Who's a victim, anyway?

I'm teaching a class on the death penalty to undergraduates. In class the other day, working on providing some necessary background, I was explaining the difference between civil and criminal law. I used the simple example of me beating up one of the students. As a matter of civil law, he could sue me for the damages to him. As a matter of criminal law, I could be prosecuted for beating him up. That much was simple.

Then we (mostly, I) started talking about just what makes those civil and criminal actions different things, and why we have both. And we (mostly I) began spinning out some of the implications of the fact that the criminal action would be prosecuted by the state and the civil action by the guy I beat up.

A couple of hours ago, I saw that the "featured download" at the CrimProf Blog is an article by Paul Cassell, "In Defense of Victim Impact Statements." As the title suggests, Cassell argues that victim impact statements are an important. They serve, he says, four important purposes:

1. "[T]hey provide information to the sentencing judge or jury about the true harm of the crime -- information that the sentencer can use to craft an appropriate penalty."
2. They provide emotional therapy to crime victims.
3. They "educate the defendant about the full consequences of his crime."
4. They "create a perception of fairness" allowing "all relevant parties" to be heard.

Kevin Cole, the editor of the blog and the professor who actually posted Cassell's article observes that

[t]hose who believe that punishment should be pegged to the harm that the wrongdoer foresaw—for either retributive or utilitarian purposes—will disagree with some of the asserted benefits of victim impact statements.

That's surely true, and I wholeheartedly agree that having punishment be based on unforeseen (and often unforeseeable) consequences of criminal activity serves little sensible purpose and injects undesireable elements of both caprice (from the randomness of the unpredicted consequence) and discrimination (punishment meted out according to the appeal and articulateness of the victim, appeal and articulateness often serving as proxies for race, class, and gender) into punishment.

But there's another problem with victim impact statements, one that's inherent in the distinction I was drawing for my class.

See, the idea of the criminal law, as embodied in the indictment language, "against the peace and dignity of the state" is that crimes are acts against the social order, against the body politic. Criminal law is, and this is especially clear in a state like Ohio where criminal case captions identify the State (or City of Village or whatever community's law has allegedly been violated and is pursuing the charge) as "Plaintiff." But if the crime is an act against the state, there are two interrelated consequences.

First, and of passing interest, there is no such thing as a victimless crime. The very idea of a crime is that it is something that harms the state as the embodiment of social order. We can, of course, disagree about whether this or that activity ought to be considered criminal: Does, say, the use of marijuana actually harm the body politic? The criminalization of that act is, however, a legislative determination that it does.

Second, and what should by now be evident, the "victim" of a crime is not any individual but the state as the entity embodying the social order. Thus, for instance, the crime of murder is a purposeful killing which has as the victim not the person killed but the right of people to live in a society without purposeful killing (or something like that). A wrongful death action on behalf of the person killed and her survivors may address the same underlying facts but will treat the person killed as the victim.

That understanding makes clear why Cassell is fundamentally wrong. Point by point:

1. The harm of the crime isn't in the loss of an injured person, it's in the rending of the social fabric. The travail and suffering of an individual injured person is irrelevant to that.
2. Providing emotional comfort to those who suffer individually from the acts of criminals may be a nice gesture, but it is wholly irrelevant to the criminal process. If they can receive succor only from emoting in court, they should bring tort actions.
3. It may be, I suppose, that being verbally abused by one who's been harmed can serve some rehabilitative purpose. If so, let the prison and probation systems provide for it, it it be part of the sentence. That's not part of the process of criminal justice.
4. Inviting injured persons to emote in court so as to appear to be fair (without actually being fair, it seems) is to declare that the system is a sham. And since those persons are not the victims of crime but of torts, they are not "relevant parties."

If all this makes the criminal justice system seem coldly rational, well, isn't that the point? It's the impersonality of state or city or federal government against me. That's enough weight to bear without it being state or city or federal government, and secretly the person who claims to have been harmed against me.

Cassell's a smart guy. So's Cole. You'd think they'd get it.