Moraff: The Politics of Victimhood

[Ed. Note: This is an experimental* guest post by one of my favorite criminal law journalists, Christopher Moraff, who writes on the intersection of policing, criminal justice, drug policy and civil liberties. He is a contributing writer at The Daily Beast, and co-host of the forthcoming podcast on drug policy Narcotica.]

On April 8, 1981, President Ronald Reagan issued a proclamation setting aside one week a year to acknowledge the suffering of crime victims and their families, with the goal, he said, of making victims rights “a central concern of those who participate in the criminal justice system.”

The president’s establishment of an annual National Crime Victims’ Rights Week coincided with a bipartisan push in Congress to enact new “tough on crime” legislation that would set the tone for the next three decades of criminal justice policy.

The feeling at the time that something needed to be done was not unjustified. In 1980, New York City had witnessed a record 1,840 homicides (in 2017 there were just 290); and the introduction of crack cocaine was about to turn many inner city communities into virtual war zones, as gangs like Philadelphia’s Junior Black Mafia battled for domination of the burgeoning drug trade.

But it’s worth acknowledging that many of the worst aspects of our criminal justice system are either directly or indirectly tied to an overzealous push to weigh the scales of justice in favor of crime victims over those accused of crimes, and the hijacking of this movement by powerful public sector unions that benefited politically from the rhetoric of fear that accompanied what began as a noble effort to give crime victims a voice.

Indeed, for most of its existence, the battle for victims’ rights has existed as a thinly-veiled war on the constitutional right to due process.

“The crime epidemic threat [that] has spread throughout our country . . . is in large measure a cumulative result of too much emphasis on rights of the accused,” said Reagan in a 1983 speech promoting his package of anti-crime measures. “We should be proud that our constitutional system protects the rights of the accused, but over the past few years that system has allowed the safeguards protecting the rights of the innocent to be torn away.”

During his campaign for President, Reagan had convened an Advisory Task Force on Victims of Crime to review the policies and programs affecting crime victims and recommend actions to improve efforts to assist and protect those most impacted by crime.

After taking office, he named Lois Haight Herrington, a former prosecutor in Alameda County, California, to chair the commission. Herrington, who was subsequently named Assistant Attorney General of the United States, and went on to become the first Chairman and Executive Director of the White House Conference for a Drug Free America, opened the final report of her task force with an ominous pronouncement:

“Something insidious has happened in America,” she wrote. “Crime has made victims of us all.”

The philosophical figurehead for the victims’ rights movement was Frank Carrington, who had served as head of Americans for Effective Law Enforcement (AELE), a think tank devoted to rallying conservatives from the socially conservative “New Right” around tough-on-crime policies.

Carrington, who died in a fire in 1992 at the age of 55, isn’t a household name, but at the time he had a formidable influence on the tenor of the evolving conservative position on crime. The former attorney for the Chicago Police Department was a close confidante of Ed Meese, and had authored a book called “The Victims” (1975) that railed against the coddling of criminals due to “ultra-lenient and permissive” policies that he believed informed everything from the prison establishment to the Supreme Court.

At Meese’s prompting, Carrington was appointed to Reagan’s task force and is credited with helping ignite the burgeoning war on crime, using victim’s rights as his proxy.

The task force recommended 64 specific reforms, some of them grounded in common sense (such as establishing separate waiting rooms for prosecution and defense witnesses). Others seem innocuous at first glance but run counter to principles of American jurisprudence, such as the recommendation that judges ruling on requests for continuances give equal weight to the interests of victims and witnesses as that given to the interests of defendants.

But the commission also chipped away at some foundational criminal justice policies that were grounded in centuries of common law and decades of judicial precedent.

These included expanding the use of bail to allow for “preventative detention” (which was passed by Congress in 1984 as the Bail Reform Act); the abolition of parole, allowing hearsay evidence in preliminary hearings, and a call for dismantling the exclusionary rule, which prohibits the use of illegally obtained evidence.

Reagan had campaigned on the promise of repealing the exclusionary rule, which he called “absurd”  and a “grievous miscarriage of justice.” (This push gained little traction; but Chief Justice John Roberts, who helped draft the measure as a young administration staffer, would go on to pen the Supreme Court’s majority opinion in Herring v. United States, allowing exemptions to the exclusionary rule in cases of police negligence).

Reagan’s efforts ultimately led to the passage of the Victims of Crime Act of 1984 (VOCA), which created an executive-level office for victim advocacy and established guidelines for compensating people who had fallen prey to violent crime. It also helped ignite a change in the public view of corrections, and drive a move away from a focus on rehabilitation and toward a more punitive interpretation of criminal adjudication.

