In the past week’s posts about my new book, I’ve sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more radical proposal for turning sentencing back into a victim- and defendant-centered morality play, which I call restorative sentencing juries, but I can’t go into that here.)
Naturally, including victims gives rise to various fears. Today I’ll discuss three such fears: vengefulness, inequality, and unprofessionalism. Each set of concerns is legitimate, but manageable if not overblown.
First, we tend to assume that victims thirst for revenge. Give victims power, one might think, and they will simply take it out of defendants’ hides. To this way of thinking, criminal justice is a zero-sum game, and making victims happier necessarily comes at the expense of defendants, tilting the playing field against them.
But contrary to what one might expect, victims are not reflexively punitive. Empirical studies find that participation by victims does not lead to harsher sentences. Thus, giving victims voices in the process need not produce harsher outcomes, particularly because plenty of safeguards would remain. A neutral judge or jury would have to authorize any conviction or punishment and would weigh the victim’s input against the defendant’s and all the other evidence. A prosecutor would still be able to override a victim’s vengeful, selfish, or otherwise unbalanced requests.
What victims care about is not so much the substantive outcome as whether they are treated fairly and respectfully along the way, including whether they are listened to and taken seriously. Keeping victims informed, letting them speak, and giving them their day in court makes them more satisfied. That is not a zero-sum game; both victims and defendants can benefit from being treated respectfully.
Of course, some victims will desire more punishment than defendants want; that is why judges and juries must sit in judgment. But a process that listens to and respects both sides will earn more legitimacy in everyone’s eyes, regardless of the substantive outcome. And procedures that encourage catharsis, apology, and forgiveness may help victims to release their anger and find closure without demanding the maximum sentences.
Second, heeding victims would seem to invite inequality. Some victims suffer more or are more vengeful than others, and some are more attractive or more articulate.
Though many philosophers deride it as moral luck, harm to victims is undeniably central to popular intuitions of justice. For instance, whether a victim nimbly dodges a knife thrust can make all the difference between a conviction for murder, mayhem, or just aggravated assault. Each defendant may have the same mental culpability but receive vastly different sentences based on the victim he chose to victimize.
Gauging the harm to a unique human being, not a faceless abstraction, requires evidence of how that particular victim suffered. A victim’s expressed feelings and wishes are powerful evidence of the psychological harm that he has suffered or from which he has recovered. And many people’s intuitions put significant weight on victims’ wishes; they implicitly recognize that victims own a share of the right to punish.
One may legitimately worry that judges and juries may favor attractive, white, young, female victims. But sentencing guidelines, rules of evidence, and cautionary jury instructions can limit discrimination. Moreover, despite decades of regulations, scholars still find sentence disparities based on the race, sex, and class of victims. Rich, powerful victims already find ways to influence prosecutors and make their voices heard; poorer victims need formal ways to participate to achieve an equal footing.
Finally, efforts to treat like cases alike, such as mandating charging and minimum sentences, often wind up treating unlike cases alike. That is the lesson of my analysis of prosecutorial power: rules meant to ensure substantive equality often become plea-bargaining chips that turn on insiders’ interests rather than blameworthiness or harm. Perhaps, then, it is worth relaxing our fruitless quest for perfect equality in favor of the other values of victim participation.
Indeed, perhaps local participation by victims and the public may be even better at promoting equality than top-down judicial rules have been. Local democracy might perhaps defuse the insider-outsider tension, instead of driving outsiders to jack up sentences while insiders covertly and inconsistently undercut them. Over the last decade, in areas such as racial profiling, capital punishment, and crack cocaine sentencing, legislatures and governors have pushed for more criminal justice equality where judges have failed. Voters care about equality. Populism, in short, need not mean racism.
Third, transferring power from prosecutors to victims would seem to slight the benefits of professional expertise. But critics of victims’ rights overlook prosecutors’ flaws. Prosecutors are far from perfect guardians of the public’s and defendants’ interests. They have plenty of self-interests of their own, which can make them too harsh in some cases and too lenient in others. The alternative to a victim’s check on prosecutors is effectively no check at all. Prosecutors can check victims’ excesses, but likewise we need victims to check prosecutors’ excesses.
At one extreme, lawyers can become cynical. Some of the commentators on these posts, like some of the lawyers whom I interviewed for the book, doubt that there is such a thing as justice or that criminal justice could have anything to do with justice. Others burn out, drained and beaten down by the volume of work.
Many others become jaded, dulled by time and the steady drumbeat of crime. They may have been drawn to the profession to do justice and serve the public, but over time the focus on case-processing statistics and the legal mindset dulls the freshness of their perspectives. They need to be reminded of how their constituents, the outsiders, view justice and how they need to be treated.
I’m a former federal prosecutor: I wanted to do justice, and I was proud to engage in public service. The bulk of the lawyers I practiced with, against, and in front of were good, honorable people. But a little bit of distance from practicing law has helped me to see what I and many other practicing lawyers gradually paid less attention to–the central role of moral justice and flesh-and-blood people. Insiders may come to see defendants and victims as statistics, but outsiders taking a fresh look see complex, flawed, real people.
G.K. Chesterton put it best: “[T]he horrible thing about all legal officials, even the best, . . . is not that they are wicked . . . , not that they are stupid . . . , it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of justice; they only see our own workshop.” Juries existed to bring in a steady rotation of outsiders, whose fresh eyes could see the wounded victim and “the prisoner in the dock” in all their complexity before “the awful court of judgment.”
Ours is an age that worships professionalism and bureaucracy; we are disciples of Max Weber. Professionalism has its virtues, but we are sometimes blind to its vices and shortcomings. In the book, I reach back to an earlier American tradition, that of Alexis de Tocqueville and populist self-government.
Criminal justice should fundamentally be about justice, and justice is fundamentally about morality. Idealism should guide us even as practicality brings it down to earth. Only by forcing insiders and outsiders, lawyers and laymen to see through one another’s eyes and take one another seriously can we reap the benefits of both expertise and fresh perspectives.
It’s been a pleasure blogging here this week. Thank you for your attention.