Victims in the War on Crime

Front matter

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Fr

VICTIMS i

Index

About the Author xi

Acknowledgments

Many people and institutions helped me write this book. Much of the work on it was done at the Institute for Legal Philosophy in Munich, where Bernd Schünemann was the perfect host in 2000-2001. This memorable year was made possible by the generosity of the Humboldt Foundation, the flexibility of Dean Nils Olsen, and the support of my family, including my parents, my wife, and my kids. The German- American Academic Council and SUNY Buffalo Law School deserve thanks for funding a research project on victims’ rights, which first got me thinking seriously about the subject. This project, undertaken jointly with Bernd Schünemann, resulted, among other things, in a stimulating German-American conference on victims' rights, held at the Buffalo Criminal Law Center in the fall of 1998. I learned a lot from the participants in this conference, and I am deeply grateful to them. (The conference papers were published in “Victims and the Criminal Law: American and German Perspectives," 3 Buff. Crim. L. Rev. no.1 [1999].)

Thanks are also due to the participants in seminars at the Institute for Criminal Law in Frankfurt and the Institute for Legal Philosophy in Munich, where I presented parts of the book in early 2001. For statistical information on possession offenses in New York State, I am grateful to the New York State Division of Criminal Justice Services and to Simon Singer. Lots of people allowed me to bend their ears about this book over the past couple of years; many of them were kind enough to read all or part of the manuscript. At the risk of leaving someone out, these good samaritans included Guyora Binder, Hanoch Dagan, Teresa Faherty, Shubha Ghosh, Sam Gross, Klaus Günther, Phil Halpern, George Hezel, Tatjana Hórnle, Jerry Israel, Klaus Lüderssen, Errol Meidinger, Wolfgang Naucke, Cornelius Nestler, Cornelius Prittwitz, Mathias Reimann, Lorenz Schulz, Rob Steinfeld, Bob Weisberg, Peter Westen, Jim Whitman, Jim Wooten, Leo Zaibert, and Sara Faherty, who is not only my wife, but also xi xii | Acknowledgments knows a lot more about victims' rights than I do. Clara, Dora, and Maura didn't read much of the manuscript but still managed to help in their own special way.

Earlier versions of portions of this book appeared as "Policing Possession: The War on Crime and the End of Criminal Law,” 91 J. Crim. L. & Criminology no.3 (2001), and “The Victim in American Penal Law: A Systematic Overview,” 3 Buff. Crim. L. Rev. no.1 (1999). Any previously published material is used with permission.

Introduction

Two phenomena have shaped American criminal law for the past thirty years: the war on crime and the victims’ rights movement. These two political programs are related. The war on crime has been waged on behalf of victims against offenders; to pursue criminals has meant to pursue victims’ rights. To be pro-victim was to be anticrime, and vice versa.

The very first “victims? bill of rights,” inserted into the California constitution by popular referendum in 1982, made explicit the connection between victims’ rights and the war on crime. Victims’ rights, so the preamble, encompassed the “expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance.”

The California victims’ bill of rights then went on to list three rights: a “right to restitution,” a “right to safe schools,” and a “right to truth-in-evidence.” It also announced that "[p]ublic safety shall be the primary consideration” in bail hearings. Finally, it declared that prior felony convictions “shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” The right to restitution is self-explanatory, and the right to safe schools purely declamatory (“All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful.”). The right to truth in evidence was meant to force the introduction of relevant but otherwise inadmissible incriminating evidence and thereby to close a legal loophole through which too many guilty offenders had escaped their just punishment. Other parts of the referendum included a then-draconian mandatory habitual criminal statute intended to maximally incapacitate repeat offenders and a prohibition against plea bargaining intended to prevent prosecutors from giving felons a break in punishment in exchange for saving them the trouble of having to prove guilt at trial.?

The first victims' right, in other words, was the right not to be a victim in the first place. The second was the right to see the state bring the wrath of the criminal law down upon whoever violated the first. The war on crime systematically and successfully vindicated these rights through a prolonged campaign of mass incapacitation, which after three decades left more than two million Americans in prison or jail and another four million under noncarceral penal control.

