial post that I do not think that victims should have a veto over a prosecutor's decision, one way or another.

That said, victims should have a right to be heard at sentencing, regardless of viewpoint. I am fully aware of victims in capital sentencings who have said something along the lines of, "Killing Mr. Defendant wlll not bring my loved one back, and I am asking you not to sentence Mr. Defendant to death." Yes it is rare, but it has happened.

I have personally observed victims, when the defendant was a family member or a former friend, say, "I have forgiven Mr. Defendant, please do not put him in prison."

In at least one instance, I heard the victim make that kind of statement and I asked for prison anyway. But just because a victim is going to say something that I, the prosecutor, does not want them to hear does not detract from the victim's right to say it and be heard.
1.16.2008 2:16pm
Dave N (mail):
Lior,

I agree that sentencing is about the defendant. However, part of the sentencing calculus has to be the crime and how that crime impacted others--particularly the victim.
1.16.2008 2:22pm
Dave N (mail):
I stated in my initial post that I do not think that victims should have a veto over a prosecutor's decision, one way or another.
Actually, it was my second post, at 11:05 am, just in case someone was checking me for consistency.
1.16.2008 2:32pm
TruePath (mail) (www):
Another point to be made (suggested by some above comments) is that keeping people in prison is damn expensive. I'm willing to pay for prison so long as it serves a deterrent value to keep people safer but I certainly don't think the government (and hence us) ought to be paying to keep people in prison longer just because some sympathetic victim demands it.

Like it or not criminal complaints are brought by the state and as the history lesson above pointed out have come to be viewed as a matter of public (not private) good. If people want a chance to get up and explain how much they were hurt or what not let them bring a private action but they sure as hell shouldn't be able to make me pay up to satisfy their desire for revenge.

Anyway this isn't my primary objection to the practice but it's something that I thought the libertarians here might appreciate. Also I should add that I'm also not a lawyer of any kind (certainly not criminal defense) and I'm strongly opposed to the practice.
1.16.2008 2:44pm
hattio1:
Dave N says;

I stated in my initial post that I do not think that victims should have a veto over a prosecutor's decision, one way or another.
Actually, it was my second post, at 11:05 am, just in case someone was checking me for consistency.


See ladies and gentlemen, he's a liar and you can't trust anything he has to say.

On a more serious note, you acknowledge that you have asked for jail even when the victim didn't want any. And that's the problem. The discretion is all up to the prosecutor. And what that means in practice (at least in my jurisdiciton) is that a prosecutor will state they "can't" give a particular deal because the victim is too upset about it and they have to consider their feelings. But, if the victim doesn't want charges pressed, the victim can't get their calls returned by the prosecutor. In short, the prosecutors use the victim as a scapegoat when both the prosecutor and the victim want a harsh sentence. But, when the prosecutor disagrees with the victim, there might as well not be a victim's rights statute, calls go unreturned, etc.
1.16.2008 2:52pm
Lior:
Dave,

I think we seem to disagree about the definition of "the crime" for the purposes of sentencing. How can fact that were not known to the criminal and did not affect the crime be considered part of "the crime"? Are crimes against popular, well-liked people really more serious (that is, should incur harsher penalties) than crimes against unpopular, unfriendly people?

Say an armed robber kills a gas station attendant. This is a "crime". Now assume that the attendant was either a well-liked family man who regularly attended church, or a wife-beating blasphemer who was generally reviled by the community. Certainly in the first circumstances society's loss is greater, but I find it hard to understand how the second circumstances make for a different "crime", and even harder to accept the argument that the first life was somehow "worth more" to society so that its ending deserves a harsher punishment.

I could continue working in my profession even if I became disabled. Does that mean that beating me is less seriuos that beating someone who would lose their job?

The example of the victim saying "I have forgiven Mr. Defendant, please do not put him in prison" speaks volumes. The victim here is advocating against the interests of the rest of society (as represented by the best judgement of the prosecutor and the judge) -- based on his or her emotional feelings about the defendant. I don't want criminals to be released early (or late) based on whether their victims found it in their heart to forgive them or not. If the victim wants to be heard, he can take out an ad in the newpaper or protest in front of the courtroom -- inside the courtroom they should have all the privileges that any member of the public gets except that they should be guaranteed a seat.
1.16.2008 3:00pm
Ralph Phelan (mail):
I don't want to pay for the private crusades of victims.

But how about we let them pay for their own?
1.16.2008 3:04pm
Dave N (mail):
Hattio1 and Lior,

In an earlier post, someone noted that stealing $300,000 from Donald Trump was, from a societal standpoint, less serious than stealing $300,000 from someone when that was the victim's life savings. How a crime impacted the victim is certainly relevant, particularly in the retributional aspects of sentencing.

Additionally, I think a prosecutor who does not give victim services because he disagrees with the victim's viewpoint should be ashamed of himself. In my specific example, I knew exactly what the victim was going to say before the victim said it--but I still felt the victim had a right to be heard. At the appropriate time I informed the court that the victim wished to be heard and called the victim forward to say it.

I tell victims that I am not their attorney and that they might not like the decisions I make in a case. I will certainly sit down with the victims and explain why I did what I did and even politely listen if they disagree or want to vent.

But I also tell them that they have a right to be heard at sentencing and I will honor that right, regardless of what the message might be.

A little bit of empathy and a little bit of communication can go a long way with victims. Making the victim feel like he has been victimized a second time by the system is counterproductive to not only my job but to the concept of justice.
1.16.2008 3:22pm
David M. Nieporent (www):
In particular they seem, especially in cases like this, to undermine fundamental principles of justice and fairness. Most importantly the idea that people who commit the same crime should do the same time. The guy who sold the gun in this case did no more wrong than any other guy who sold a gun to a minor to use in a bank robbery so why should he do more time because he (unforeseeably) happened to be the one who sold it to the mass murderer.
The guy who walks up to someone he doesn't like and shoots him in the chest gets punished more harshly if the victim dies than if the victim survives, even if the difference in outcome is due entirely to the competence of the EMS crew that responds to the scene of the shooting. They've done the same thing, but we treat it differently. Is that "unfair"? (Yes, I know you said "same crime," and this isn't, but that's purely due to luck, not to anything the defendant did.)

We've never focused in our system purely on mens rea without regard for the effect of the criminal's actions.
The reason we punish people who sell guns illegally in the first place is because of the risk they will be used to kill someone thus without the victim impact statement they are already being punished for the risk that their act would lead to horrible consequences. It's deeply unfair to punish two people who put the public at the same risk differently because in one case the risk actually materialized.
We treat drunk drivers who hit someone differently than drunk drivers who navigate the road successfully, even though the difference is whether the risk materialized rather than whether the driver put the public at risk.
1.16.2008 3:26pm
David M. Nieporent (www):
TruePath:
Note that my real problem here is that it is a victim impact statement. In general the way a court should work is to present the evidence in the most probative and least inflammatory fashion possible while here we are doing the opposite. Presented with abstract facts (this criminal choose to steal from elderly retirees) we can abstract away our biases or the sympathetic pull of unforeseen consequences of the criminals actions. On the other hand tear filled statements of victim impact make it almost impossible to ignore the emotional pulls of sympathy and feeling for the victim.
I agree with you -- or I would, if the victim impact statements were for use during the guilt phase of a trial. But I don't see why any of your considerations apply during sentencing.


GV:
Why is appellate review a one-way street here? An alleged victim gets to request a writ, but the defendant doesn't? And the alleged victim is entitled to a decision with 72 hours? The defendant gets neither of those two protections, so who is being treated like a second-class citizen?
Hopefully, the convicted criminal, who is a second-class citizen.

