People, not Props
Mistreatment of Crime Survivors in the Criminal Justice System and Politics
Too often, prosecutors and politicians fail to respect the rights of crime victims. Attorneys and politicians either don’t ask for victims’ opinions on prosecution, sentencing, or release after incarceration, or ignore them when they do not coincide with their own views. Over 25 years of criminal justice legal practice in the military, I saw a sea change, from the routine failure even to ask victims’ preferences regarding the case to providing victims with attorneys and an effective veto over prosecution of the case. In contrast, the civilian criminal justice system often continues to ignore survivors’ views when they are inconvenient. Here are some of my experiences to illustrate how things have changed, and how they have stayed the same.
Protecting the Rights of a Survivor of Domestic Violence. In 1999, towards the end my first year as an Air Force Judge Advocate, I served as the Chief of Legal Assistance at Elmendorf Air Force Base in Alaska. I counseled a number of clients on divorces, a sadly common consequence of the strains military service puts on many marriages. Late one day, a client called to report that she had been assaulted by her estranged husband. Consistent with my ethical duties as her lawyer, I explained the options to her and advised her to seek medical treatment for her injuries and to document the incident for her case and for the authorities, if she wished to report it.
The following day, my boss reprimanded me. He did not dispute that my advice was appropriate, but, as the chief prosecutor for the base, he did not want civilian police involved, because that might pressure the wing commander to support prosecution of the case. In his view, the survivor’s interests were secondary to the wing commander’s, despite our ethical duty to the client. This was the prevailing belief at the time, and it eventually prompted me to write a law review article arguing that to ensure fairness and avoid conflicts of interest, we had to separate the commander’s role as employer of a suspected perpetrator of domestic violence from his role deciding on disposition of the case.
Treating Survivors with Respect. Ten years later, I had the opportunity to serve as a domestic violence prosecutor in civilian life. Our District Attorney had agreed not to compel cooperation from survivors under a federal grant program. Before the program, attempts to use a subpoena to compel cooperation from survivors were common, although failures to testify were rarely prosecuted. Under the new system, when I received a new case, I would immediately call the victim and ask them how they wanted to see the case proceed. This started with what they needed to feel safe, including whether the defendant should be kept in custody, but it also took into account their views on the eventual disposition of the case, including restitution, jail time, treatment, and probation. I couldn’t always do exactly what a victim wanted, but I always respected their interests to the extent I was able to, while still protecting public safety. As a result, almost all of survivors cooperated with the prosecution and mostly received what they saw as an acceptable resolution. Instead of failures to testify being commonplace, they almost vanished. In two years, only one victim failed to testify.
I’m happy to report that the military eventually came to see the wisdom of this respectful approach. In the court-martial system, victims now have the right to report sexual assaults in a protected status, providing them with access to support services. This also preserves the evidence, in case she wishes to proceed with a criminal investigation in the future. Instead of ignoring survivors’ inputs to the prosecution, we now provide them with attorneys to advise them about their rights and how to exercise them. No official policy states that survivors have a veto over cases of sexual assault and domestic violence, but there is a policy stating that we will not compel cooperation with the prosecution, which amounts to the same thing. Most importantly, Congress consolidated the prosecution authority of serious crimes into a central office, reducing the ability of local commanders to effectively kill prosecutions over the objections of victims.
Politically Inconvenient Victims. In contrast, the callous treatment of crime survivors in Salem dismayed me. Whenever we contemplated reforms to mandatory minimum sentences, groups opposing them would parade survivors before us to condemn us for our soft-heartedness, ignoring the reality that many victims of Measure 11 crimes would prefer these reforms. On the flip side, when Governor Kate Brown commuted a number of Measure 11 sentences, she failed in her legal duty to consult with the victims (or their surviving family members) before doing so. I always tried to remember that people accused of crimes were usually neither saints nor completely irredeemable, and that there was no “right way” for victims of their crimes to feel about their prosecution and incarceration. We have courts to judge each case based on its facts, which include the views of the survivors. Our Governors and Legislature too often forget this.
