Crime

How Much Say Should A Victim Have In A Criminal Case?

Because of the confrontational setting, the defendant perceives the victim as the enemy, not as a human being who deserves empathy and understanding.

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Last week, a California couple was sentenced to life in prison for the torture of 12 of their 13 children.  The children, ranging in age from 2 to 29 years old, had been subjected to beatings, starvation, shackling to their beds, and confinement to the house.

In January 2018, one of the children escaped out a window and called police.  They were freed and a number of criminal charges brought against the parents. The children all appeared younger than their ages, and suffered from malnutrition and post-traumatic stress.

However, at their parents’ sentencing last week, several spoke optimistically about the experience and at least one asked for leniency for her parents.

According to a story in the New York Times, one daughter stated, “I feel like 25 years is too long,” she said. “I believe with all my heart that our parents tried their best to raise all 13 of us. They wanted to give us a good life, and they did everything they could to protect us.”

Another daughter said while the suffering they faced was “bad,” it made her strong.

It’s not uncommon for victims of criminal acts to have a say in what happens to the perpetrator of the crime.  All states permit victims to appear in court and speak on the record or submit something in writing about the impact the crime had on their lives.  These statements can be devastating.  They’re generally emotion-driven, detailing the harm, cost, and suffering (physical and mental) the complainant went through.  They rarely ask for leniency or express forgiveness.

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Except in family cases.  I had a case where a mentally ill son stabbed his father (a man he loved) to death in his parents’ home.  All the siblings and their mother beseeched the prosecutor to let him enter a plea of not guilty by reason of insanity.  Eventually, thanks in large part to their efforts, the son was allowed to do that. (He’ll be institutionalized until the state deems him no longer dangerous.)

In another case, a mother of a child who accused her stepdad of sexually assaulting her, argued that she did not believe the child and that the stepdad should be released.  The prosecutor ignored her entreaties and indicted the case. Eventually the stepdad took a plea to eight years in jail, afraid he’d do worse if convicted after trial.

In a case I’m now dealing with, prosecutors are refusing to let my client plea to a lesser charge, not because he doesn’t deserve it, but because the victim won’t give his approval.

How much attention should prosecutors and courts pay to victims of the crime in making their decisions on what should happen in a case?

It’s a complicated question.  Clearly victims should have a chance to tell the court exactly what impact the crime had on their lives. They might have incurred debt for hospital bills, lost their ability to work, or moved to another state.  Then again, they’re not likely to be the most impartial people to determine either the extent of harm they suffered, or how severely the defendant should be punished.  Some may have outstanding civil suits against the defendant or other entities where the crime took place.  For example, if a person pushes another in front of an oncoming subway, civil suits will potentially follow against the MTA, the train conductor, or a police officer on the scene who didn’t intervene.  Many victims have an interest in exaggerating harm in order to profit more.

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Others might just hate the defendant so much (particularly where child custody or tenancy in an apartment is at stake) that they’d have every interest to see the defendant put away for as long as is possible, even if that punishment is neither fair nor necessary.

A judge often meets a victim for the first time at sentencing if the case was pled out.  He or she has no context to judge the victim’s credibility, personality, or ulterior motives. Is he someone likely to exaggerate?  Is he someone with an axe to grind?

Ironically, the opposite scenario — the rare case where the victim says he forgives the defendant and doesn’t believe a lengthy jail sentence is appropriate — doesn’t generally make much difference at all.  The thinking goes, it’s just the victim and he doesn’t have experience with how sentencing works.

The biggest factor prosecutors use in determining the punishment they recommend is the strength of their case and the defendant’s criminal history.  So even if a victim recognizes he wasn’t badly hurt, got his property back, understands why the defendant did what he did, and asks for leniency, the judge and prosecutor will likely ignore entreaties for shorter sentences.

It always strikes fear in the hearts of defense attorneys when they hear a victim will be making a statement at sentencing.  The court hushes.  The person, generally not used to speaking in such a large space, often on a microphone, speaks in a halting voice.  In the few minutes his or her statement takes, the pathos of its content could persuade a judge, who already had a particular sentence in mind, to make that sentence much longer.  Because of the confrontational setting, the defendant perceives the victim as the enemy, not as a human being who deserves empathy and understanding.  An opportunity for both the victim and the defendant to come to grips with a traumatic moment that affected both their lives, is lost.

The focus in our criminal justice system as it stands today is punishment, not restoration of the victim or rehabilitation of the defendant.  Someday though, as views on criminal justice advance, the idea of restorative justice may play a greater role.  By setting up opportunities for the victim and defendants (or their families) to understand what happened, to speak to each other and not just call for blood, everyone may heal quicker.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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