Your comments, like TruePath's, seem to fail to distinguish between a criminal defendant, who is entitled to respect for all his rights just like everyone else, and a convict, who isn't. (Of course, the conviction could be overturned on appeal, but then whatever enhanced sentencing might have resulted from the victim impact statement would be moot.)
1.16.2008 3:31pm
hattio1:
DAveN says;

In an earlier post, someone noted that stealing $300,000 from Donald Trump was, from a societal standpoint, less serious than stealing $300,000 from someone when that was the victim's life savings. How a crime impacted the victim is certainly relevant, particularly in the retributional aspects of sentencing.


Are you telling me that if the life savings guy didn't come to sentencing you wouldn't make the point that its his life savings...of course you would (assuming you are the prosecutor). It's almost like we have an adversarial system of law that relies on the the advocates to make points. So, no, disparate impact doesn't justify this (unless you're proposing that DA's are often so incompetent this info doesn't get considered). What does the victim add that the DA can't provide besides emotion? If you can convince me the victim adds something, I will be more convinced about "victim's rights." Until then, I will see them as something pushed mostly by the DA's, and written wishy washy enough so that they can ignore the victim when they want.

PS. I'm not accusing you of ignoring the victim. I'll take you at face value when you say you don't. But, honestly, don't you think you are the exception rather than the rule.
1.16.2008 4:01pm
PatHMV (mail) (www):
What Dave N. said. I've never said that the victim should be able to dictate the punishment, just that they have a right to have their views heard and considered. Like Dave N., the victim is not there just to support the prosecutor, and it's a sorry prosecutor who would only allow a victim impact statement that says what he wants it to say. Most prosecutors I've know would be appalled by the idea of denying a victim the right to speak just because they don't say what the prosecutor wants.

Lior said:

Say an armed robber kills a gas station attendant. This is a "crime". Now assume that the attendant was either a well-liked family man who regularly attended church, or a wife-beating blasphemer who was generally reviled by the community. Certainly in the first circumstances society's loss is greater, but I find it hard to understand how the second circumstances make for a different "crime", and even harder to accept the argument that the first life was somehow "worth more" to society so that its ending deserves a harsher punishment.


I've never seen a murder victim yet who wasn't loved by somebody. And even if you find one who wasn't, you've still got the prosecutor there, speaking both on behalf of the dead and of society. Just because the relatives of the well-loved man are given an opportunity to speak doesn't always mean that that criminal will be given a harsher sentence. Besides, in our society we don't arbitrarily handicap people just to make them 100% "equal." It's not the family of the good man's fault that the bad man has no relatives to speak for him; why should they be denied the right to be heard just because some murder victims may be less sympathetic?

The fundamental philosophical difference we seem to be having here is over the very purpose and nature of the system of criminal justice. In my view, it exists not just to protect "the king's peace," but also to stand in place of the private vengeance which would otherwise be meted out in the absence of a government. Certainly experience has taught us that it is wise to reduce the role that emotion plays in the justice system, to reduce the role of a "revenge" mentality, but reduce and eliminate are two different things. That some factor should be reduced in importance does not mean it should be eliminated.

As a matter of simple human nature, if enough people in society feel, on a gut level, that the criminal justice system is not rendering them "justice" when they are the victims of crimes, then those people are more likely to seek to take the law into their own hands, or to find other institutions to fulfill their desire for justice.

The criminal justice system exists, in part, to take the place of private vengeance. It is, therefore, appropriate to give voice to the personal concerns of those affected by the criminal's actions. He can easily avoid exposure to the emotional whims of victims simply by not committing any crime in the first place.
1.16.2008 4:25pm
PatHMV (mail) (www):
hattio,

There certainly is a problem with some DAs and victims' rights. There are plenty who don't really care about them. But those DAs are not usually advocates for "victims' rights." They tolerate such movements, at best. Advocates for victims' rights often have to fight the DAs as well, both politically and with individual cases. Such advocates are not in anyway stooges for the prosecutors. They want the DAs to take their concerns and their rights more seriously as well.
1.16.2008 4:29pm
ejo:
the victim rights advocate is usually employed by the State's Attorney or DA. you might make the claim they are not "stooges" for the DA but he/she signs their checks. the victim has the police, the prosecution, and the prison system all there to take arrest, charge, prosecute and imprison a convicted defendant. to say that is not enough, that we need to impose more bureaucratic levels and litigation avenues for victims (or alleged victims) is ridiculous.
1.16.2008 4:37pm
PatHMV (mail) (www):
ejo, I was not talking about the official "victims right advocates" employed by the DA. You're right about that; usually they assign that duty to some secretary or investigator so that they can get some federal grant money. I was referring to those people, like Professor Cassell, who advocate publicly for greater rights for victims of crimes. Those people are not stooges for the DA, because they often have to fight the DA to get more input for the victims.

The police, the prosecution, and the prison system are not at all there for the victim in many cases. Too many of them couldn't care less. The prison system looks for ways to not bother to notify victims when the criminals who attacked them are released. Many departments of corrections are strongly in favor of all sorts of early release programs to reduce pressures on their budgets. The police and the DA want to "clear the case" and get a conviction stat on their records. Actually meeting with, listening to, and demonstrating any concern for the victims is a much lower priority for them.
1.16.2008 4:44pm
ejo:
that's an interesting critique of the system and likely true-changing the listed shortcomings would certainly be worthwhile but would require real work, not just an amendment or statute that adds another layer of bureacracy. If the folks supposedly there for the "victim" don't do their job, make them do it-don't expand what will become another bureaucracy.
1.16.2008 4:54pm
Ralph Phelan (mail):
I often disagree with PatHMV, but I think this is dead on:
The fundamental philosophical difference we seem to be having here is over the very purpose and nature of the system of criminal justice. In my view, it exists not just to protect "the king's peace," but also to stand in place of the private vengeance which would otherwise be meted out in the absence of a government. Certainly experience has taught us that it is wise to reduce the role that emotion plays in the justice system, to reduce the role of a "revenge" mentality, but reduce and eliminate are two different things. That some factor should be reduced in importance does not mean it should be eliminated.

As a matter of simple human nature, if enough people in society feel, on a gut level, that the criminal justice system is not rendering them "justice" when they are the victims of crimes, then those people are more likely to seek to take the law into their own hands, or to find other institutions to fulfill their desire for justice.

I'm not sure victim impact statements are the right way to address this legitimate concern, but it is a legitimate concern.
1.16.2008 5:05pm
hattio1:
Just a note.
In my jurisdiction the victim rights attorney are an employee of the state, but they are not in the same department as the DA. As a practical matter they work hand in hand. But, they are an employee of a separate arm of the state (just like I am as a Public Defender).

As another matter, PatHMV says;

As a matter of simple human nature, if enough people in society feel, on a gut level, that the criminal justice system is not rendering them "justice" when they are the victims of crimes, then those people are more likely to seek to take the law into their own hands, or to find other institutions to fulfill their desire for justice.



As a matter of simple human nature, if enough people believe that the criminal justice system is stacked against the criminal defendant, and doesn't give the defendant a fair shake, they are going to be less likely to call the police when they are a victim, less likely to call as a witness and less likely to submit without violence when they are arrested. When the criminal justice system is seen as harsh unfair and arbitrary, there are very real societal costs. Increasing the number of people/agencies that are on the State's "side" increases the harshness and unfairness of the criminal justice system. In most places, you already have the DA's office, the law enforcement agencies, the probation office/Department of corrections, and (in the eyes of most people, and in reality in some places) the "neutral" court system. How many more advocates does the State need on their side?

