Tuesday Talk: Equal Rights For Victims (Update)

Any law named after a dead child is presumptively a bad law.

–The Ted Frank Rule

There is a movement afoot to enact “Marsy’s Law.

Kelly Vierling, a Stillwater native, says she never had any doubts or concerns about the criminal justice system before tragedy struck her family. “You always just assume the system works until you are thrown into it,” she says.

When her 21-year-old son was shot killed by a woman at a party, she was devastated. Unfortunately, she soon learned the justice system – despite having an aggressive legal and support system in place for accused criminals – largely leaves victims and their families to fend for themselves.

It’s a horrible tragedy that Kelly Vierling’s son was murdered, and her devastation is certainly understandable. Her experience with the prosecution of her son’s killer, however, pushed her to take action.

Kelly wants people to understand that it’s the system, not the people involved with her case, who are at fault. She says Assistant District Attorney Kevin Etherington and her victims’ advocates worked hard to involve her in the process and cared about her and her family. “The system we have in place today gives defense attorneys and their clients the power to re-victimize the victims through the trial proceedings,” she says. “Kevin never let us down. The law itself is what is stripping victims of their rights and dignity.”

This is what comes of the misguided sense of entitlement pursued by victim’s rights advocates, the belief that victims have some amorphous “rights” in a criminal prosecution. If they believe they’re entitled to something, then the failure of the law to provide it makes the law seem at fault.

For Kelly, Marsy’s Law and the reforms proposed in State Question 794 are a way of fixing a process that is clearly broken. If 794 passes, families like the Vierlings will be required to be notified at each important stage of the criminal justice process: arrest, bonding, trial, and sentencing. If the DA seeks a plea deal, the Vierlings would be consulted. Their right to remain in the courtroom would never be in jeopardy.

These seem like simple, almost obvious, fixes. But for people like Kelly, they are the difference between experiencing justice and being victimized a second time by a system that ignores and mistreats people impacted by violent crimes.

Despite Vierling’s belief otherwise, the victim of a crime is not a party to a criminal prosecution. At most, they are a witness. This isn’t to “strip them of their dignity,” whatever that means, but that crimes are prosecuted because they are deemed offenses against society, not  the individuals who suffer. Prosecutors represent the government, not the victims or their families. The only party with rights in a criminal courtroom is the defendant, both because the Constitution provides it and because the defendant is the only person whose liberty is at stake.

It’s not that there is no way for a victim, or family, to obtain “justice.” They can sue civilly for their loss, in which case they will be a party to the proceeding, will be capable of choosing their own strategy and pursuing it as they deem fit. But the force of the state, the power of the police, the punishment of imprisonment or worse, is not there for the sake of the victims. It’s not theirs to use, and they get no say* in the decisions that are ultimately made.

The legitimacy of force, as reflected in criminal prosecutions, exists because of the putative harm done the state. It is not a vindication of personal interests, no matter how horrific the crime or sad the story. The defendant gets rights because he is presumed innocent and remains so until proven guilty. The victim will obviously care deeply, but from afar. It is not their fight even though their feelings are at stake.

Crime victims should have the same constitutional rights as criminals.

This is one of those appeals to emotion that simplistically seems both right and obvious, and yet is absolutely wrong. Crime victims do have the same constitutional rights as criminals, putting aside the fact that no one is a criminal until they’ve been convicted. Everyone has the same constitutional rights. If the victim is put on trial, then those rights will be afforded them just as they are the “criminal.”

But this invocation of the Ted Franks Rule presents the omnipresent danger of undermining both the integrity and function of criminal law by appealing to the emotion of a dead son’s mother. As sad as her loss was, it has nothing to do with how the system functions or what rights are provided in the course of a criminal prosecution. We can feel terrible for the victim, and the victim’s family, but that has nothing to do with how criminal prosecutions proceed.

Update: See also Meaghan Ybos’ post on Marsy’s law.

*As a result of the victim’s rights movement, many states have crafted laws providing for victim impact statements and notification rights, thus creating confusion about their relationship to the proceeding and the extent of influence and involvement to which they’re entitled.

13 thoughts on “Tuesday Talk: Equal Rights For Victims (Update)

  1. Tom

    So the relationship between victims and the court is like the relationship between Helmet and Lonestar?

  2. AM

    Michigan already has a law like this. It’s been a part of Michigan statutes and the Michigan Constitution since the 1980s.
    Michigan Constitution:
    Ҥ 24 Rights of crime victims; enforcement; assessment against convicted defendants.
    Sec. 24. (1) Crime victims, as defined by law, shall have the following rights, as provided by law:
    The right to be treated with fairness and respect for their dignity and privacy throughout the criminal
    justice process.
    The right to timely disposition of the case following arrest of the accused.
    The right to be reasonably protected from the accused throughout the criminal justice process.
    The right to notification of court proceedings.
    The right to attend trial and all other court proceedings the accused has the right to attend.
    The right to confer with the prosecution.
    The right to make a statement to the court at sentencing.
    The right to restitution.
    The right to information about the conviction, sentence, imprisonment, and release of the accused.
    (2) The legislature may provide by law for the enforcement of this section.
    (3) The legislature may provide for an assessment against convicted defendants to pay for crime victims'”

    Prosecutor’s offices in the state have victim coordinators who handle all of the mailings about court proceedings and the paperwork related to victim impact statements, statements at sentencing and restitution. Michigan sentencing includes an extra assessment that pays for all of it, a “crime victim fee” that is imposed regardless of whether or not the charge or conduct actually has a victim (i.e. drug possession).

