Democratizing Criminal Justice Through Crime Victims' Rights

Steve Twist and I propose increasing involvement by crime victims as a way to reduce politicization of criminal justice processes.

The NYU Law Democracy Project is promoting dialogue across ideological and political lines, their goal being to help break through today's partisanship. They've launched the "100 Ideas in 100 Days" series, featuring a wide range of contributions from voices across the political spectrum in the United States and around the world.

My friend Steve Twist and I have made a contribution to their effort by proposing increased attention to crime victims in the criminal justice process. The introduction to our essay explains how elevating the role of crime victims could help improve public confidence in the system:

Growing citizen distrust is a serious problem facing the nation's criminal justice system—and, as a result, our democracy. Over the last decade, we have seen arguments coming from both sides of the political divide about politicization, unfair charges, and unjust results. These concerns about politicization are not tied to one Administration or the other but have been growing for years.

The usual solution offered is to increase the professionalization of the system, bring in more lawyers or judges and insulate them from political pressures and the like. Or to place more emphasis on historic norms that often seem to shift, depending on who is assessing those norms.

A more viable solution is not to turn to the "professionals" but to increase participation by ordinary citizens—those who have the most at stake in the criminal justice system: crime victims and their families. Such an approach is broadly democratic, as it removes power from the government (whoever might be in control). A more victim-centric system places power in the hands of those who have less incentive to politicize outcomes and more incentive to focus on violent and other clearly non-political crimes.

You can read our whole essay here.

Comments

[Longtobefree]

Replacing the criminal justice system with a victim justice system?
Brilliant!

[The Margrave of Azilia]

There have been victims-rights laws for years - though Prof. Cassell thinks the laws need to be stronger, and that there ought to be a federal constitutional amendment on the subject.

But a categorical statement that victims-rights laws would *replace* the existing system is overstating what Prof. Cassel is urging, since there's already victims-rights laws in most states.

There have been studies of the effects of existing victims-rights laws, though the ones I found are perhaps outdated. At minimum, why not study the effectiveness of existing laws before assuming it will turn out badly?

[David Nieporent]

While the essay is (probably deliberately) vague, one gets the sense from this — and Prof. Cassell's entire oeuvre — that what he wants is not more input from crime victims, but for a way to ensure that defendants are treated more harshly. (I have never seen him suggest that a crime victim's request for leniency should be given any weight.)

[Brett Bellmore]

But as the victim has an interest in retribution, AND the state has an interest in deterring crime, one could argue that you need BOTH in agreement to let the defendant off the hook. Whether partially or totally.

Perhaps the state in a particular case doesn't care if crime is deterred; The crime is rare, deterrence not a factor. Or maybe the state simply doesn't like the victim? Might be an EPC issue here.

But the victim still has been wronged even if the state doesn't much care.

Just as the state has an interest in deterring future crime even if the victim is in a mood to be merciful.

[Sarcastr0]

The worst libertarian.

[Brett Bellmore]

Sometimes I can kind of see the basis for your complaint, I am admittedly no longer a doctrinaire Libertarian.

But in this case I can't see the nature of your complaint.

[Tallman]

An even more viable solution would be to reduce the total number of crimes. The 'three felonies a day' thing is ripe for abuse.

>increase participation by ordinary citizens

If anything, there seems to be a movement away from jury trials, both in the US and in GB.

[Krayt]

One man's "movement away from jury trials, ain't that modern and the awesome flow of history in the perfecting of mankind and government?" is another man's "What are these scurrilous power mongers up to now?"

[apedad]

"A more viable solution is not to turn to the 'professionals' but to increase participation by ordinary citizens . . . . "

And just how will a victim help with:
Conducting an investigation, e.g., surveillance, confidential sources, etc.?
Collecting, preserving, and testing evidence?
Conducting witness and subject interviews (that meet constitutional standards, i.e. 5A)?

I'm all for victim assistance programs (VAPs, even back in the 90s when VAPs started).

But that's completely different from having a victim be part of an impartial investigation - because then there is no longer impartiality.

[Brett Bellmore]

Typically, the state hardly even finds out about the crime without the victim bringing the crime to the state's attention. And then often is the only, or at least the primary, witness to the crime. So participation by the victim seems built in.

But I think the concern here is that the interests of those running the legal system might just at times diverge from those of the citizenry at large. And without the citizenry having a bit more involvement, those interests might end up systematically unaddressed.