And PatHMV, you still haven't answered my question; assuming the DA is a competent advocate, what does the victim add besides emotion?
1.16.2008 5:13pm
Ken Arromdee:
Ken Arromdee... Would you tell a rape victim to her face to just "get over it"? Tell a mother whose son has been gunned down to just forget about it and move on with her life? It is certainly possible to move past even such horrible events, but not by just flicking a switch. Confronting the criminal, seeing first hand that he is no longer a threat to you, is part of the process which allows the victim to "get over it" and move on with their lives.

You appear to be agreeing with me.
1.16.2008 5:39pm
PatHMV (mail) (www):
Perspective. A potentially different set of values. Facts about the real impact the crime has had. An independent source of unfiltered information, that can't be cherry-picked by the DA to suit his political or other needs.

You're certainly right in your re-writing of my "simple human nature" paragraph, as well. The defendant should (and of course has many opportunities to) be heard. I've got no philosophical objection to hearing from the defendant's dependents about the effect his or her incarceration will have on them. I've seen several cases where sentences have been adjusted, or staggered, to minimize the harm to, say, a convicted couple's innocent children. I've found that perspective very helpful in evaluating pardon applications, for example.

And nobody is arguing for another voice for "the state." We're arguing for one single voice for the victim, directly, not intermediated through any state-employed "advocate." Often times, yes, the victim is on the state's "side," but as others have noted not exclusively so. Sometimes the victim wants leniency, for reasons either noble or craven. Other times, the victim cares little for the sentence, but just wants a chance to confront the criminal. Often, the victim's most compelling desire is to ask "why" ... why they (or their murdered loved one) was chosen, why the criminal did what he did. The criminal cannot, of course, be forced to answer, but even asking the question helps most victims. And, as I said earlier, I support voluntary "restorative justice" programs which allow for such direct interaction between the criminal and the victims.
1.16.2008 5:42pm
PatHMV (mail) (www):
Ken, that depends. Your comment seemed to suggest that the victims should just get over it and that they have no legitimate interest or need to confront the criminal as part of the criminal justice process. I fundamentally disagree with that. There's a HUGE difference between telling somebody to "get over it," as you seemed to be suggesting, and telling somebody "here's some things you'll be allowed to do which will help you begin the process of healing from the damage done to you." If you agree that the victim has a legitimate role in the process, and that the process should help the victim begin the healing process by, among other things, confronting the criminal through victim impact testimony, then yes, we're in agreement. If, on the other hand, you're telling victims to shut up and get over it and not providing them with any rights in the processes which punish the person who hurt them, than no, we don't agree.
1.16.2008 5:47pm
hattio1:
PatHMV,
Well, needless to say, we disagree about whether perspective and a different set of values from the DA are worth mucking with the process. But as to your third reason, I guess I go back to my point. Why couldn't the facts about the real impact the crime has had be presented by the DA??? If the DA is talking to the victim, these facts will be provided. If the DA is not talking to the victim, the victim won't know when the sentencing is anyway (granted there are victim's rights notification systems in my state and many others....but virtually no one uses it).
1.16.2008 5:49pm
PatHMV (mail) (www):
Why should it be provided by the DA? The defendant has a right to speak on his own behalf at sentencing, why shouldn't his victim? We don't normally have trials by reading testimony from cold transcripts. As an advocate for the criminal, in many circumstances you might prefer to have real testimony from the victim. As has been noted, what if a survivor's tears are crocodile? A cold statement from the DA might sanitize that and give unwarranted credibility.

No, it's appropriate to hear from the victim directly. Besides which, as I've said repeatedly, victim impact testimony provides real benefits to the victims. As between criminals and victims, I say punish the criminals a bit more if it helps restore to the victims what was taken away from them by the criminal.
1.16.2008 5:56pm
ejo:
Well, the Constitution sets out certain rights that the criminal defendant has and can exercise before the State is able to put him away for up to the rest of his life (or even death, depending on the jurisdiction). the entire mechanism of the criminal justice system is geared toward doing just that-put away the criminal if, hopefully, guilty. the same protections aren't there and aren't enshrined for the victim (or, something I am much more troubled by, the alleged victim in a situation where a defendant is not convicted).
1.16.2008 6:06pm
Orielbean (mail):
I remember watching the trial of the BTK serial killer, and how the victims' families were able to make courtroom statements to him during sentencing. I remember most of the people being angry and vengeful as expected (understandably so). I also remember one of the men - he was older and looked sort of like Santa. He had rainbow suspenders on. He made an amazing statement forgiving the killer for what he did. During the process, the killer was making eye contact with each person as they came up and made the statement, and no emotion showed on his face. But when this one guy forgave him, I saw tears and vast sorrow on the killer's face. That was powerful to watch - you could finally see a dent in the psycho's armor had been made.
1.16.2008 6:22pm
Habeas Clerk:
This is perhaps only tangentially on topic, but, in my (admittedly anecdotal) experience, whether a death sentence is imposed in a murder case often hinges as much on who the defendant killed as what the defendant did. As a practical matter, the relative value of the deceased to society can be a silent aggravating circumstance.
1.16.2008 6:48pm
Pluribus (mail):
Gee whiz. This is quite a discussion! If I ever doubted that victims should have rights in criminal prosecutions, the stubbornly preposterous arguments made against them here have convinced me that they should.
1.16.2008 6:53pm
PatHMV (mail) (www):
ejo... nobody's talking about victim impact statements or testimony prior to being convicted. Prior to conviction, the alleged victims certainly should be kept in the loop, informed of what's going on, given an opportunity to give the prosecutor their opinion of a potential plea bargain, etc. As I've repeatedly said, I wholeheartedly agree that decisions of guilt or innocence of the crime charged must be made dispassionately, based on the evidence, with as little emotional involvement as possible. It's in determining the punishment that I believe victim input is appropriate and essential.

And true, the rights of the victim are not enshrined in the Constitution, but neither are they prohibited by the Constitution. Frankly, I suspect the role of the victim was so much greater 200 years ago that nobody would have ever even thought it necessary to ensure that the victim would have a say in the punishment of the criminal who harmed him.
1.16.2008 7:07pm
ReaderY:
There are societies that have sytems of justice where criminal law bears great similarities to civil law is in no small part a matter between two sets of families. Saudi Arabia comes to mind. And I mean this without prejudice; such a system may well lead to more just results in at least some cases, and one could easily devise a system dissociated from the use of amputations etc. as punishments.

But nothing requires us to adopt such systems, and we have a long tradition of doing things differently. Legislatures, not courts, should be the primary ones to decide if that tradition should chage.
1.16.2008 7:17pm
Ken Arromdee:
Ken, that depends. Your comment seemed to suggest that the victims should just get over it and that they have no legitimate interest or need to confront the criminal as part of the criminal justice process.

Please read more carefully.

I was responding to someone *else* who said that the victim should not confront the criminal because it makes the victim less happy. I pointed out that we don't consider happiness a goal in itself, and that refusing to do something because it makes you unhappy is denial. What makes you think I was arguing the other side?
1.16.2008 7:51pm
PatHMV (mail) (www):
Ken, my apologies. I misread the post you were quoting and so entirely misunderstood your point, which I do agree with.
1.16.2008 7:56pm
Milhouse (www):
Discussions like this get off on the wrong foot by always taking an extreme example like murder. I support victim rights laws, and I also support hate crime laws, but I think both are much more applicable to small crimes than to big ones.