This association with the war on crime has given victims' rights a bad name in some circles, and an excellent one in others. The condemnation of the victims' rights movement among academic commentators is almost universal.) At the same time, its anticrime connection has gained the victims' rights movement almost universal approval among American politicians. These two diametrically opposed camps agree on one point, and one point only: that anticrime and pro-victim stands are two sides of the same coin.

And they are both right, of course. As a matter of political reality, the victims' rights movement is but one plank, though surely an important one, in the platform of the war on crime. So closely linked are the war on crime and victims' rights in fact that any effort to disentangle the two may appear hopeless. After the recent history of American criminal law, what could be more pointless than trying to find a notion of victims rights apart from a war on offenders' rights?

Yet that's precisely what this book sets out to do: to salvage the project of vindicating victims' rights for its own sake, rather than as a weapon in the war against criminals. What's more, I believe that it's not only possible to excavate a legitimate core of the victims' rights movement from underneath the layers of bellicose rhetoric. It's also necessary if we want to build a system of American criminal law for the time after the hateful frenzy of the war on crime has died down, and die down it will.

The victims' rights movement has a legitimate core that, once properly excavated, can point the way to the much needed revision of the fundamental principles of American criminal law. Placed in a broader historical context, the war on crime is but the latest and the most systematic manifestation of a mode of governance that views criminal law as the protection of the state by the state. In this type of criminal law as criminal administration, the individual person has no room, except as the facilitator of state control (the “victim”) or its object (the “offender”).

American lawmakers and commentators took this statist, apersonal model from England, where the sovereign had long been recognized as the ultimate victim of any criminal act, which was cast as a direct personal affront on the dignity of the king. After bumbling beginnings, American criminal law was transformed into an ever more sophisticated system for the control of antisocial activity, or, in the words of California’s victims’ bill of rights, of anyone or anything that threatened a “serious disruption of people’s lives.” By the early decades of the twentieth century, punishment became rehabilitative or incapacitative treatment and criminal law a branch of public health policy. Eventually, rehabilitative treatment gave way to incapacitative treatment. This was the time of the war on crime.

The war on crime has sought the extermination of criminal deviance in all its myriad forms and manifestations. In pursuit of its ambitious incapacitative mission, the crime war dramatically expanded and refined the state’s web of criminal norms and, at the same time, made the consequences of their violation more severe. That way, more potential sources of “serious disruption” could be extinguished more completely.

The victims’ rights movement provided a convenient cover for this mass incapacitation campaign. The state transformed its constituents into a community of potential victims who identified with the sympathetic sufferers of criminal violence. That community of potential and actual victims, “us,” was pitted against the lot of potential and actual offenders, “them.” This struggle between victims and offenders, between good and evil, had a familiar ring to it: it reflected and barely concealed long-standing socioeconomic divisions within American society. Minorities, once again, found themselves on the outside looking in, corralled behind the ever more impenetrable walls of warehouse prisons that sprang up all over the country.

But, to be politically effective, the victims’ rights movement had to hold up an image of the victim with which people could identify. The victims of the victims’ rights movement had to matter, and they had to be victims of crimes that mattered. They could not be apersonal institutions or “social interests" or “the state,” they could not be victims of trivial crimes, and they most certainly could not be victims of victimless crimes.

In other words, in order to cover the state’s expansion of its system of criminal administration, the victims’ rights movement had to operate with a very narrow concept of criminal law. In order to shield the state’s apersonal system of hazard management through ever vaguer, wider, and harsher incapacitative directives from public scrutiny, the victims’ rights movement had to portray the criminal law as the state’s response to serious interpersonal crime.

And this is the legitimate core of the victims’ rights movement: its implicit understanding of criminal law as limited to the most egregious forms of violence that one person can inflict on another. The second part of this book is an extended attempt, first, to make this conception of criminal law explicit and, second, to expand it into a broader account of what crime is and how the state is to employ law, including criminal law, to deal with it.

