07 December 2003

The so-called "Victims' Rights Amendment" has been floating around for a long time. Jeralynn Merritt of TalkLeft makes a coherent argument against it; there are three even more egregious problems with the very concept of the VRA.
  1. As constituted, the VRA does not impose the rules of evidence on anything offered by the victim. It's bad enough that so many criminal trials eventually come down to notoriously unreliable eyewitness testimony, with admissibility unfairly stacked in favor of admission. But this is essentially an unsworn statement offered against the defendant that the defendant has no real opportunity to controvert, except to maintain "I didn't do it." The rules of evidence (and probably even the rules of decorum in court) would get at best lip service, and most probably would not apply at all. Attacking a victim-impact statement bears uncomfortable resemblance to the problems with overzealous defense against rape charges in which the rape victim becomes the subject of the trial. (That is not to say that questioning the victim's credibility in a "he said/she said" situation is inappropriate; only that it seldom stops there.)
  3. A VRA makes the problems with elected judges that much worse. For example, there are two judges in this area—Bob I and Bob II (not their names or anything close)—who were seriously behind in the polls before their respective elections until they started running attack ads claiming that their opponents for open seats were "soft on crime," while they were "tough on crime." This is, to my mind, sufficient argument against electing judges by itself. Now give these predisposed idiots (they're public figures, so I can call them that, particularly since I don't practice in the local courts) the additional impetus of the VRA—which, even if not specifically incorporated against the states, will certainly be adopted by many, especially those (like this one) that are trading off tougher death penalty standards—will just make their records worse. I do not know any private defense attorney in this area who does not shudder when Bob I or Bob II presides over a case.
       Another closely related, yet unstated, problem is that even victim impact statements encourage a subtle racism. Many studies have already demonstrated that the race of the victim is the most critical factor in statistically predicting application of the death penalty. The VRA only reinforces the victims' opportunities to consciously or unconsciously reinforce that; a personal appearance essentially unfettered by the rules of evidence, or even a personal statement unfettered by the rules of evidence, can only inflame a jury. Or, for that matter, a judge with narrow social experience (which is probably the majority of the judges who handle criminal matters, both state and federal), definitely including both Bob I and Bob II.
       Frankly, neither Bob I nor Bob II appears to have ever met a white-collar-crime defendant whom he didn't like, or a burglary defendant whom he did. Which leads to:
  5. I have yet to see a principled distinction between the universe of violent crime and the universe of white-collar crime that justifies allowing victims of violent crime a voice denied to victims of white-collar crime. As Ms. Merritt notes, it is difficult enough to define violent crime. Consider the middle-class white businessman who was mugged in an alley, for the loss of his Rolex and a couple hundred bucks from his wallet (his stay-at-home wife was smart enough to cancel all of his credit cards before much damage resulted). On the other hand, consider the elderly black widow who sank her life's savings into a slick pyramid scheme run by a career con artist with no prior convictions, but a host of prior losses in civil suits; she is now stuck living in a state-run nursing home, although her savings would have allowed her to keep her house. One of these two individuals gets to inflame the jury. One does not. Someone please explain the reason.
       Perhaps it's just my classical education showing, but I still think that Dante has at least an arguable point in the structure of the Inferno: the crimes of deception are as a group in deeper circles than the crimes of violence, even murder. A man with a briefcase can steal more money than any man with a gun—especially if he or she is a corporate executive. Any acceptable VRA must treat crime even-handedly as to its "kind"—because the only theoretical justification for a VRA necessarily includes consideration of unforeseen consequences in the process.