Murders are going to be prosecuted with full zeal whether the victim's family is involved or not, and regardless of the criminal's motive. Texas sentenced James Byrd's murderers to death without a hate crimes law, and Wyoming would have done the same to Matthew Sheppard's murderers if not for his parents' plea for their lives to be spared.

It's the small crimes, the petty assaults and damage-to-properties that require such measures, because prosecutors are inclined to cut deals and clear the docket, and because motive can made a big difference in the appropriate sentence. From the dry perspective of damage to property law, tagging a building and painting a swastika on it are exactly the same. The crime is the same, the damage done is the same, it would seem that they should get the same sentence. And yet that's obviously ridiculous. The harm done by the swastika is far greater than that done by the tag. A tagger should be made to clean up his mess, or pay for it to be done professionally, and perhaps pay a small fine on top of that. Someone who paints a swastika on a building, with the intention of frightening Jewish occupants or passersby, deserves a much stiffer sentence because the harm done is greater. Hate crime laws help with that. Similarly giving the victim rights in such cases may prevent the DA from treating them too lightly, making them go away.
1.16.2008 8:20pm
TruePath (mail) (www):
PatHMV:

I agree with the commenter above who suggested that the bigger danger for the justice system is the chance that it will be perceived by people as biased and unfair. Already this is a problem with many minorities perceiving the justice system to be systematically biased against them sometimes to the point of glorifying refusal to cooperate with the police.

Given the potential of victim impact statements to further increase the disparity between sentences for white and black victims (people are more sympathetic to those who are more similar to them and judges are disproportionally white) I'm much more worried about this kind of corrosive effect.

David M. Nieporent:


I agree with you -- or I would, if the victim impact statements were for use during the guilt phase of a trial. But I don't see why any of your considerations apply during sentencing.


I don't see why this matters. The goal should still be to arrive at the most appropriate punishment for the defendants behavior. The big problem with victim impact statements is that they encourage us to confuse the expected cost to society for that kind of action with the harm that occured in this situation.

Let me give a hypothetical example. Suppose we deem it a felony to drive a school bus without a proper license. Now further suppose two school bus drivers are arrested for driving without such a license after they negligently park their buses on train tracks and the same number of children die in each case. However, in the first case the children were normal school children with families while in the second they were all orphans. Are you really saying that it's fair and good to punish the first guy more because his crime killed children with families?

I think you raise a very good point about laws the differentiate between attempt and success. I do think that some laws of this kind are unfair but for the most part these distinctions are justified by genuine considerations of deterrence.

I mean suppose attempted murder and murder resulted in exactly the same sentence and you'd just shot at someone and missed. You'd have every incentive to take the second shot since you wouldn't face any more jail time and you would reduce the chances of a conviction (or the chances that it would be for murder 1 rather than 2) by eliminating the best witness. Additionally attempted murders that don't succeed probably often indicate some level of reluctance or hesitation on the part of the attempted murderer.

While this sort of argument gives reason to admit facts that the defendant might have known or potentially have control over (say in the case in the post that the person he sold the gun to was apparently unstable enough to shoot people) but it gives no justification whatsoever to include a victim impact statement. Not only does such a statement obscure the line between facts that the criminal might have known and those he surely couldn't have known (did the guy he randomly shot at 500 yards have a loving mother) but it is a way to sneak in value judgments that we wouldn't tolerate in the law.

Let society dictate mitigating and aggravating factors in their laws but if society isn't willing to step up and say being an orphan makes your murder less bad than we should aim to punish killing an orphan just as severely.


Ralph Phelan:

You are going to make the victim's families pay for the extra time in jail their testimony brings about? That's the only way to avoid my paying for their revenge.

Ken Andromede:


We don't do things like that because we don't really consider maximizing happiness to be good.


I do. I'm a full on utilitarian and thus feel that maximizing happiness is the only (ultimate) justification for a particular policy. I wouldn't tell a rape victim to "just get over it" to their face because doing so would only make them mad and insult them not help them get over it. However, if denying them the chance to testify at trial would help them get over it then sure I support denying them that chance whatever they want.

However, this isn't the sort of thing we need to figure out by arguing over it. We can go out and do studies (if they haven't been done already) and see if victim impact statements help the victims or hurt them. But we certainly shouldn't waste the time and money (not to mention extra prison) for victim impact statements not to mention the potential unfairness just because we think that it might help the victim (except for small trials for study purposes). We should demand real scientific evidence first.

-------------

Ultimately I think the big question here is the following: Do you believe there is an objectively correct punishment for a given crime in a particular circumstance and society? I certainly do (the one that maximizes social welfare) and I suspect many others do as well. If so then the sentencing process should aim to achieve some optimal sentence which we should expect it will do better in the cold light of reason rather than under the influence of (random and often unfair) emotional demands for sympathy.
1.16.2008 8:24pm
Milhouse (www):
In addition, I think we should get rid of the fiction that all crimes are committed against "the king's peace", and the victim doesn't matter. I mean, talk about collectivism! The law should explicitly recognise that a crime is committed against a person, and the state prosecutes as the victim's agent. That means if the victim wants to drop the case, it should be dropped; it also means that the victim should have a veto over plea bargains, and if she insists on bringing it to trial then it should be brought to trial. Perhaps if the DA can show that the case is completely hopeless he can apply to a judge to allow a plea, but he shouldn't be able to do that on his own authority. (Of course if the DA isn't convinced the accused is guilty then he can't prosecute, but that's a different story.)
1.16.2008 8:26pm
PatHMV (mail) (www):
TruePath... if your "objective" criteria is the maximization of social welfare (which itself is inherently a subjective concept), then how can you deny the victims a role in the process and a voice? I've pointed out the harm that they suffer both from the crime and from being largely ignored and shut out of the criminal justice process. If you're going to perform an "objective" measurement, then you need to assign a value to the harm that goes to the victims from being denied a voice, from being told that their opinions are not relevant in determining the sentence of the criminal who harmed them, and then measure that against the values you've assigned to the harms that you are more willing to recognize. If you're going to be a utilitarian, then be a utilitarian and measure out the happiness of everybody involved.

As for "real scientific evidence," why do you put the burden on our side and not yours? Why don't you produce some scientific evidence that victim impact statements and testimony result in more inappropriate sentences. How about defining some objective criteria for determining what the "appropriate" sentence is?
1.16.2008 9:10pm
BruceM (mail) (www):
PatHMV, facts about the crime will be brought out by a half-decent prosecutor during trial, and those facts are not analogous to a victim impact statement. Now, whether the money stolen was the life savings of a WWI vet is absolutely irrelevant to any consideration. What I think your opinion boils down to is that it's worse to steal money from poor people than rich people, and the defendant should be punished based on the percentage of the victim's total assets he steals, rather than the amount of money he steals. That is NOT the way ANY legislature has created a theft statute. The level of the offense, from misdemeanor to first degree felony, is based on the AMOUNT of money stolen in every state in this this country. Ditto with the Federal Sentencing Guidelines. If legislatures wanted to take the amount of money stolen divided by the victim's total assets to get a figure for punishment, they have not. And I would argue that it would be unconstitutional to do so, because the defendant has no way of determining the victim's total assets prior to stealing the money, thus has no way of having constitutionally required notice of the possible sentence of the crime he intends to commit.

