Protection, Punishment, and the Victims Rights Movement

In 2018, 156 accusers of Larry Nasser, the former team doctor for USA Gymnastics Team who molested them over and over again during medical appointments, testified at his sentencing hearing about their experiences and the damage done to their lives as a result of his abuse. Their emotional and personal stories helped in sentencing him to between 40 and 175 years in prison. 

In February of 2023, the testimonies of family members and friends of the victims killed by Sayfullo Saipov, a terrorist convicted of running over and killing eight people in New York City, helped decide if he deserved the death penalty or life behind bars.

Meanwhile, states like New York, Illinois, Nevada, and California have extended their statute of limitations on a wide range of sex crimes that expand the window for survivors to take legal action against their attackers and receive justice.

All of these instances are fruits of the victims’ rights movement, a powerful political force whose work has resulted in the passing of 32,000 laws explicitly in the name of victims since the 1980s.

However, while the idea of more rights for victims may seem like an obvious and right pursuit when we think about terrible crimes such as rape, sexual assault, and mass-murder, Michael Vitiello, author of The Victims’ Rights Movement: What It Gets Right, What It Gets Wrong, argues that the movement itself has done far more harm than good for everyone involved.

In conversation with The Crime Report, Vitiello, an expert on criminal law and sentencing policy and Distinguished Professor of Law at University of the Pacific McGeorge School of Law, explains how the victims’ rights movement sprouted decades ago from an unlikely union between feminism and law and order conservatism, why the word ‘victim’ and who it applies to  is wholly misunderstood by both lawmakers and the public, how prosecutors can weaponize victims’ testimonies to land convictions, and what is needed to better support and protect all victims of crime from violations and abuses of their rights.

This transcript has been edited for space and clarity.

The Crime Report: How did the Victims Rights Movement get started?

Mike Vitiello: The core of the victims’ rights movement is rooted in a law and order push that happened during the 1960s when Frank Carrington, a right-wing lawyer, attacked the Supreme Court at the time, the Warren Court, claiming that they were coddling criminals and were responsible for the ongoing rise in crime. The Warren Court, led by Chief Justice Earl Warren, was notably liberal in its ideology, issuing landmark decisions affecting civil rights, separation of church and state, and police arrest procedures. Miranda rights, for example, were established by the court around this time, and arguments against their creation were at the center of the Carrington attack. 

And a lot of people were on board with Carrington’s position: The 1968 presidential election had crime as a central issue, with Nixon making it a major platform of his campaign. Then, in the 70s, the feminist movement joined in when they started to bring attention to the lack of enforcement of sexual assault laws and demanding their expansion. This was because up until the 1980s, most criminal law text didn’t include anything about sexual assault; it wasn’t being discussed seriously, and things like date rape weren’t being prosecuted. 

After that, more groups, like Moms Against Drunk Driving and the National Center for Missing & Exploited Children, became involved and coalesced into this amoeba-like body of both liberal and conservative movements. And together, they introduce legislation that gets the backing of a wide pool of people.

TCR: How did the Supreme Court spark the evolution of the Victims’ Rights Movement?

MV: If you look at the Bill of Rights, you have all sorts of protections for individuals, many of them involving criminal defendants: the right to counsel; the right to refuse to be a witness against yourself; the right not to be subjected to an illegal search or seizure; and so on. In 1914, the Supreme Court established the ‘exclusionary rule’ when it held in Weeks v. United States that the federal government could not rely on illegally seized evidence to obtain criminal convictions in federal court. And for most of history the Supreme Court had held that limitations like these applied only to the federal government, not the states. 

It was the Warren Court that changed that and ruled, in the 1961 case Mapp v. Ohio, that those protections were actually limitations on state power as well. This was the launch of what is known as the Warren Court Criminal Procedure Revolution and the creation of protections like Miranda rights for people accused of a crime. And what followed was the critique, created by the politicians, that these decisions were allowing countless criminals to either be released from prison or avoid capture altogether, which then sparked a furor for law and order, fanned by the media, among the public.

TCR: How do we define a victim and what needs to be done to better protect and support them?