[KenveeB]

I would like to know what is actually meant by a "victim centric" system. How exactly is this going to work? Are victims going to investigate crimes, present them to grand juries, take them to trial, etc? If you just mean victims should have a voice, sure, absolutely, but if you're proposing that they're *central* to the system, I want to know what that means.

Also, does this mean that a murder of someone without family members nearby is less worthy of justice than someone with vocal family members? That "honor killings" are fine if the family doesn't object to it? That domestic violence cases shouldn't proceed if the victim is abused into dropping it? That a rich victim whose families can afford to throw more resources to the case is more entitled to justice than a poor victim?

The point of a detached, professional justice system is to reduce these problems and have the case evaluated by people who understand the law. There can definitely be problems, but I don't see how this is a solution.

[Bunny495]

There may be more to unpack here than meets they eye. I was the vic of an assault by a former professional football player. Without getting too far into the weeds is was something of a case of mistaken identity. A former pro DB coldcocking a work/study student who was shaking the DB's hand and expecting he was a contractor who was expected at work is really a no contest. After his stint with the Steelers he opened a one-man business as a painting contractor and drove his van to where I was working, the receptionist buzzed me and I went to the area in front of her desk and as I was shaking his right hand he rabbit punched me in the ear with a blow that KOed me. When I came to the LEOs had arrived and the whole thing was on security cameras. I went to the ER with broken glasses, blood running down my forehead from a cut on my temple and a ruptured ear drum. The guy pleaded out and I never was contacted about a victim's statement at the sentencing. I did get compensated for a new pair of glasses. The perp got a month in jail, nights only and he was released to work during the day along with a fine of $US1,000. While I thought he got off light another consideration is that if he was not released to work during that month he would not be paying taxes and as a tax payer I would be footing paying for his daily meals. Turns out he was popped a few months later for disorderly and did spent time in state prison due to a rap sheet that was longer than I knew about.

[Incunabulum]

The whole reason we have a CJS is to remove the victim - and thus emotionality *and politicking* - from the CJS.

[The Margrave of Azilia]

The CJS (criminal justice system) *hasn't* been cleansed of politicking, even apart from victims' rights.

So saying, "ewww, politics!" doesn't help very much.

[The Margrave of Azilia]

Victims-rights laws generally require that victims be *notified* of developments in their cases, giving them a chance to complain about undue leniency (or undue harshness, to follow up on what someone said about).

Is there a problem with this aspect of the laws? Shouldn't prosecutors tell the victim about proposed plea-bargains, upcoming sentencing and parole hearings, prison escapes, etc? What exactly would be the problem here?

Then there's the right to give victim-impact statements. Is that wrong?

What if the victim is Black, while both the criminal and the prosecutor are White? One might hope that people who pat themseves on the back for their racial enlightenment might want procedures to notify the victim of what's going on, to avoid prosecutor/defedeant collusion.

[The Margrave of Azilia]

One might think that the DEI crowd would be the last to reject protections for Black crime victims. Do these enlightened ones trust prosecutors that much?

[Scooter]

Look at the mess in 'Merry Ol England' where the State decided to sacrifice their daughters to the predations of rape/grooming gangs, going so far as to fire and/or prosecute anyone who spoke up about the issue.

[David Nieporent]

Is there a problem with this aspect of the laws? Shouldn't prosecutors tell the victim about proposed plea-bargains, upcoming sentencing and parole hearings, prison escapes, etc? What exactly would be the problem here?

No objection to keeping the victim updated on scheduling issues; that's all public information anyway. When you say "proposed plea-bargains," do you mean the actual substance of negotiations between prosecution and defense? And if so, do you mean in real time, or only before it's brought to court for approval?

But Prof. Cassell has made clear that he thinks victims' rights are essentially substantive, that if a victim is not sufficiently kept in the loop that courts should undo deals and such.

[The Margrave of Azilia]

"No objection to keeping the victim updated on scheduling issues; that's all public information anyway."

That's a big part the victims'-rights laws.

Plea-bargaining resolves the great majority of criminal cases - if the victims don't have input *here,* that means they'll be out of the loop as to the most important part of the proceedings.

How about allowing a plea bargain to go forward against the wishes of the victim, but first let the prosecutor contact the victim, and get a response to the proposed bargain. Then if the victim obects, the prosecutor could still arguue to the judge that the plea-bargain should be approved anyway. That would at least put some sunshine into the process.

IIRC, Mothers againt Drunk Driving (MADD) was established in reaction to prosecutorial and judicial leniency in drunk-driving cases. MADD started monitoring drunk-driving cases and criticized what they deemed too-soft plea-bargains. Wouldn't you agree that, at least at the time, they had a point?