And that really boils down to essence of why victim impact statements are bad. We the people are put on notice of what potential penalties will result from our actions, the actions of our co-conspirators, and the actions foreseeably likely to result from those actions. If you and a friend both agree to rob a bank, with loaded weapons (but not shoot anyone), you are put on notice that you will be held responsible for the robbery, punished based on the amount of money stolen, and punished for murder/felony murder if anyone is shot during the robbery, even though you initially agreed not to shoot anyone. That is fair. But if the bank you chose to rob was going under, the owner's wife just died, running the bank was the love of his life, and the little old lady who now has PTSD from you and your co-defendant scaring her with the guns was the beloved grandmother of 15 children, five of whom have downs sydrome, well... that's not only irrelevant to the robbery, but unforseeable by the defendants. Yes, you take your victims as they are found, and the "eggshell rule" certainly applies. But that doesn't mean the victim's eggshell is relevant to sentencing. The defendants assumed the risk that a customer of the bank might drop dead from a heart attack at the sight of them screaming "THIS IS A ROBBERY! EVERYONE ON THE FLOOR!" But they did not assume the risk that the $200 they robbed from the wallet of a customer was her welfare money for that month, and she went hungry because the defenants took it.

Crimes are crimes, and are given a severity (little misdemeanor to bigtime felony) based on the ASSUMED impact on the victim. If two vitims are harmed, there will normally be two counts of the crime, to take into account the harm presumed to be done to both victims.

A wise federal district judge once told me that "You sentence people, not crimes." I firmly agree with that statement (which is why i oppose mandatory guidelines and mandatory minimums). The victim's unique sob story is irrelevant to the person being sentenced. And they have no right to speak it.

If private vengeance is wrong (which I think you agree with from your post), why is the penumbra of victim's rights not a form of private vengeance sanctioned by law? We could (and probably will) have a law allowing the victim to punch the defendant in the face, beginning with child-sex related crimes (let the father pop the defendant hard in the nose for raping his daughter). Then it will extend to all crimes. Yeah, I don't have much faith in our society. Why is that any different than letting the victim's (and again, who are "victims"?) stand up there at the defendant's sentencing, after the facts of the crime are read and admitted to by the defendant, to yell and scream and cry and give a sob story and demand the maximum sentence?

Why should we let more attractive, more apparently sympathetic victims, and victims who are better actors rather than worse actors, have MORE imput into the sentences of people who harm them? That hardly seems fair to me. And who is to stop a victim from lying his ass off in court? I could say I'm a Desert Storm vet, but I'm not. Though it would certainly make me more sympathetic. Do the defendants have an opportunity to cross examine me? Check the facts of my statement? No, they don't.

In addition, I'm quite bothered by the notion of "rights" against other people rather than the normal notion of rights against the government. Victims rights are "rights to harm someone else" (or at least, to act against their interests in official government proceedings). That's not a right. When we start treating vengeance as a "right" we've really screwed up, IMHO.

Finally, as someone else wisely pointed out, US Attorneys and AUSAs are paid by our tax dollars to represent the government, not the victims. If we've now entered a realm where victims all go out to hire their own lawyers to assure themselves of the maximum amount of participation in a criminal defendant's case, so as to acquire the maximum sentence for the defendant, well, that's just horrible, vindictive, purely retributive, entirely un-Christian (though I'm sure Christians will be the #1 customers of "victim's lawyers") for our so called "christian nation", and goes against every principle of the STATE punishing the defendant, not the victim. I've never had a case where the victim hired his/her own lawyer, though most "victim" crime cases I handle are at the state level, while most federal crime cases I handle are victimless (drugs, guns, etc). So maybe I'm not the best one to say how many victims hire lawyers to represent their "rights" against the defendant in federal criminal cases. I've certainly never had a state-level "victim" show up in court with an attorney.

Milhouse: if we're going to recognize that a crime is committed against a victim rather than against the government, is the victim going to be treated like any other party? Will the victim be a party opponent to the defendant for nonhearsay purposes? Will the victim have to sign all pleadings? Will the victim have to comply with the rules of evidence and procedure? Will the victim be able to be held in contempt or sanctioned like any other party? I just cannot disagree more with a "prosecutor as agent for victim" theory. That means the prosecutor really IS the victim's lawyer and owes the victim a fiduciary duty. That's INSANE, Milhouse.
1.16.2008 9:39pm
PatHMV (mail) (www):
That's just not so, Bruce. In the civil law, there's an old maxim, "you take your victim as you find him." If you, say, rear end somebody, you are responsible civilly for all the damages you cause, even if another victim wouldn't have suffered that same level of damages. It's called the "eggshell skull" theory. If the driver of the other car has a particularly fragile skull, and so dies when his head hits the dash, where most others would have only gotten a bruise, you're still legally liable for his death.

There's nothing particularly magical about the criminal law which mandates some other result. As I pointed out above, the legislature HAS taken into account that some "thefts" are worse than others, or that some "thieves" are worse than others, by providing for a wide range of potential punishments for any given crime (the example I previously gave is Louisiana law for armed robbery, which provides for a term of imprisonment from 1 to 99 years). The legislature has built in that discretion.

The criminal law is not just a contract, where you can choose to violate it if you're willing to pay the penalty. You are not to do those things, period, and if you do, you run the risk of the entire range of potential penalties. As a person "rationally" considering whether to commit a crime, you are fully on notice of the maximum potential punishment. You assume the risk of ALL of the consequences of your actions when you choose to commit a crime.

And yes, it is a more severe crime to rob $100,000 from a poor family than $100,000 from Donald Trump. In the latter case, Trump has suffered a harm of $100,000, the loss of which will not affect him personally in any way, shape, or form. In the former case, the criminal has (knowingly, in the example I gave) not only caused financial harm but severely and negatively affected the lives of the victims of that crime. Why do you believe that that is not something which society may properly punish?

Victims rights are personal rights. We have surrendered to the government, as part of the social compact, those components of our right of self-defense which involve punishing those who take from us in order to deter them and others from doing so in the future. Government prohibits us from exacting personal vengeance on the murderer, or the burglar who steals from us, something which all human experience shows people are by nature wont to do when wronged. In return, it is government's responsibility, in part, to consider the particular harm done to each of us when we are victims of a crime.
1.16.2008 10:06pm
BruceM (mail) (www):
PatHMV, I don't think you read my whole post, or at least where I said:

"Yes, you take your victims as they are found, and the "eggshell rule" certainly applies. But that doesn't mean the victim's eggshell is relevant to sentencing. The defendants assumed the risk that a customer of the bank might drop dead from a heart attack at the sight of them screaming "THIS IS A ROBBERY! EVERYONE ON THE FLOOR!" But they did not assume the risk that the $200 they robbed from the wallet of a customer was her welfare money for that month, and she went hungry because the defenants took it."

I see you concede that stealing $100k from donald trump is less of a crime than stealing $100k from someone who only has $200k total assets. There is a great emotional appeal to sentencing based on the victim's total assets, but it's unfair, unjust, and impossible to provide adequate notice to the defendant. Plus it goes beyond legislative intent; if the legislatures wanted the percent of the victim's assets stolen to dictate the crime, they would have set up the statutes that way. In every case the amount stolen would be compared to the assets of the victim from whom the money was stolen, and that factor would determine the level of the crime. You'd have to examine the victim's assets before you could even indict a defendant for theft, because stealing $100,000 from Trump would turn out to be a low-class misdemeanor, while stealing $1,000 from a homeless person who owns only $1,000 would be a first degree felony.

Clearly, that's just not right. But why? Because injecting the victim's status into the sentencing calculus creates an unjustified, inordinante amount of disparity. The foregoing example proves as much.

