What role should crime victims play in plea bargains?
Mar 03, 2010
from Scott Hensen's entry at Grits for Breakfast:
Prosecutors represent the state, not crime victims, and they're charged with seeking justice, not convictions. But the Houston Press published a feature questioning whether prosecutors should be required to notify crime victims or get their sign-off before entering into a plea deal. The Harris County DA's Office says "There is no obligation to give advance notice to all victims of plea bargains," a policy which has the Mayor's crime victim advocate Andy Kahan hopping mad.
There's a problematic conflation throughout the article of "victim's rights," which is a largely ephemeral, political idea, with legal rights of defendants accused by the state, which are enshrined in the US Constitution. The Press article is rife with examples of crime victims who say "their rights have been walked on," but those aren't legal rights, only theoretical ones the speakers think they should have. After all, as the Press notes, "The law does not provide victims any way to enforce their rights after they've been violated." And if you can't enforce a "right" when it's violated, then it isn't one - not in a legal sense, anyway.
The main example in the story probably isn't the best one for victim's rights advocates since it atypically involves a high-profile, politically connected defendant: Former US Congressman Craig Washington. His light plea deal (2 years probation) probably isn't what the average black man firing a gun at white youth could expect in Houston, regardless of the victim's wishes.
But I was interested to notice the main reason the victims say they're unhappy at Washington's plea deal: Not at the outcome but because they didn't get the chance to say their piece. The two boys who Craig Washington shot at "wanted to tell their side of the story to a jury, and made it clear to Harris County prosecutor Lynne Parsons that they didn't want to settle for a plea deal. If a jury let Washington off, so be it."
I find fascinating this overarching desire by the victims to tell their story to 12 people they do not know. Indeed, getting to tell their story, by their own account, was more important than any punishment Washington might receive.
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I teach both victimology and restorative justice. I think it would be interesting to do a study of prosectutors on this subject, rather than painting all prosectuors with one broad brush. I recently had a victim survivor (her mother was killed by a former boyfriend) testify in my victimology class about the tremendous support she received from the prosecutor. He even gave her his cell phone # to call at any time. Prosecutors clearly see their duty as representing the state, but many see themselves as representing the victim's interest as well. With respect to plea bargaining, the film, "Rape in a Small Town," is an excellent example of the damage we do when we do not give victims the opportunity to tell their stories. Another interesting take. An assistant prosecuting attorney specializing in domestic violence recently discussed her approach. She says she deliberately takes the position of NOT representing the victim because in most cases she is dealing with an uncooperative victim. From her perspective, she is saving lives by trumping the victim's voice--in most cases--let my husband/significant other go free with no accountability. Perhaps this shows a need for an alterntive approach to D.V. There are subtleties in all of these issues that we need to address in RJ. My best, Cheryl