My New Article on the Role of Mercy and Crime Victims in the Criminal Justice Process

I argue that the criminal justice actors need to listen to all crime victims ... merciful and otherwise.

I recently published a law review article in the Texas Law Review's symposium on mercy and the law, concerning the proper role of crime victims in the criminal justice process. Here's the abstract:

What role should mercy play in the criminal justice system? While several of the other symposium's articles here in the Texas Law Review argue for expanding mercy's role, I write to raise a cautionary note. Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims. Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims. This change in focus would be at odds with a broadly advancing crime victims' movement in this country and, indeed, in many countries around the world. This cautionary point does not assume that all crime victims want a more punitive criminal justice system. To the contrary, many crime victims may argue for mercy. But allowing victims' voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

You can read the whole article here.

Comments

[Frank Drackman]

I’m a big supporter of mercy for violent criminals (and Pedophiles/Drug Dealers qualify), after they’re executed (or serve their entire prison term)

[Dan Schiavetta]

Ignoring victim pleas for mercy has pulled the mask off. Victim statements are not about the victims.

[The Margrave of Azilia]

It's my understanding that victims (or their relatives as the case may be) are not allowed to make recommendations for punishment, and that this ban comes from judges and others worried about interference with the sentencing process.

My understanding is that victim impact statements are limited to...victim impact, not victims' views on punishment.

If I remember all this correctly, then the main effect of this rule would be to silence those victims who want strict punishment. But it will also affect victims who want more lenient punishment - it's just that the latter group is probably less than the former.

But I would imagine that victims, if they're clever enough, should be able to put across hints as to their views on punishment. Though I think they should be able to specifically make recommendations.

[David Nieporent]

It’s my understanding that victims (or their relatives as the case may be) are not allowed to make recommendations for punishment

I am not sure why you think that. I can't speak to every jurisdiction everywhere, but that's certainly not true as a general statement. Indeed, literally the whole point of Cassel's crusade is for victims to be allowed to tell judges that the proposed plea bargain is too lenient and they want the defendant to suffer more. What is true is that it's often not helpful; how the victims were affected is the information the judge can use, whereas their general sense that the defendant should be punished harshly is not.

[wolfefan]

I'm glad to see this issue raised. Cassell is wrong, I think, about victim statements being elevated only when they favor mercy. SueZann Bosler, the literal victim of an attacker who killed her father and left her for dead, was not allowed to talk about how the attack turned her into an anti-death penalty activist. The broader issue is one of equal justice. Should the penalty that criminals receive be dependent on the feelings or political and moral views of the families of their victims? Capt. Crisis is right in his comment above.

[mse326]

So two people commit the exact same crime, cause the same amount of damage, everything equal. But they potentially get significantly different punishments because the victime happens to be merciful or merciless. That isn't justice, that's vengeance

[Lee Moore]

I don’t see that mercy has any role at all in the court system.

The courts are supposed to apply the law, including those bits of the law that specify within ranges what the punishment is to be. It’s perfectly reasonable for the opposing lawyers to bicker about whether the offense is Warp Factor 4 or Warp Factor 5 under the sentencing guidelines, but that’s a legal and factual matter, subject to appeal.

Mercy is when someone decides that although the law has correctly decided that your sentence is X, your punishment should be reduced to X minus 1, for reasons of mercy.

Courts and judges have no place in this business of arbitrary or discretionary mercy. Their job is to feed in the ingredients and turn the handle, churning out what the law requires.

Mercy is for the King to grant, or in a Republic for the President or Governor.

It’s a post-law matter, not part of the legal process.

[JoeFromtheBronx]

The law in place in this country provides various avenues for mercy to be factored in. So, applying "the law" can include mercy.

[David Nieporent]

The courts are supposed to apply the law, including those bits of the law that specify within ranges what the punishment is to be. It’s perfectly reasonable for the opposing lawyers to bicker about whether the offense is Warp Factor 4 or Warp Factor 5 under the sentencing guidelines, but that’s a legal and factual matter, subject to appeal.

Mercy is when someone decides that although the law has correctly decided that your sentence is X, your punishment should be reduced to X minus 1, for reasons of mercy.

This is all wrong. Most places don't have sentencing guidelines at all, and even the ones that do provide ranges, not exact calculations. There is no law that "decides" "The 'correct' penalty is X." Rather, it's "the standard penalty is between X and Y." And then the judge has to use squishy factors, including things like mercy or disgust, to decide whether it should be at the high end, the low end, or the middle.

[JoeFromtheBronx]

But allowing victims' voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

Victims can be heard in all cases.

For instance, a victim might state that they do not want a person to be arrested for a crime. Determining if harm to public welfare occurs warranting an arrest can very well factor in the victim's wishes. They have a special insight into the situation.

Or, they will state that they do not want to subject themselves (or their child) to what is required to convict.

Such things will factor into criminal justice decision-making. Public welfare sometimes requires doing things that victims rather not occur. They are not a solitary veto in our system.

But, they can have a role to play. I appreciate the recognition that victims sometimes counsel mercy. Regularly people speak in the names of victims in only one direction.