    The ‘rights’ amount to a designated time for the victim to make a statement (in person or in writing), but actual discretion remains in the hands of the system.

    1. SHG Post author

      This is Tuesday Talk, so I’ve posted your comment. But is there a reason why Michigan having a law (many states have enacted victims rights laws) is illuminating?

      1. AM

        The experience of other jurisdictions which have enacted similar laws offers some light on how a proposed law would work in practice.

        1. SHG Post author

          Provided the laws have the same reach, they would. But you didn’t offer much by way of experience, and almost all lawyers (remember, this is a law blog) are already well aware of the experience in their states, so they don’t need your experience as they have their own. But this post is about equal rights for victims, a somewhat different issue than most of the extant laws.

          (See Robert’s comment below for what I’m talking about.)

  3. Jyjon

    Seems everyone wants to be involved and is sad because they can’t be. So, I propose going back to the old system. Give the lawyers swords and let em hack at each other, the winner is innocent, the dead are guilty. And on the plus side if the judges have the bailiffs sell tickets it would solve the financial problems of the courts.

  4. PseudonymousKid

    The damn Nassar sentencing(s) ruined any hope of stopping the momentum behind these laws. Olympians blasting away at a despicable human being. It’s too much. The court of public opinion is going to leak into real courts.

    Civil lawyers are obviously to blame for not being able to deliver the pounds of flesh required to feed the need for revenge. Confidential Settlement and Release Agreements just don’t have the same effect as blood and guts. That’s even before we talk about the worst thing possibly imaginable, the horrors of tort reform preventing full remedies to the wronged. Money getting moved around just can’t incite the same feelings as locking people in cages or worse.

    As always. There is no hope. Nuanced discussion is impossible. The distinction between the purposes of criminal law and civil law are meaningless to most. The groundlings want vengeance, and their politicians are either morons too or cynically playing to the crowd.

    1. SHG Post author

      There are tons of groups dedicated to the sad feelz. Not so many to the bad dudes. Mostly, it’s us criminal law-talking guys.

  5. zoe

    This is largely the fault of elected Judges and Prosecutors who campaign on nonsensical promises. If you cater to the feelz if the ill-informed, you get a broken “system” (because the people who are elected are not to blame, of course.)

    1. SHG Post author

      The irony is that it is broken, just not the way they think. And the double irony is that while prosecutors may campaign on silly promises, they hate dealing with victims as well for the most part. So many demands.

  6. Robert

    “*As a result of the victim’s rights movement, many states have crafted laws providing for victim impact statements and notification rights, thus creating confusion about their relationship to the proceeding and the extent of influence and involvement to which they’re entitled.”

    Amen to that last part.

    Here in South Carolina, we unfortunately have this “victim’s bill of rights” nonsense, and it can indeed play havoc with court hearings. For example, a couple of years ago I was representing a client in a bond hearing (the charge was Murder, our defense was Defense of Another), and what I took to be the entire family of the “victim” showed up for the bond hearing to demand the usual things like how my client should not be given bail but buried under the courthouse instead. What I had to say to the judge in seeking bail greatly upset one of those family members in particular (a grandmother) who went all loudly hysterical to the point where the judge finally directed that she be escorted from the court room. Let’s just say she did not react well to my suggestion that my client was defending the life of another from the aggression of her grandson and that said grandson basically deserved what he got.

    Anyway, after she was escorted from the courtroom the prosecutor proceeded to argue to the judge that I, as defense counsel, had deprived her of her right under the “victim’s bill of rights” act to meaningful input into the bond hearing — by upsetting her so much that she was unable to stay in the courtroom. I was so astonished by this argument that I was mulling it over and thinking of a response when the judge basically agreed with the prosecutor and declared that the bond hearing was over for now, that it was to be rescheduled for a date 3 months down the road to “give time for everybody to cool off.”

    Thinking back about it, I still find it hard to believe that it happened, but it did. All based upon supposed “victim’s rights” giving a grandmother the power to torpedo a bond hearing by going all hysterical during it, and then the prosecutor making up an argument on the spot about how her “right to input” had been deprived as a result.

  7. John Neff

    According to the legal historians the system adapted from a time when the accused defended themselves and the victim or a relative of the victim prosecuted the case. That was changed because the prosecution by the victim or a relative was considered to be substandard and a county attorney was appointed to prosecute the case. The accused that could afford to do so were allowed to hire someone who had read the law to defend them. It seems to me that the argument at that time was that the state was best served by competent prosecution not competent defense.

    That was a long time ago and there have been many adaptations since then and one of the adaptations was the increased use of plea bargains and that makes me wonder if that has aggravated the victims rights problem.

    1. SHG Post author

      The system has almost entirely recreated itself since then, both in theory and practice. While a historic curiosity, and helpful at times to understand what the founders had in mind, it’s the sort of information that today is more likely to confuse and muddle than help.

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