Again (as I've said many times before), the crime as set out in the penal code, and the punishment prescribed therefore, presumes a reasonable, average, acceptable amount of harm done to the victim. Some victims might suffer less harm, some might suffer more. As someone pointed out, killing a busload of orphans is no less of a crime than killing a busload of children with parents. But according to you, the defendant who kills a busload of children with parents should be given a significantly greater sentence. I say you are horrendously wrong.
1.16.2008 11:56pm
kiniyakki (mail):
Prof. Cassel - two more questions I'd be curious to learn more about in your ongoing posting (although I'm sure you have addressed these before in articles, I haven't yet read up on this topic):

1. What about situations where the victims are perpetrators themsevles. For example, a case where A beats up B because B was selling cocaine to A's child. How does that change things?

2. What about situations where the victims do not want a prosecution to go forward? This is domestic violence situations. Anecdote allert: I am a young prosecutor, and about a month ago I was at the arraignment of a man who was being charged for assaulting his wife/girlfriend (I cannot remember) in front of her children - where another person in the room had to cover the child's ears b/c the woman was screaming so much (pain/fighting). As I was requesting bail conditions, the victim came forward and started hollering at me that the case shouldn't go forward. Does victim's rights mean that I should have dropped the case? I know this isn't black and white, but my question goes to if victim's have rights, do those rights extend to not prosecuting a case?
1.17.2008 1:31am
Ken Arromdee:
We don't think killing a busload of orphans deserves a lesser sentence for two reasons:
1) the harm that murder does to the murder victim is pretty big, to the point where if you have to weigh one kind of harm against another, the harm done to the family is only a small proportion of the total harm done. So if the children have parents, that extra harm isn't much compared to the harm that's already there.
2) we consider orphans to be in a bad situation *because* they don't have parents. Harming someone who's not well off is worse than harming someone who is--killing an orphan is like stealing the last cash from a poor person. The extra harm from this balances out the lesser harm from not making any parents upset.
1.17.2008 1:44am
kiniyakki (mail):
Re-reading the posts, and it looks like my second question has been discussed a bit, so I'll add my two cents. An ongoing debate has been raised that a prosecutor will only listen to the victim when it supports his/her point. I don't think that is true for several reasons: First, I haven't observed that to be the case. I haven't observed it to be that a DA follows everything a victim says, but I have seen that a victim has some degree of control over a case. Second, a practical concern means a DA must listen. A prosecutor is always anticipating what trial will be like, and if the prosecutor knows the victim will recant and say she/he doesn't want to be there, then a more generous plea will at least be considered. Sort of a mechanical/practical force that makes the prosecutor pay attention.

Also, regarding what can a victim bring to a sentencing? A lot of the anti-victim at sentencing rhetoric seems to anticipate that a prosecutor has an infinite amount of time to learn all that a victim has to say before a sentencing.

And, my overall thought on it is: why do defendant's always seem to be the side that wants to restrict information - be it through victim's statements, or rules of evidence, or suppression motions, etc. Maybe b/c if all info came in, the defendant would be twice as guilty as everybody thought in the first place.
1.17.2008 1:52am
BruceM (mail) (www):
Ken Arromdee: who is going to give the victim impact statements for all the dead orphans? They have no families.

Kiniyakki: Victim's rights laws mean the result will be a greater sentence for the person who kills the busload of children with parents than the person who kills the busload of orphans, even if you think they should be sentenced the same. The court will hear hours and hours of sob stories from families about how the loss of their child affected them. Not so with the defendant who killed the busload of orphans.

Prosecutors want to restrict information just as much as defendants. Prosecutors are especially protective of letting defendants introduce negative evidence about the victim, like the victim is so special that they should be able to say whatever they want, but are otherwise unimpeachable and need special protection. And yes, that goes for rape victims, too. I had a trial about 2 years ago where my client, a juvenile, was charged with raping his ex-girlfriend. I had ample evidence the girl was jealous and making up the charges because my client was cheating on her and having sex with other girls in his class. I also had ample evidence that the purported rape victim was a promiscuous, pot-smoking, cocaine snorting, violent, lying little whore-child. Needless to say, the prosecutor objected every time I tried to bring in evidence that impeached the "victim" ... but when I played the tape I had of the victim talking to my client, admitting to making up the rape charges because she was jealous, and when she admitted on the stand that she did indeed make those statements (it was her voice on the tape), the jury acquitted my client. It was the prosecutor trying to keep out evidence, not the defense.
1.17.2008 2:10am
BruceM (mail) (www):
Oops, I meant for my 3rd paragraph in the last post to be directed to Kiniyakki, the 1st and second were directed to Ken. Sorry.
1.17.2008 2:11am
alias:
We don't think killing a busload of orphans deserves a lesser sentence for two reasons:
1) the harm that murder does to the murder victim is pretty big, to the point where if you have to weigh one kind of harm against another, the harm done to the family is only a small proportion of the total harm done. So if the children have parents, that extra harm isn't much compared to the harm that's already there.
2) we consider orphans to be in a bad situation *because* they don't have parents. Harming someone who's not well off is worse than harming someone who is--killing an orphan is like stealing the last cash from a poor person. The extra harm from this balances out the lesser harm from not making any parents upset


I think anyone who's taken a 1L course in criminal law knows that there's no consensus out there as to whether results matter in criminal law.

Some people (retributivists) think that all that matters is moral culpability--attempted murder and murder should be punished equally because the guy who shoots someone intending to kill him is equally morally culpable whether the bullet misses or not.

Others (consequentialists) think that results do matter and that the punishment someone deserves should be measured by the harm actually done to society. If you shoot someone and he dies, you're responsible for a death; if the victim lives, your debt to society is considerably less.

The latter group probably sees a much broader role for victims.
1.17.2008 3:36am
David M. Nieporent (www):
I see you concede that stealing $100k from donald trump is less of a crime than stealing $100k from someone who only has $200k total assets. There is a great emotional appeal to sentencing based on the victim's total assets, but it's unfair, unjust, and impossible to provide adequate notice to the defendant.
Notice of what? The range of possible sentences is set in advance and is public information, so there's neither an ex post facto nor due process issue here; why is a criminal -- and remember, we're only talking about criminals here, not defendants -- entitled to "notice" of how much money his victim has?

You concede the eggshell skull principle, but then right after conceding it, you ignore the principle.

Plus it goes beyond legislative intent; if the legislatures wanted the percent of the victim's assets stolen to dictate the crime, they would have set up the statutes that way.
Sorry, but that's a bogus argument. For one thing, the legislature "set up the statute" to provide discretion to the judge. We're not talking about a sentencing guidelines regime here.

For another, the legislature explicitly provided for victim impact statements; it can't possibly be said to "go beyond legislative intent" for people to actually listen to those statements.
1.17.2008 4:39am
BruceM (mail) (www):
David, a defendant who decides to commit a certain crime (say, steal $100,000 from V) has to be given adequate notice beforehand of what punishment range applies to that crime. Any defendant can consult the penal code and sentencing guidelines, if applicable, to determine the statutory punishment range that will apply to a given criminal act. The defendant has to be able to have notice of that BEFORE he commits a given crime. You can't use facts of the victim, that the defendant could not control, to determine the applicable punishment range after the fact of the crime.