Along the way, the victims’ rights movement provided fuel to a new power player in American criminal justice policy. While the Reagan administration was chipping away at the power of public sector unions, most famously firing more than 11,000 air traffic controllers who had gone on strike to demand higher pay, the federal push to expand victims’ rights was being co-opted by prosecutor associations, prison guard unions and the Fraternal Order of Police as a platform to increase their influence over public policy.

Again, credit is owed to Carrington, who five years before writing “The Victims” had published a paper titled “Speaking For Police,” calling on the law enforcement community to take a more active role in politics.

“The word ‘lobby’ is not a dirty word when applied to law enforcement; and, providing they stay within the bounds of legality, the police should not be prevented from lobbying in the sense that lobbying means presenting their point of view to individual legislators,” he wrote.

Public safety employees had come late to the labor movement. As organized labor was establishing itself as a formidable political force in the early twentieth century, even pro-union politicians observed a fundamental conflict of interest evident in nascent attempts at police unionization.

In 1919—commenting on a massive police strike in Boston that led to four days of looting and the dismissal of 1,100 officers—President Woodrow Wilson said of the police officer:

He is a public servant, not a private employee, and the whole honor and safety of the community are in his hands. He has no right to prefer any private advantage to the public safety.

In the 1930s, FDR observed that the “process of collective bargaining, as usually understood, cannot be transplanted into the public service.”

For many years, courts tended to agree. A 1939 ruling in Illinois upholding the dismissal of a Chicago police officer for politicking described law enforcement as a profession that “requires that the members of it shall surrender their individual opinion and power to act, and submit to that of a controlling head just as much as the common soldier must surrender his own opinion and power of action to that of his commanding officer.”

In the post-war years, the professionalization of law enforcement led police officers to take a more aggressive stance toward organizing. The Fraternal Order of Police—which had been formed in Pittsburgh in 1915 and was modeled more on a Masonic lodge than a traditional labor union—expanded to a number of large U.S. cities. With a powerful political organ now at its disposal, police unions wasted little time expanding their operational mandate beyond the workplace and into the realm of public policy.

In the 1950s and 1960s, police unions in New York and Philadelphia fought successfully against the establishment of the nation’s first civilian oversight boards.

Against that backdrop, the first prison guard union, New York’s Correction Officers’ Benevolent Association (COBA), was formed in 1958. The group now represents roughly 9,000 jail guards in New York City and is the largest municipal jail union in the nation. By 1980, half of the nation’s state correctional agencies were operating under collective bargaining agreements and three-quarters of police employees were members of a union.

That year, one police union official was quoted as saying: “Chiefs, Commissioners and Superintendents are all temporary. The union is the only permenancy of the department. It is with whom you deal. We will make policy.”

By leveraging the growing power of the victims’ rights movement, in a half century police unions and prison guard unions went from being virtually unheard of, to actually writing law. Many police and correctional officer unions and organizations support victims rights initiatives and some donate considerable sums of money to victims’ organizations.

The California Correctional and Peace Officers Association (CCPOA), for example, is a primary funder of the Doris Tate Crime Victims Bureau, which was a major force behind California’s adoption of the “three strikes law.”

And Crime Victims United—a victims’ advocacy organization active in California and Oregon—receives almost all of its financial support from correctional unions.

The core of this shift still permeates the dialogue on victims’ rights, and is based on the erroneous belief that crime victims and their families are a monolithic group with an unrequited desire to inflict maximum suffering on the people who harmed them.

In 2014, following a college commencement address delivered by convicted cop killer Mumia Abu Jamal, the Philadelphia FOP successfully lobbied the Pennsylvania legislature to draft and pass a bill allowing for crime victims (or three generations of their relatives) to obtain a court order preventing an inmate or ex-offender from exercising his right to free speech.

The bill was sponsored by former state Rep. Mike Vereb—himself a former law enforcement officer. It was passed in a near-record 15 days and signed into law by then-governor (and former state attorney general) Tom Corbett. A federal judge ultimately invalidated the so-called “Revictimization Act,” calling it “manifestly unconstitutional,” and lamented the ease with which it passed unquestioned through the legislature. (Full disclosure: I was a plaintiff in one of two cases challenging the law).

The passage of the Revictimization Act exemplifies the astounding level of clout police unions have in shaping public policy in some states.

According to Bret Grote, the legal director of The Abolitionist Law Center, a prisoner rights group, “[The FOP] has never had any problem getting what they want in Pennsylvania.”

