In a deep dive, Chris Moraff explained who was behind the blatant appeal to emotion. And for anyone watching the downward spiral of thought into the cesspool of emotion, it came as no surprise.

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.

The argument in favor of victims had surface appeal, particularly to those who lacked the strength of mind to realize that the criminal law system wasn’t about vindicating the interests of victims but about enforcing societal rules. And it was too easy for those with lesser appeal, cop unions and pandering politicians, to seize upon the rhetoric of fear and empathy for their own purposes. When you’re crying, anyone who wipes your tears is your bestest friend.

But as Jill Lepore writes in The New Yorker, we weren’t always this blind.

“This is not theatre,” Judge Richard Matsch announced on the first day of the trial of twenty-nine-year-old Timothy McVeigh in the daffodil spring of 1997. “This is a trial.”

That was then. This is now.

“I know that the world is watching,” [Judge Rosemarie] Aquilina said, the day she sentenced Nassar to up to a hundred and seventy-five years in prison. She said she’d been gratified by the reaction to the televised and live-streamed proceedings on Twitter and Facebook. She congratulated the press. “I respect all of the media outlets, you have just done a fabulous job here.” She congratulated herself. “I give everybody a voice,” she said. “I give defendants a voice, their families when they’re here, I give victims a voice.”

It wasn’t her job to “give victims a voice,” but damn, she was loved for it. What has changed isn’t victims. There were always victims of crime, real victims, many of whom suffered terribly as a result of crimes committed against them. But as Judge Matsch said, what was going to happen in his courtroom wasn’t a made-for-TV movie on the Oprah Network, but a trial.

The history of this is typical, in that the arguments used to push the pendulum in one direction or the other are the same, but merely applied by opposing sides for their own purposes. Nixon was big into victims’ rights, because they came at the expense of the accused. No, he wasn’t a third-wave feminist vilifying due process because it makes it harder to convict the innocent, but he could just have well been. And the passionate women who utter his words today will spin as hard as possible to deny they’re just Nixon’s children, but they are.

During the centuries when victims were gradually excluded from criminal proceedings, defendants didn’t have much of a role, either. Generally, defendants were not allowed counsel before the eighteenth century and could not offer sworn testimony before the end of the nineteenth century; most trials, in any case, lasted only about twenty minutes. Against the fearsome power of the state, defendants are nearly powerless, which is why most rules of evidence are designed to protect them, a principle central to the founding of the United States and embodied in the Fourth, Fifth, Sixth, and Eighth Amendments and, later, in the Fourteenth. The rights of defendants are protections against the state, not harms done to victims.

To be more emphatic, Judge Matsch was right and Judge Aqualina was completely, utterly, disgracefully wrong. Not that other empathetic judges didn’t enjoy the show. Infusing victims’ rights into criminal proceedings comes at the direct expense of defendants’ rights. You can decry mass incarceration and simultaneously cry for the victims, but you can’t put both in the same well and deny the conflict. At least not if you have any integrity.

It was Thurgood Marshall’s turn to dissent. The Court, he noted, did not ordinarily reverse course so quickly. What changed was “neither the law nor the facts” but “only the personnel of this Court.” In his view, victim-impact evidence draws “the jury’s attention away from the character of the defendant and the circumstances of the crime to such illicit considerations as the eloquence with which family members express their grief and the status of the victim in the community.” Legal scholars tended to agree. A leading critic, the DePaul law professor Susan Bandes, wrote that victim-impact statements “appeal to hatred, the desire for undifferentiated vengeance, and even bigotry,” and “may block the sentencer’s ability to perceive the essential humanity of the defendant.”

Not all victims seek harsh retribution, though they tend to be shunted off to the side as the ones who do are offended by their lack of support. Is the murder of a person with an eloquent and angry spouse more criminal than the murder of someone without family?

The mob loves victims. The mob loves their tears. The mob isn’t interested in legitimacy of process, rights of the accused, and certainly not proportionality of its retribution.

In the age of #MeToo, victims’ rights are making remarkable political headway, for many of the same reasons they did after the Oklahoma City bombing. Tragedy is a fierce tailwind. And, as Susan Bandes puts it, “Nobody really wants to have to tell victims, or survivors of violent crime, that they cannot be heard.”

Somebody does, and that’s why some old trench lawyer keeps pounding away at the emotionalism that fuels the mob, and allows it to be played by more nefarious forces who relish its naivete, ignorance and susceptibility to manipulation. For every passionate moment that rationalized your most noble beliefs, the exact same excuse is used to strip away the rights of the accused, deprive the innocent of any chance to fight, to win, and condemn the rest of us to mob rule at the behest of its unseen puppet masters.

If you want something to cry about, try that. You may not feel it yet, but in a few years, when you’ve given it all away to enjoy wallowing in blissful misery, you’ll come to the realization that you can’t see what’s being done to you when your eyes are full of tears.

Be sad for the victims, provided they’re real victims. If you feel the pangs of empathy, watch them on Real Victims of Beverly Hills and use up a full box of tissues. But they have no role in the courtroom, where the only question is whether the government can prove their claim.