Thus, if a defendant steals $100,000 from V, the defendant has to know that doing so will result in a certain statutory sentecing range. However, if the statutory sentencing range is determined not by the criminals actions, but by facts of the victim that are discerned after the crime has taken place, it is blatantly unconstitutional. So, if stealing $100,000 from V is a Class A Misdemeanor if V turns out to be donald trump with ten billion dollars of assets, or if stealing $100,000 is a First Degree Felony because V is a middle class working man who only had $100,000 (i.e. defendant stole every penny he had, 100% of victim's total assets = highest punishment), clearly the defendant did not have adequate notice of what the punishment would be going in to the crime. The SCOTUS has long held that such notice of potential punishment range is a constitutional requirement.

I do not ignore the eggshell principal. I clearly explained why a victim who has a heart attack when a defendant sticks a gun in his face can be prosecuted for murder/felony murder (even though he had no idea the victim had a weak heart) is different from the fact that a victim is a WWI vet who lost his wife to cancer and has a really good sob story about how the crime has affected his life.

I will sum it up by saying foreseeable qualities of the victim (e.g. weak heart) can be used to determine the OFFENSE charged, but NOT the sentence imposed.
1.17.2008 5:51am
Ralph Phelan (mail):
Why couldn't the facts about the real impact the crime has had be presented by the DA???
Because the prosecutor is not the victim's lawyer but the state's, their interests do not always align, and victims often distrust prosecutors, sometimes with good reason.
1.17.2008 8:28am
mls:

The guy who walks up to someone he doesn't like and shoots him in the chest gets punished more harshly if the victim dies than if the victim survives, even if the difference in outcome is due entirely to the competence of the EMS crew that responds to the scene of the shooting. They've done the same thing, but we treat it differently. Is that "unfair"? (Yes, I know you said "same crime," and this isn't, but that's purely due to luck, not to anything the defendant did.)


This issue doesn't come up exclusively in the context of victim impact statements. I worked on a Texas case (Texas has jury sentencing) where the prosecution introduced into evidence at the punishment phase of the trial a "Day in the Life" video (you know, the kind used in tort lawsuits to show how terrible the plaintiff's life is since suffering injury?) to show what life was like for a victim rendered a quadriplegic by a shooting in the course of a robbery. This victim was one of 3 -- the other two died. Here, the fact that the victime LIVED, but had a hard life, was the justification for harsher punishment . . .
1.17.2008 10:07am
mls:

The guy who walks up to someone he doesn't like and shoots him in the chest gets punished more harshly if the victim dies than if the victim survives, even if the difference in outcome is due entirely to the competence of the EMS crew that responds to the scene of the shooting. They've done the same thing, but we treat it differently. Is that "unfair"? (Yes, I know you said "same crime," and this isn't, but that's purely due to luck, not to anything the defendant did.)


This issue doesn't come up exclusively in the context of victim impact statements. I worked on a Texas case (Texas has jury sentencing) where the prosecution introduced into evidence at the punishment phase of the trial a "Day in the Life" video (you know, the kind used in tort lawsuits to show how terrible the plaintiff's life is since suffering injury?) to show what life was like for a victim rendered a quadriplegic by a shooting in the course of a robbery. This victim was one of 3 -- the other two died. Here, the fact that the victime LIVED, but had a hard life, was the justification for harsher punishment . . .
1.17.2008 10:07am
David M. Nieporent (www):
David, a defendant who decides to commit a certain crime (say, steal $100,000 from V) has to be given adequate notice beforehand of what punishment range applies to that crime. Any defendant can consult the penal code and sentencing guidelines, if applicable, to determine the statutory punishment range that will apply to a given criminal act. The defendant has to be able to have notice of that BEFORE he commits a given crime. You can't use facts of the victim, that the defendant could not control, to determine the applicable punishment range after the fact of the crime.
The "applicable punishment range" is defined by statute. The criminal is not entitled to 'notice' of where, within that range, a judge will likely sentence him in the exercise of his judicial discretion.

You're erecting a complete strawman, acting as if someone has proposed mandatory sentencing guidelines based upon the victim impact. Nobody has done so.

So, if stealing $100,000 from V is a Class A Misdemeanor if V turns out to be donald trump with ten billion dollars of assets, or if stealing $100,000 is a First Degree Felony because V is a middle class working man who only had $100,000 (i.e. defendant stole every penny he had, 100% of victim's total assets = highest punishment), clearly the defendant did not have adequate notice of what the punishment would be going in to the crime.
But that's just another series of strawmen. Nobody has suggested changing the crime from a misdemeanor to a felony based on the wealth of the victim. Although you seem to practice criminal law, you act as if you are unaware that the same crime -- e.g., "first degree felony" -- can carry a wide range of sentences. We're talking about sentencing within that range. Stealing $100,000 is defined to be a felony regardless of who the victim is -- but a judge, in the exercise of his discretion, can sentence the criminal to, e.g., anywhere between 10-20 years. Nothing says he can't decide to aim for the higher end because the victim suffered more.

I do not ignore the eggshell principal. I clearly explained why a victim who has a heart attack when a defendant sticks a gun in his face can be prosecuted for murder/felony murder (even though he had no idea the victim had a weak heart) is different from the fact that a victim is a WWI vet who lost his wife to cancer and has a really good sob story about how the crime has affected his life.
You didn't clearly explain "why." You didn't unclearly explain why. You didn't explain why at all. You simply asserted it, ipse dixit.

I will sum it up by saying foreseeable qualities of the victim (e.g. weak heart) can be used to determine the OFFENSE charged, but NOT the sentence imposed.
See, like that. Ipse dixit. You don't give any reason why it can't affect the sentence imposed. There is no principle of law which says that the eggshell skull principle applies to charges but not to sentencing.
1.17.2008 12:47pm
BruceM (mail) (www):
David, I thought I explained everything you just wrote about in detail in my previous posts on this thread.


>i>The "applicable punishment range" is defined by statute. The criminal is not entitled to 'notice' of where, within that range, a judge will likely sentence him in the exercise of his judicial discretion.

I agree with that, except to note that where guidelines are mandatory, the guideline becomes the punishment range (see Apprendi). I am saying criminals are entitled to notice of the potential penalty (the statutory range... up to a year, 5 to 10 years, 10 to 20 years, 5 to life, etc) of a given action they take, including the forseeable results of those actions. A defendant who decides to steal $100k can determine before the act that under his jurisdiction's laws, that will result in a second degree felony. If, however, qualities of the victim are used to determine the level of the offense, the defendant cannot receive adequate notice of what level offense stealing $100k will be.

I realize this is not the system we have, I was only responding to why such a system would be improper. I had gone off on a little bit of a tangent with this scenario.

Yes, a crime caries a penalty range, anywhere from, say 5 to 50 years. A judge's discretion to sentence a defendant anywhere within that sentencing range is pretty much at his unbridled discretion. The facts of the crime will come out during trial. The nature of the criminal and the nature of the crime are all that matters. It is presumed that a crime affects the victim in a very negative way, that's why the action was was outlawed in the first place. Thus, to let the victim stand up and give a personal sob story account of how horrible life has been since the crime is cumulative, irrelevant, unduly prejudicial, and not a proper datum to take into account for sentencing purposes for the plethora of logical reasons stated in many previous posts, not only my own.

Since you seem keen on pointing out apparent logical fallacies, the "victim impact statement" is by its very nature the embodiment of the logical fallacy of "appeal to emotion".