MV: When I teach criminal law, one of the things I try to make my students understand is that criminality is not evil people victimizing good people. Most victimizers have histories that are truly frightening. I’ve done some death penalty work. You wouldn’t trade a person on death row’s past for yours in a million years. They’ve been the victim of extraordinary and various kinds of abuse.

I actually originally didn’t include a chapter in my book on defining victims, but it turned out to be very important. Especially when considering the different statutory definitions of the term that exist around the country and vary from state to state.

For example, let’s assume you are a victim of domestic violence. You can qualify for financial and medical aid of various kinds if you are a statutory victim, but you have to cooperate with the police. And if you don’t, then you’re not a victim. That is a very middle class value judgment because a woman who is in dire economic straits and in that situation has to make a calculation. If I testify, and he goes to jail, or prison even, if I go into a shelter and can avoid them, my financial situation becomes dire. As a result, she may decide not to participate and now she is excluded from the very kind of care that she needs based on value judgements that are tucked into some of these requirements. 

So, when it comes to defining victims, we need to ask ourselves what do we do if we really care about victims? One answer is expanded health care. We know that when Obamacare came in there was a downturn in crime related to the expanded health care coverage, which included addiction treatment and mental health care. 

Now, state by state, we have a patchwork for who qualifies as a victim and who qualifies for healthcare. If we had a good national health care system, it wouldn’t be a patchwork, all victims would qualify for help. More importantly, we would have fewer victimizers because every time someone who is potentially violent gets mental health care the chances of that person becoming a victimizer are reduced.

Lastly, we have to have a discussion about the need for stricter gun control and the hypocrisy of the NRA. Every time there’s a mass shooting, the NRA says it’s not the weapons, it’s the need for more mental healthcare. But guess which states have not expanded healthcare after Obamacare or bought into the federal system: states where the NRA has real power and influence. So whatever claim they make that we need expanded mental health care is bullshit. Especially when the statistically largest number of gun victims are suicides. 

And if you understand what it means to be a victim, not the narrow definitions that state legislatures may adopt, but the families of a suicide or crime victim who are deserving of empathy because they are suffering in a personal loss, then you understand why we should narrow access to weapons. Unfortunately, today we have a right-wing Supreme Court that is expanding access and it is very scary.

TCR: Is it true, then, that the victims’ rights movement isn’t actually for victims but is, in fact, for prosecutors?

MV: That answer involves what are called victims’ impact statements. Frank Carrington, the law and order grandfather of the victims rights movement, wrote a 1975 book called The Victims that talked about greater participation for victims in the criminal justice system. And some of his proposals make a lot of sense: give families notice when a case is coming to trial; that there has been a guilty plea; that someone is being released from prison; etc. 

But one of the more controversial aspects was allowing them to come and speak at sentencing. In the 1980s, the Supreme Court decided that unless you can show that the victim’s impact evidence relates directly to the offender’s culpability, it’s inadmissible. Imagine an ex-spouse killing his wife’s new husband in order to make her suffer. There it relates directly to the cruelty of the defendant in why he did the killing. 

Then, in 1991, the Supreme Court overruled the earlier decision and now victim impact evidence can be used without showing that it relates to the offender culpability. And prosecutors use these impact statements to increase their chances of winning a guilty plea or even the death penalty. And, when it comes to race, especially in death penalty cases, these statements have the potential to further affect who lives and who dies.

For example, you’re more likely to get the death penalty in cases where there are white victims and the defendant is Black. Most juries that are death penalty qualified tend white, because prosecutors are able to get rid of Black prospective jurors, even though supposedly that’s unconstitutional. Also, because education, race, and income correlate with who is confident enough to come into court, you’re more likely to get articulate white, wealthier people who will come in and make victim impact statements. And then jurors are more likely to take seriously victim impact evidence when they can relate to the victim. And we know that empathy is greatest when we look at people who look like us. 

So, these statements really are a stick for the prosecutors to use to beat the defendant, and specifically a defendant of color, into submission.

TCR: Has the victims’ rights movement had a similar effect on things like sex offender registries and statute of limitations?