By defining crime as interpersonal violence, the victims’ rights movement has hit upon a view of criminal law that is far more consistent with the American commitment to the protection of the rights of persons than is the state-centered, preconstitutional approach to criminal law imported from England. More specifically, it has put the person back where it belongs in the criminal law of a democratic republic dedicated to the equal worth of persons, rather than the protection of superior sovereign power: at the center.

For too long, American criminal law has been run by the state in the name of ill-defined “public interests” or even “public safety.” For too long, American criminal law has been regarded as a matter of administration, rather than law, of regulation, rather than right. Crime is not a public health issue but a traumatic experience shared by two persons, the offender and the victim. The state has an important role to play in responding to this often catastrophic event, but it has no role in the event itself. The state is not the victim in criminal law; the person is. By transferring her right of punishment to the state, the victim does not transfer her victimhood.

In addition to reminding us of the personal foundation of criminal law, the victims’ rights movement also highlighted two central, and related, features of the phenomenology of crime that any system of criminal law ignores at its peril. First, the victims’ rights movement demonstrated the crucial role of identification in criminal law. The political power of the victims’ rights movement stemmed from the public’s identification with the victims of violent crime as new cultural icons. Narratives of the suffering of actual victims allowed the mass of potential victims to experience that suffering as their own, through identification. Having vicariously experienced the pain of crime, the public then could vicariously experience the victim’s cry for revenge. Thus consolidated into a community of vengeful victims, the public turned to the state for the manifestation of its communal hatred.

No legitimate system of law can be built on this communal reflex triggered by identification. Yet identification as a process of judgment does have an important role to play in a new law of crime that gives persons their due. The victims’ rights movement was right to insist that we identify with victims of crime. Without that identification, the state loses its connection to the suffering of persons and criminal law becomes a means of state self-protection. But that insight must be expanded to encompass not only victims but other persons, as well, including offenders. Rather than substitute identification with victims for identification with offenders, as the victims’ rights movement urged, we must recognize that the only legitimate point of identification in a system of law is not the victim, or the offender, or the fellow New Yorker, or the fellow Caucasian, or the fellow male, or the fellow thirty-something, but the person. And that’s what all the participants in the criminal process are, be they victims, judges, jurors, or even offenders.

So identification is crucial, but only if it’s interpersonal identification. As crime, so its judgment in the eyes of the law is a matter between persons.

Second, the victims’ rights movement illustrated the enormous power of emotional responses to victimization. The identification with victims of serious interpersonal crime induces a profound feeling of empathy for the victim, as well as, and this is the difference between flood victims and murder victims, a strong desire to lash out against the person responsible for the victim’s suffering, the offender. Through identification with the victim, the offender’s attack on the victim is experienced as an attack on oneself and triggers a communal reflex of self-defense.

A stable system of criminal law must acknowledge and address these punitive emotions. Rather than exploit them for political gain—where political is understood in the sense of a struggle between friend and foe‘—they must be integrated into a rational legal response to the catastrophe of crime. Empathy for crime victims is crucial if the transfer of the right to punishment from victim to state is not to result in communal apathy and the immunization of criminal behavior. Yet the desire to punish the offender may easily develop into a desire to eliminate him, to treat him as an alien threat, rather than to punish him as a person. Without that respect for his person, however, whatever action the state might take against the offender will be illegitimate, no matter how gratifying that action might be to the community of victims, potential and actual, or even to the state whose dignity the offender has dared to challenge by violating its criminal norms. This is the fundamental, and revolutionary, insight that separates American law from its English origins. It may limit the power to punish, but it also provides it with a legitimacy that it never had before.

But to reveal these important contributions that the victims’ rights movement can make to a new law of crime, we first must extricate victims’ rights from their political context, the war on crime. This, in turn, requires a better understanding of the inner workings of the war on crime than we have at this point. A close analysis of the war on crime in action reveals that, all victims rhetoric aside, the war on crime is fought primarily with victimless crimes.

