From U.S. News and World Report, via CrimProf Blog, the good news is that the government lost an appeal.  The bad news is that it wasn’t to the defense, but to the victim. 

[Victim W. Patrick] Kenna made his anger clear during the father’s 2005 sentencing, but when the son’s day in court arrived three months later, the federal judge denied Kenna’s request to speak. “I listened to the victims the last time,” Judge John Walter said. “There just isn’t anything else that could possibly be said.” Kenna was furious. “We didn’t feel that the judge was taking into consideration the victims in the case,” he says. So he turned to the U.S. Court of Appeals for the Ninth Circuit, which ordered the judge to let Kenna speak at a new hearing.

In their passion to pander to the sympathetic victim, and thereby blur the distinction between civil and criminal law, Congress gave victims standing to appeal in 2004.  Of course, nobody actually expected anyone to do so, since the cost and burden would dissuade them as their anger subsided over time.  But not Mr. Kenna.  He was pissed, and he followed through.  You’ve got to give the guy credit for persistence (or holding a grudge).

Mark Godsey, the crimprof himself, offers little commentary about this case, but would appear to be on the victim’s side based on his inclusion of this quote:

 “What our goal should be is to put the victim back into the position as if no crime had been committed,” says Paul Cassell, a former federal judge who resigned this year to advocate for victims.

As an aside, notice how Paul Cassell’s name is everywhere lately.  Clearly, he’s having more of an impact as a former federal judge than he did on the bench.

We  previously posted about how this “victim’s rights” movement skews the nature of criminal prosecutions in an inappropriate direction.  But Paul Cassell’s position goes much further, and (let me be as clear as I can about this), his position is absolutely, totally, fundamentally wrong.  Horribly wrong. Disastrously wrong.  Not right at all.

Criminal law is not about returning the victim to the status quo ante.  There are various civil causes of action that exist to serve that purpose, and they should be employed to do so.  But not the criminal law, which exists to vindicate the public’s interest in deterring criminal conduct.  Hard as it is to imagine for the victim, criminal prosecution is not intended to provide free legal services to the victim against the defendant.  It is not a substitute for the victim’s concerns in whatever happened, and the prosecutor does not represent the victim in court.

But should he?  No (I would have thought that was already clear).  Society has interests at stake in making conduct criminal rather than simply a compensable wrong.  We give the prosecution a ton of power because of these societal interests at stake.  These interests include making sure that the defendant’s constitutional rights aren’t violated, and that the publics’ interest in a fair, speedy, public trial isn’t impaired.  None of these things are in the victim’s interest, nor should they be.

It’s rather disturbing that Paul Cassell is deeply involved in the further blurring of the distinction between civil and criminal law.  That he cares for victims is completely understandable, even laudable.  But that he supports a shift in the mechanics of criminal law that impedes the protection of constitutional rights is harder to understand. 

Nowhere does the Constitution provide a right to crime victims to have any say in criminal prosecutions.  The very legitimacy of the power conferred upon the government to prosecute crimes in the name of society is undermined when a particular individual’s personal interests are at best equal, and at worst superior, to that of the People who have given their government that power. 

This is not about being “anti-victim,” no matter what anyone says.  It is about politicians and advocates not using this transitory social sympathy to play around with the nature of criminal law, whether to capture a few extra votes or because you are willing to turn a blind eye to intellectual honesty in the name of achieving a desired goal.  You might also think that crimprof Godsey would have some doubts about giving the victim a seat in the well, between the prosecutor and the defendant.  Unfortunately, it appears that this suits him just fine.