MV: Sex offender registries, to me, reflect good intentions gone bad. They seem like a good idea. The public supports them, because how could you be against letting neighbors know that you’ve got some vicious sexual predator next to you? But these laws are incredibly broad, they sweep in anyone guilty of a host of different kinds and levels of sexual offenses, and they vary from state to state. 

And the disabilities that are imposed on people who are registered sex offenders are incredible. You can’t live within a certain distance of a school or a park. It may be that you end up not being able to live anywhere within a community. Does that help them? No. Does it protect anybody from anything? No. The laws, such as Megan’s Law [the federal law that requires the release of relevant information to protect the public from sexually violent offenders and requires the sex offender register with various legal entities and jurisdictions], can end up causing more harm than good.

That problem also extends to the statute of limitations for sex offenders. There are two arguments for the statute of limitations: extending it for many, many years or getting rid of it entirely. And, again, it seems like a good thing. Why let a predator like Harvey Weinstein or Bill Cosby get away with their crimes just because of a statute of limitations? But we have some famous cases of prosecutions against people for child sexual abuse, for example, where the case fell apart because it was based on hysteria. 

The supporters of extending the statute of limitations claim that it takes a long time for victims’ memories to set. However, all the serious studies demonstrate the opposite, that time does not improve memory. And memory is also especially influenced by improper interrogation and investigation techniques by police. You’re going to convict innocent people unless you have standards in place to protect them. Especially when the combined power of the victims’ rights movement and the press can stir up powerful emotional narratives around complex cases.

TCR: One of the most popular cases involving the victims’ rights movement today is the case of Adnan Syed. Syed is considered by many to have been wrongfully convicted and recently the court ordered a new trial, but then reversed the order because the victim’s family had not been given adequate notice. What does this tell us about how the victims’ rights movement can affect the course of these cases?

MV: There are other famous cases like this. Look at Kevin Cooper, a Black man who’s on death row in California for the 1983 murders of a married couple and two children and has been for years now. Cooper is almost certainly innocent. The only survivor of the attacks, an 8-year-old boy, originally identified multiple offenders: first saying it was three white men, then later saying it was three Mexican men. But fast forward to today and that boy is an adult now convinced that Cooper is the guy who killed his family, even though the evidence has gone in the other direction. The victim is one of the main deterrents to ordering a new trial or Cooper’s exoneration simply because he retains so much power in the system. 

And that is the same power being used against Syed in Maryland. If there is sufficient compelling evidence to convince the court that he’s wrongfully convicted, but the family’s able to oppose it for something arbitrary like this, that is a big part of the problem with the victims’ rights movement.

TCR: What do we need to do to educate the public and lawmakers on the realities and consequences of the victims’ rights movement? 

MV: When I was a young lawyer in the 70s and 80s, we started moving away from a rehabilitative criminal justice model to a punitive model and a reemergence of retribution in various forms. In California, for example, then-governor Jerry Brown led an attack on indeterminate sentencing. And the media would just tag along with the politicians who were beating the vengeance drum.

Then, starting around the 2000s until recently, we went through a period where it looked like a broad consensus was forming on how to attain some meaningful reform. We had people from the law and order side of the aisle atoning for some of the excesses of the war on drugs, Newt Gingrich signed on to the Right on Crime Initiative, and even Trump signed the First Step Act legislation trying to address some of the disproportionate punishments for crack cocaine as opposed to powdered cocaine and giving some after-the-fact relief to people who are in federal prison.

And you would hear a more nuanced set of media reporting, you’d hear a lot of talk about disproportionate punishment based on race or innocent people being exonerated. And it suddenly looked like people were getting it and developing a more tolerant understanding of criminal justice. 

But now Republicans who signed on to things like the First Step Act and Right on Crime have reversed their position because they want to blame rising crime on the Democrats. The pandemic hits and we get the crime du jour that sends us into a panic. The demand for greater criminal punishment is back and a lot of the mainstream media are headlining these punitive desires.

So, I think we’re always one headline case away from reversing the trend and we need more responsible journalists out there providing a more nuanced narrative to break the pattern.

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