Over the years, this has included a ban on in-person broadcast media visits for prisoners and a law allowing crime victims and their families the chance to testify in person before the state parole board decides to release an inmate from prison. The FOP also helped lobby support for a change in the Pennsylvania Constitution in the 1990s that virtually put an end to commutations and pardons for inmates sentenced to life.

Kerry Naughton, who heads the crime survivors program at the Partnership for Safety and Justice, says the public voice of the victims rights movement came to be dominated by advocates who reflect a predominately “white, male and middle-class perspective,” whom she accuses of “advancing a narrow policy agenda that has actually damaged some communities.”

But this narrow policy agenda has also alienated many within the conservative’s traditional base, like Vicki and Sylvester Schieber, the parents of Shannon Schieber, who was raped and murdered in 1998 while a student at the University of Pennsylvania.

The Schiebers, who are staunch Catholics and oppose capital punishment on religious grounds, were chastised for speaking publicly about their opposition to the execution of their daughter’s killer (who had not yet been caught).  They were overridden by then-Philadelphia District Attorney Lynne Abraham, who pledged to pursue the stiffest possible penalty for their daughter’s murderer.

Shannon Schieber’s killer was ultimately arrested in Colorado, where he is serving a sentence of life without parole. But the experience sent the family on a decades-long mission to represent the voices of families of murder victims who oppose retributive justice.

“We didn’t want him put to death,” said Vicki Schieber, who co-founded a group called Murder Victims’ Families for Human Rights, in a 2013 interview. “This wasn’t the way we were going to find peace and closure.”

Fortunately, the thinking on this has been evolving. The group Conservatives Concerned About the Death Penalty, for instance, has managed to cobble together a coalition of religious leaders and Republican lawmakers for an effort to repeal capital punishment in several red states. And Naughton is part of a national movement together with organizations like the anti-death penalty group EqualJustice USA, that is aimed at bringing the victims’ rights movement more in line with the principles of restorative justice, which focuses on healing communities and crime victims through dialogue and rehabilitation.

But with the re-emergence of law and orderism under the Trump Administration and Attorney General Jeff Sessions, that’s likely to take longer than anyone had imagined.

*Unlike some of us, Chris earns his living as a writer. He’s kindly contributed this post for our benefit, my benefit, and you get to read it here for free. But as I’ve said before, if you want excellent writing and thinking on criminal law, you need to support those who do it. Support Chris by making a contribution (see the “donate” button on the sidebar) today, even if only a few bucks, all of which goes to Chris for his efforts to make us smarter. Show him the love. He deserves it, and we need to keep writers like Chris Moraff writing. Give it up for Chris.

6 comments on “Moraff: The Politics of Victimhood

  1. Richard Kopf

    Mr. Moraff,

    Having lived through the latter part of the Reagan era as a young federal Magistrate Judge during the horrific crack cocaine epidemic and having applied the 1984 Bail Reform Act thousands of time, I was impressed by your ability to capture the zeitgeist of that era.

    Additionally, your description of the rise of public sector police and corrections unions was eye-opening to me. The relationship between hyping the plight of victims and the rising power of law enforcement unions simply did not occur to me. I didn’t see what was in plain sight.

    Anyway, you are a fine writer with a gift for putting the evolution of complex policies in perspective. That is not an easy feat. I look forward to reading more of your writing.

    All the best.

    Richard Kopf

    PS Thanks to SHG for providing a platform for Mr. Moraff.

    1. SHG Post author

      It was a great piece of writing. As Judge Kopf said, Chris really captured the zeitgeist of the time. Now, if only all the fine readers gave up a few bucks so Chris can buy himself a well-deserved glass of Mortlach this evening, that would be nice (you cheap bastards).

  2. Daniel Luke

    The cozy relationship between police unions and groups which purport to advocate for victim’s right might explain why no one is ever held to account for extremely high rates or recidivism. How, but through reform efforts might the rate of recidivism be reduced? Don’t current victims and members of LE have any concern for future victims? And while we’re on the topic, we might also look at all of the rape kits which go untested, and a lack of concern over the murder clearance rate which has fallen in many places despite an increase in funding for police departments almost everywhere. None of these things show concern for victims.

  3. Fubar

    Thank you, Mr. Moraff, for reporting the facts of this scientific breakthrough:

    It was passed in a near-record 15 days and signed into law by then-governor (and former state attorney general) Tom Corbett.

    Near light speed, let us never forget
    Was achieved without breaking a sweat.
    To put it in orbit,
    They turned to Tom Corbett
    To sign it — a real Space Cadet!

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