Judge Paul Cassell, the new  Volokh Conspirator,  posts about how he, as pro bono attorney for victims of the Texas City Refinery explosion in March 2005, which left 15 dead, hundreds injured, and untold property damage, has filed papers to kill the plea deal.

Well, that’s going to make negotiations a bit more complicated, if he gets his way. 

As discussed numerous times, Judge Cassell (which I’m going to continue to call him until he invites me to call him something else) left the federal bench to become a Utah lawprof and victim’s rights advocate.  Clearly, his experience has left him feeling that the system neglects victims and that victims deserve a voice in the criminal justice process.  To this end, this is what he’s done in this Texas case:

Today the other lawyers and I filed pleadings in the federal district court in Texas. Our pleadings argue the court should reject the plea because the proposed plea blocks the court from appointing its own independent safety monitor to supervise BP Products’ environmental compliance. The pleadings also argue that since the statutory maximum fine in this case (based on the gain to the company or loss to the victims) is more than $2 billion, a substantially larger fine is appropriate.

This begs one immediate question:  Why didn’t he just pick up the phone, call the AUSA, and discuss his concerns?  In all likelihood, he (or someone) did and the AUSA blew him off.

It strikes me that Judge Cassell’s problem starts with the government (you remember them, those fine folks who live off our tax dollars and serve us), because in the eyes of the victim, the government just isn’t doing what they want.  So go over the AUSAs head to the United States Attorney, to the Department of Justice, to your Senator, and demand to know why the government doesn’t take its orders from the victims.

Sound ridiculous?  It is.  And it should be.  While the victim’s argument may have substantial validity, probably more so in the context of a corporate defendant than an individual, and about which I take no view, the criminal justice system does not vindicate the interests of individual victims.  It isn’t supposed to. 

While crimes have victims, as do torts, the criminal justice system vindicates the interest of society.  When it ceases to do that, it loses the legitimacy of its imposition of criminal sanctions.  We don’t imprison people because Joe Victim is angry, per se, but because a law that has been enacted to guide the conduct of all members of society has been violated. Victims themselves get recompense civilly.

Can you imagine trying to negotiate a plea with the AUSA, should the victim have the power to veto whatever aspects he finds too lenient or unacceptable?  After working to reach an agreement, everyone would then have to renegotiate with a non-party lacking any interest or motivation to accept anything short of their personal ideal of vengeance.  If this is ever permitted, it would be the end of plea negotiations.  For both sides.  The government wants no more of victims’ interference in their work than does the defense, though it will always be the defense that would suffer greater harm from this concept since victims rarely argue to the government, “please be more lenient. Please be more reasonable.”

So if you thought life was difficult enough dealing with those easy-going guys down at the United States Attorney’s office, hashing out the rest of your client’s life, imagine what a nightmare this victims’ veto would be.  While it may seem so reasonable to inject the victim into the process from a humanitarian point of view, this is nothing short of an assault on the integrity of the criminal justice process.  I wonder how many will see it this way?