As we see in the first part of this book, the war on crime employs a panoply of possession offenses to do much of its incapacitative dirty work. Possession offenses are ideal tools of mass incapacitation because they are easy to detect and easy to prove and have tremendous incapacitative potential, either in conjunction with other offenses or standing alone, all the way up to life imprisonment without the possibility of parole.

In the smooth day-to-day operation of the crime war, victims are simply a hindrance. The efficient identification and disposal of dangerous elements has no room for victims’ rights. Possession offenses are detected by state officials (police), proved and adjudicated by state officials (prosecutors and judges), and punished by state officials (wardens), without any involvement of “lay” persons, be it as victim, witness, or juror.

This hazard control system involves no persons of any kind, not as offenders, not as victims. It’s a matter of the state identifying and eliminating, or at least containing, hazards that happen to be human beings. In principle, there’s no distinction between a criminal and a piece of hazardous waste, a vicious dog, or even an oncoming hurricane. In the face of these ever present dangers, the state must act quickly and decisively. Individual victims are only in the way.

Still, the state’s war on crime needs victims. It’s the very real suffering of personal victims of violent crime that justifies the state’s usurpation of ever greater powers of investigation and control. The detection and proof of possession must be simplified because the state can’t afford to leave dangerous people who possess dangerous objects—such as drugs or guns—on the street, since they are bound to use these objects to murder, maim, and rape innocent victims. For the same reason, once these dangerous possessors have been found, through a collaborative policing effort by officers from local, state, and national police agencies using undercover agents, informers, wiretaps, video cameras, trackers, and various and sundry detection devices (to measure heat, radiation, and even “fluctuations in the earth's magnetic field”)°, they must be neutralized for as long as possible, preferably permanently. Hence the urgent need for increased punishment.

And it’s the drama of violent interpersonal crime that attracts the attention of the public, played out in elaborate trials complete with witnesses and jurors. Under the cover of this process, as grandiose as it is atypical, the war on crime goes about its incapacitative business with the help of an expedited disposal mechanism, plea bargaining, that involves neither trial nor murder nor any victim other than the state itself.

But not only the image of real-life victims seeking justice in our country’s courtrooms plays an important role in the war on crime. So do the victims themselves. Understanding the power of interpersonal identification, politicians surround themselves with victims of violent crime, or their surviving relatives, when the time has come to re-pledge their commitment to the war on crime.

The instrumental political significance of victims in the dogged pursuit of their rights becomes clear when one searches for the voices of victims who hesitate to join the communal anticrime chorus. An anticrime politician (and who isn’t nowadays?) has no more use for a victim who doesn’t call for more draconian punishments of offenders generally speaking than a death penalty prosecutor has for the mother of a murder victim uninterested in venting her hatred for a specific offender in a capital sentencing hearing.°

The time has come to free victims' rights from their use as a tool for the achievement, maintenance, and expansion of state power. The time has come to turn the pursuit of victims' rights from a weapon in the war on crime into a cause worth pursuing for its own sake.

To imagine a notion of victims' rights without a war on crime, a pro-victim agenda disconnected from an anticrime crusade, it's helpful to go back to the days before the crime war. Victims of crime first received serious attention in the mid-1960s, with the establishment of victim compensation programs, beginning in California in 1965. By 1970, when the war on crime was still very much in its infancy, New York, Hawaii, Massachusetts, Maryland, and the Virgin Islands had followed suit. Today, compensation programs can be found in every state of the Union.’

The idea, and the practice, of victim compensation is an idea of the American welfare state. It has nothing to do with the suppression of crime or the incapacitation of criminals. Crime victims deserved compensation for their own sake. State intervention on behalf of crime victims took the form of distributing palpable and direct financial benefits to crime victims, rather than of symbolic pronouncements of victims’ rights or the infliction of palpable and direct punitive pain on offenders. Victim compensation addressed victims first, and offenders not at all.

Victim compensation provides a fresh perspective on the question of crime victims’ rights not only because it takes us back to a time when vindicating victims’ rights didn’t mean waging war on crime. It also places U.S. law into a larger international context and thereby may help stem the recent trend toward an American punitive exceptionalism. New Zealand set up the first compensation fund in 1963, followed by Britain a year later, and then by several Australian states and Canadian provinces. Civil law countries, like Germany, began compensating victims of crime at around the same time.?

