One might argue that there can be no “victim” until a crime is proven.  But that doesn’t seem to phase former federal judge, now Utah Lawprof, Paul Cassell.  And no one beats the victim drum as hard as he.

His latest idea is to reinvent the federal rules of criminal procedure to make it a tripartite gameplan, with the victim integrally involved on par with the prosecution and the defense. 

In this paper, which recently appeared in the Utah Law Review, I argue that it is time to fold crime victims into the federal rules. I develop a rule-by-rule analysis of changes that should be made, including: 1. Ensuring that crime victims’ attorneys can appear in court (Rule 1); 2. Providing for victim participation in the plea bargain process (Rule 11); 3. Protecting victims’ addresses and telephone numbers from improper disclosure (Rule 12); 4. Guaranteeing victims the right to attend criminal depositions (Rule 15); 5. Protecting victims from having personal and confidential information improperly subpoenaed (Rule 17); 6. Considering victims’ interests when cases are transferred or when a bench trial is ordered (Rules 21 and 23); 7. Integrating victims into the sentencing process (Rule 32); 8. Articulating victims’ right to discretionary appointment of counsel (Rule 44.1); 9. Giving victims the right to be heard at bail decisions (Rule 46); 10. Requiring victims’ views be considered before a case is dismissed (Rule 48); 11. Protecting victims’ right to a speedy trial (Rule 50); 12. Giving victims notice of court proceedings and of their rights in those proceedings (Rule 60(a)(1)); 13. Guaranteeing victims the right to attend court proceedings (Rule 60(a)(2)); 14. Guaranteeing victims the right to be heard on bail, plea, sentencing, and other issues important to victims (Rule 60(a)(3)).

Now I notice that he keeps throwing around the word “rights”, but what “rights” is he talking about?  The defendant is given rights by the Constitution.  Nowhere are rights of the victim mentioned in there, as criminal law is a two-sided adversary system, with a prosecution and defense.  It’s criminal, rather than civil, because of the authority granted by the People to the government to maintain order in society. 

The entirety of the victims’ rights agenda is predicated upon misguided and unprincipled use of sympathy and visceral anger in lieu of reason.  By elevating our concern for the victims of crime to a place equivalent to the state’s interest in maintaining the social compact, advocates like Paul Cassell seek to trump the defendants’ constitutional rights by putting the victim in the well alongside the other two parties, as a matter of right.

This is an obvious and flagrant play on emotion and sympathy, and would be easily dismissed if a proposal such as this didn’t come from the hand of a former federal judge.  Sure, everyone feels badly for the victim of crime.  But there is simply no principled explanation why the purported victim should have any say in matters such as bail.  What could they possibly add, other than a plea to make bail punitive, which is precisely what bail is not intended to be.

The gist of this strange agenda is that the prosecution isn’t, in the eyes of the victims’ rights advocates, sufficiently harsh and vehement, and fails to demonstrate sufficient sensitivity to the peculiar wants and desired of victims.  Of course, each victim would seek to reinvent the system to serve his or her personal vision of justice, with neither knowledge nor appreciation of such details like due process and equal protection.  But hey, who cares about such technicalities when you can put some weepy victim on the screen to emote about themselves.  Surely, the prosecution can’t be trusted to do its job, so we need the victim (and the victim’s lawyer) to wield the big sword when the prosecution doesn’t lunge hard enough to make the victim happy.

There is a role for the victim of crime in the criminal justice system, and it involves cooperation with the prosecution on the victim’s side and sensitivity to the victim’s concerns on the prosecution’s side.  But the victim is not the prosecution’s client.  The prosecutor represents the People, including but not limited to the victim.  The power to prosecute a person criminally derives from society’s interest, not the personal vindication of each victim’s interest.  If that were the case, there would be no criminal law at all.

I’ve discussed Paul Cassell’s arguments in favor of victims’ rights a number of times before, and they make absolutely no sense.  Long on rhetoric and nothing on substance.  But there’s much to fear despite the absence of any principled basis for his push.

There’s political benefit to be gained in extolling the “rights” of victims, since the public lacks any comprehension of principle but loves victims.  Never underestimate the cynicism of lawmakers when it comes to buying a vote at the expense of reason.

With someone of Paul Cassell’s background, and his obvious persistence in pushing this misbegotten agenda despite its utter lack of principle, there stands to be a fair chance that he will eventually capture the interest of some down-on-his-luck politician looking to find a way to make a name for himself at the expense of society.  What better way than to become the champion of victims?  As Cassell keeps throwing his excrement against the wall, eventually something will stick.

Not only would proposals such as these fundamentally undermine the nature of the criminal justice system, but they would have to rebuilt all the courthouses to make the well big enough to fit in a third table.  After all, it’s not like the victim wants to sit with any of the extant parties, or like they want to sit with the victim.