Since leaving the bench, Paul Cassell has dedicated his energies toward the plight of crime victims, attempting to fundamentally alter the calculus of the criminal legal process so that the constitutional rights afforded the accused are tempered by the “third table in the well” for the victims. The state creates crimes to deter people from engaging in conduct the state determines to be wrong or seeks to prohibit. Criminal prosecution is not about giving the victims “justice,” no matter how hard it tugs at your heartstrings.

While the legitimacy of criminal law is based upon the fundamental notion that it is a matter between the defendant and the state, Cassell has long sought to reinvent criminal law by making it a conflict between the accused, the state and the victim.

Given the shift under the current administration of using criminal law as a weapon of retribution against Trump’s enemies, while simultaneously absolving the guilty who are capable of paying for a pardon, academics have sought a means to overcome the partisanship that has stripped legitimacy, as well as a great many career prosecutors who are unwilling to forfeit their ethics to serve under AG Pam Bondi, from the Department of Justice. Cassell has contributed the following position, taken from his post at Volokh Conspiracy, as a way to solve the problem.

Growing citizen distrust is a serious problem facing the nation’s criminal justice system—and, as a result, our democracy. Over the last decade, we have seen arguments coming from both sides of the political divide about politicization, unfair charges, and unjust results. These concerns about politicization are not tied to one Administration or the other but have been growing for years.

The usual solution offered is to increase the professionalization of the system, bring in more lawyers or judges and insulate them from political pressures and the like. Or to place more emphasis on historic norms that often seem to shift, depending on who is assessing those norms.

A more viable solution is not to turn to the “professionals” but to increase participation by ordinary citizens—those who have the most at stake in the criminal justice system: crime victims and their families. Such an approach is broadly democratic, as it removes power from the government (whoever might be in control). A more victim-centric system places power in the hands of those who have less incentive to politicize outcomes and more incentive to focus on violent and other clearly non-political crimes.

While this notion is lacking in detail, and the law already provides for “victim’s rights,” including notification and restitution, both dubious propositions in themselves, is the basic concept here sound? While placing power in the hands of victims might serve to temper the weaponization of the system for political purposes, would it create a more dangerous, more unconstitutional system of shift away from the state as represented by detached prosecutors to victims who demand their brand of retribution?

Indeed, it could just as easily be argued that Trump, who perpetually views himself as the victim of injustice by everybody who doesn’t love him as much as he needs to be loved, is already making the system victim-centric, except with him as the only victim worthy of consideration. Now that he’s got his hands on the levers of government to do his personal bidding, he’s using it to do as Cassell contends, turning what is supposed to be a neutral and detached system of criminal law into a system that vindicates that feelings of the victim.

At the moment, it’s a matter of one victim subverting the system. Would it be better if it were thousands?

Then again, the matter of the Jeffrey Epstein case raises a very different perspective, given how the government ignored their claims for years and has failed miserably to address the actions of the wealthy and powerful men who may have committed heinous crimes. During Congressional hearings, FBI Director Ka$h Patel was asked if he had ever spoken to any of the Epstein victims, and he spun in circles to avoid admitting that he never spoke to a single victim.

What about a criminal legal system that deliberately avoids and ignores victims when the crimes are inconvenient because of who it implicates? What about a system that twists itself into a pretzel not to prosecute crimes so as not to taint their friends and financial supporters? Even if it’s not about justice for the Epstein victims, isn’t it still about prosecuting people who are engaged in raping and trafficking young women? What happens when the government decides not to concern itself with conduct it otherwise is supposed to deter except when the perps turn out to be the people running the system?

*Tuesday Talk rules apply.