Toward a Better Future. I hope to see Oregon adopt some of the military’s policies in respect to fair treatment of crime victims. Right now, it seems a faint hope that we will somehow find the funds to fund lawyers for crime victims, when we fail to adequately fund the courts, prosecutors, and defense counsel. Yet, even if we lack funding for enforcement of victim’s rights, I hope the voters will ask candidates for the legislature and district attorney if they will respect the views of victims, even when the views are inconvenient. Justice may be expensive, but less so than the injustice of failing to treat crime victims as people.
Other News
Facts Matter. I encourage readers to listen to the New York Times Daily podcast about the controversy over the naming of the James Webb Space Telescope. In sum, a few people objected to naming the telescope after the former NASA Administrator, claiming that he had discriminated against LGBTQIA people during his tenure. As it turns out, these accusations had no truth to them and Administrator Webb had actually worked hard to protect all types of minorities at NASA. However, the investigator who eventually revealed the lack of evidence was personally attacked repeatedly and anonymously for reporting the truth. While we can and should examine historical figures in a modern light to fully understand them, facts matter, and they are stubborn things. The unfortunate attacks on the investigator show just how far people will go to ignore inconvenient truths.
State Senate Update. As of the time of writing, the State Senate has still not resolved the walkout. The Minority Leader promised to return to pass a budget and bills with bipartisan support. The Senate President replied that this would give 1/3 of the Senate an effective veto over bills that have majority support. While nothing is certain, the June 25 end-of-session deadline has been bumped to September 15 for budgetary matters through the passage of a continuing resolution.
Will the Republican Senators be successful in blocking further action of policy bills? It certainly seems like it over the short term. However, a large majority of Oregonians don’t like walkouts. Measure 113, which imposed that ban, did not seek to change the quorum requirement, because polling at that time did not support the quorum change. But if the Republicans cause a “busted session” with the walkout, that could change. Put another way, a short-term victory on two bills may yield a quorum-changing ballot measure that would certainly represent a long-term loss.
Next Steps on Debt Limit Standoff. The President and Speaker McCarthy came to an agreement that would suspend the debt limit for two years in exchange for flat-lining non-defense discretionary spending and making some minor budget cuts. While this is a good start to the deficit conversation, it’s definitely not an end to it. The next steps should be negotiating an overall deficit reduction framework over a 10-20 year timeline following the deal and convening legislative working groups on spending for non-defense discretionary spending, defense spending, Social Security, and Medicaid.
Congress has the power of the purse, not the President. As Supreme Court Justice Gorsuch recently wrote, “However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.” In other words, Congress needs to do its job, however politically unpopular that might be, and stop blaming others for its own abdication of its proper place in our political process.
Hubris, Radicalism, and Negative Partisanship. The Texas House of Representatives just impeached their Attorney General, despite him being a Republican and the House being dominated by them. While it’s easy to simply point to poor character as the cause of the AG’s actions, that ignores our own role in enabling the kind of hubris and radicalism he embodies. How so? Well, in political parlance, it’s call “negative partisanship.” In plain terms, that’s when we say, “I would never vote for a politician of the other party.”
Given comparatively low turnout in closed primaries, the person most appealing to the base of the party most often wins. Because the voters most likely to turn out in a closed primary are the most partisan, that leads to fairly radical nominees. When the general election rolls around, the majority party’s candidate wins, even if they don’t appeal to the moderates in their own party, because, while these folks think of themselves as moderates, they refuse to vote across party lines. That allows radicals to act with hubris while in office because they almost can’t lose.
Conversely, in states with single primaries or ranked choice voting, moderates have a greater chance of passing the primary and making the general election ballot. Whether or not you would ever consider supporting a candidate from another party, I hope you’ll consider supporting reform of our closed primary system.
The problem with Congress having control over spending or anything else is that there are members of the current congress who participated in or supported insurrection. They should not be in Congress or any government position. And there are others who are in Congress because of gerrymandering. Let's fix the system to make it more fair to all the people.
Victims of crime should certainly be respected and protected. But it is understandably difficult for victims to be objective. It frequently seems like victims are given too much control over sentencing. We need to be careful to not let vengeance replace justice.