[Katall]

There, of course, is a problem. In a case where the evidence is equivocal, prosecutors might want to drop a case or plea bargain. Victims might object. Who will referee? The trial judge?
What about including victims when deciding on clemency and pardons?
Also, unlike the accused, victims are not protected by the Constitution.
At the end of the day, all prosecutions are political. And, these days, they are transactional, too. At least on the federal level.

[Just Eric]

Both "social justice" and "democratized justice" can result in injustice. People lie, probably more often when society incentivizes perceived victimhood or when it produces a sense of power and control. Some alleged victims are sympathetic, some are not. Some are more likely to persuade a mob to activate, some will remain more timid or more forgiving. Criminal courts and penalties are not for victims, they are a reckoning between an alleged offender and society.

De-victimization is mostly fiction and restoration efforts are best left to civil courts. Perhaps Professor Cassell would benefit society more by focusing on reforms to make civil lawsuits more accessible to common people including crime victims.

[bernard11]

The OP and the full essay seem pretty vague to me. Lots of feelgood talk ("Oh, they call me the doctor"), less substance about what the specifics might be.

Still, I wonder about this:

A victims’ rights amendment empowers people, not the government—by allowing victims and their families to confer with prosecutors, object to all-too-common plea agreements, and be heard by judges at sentencing.

Does that mean the criminal gets dealt with more or less harshly according to how sympathetic, or how good or determined an advocate the victim is? That doesn't seem right. (Still, how did the guy who mugged Rosa Parks make out?)

Cassell bemoans the loss of victims' involvement in the justice system, but that's not always a bad thing.

I thought the main motivation was to move away from a system based on personal revenge toward one based, ideally, on impartial justice, according to rules set by the community, so some of this smacks of a reversion.

It is human nature to do that of course. I suspect muggers of very old or handicapped victims get dealt with a little more harshly than others. But maybe that's just an "informal" rule.

Maybe someone with experience in the criminal justice system (NG?) could tell me if I'm wrong.

[The Margrave of Azilia]

I really don't see how it's vindictive to notify crime victims about key events in the trial, the sentence or subsequent developments (like parole hearings) in the criminal's case.

If it's "personal revenge" to update the victim about developments in the case, then logically, the prosecutor should make every effort to keep the victim in the dark. I mean, if that's the only way to avoid vindictiveness...

And what if the victim has the time and resources to follow the case without help from the prosecutor? Is that a failure of justice, if despite the prosecutor's best efforts the victim manages to find out what's going on?

[The Margrave of Azilia]

Of course, you *do* realize that, even without a law, prosecutors are going to update wealthy and powerful victims about the status of *their* cases. The only issue is whether the prosecutors should give the *same* fair treatment to less-powerful, less-connected victims. That's where the victims-rights laws come in. In cases where the prosecutor doesn't think the victim is important enough to get basic justice, the law can overrule the prosecutor and say that the poor/middle class as well as the rich, the Black as well as the White, are entitled to be updated about their cases and to give their (nonbindng) opinion on how these cases should proceed.

[bernard11]

I don't think keeping the victim up to date on the case is personal revenge or in any way inappropriate. In fact, I think it's a good idea.

But when we let the victim have a say in sentencing or plea bargains it's another matter. Of course there may be egregious cases, and we should allow for those, but as a general matter, yes, it is letting personal revenge play a role.

[The Margrave of Azilia]

Even so much as listening to the victim's recommendations is vindictive?

Would you agree that, even without a legal requirements, prosecutors consult with rich and influential victims on their cases? So the question comes down to this: Should victims with less political influence have the same right as rich and influential victims to be kept up to date on the proceedings?

Perhaps we could even things out by keeping rich and powerful victims in the dark about their cases, just like the victim is, say, poor and Black?

It's the First Amendment, with its right to petition, which "let[s]" victims petition the prosecutor for particular sentences. uprating the victim on the proceedings

But if the victim is kept up to date on the proceedings, that makes it easier to exercise their First Amendment right to petition the prosecutor to seek a particular sentence, and the prosecutor has the right to deny that recommendation, though he'd still have to convince the judge to go along. And the prosecutor would have to disclose to the judge that the victim, exercising his Fiirst Amendment right to petition, disagrees with the prosecution's recommendation. Or should that information be withheld from the judge in the name of avoiding vindictiveness, and to avoid the danger that the judge might choose to reject the plea as too lenient?