The close nexus between the fight for victims and the fight against criminals exists in none of these countries. Except in the United States, the call for greater recognition of victims’ interests instead has been associated with constraints on the state's power to punish, rather than with an all-out war on crime by any means necessary. For instance, one of the central demands of victims’ rights advocates in other countries is that victims should have the option of receiving restitution from the offender on the basis of victim-offender meetings, in lieu of state-imposed and - inflicted punishment.?

Despite the existence of victim compensation programs throughout the United States, victim compensation has played no role in what has come to be known as the victims' rights movement. That movement instead has fought for victims' rights indirectly by assisting the crime war effort. By the time of California's victims’ bill of rights, California crime victims had been receiving compensation from the state for more than fifteen years. The victims' rights movement wanted more than compensation. It wanted to express the victims' hatred for the offender in anticrime measures and thereby to use the state's power to punish the offender, rather than to assist the victim. The indirect benefit to the victim came in the form of an emotional release with questionable therapeutic effects, rather than as financial support. Direct victim support smacked of the welfare state and was therefore incompatible with the conservative tenets held by crime warriors, who nonetheless wholeheartedly supported the dramatic expansion of the state’s punitive power during the war on crime.

Victim compensation law deserves more attention than it has gotten during the victims’ rights era. Using the victims’ rights movement’s notion of crime as one person’s violent assault upon another as our point of departure, we find in the law of compensation a rich analysis of the legal significance of crime for the victim. The tools for this analysis have been developed over thirty years of legislative activity and judicial interpretation, which add up to a complex body of victim jurisprudence, a veritable law of victimhood.

Our tour of the law of victimhood reveals it as the mirror image of the law of offenderhood, better known as substantive criminal law. Compensation law and punishment law provide a legal analysis of crime from the perspectives of the two persons who constitute it: the victim and the offender. One seeks to determine the compensability of a “claimant,” the other the punishability of a “defendant.” Along the way, they struggle with identical issues from diametrically opposed, yet complementary, viewpoints, beginning with the question of jurisdiction and ending with that of responsibility, that is, of (victim) innocence or (offender) guilt.

It turns out that the notion of victimhood that underlies the victims’ rights movement also animates the law of victim compensation. A crime victim for purposes of crime victim compensation is not the state but a person, and more particularly a person who has suffered violence at the hands of another. Other victims may deserve to be made whole in other ways, but they are not entitled to state compensation as victims of crime.

Reflecting this narrow vision of crime from the victim’s standpoint back onto the law of offenderhood allows us to peel off the superfluous layers of doctrine that have obscured the core of criminal law: violent interpersonal crime as the ultimate violation of one person’s autonomy by another. By focusing on the experience of victimization captured in the rhetoric of the victims’ rights movement and in the law of victim compensation, we are led to reassess much of the law of punishment, including the imposition of criminal liability for victimless crimes, nonintentional offenses, and attempts and upon nonpersonal entities (e.g., corporations).

Taking victims seriously, as persons and on their own account, thus may result in less, rather than more, punishment for the offender.!? That victims may mitigate the offender’s criminal liability is nothing new but is easily forgotten at a time when the victims cause is enlisted in the war on crime. Victims who attack or provoke the offender, give their consent to the offender’s conduct, negligently or intentionally aggravate the harm inflicted by the offender, or assume the risk of suffering criminal harm have long prevented, or at least lessened, the offender’s criminal liability.

In the end, compensation and punishment, the law of victimhood and the law of offenderhood, emerge as complementary responses by the state through law to the fact of crime. In any given case of crime, the crucial question is which, if any, of these responses is appropriate. Sometimes compensation may be sufficient; other times, punishment may be necessary, as well. And, often, no state response of any kind is called for, because the persons who constitute the crime are perfectly capable of dealing with its effects on their own, as persons possessed with the power of self-determination who require the state’s assistance only in extraordinary cases where that very power has been compromised or destroyed altogether.