Now, as for why foreseeable qualities of the victim apply to charges but not sentencing. I've explained that criminals are held responsible for the foreseeable results of their crimes. They take their victims as they find them. If a victim has a heart attack when the defendant points a gun in his face, screaming "give me your money!!" it was a foreseeable result of the offense, and the defendant should be held accountable if the victim dies from said heart attack. That death will be used to bump the crime up from robbery to murder/felony murder. Again, I note that the effect of murder on the victim/victim's families (also "victims" for victim's rights purposes) is taken into account in the severity of the offense. The eggshell rule has to apply to charging the offense. The fact that the defendant did not intend for the victim to have a heart attack and die will not preclude a murder charge when that harm was reasonably foreseeable to result from the criminal act.

As for sentencing, however, the court should look at the nature of the offense and the nature of the defendant. It is okay for the court to take into account very generalized characteristics of the defendant, like the "vulnerable victim enhancement" if the victim was over 80 or under 14, or mentally retarded. That's fine, because the defendant was on notice beforehand that victimizing such people could result in an enhancement. But to let each individual victim get up and give an individualized sob story at the defendant's sentencing is not proper for all the reasons I and others have previously stated. It's not ipse dixit, I've explained my reasoning thoroughly throughout this thread.
1.17.2008 1:48pm
hattio1:
kiniyakki says;

And, my overall thought on it is: why do defendant's always seem to be the side that wants to restrict information - be it through victim's statements, or rules of evidence, or suppression motions, etc. Maybe b/c if all info came in, the defendant would be twice as guilty as everybody thought in the first place.



I'll second what the other commenter said. Prosecutors try to keep information out all the time. I had a case where the victim was beaten up because he had torched a defendant's brand new car. The prosecutor tried to prevent me from even asking the victim whether he had torched the car. What really gets me are the DV cases. In my jurisdiction, there is an exception to the normal rules of evidence that prior allegations of domestic violence can come in...even if they have not been tested in a court of law. But, some judges try to prevent you from introducing evidence, that, for example, the alleged victim has claimed DV assault from her last 15 boyfriends as well.
1.17.2008 1:52pm
David M. Nieporent (www):
Yes, a crime caries a penalty range, anywhere from, say 5 to 50 years. A judge's discretion to sentence a defendant anywhere within that sentencing range is pretty much at his unbridled discretion. The facts of the crime will come out during trial. The nature of the criminal and the nature of the crime are all that matters.
In your (defense-o-centric) view. Not in the view of the legislature.

In my view, the "nature of the criminal" shouldn't be relevant. I don't believe "He had a bad childhood" ought to be an admissible mitigating factor. But my view doesn't prevail any more than yours does.

It is presumed that a crime affects the victim in a very negative way, that's why the action was was outlawed in the first place.
And it's presumed that it can affect different victims in different ways, which is why the punishment was established as a range rather than a fixed amount.
Thus, to let the victim stand up and give a personal sob story account of how horrible life has been since the crime is cumulative, irrelevant, unduly prejudicial, and not a proper datum to take into account for sentencing purposes for the plethora of logical reasons stated in many previous posts, not only my own.
The arguments in other posts are that it's unfair to some victims. You seem to be the only person arguing that it's unfair to the criminal.

Now, as for why foreseeable qualities of the victim apply to charges but not sentencing. I've explained that criminals are held responsible for the foreseeable results of their crimes. They take their victims as they find them. If a victim has a heart attack when the defendant points a gun in his face, screaming "give me your money!!" it was a foreseeable result of the offense, and the defendant should be held accountable if the victim dies from said heart attack.
This doesn't resolve anything. It's also "foreseeable" that if you take $100,000 from someone, that this could represent the victim's life's savings. (In fact, that seems to be far more foreseeable than the chance that someone would have a fatal heart attack because she was in a bank that was being robbed.)

The criminal is on notice -- beforehand -- that he risks the maximum possible punishment, so the notice issue you raise is simply a red herring. If the penalty for grand theft is 10-20, he's on notice that he can get anywhere from 10-20. It's ludicrous to suggest that he can argue, after he's convicted, "It's unfair that I got 18 years instead of 10 because the victim was poor. If I knew the judge was going to take that into account, I'd have robbed someone else instead."
1.17.2008 3:35pm
David M. Nieporent (www):
Yes, a crime caries a penalty range, anywhere from, say 5 to 50 years. A judge's discretion to sentence a defendant anywhere within that sentencing range is pretty much at his unbridled discretion. The facts of the crime will come out during trial. The nature of the criminal and the nature of the crime are all that matters.
In your (defense-o-centric) view. Not in the view of the legislature.

In my view, the "nature of the criminal" shouldn't be relevant. I don't believe "He had a bad childhood" ought to be an admissible mitigating factor. But my view doesn't prevail any more than yours does.

It is presumed that a crime affects the victim in a very negative way, that's why the action was was outlawed in the first place.
And it's presumed that it can affect different victims in different ways, which is why the punishment was established as a range rather than a fixed amount.
Thus, to let the victim stand up and give a personal sob story account of how horrible life has been since the crime is cumulative, irrelevant, unduly prejudicial, and not a proper datum to take into account for sentencing purposes for the plethora of logical reasons stated in many previous posts, not only my own.
The arguments in other posts are that it's unfair to some victims. You seem to be the only person arguing that it's unfair to the criminal.

Now, as for why foreseeable qualities of the victim apply to charges but not sentencing. I've explained that criminals are held responsible for the foreseeable results of their crimes. They take their victims as they find them. If a victim has a heart attack when the defendant points a gun in his face, screaming "give me your money!!" it was a foreseeable result of the offense, and the defendant should be held accountable if the victim dies from said heart attack.
This doesn't resolve anything. It's also "foreseeable" that if you take $100,000 from someone, that this could represent the victim's life's savings. (In fact, that seems to be far more foreseeable than the chance that someone would have a fatal heart attack because she was in a bank that was being robbed.)

The criminal is on notice -- beforehand -- that he risks the maximum possible punishment, so the notice issue you raise is simply a red herring. If the penalty for grand theft is 10-20, he's on notice that he can get anywhere from 10-20. It's ludicrous to suggest that he can argue, after he's convicted, "It's unfair that I got 18 years instead of 10 because the victim was poor. If I knew the judge was going to take that into account, I'd have robbed someone else instead."
1.17.2008 3:35pm
TTrent (mail):
Welcome, or perhaps not, it unfortunately seems. I came to this discussion expecting intelligent debate about the practical application of established crime victims' rights, or, rather, instances of exclusive denial of some rights that accrue to non-victims, as in this case. On other issues, posters seem to be quite well informed on the law, and it is law that they discuss. However, many here seem to be expressing nothing more than a generalized and intensely emotional contempt for victims of crime. I expect something quite different on the Volokh Report. The lesson may be that it's a good thing that somebody is writing about crime victimization. Perhaps next time, respondents will respond to the subject and project their overly personal resentments elsewhere.
1.17.2008 4:02pm
hattio1:
Ttrent says;

However, many here seem to be expressing nothing more than a generalized and intensely emotional contempt for victims of crime


Wrong, I'm expressing a generalized and intensely emotional contempt for the concept of victim's rights. Crime victims include most people I know and myself. While I sometimes go in for self-loathing, I try not to make a habit of it.
1.17.2008 6:00pm
Ralph Phelan (mail):
If, however, qualities of the victim are used to determine the level of the offense, the defendant cannot receive adequate notice of what level offense stealing $100k will be.

I realize this is not the system we have, I was only responding to why such a system would be improper.

If the defendant can determine from the law how the level of offense of stealing $100k depends on the nature of the victim, he can then look at his prospective victim and determine the level of offense he's about to commit. I don't see the problem.
1.18.2008 9:32am