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.