Because If the Victim Doesn't Say "Throw the Book at Him," Who Will?

Broken record time.  (If you aren't old enough to remember that when records get scratched they skip and then repeat and repeat and repeat, think Groundhog Day.)

The victim of a crime is the government.  Crimes are offenses against the social order, against the body politic.  Individuals may be victims of criminal acts, but they are not victims of crimes.  The only legal remedy for a victimized individual is to sue the offender in tort (and in the tort case we the defendant is accused of being a tortfeasor, not a criminal). 

Properly understood, the only role for the victim of a criminal act in a criminal prosecution is as a witness who can (if he can) testify to something he perceived.

Tort remedies are designed to make the victims of torts whole.  They don't really do that.  They can't.  Instead, they give cash.  Of course, criminal law can't make whole the victims of criminal acts either.  But try telling that to those victims.

That's the broken record part.  I've said it repeatedly here.  Either you get it or you don't.  As Mark Bennett said,

I can explain it to you. I can't understand it for you.

Apparently I can't understand it for lots of people.  Victim's rights are big things.

State after state, and the feds too, has enshrined by statute or constitution or both rights of what they call "crime victims" to have some sort of role in criminal prosecutions.  Consider the Beaver State.

In 1999, the Oregon Constitution was amended to ensure that crime victims would have a role in the criminal justice system.  Section 42 of Article I is captioned

Rights of victim in criminal prosecutions and juvenile court delinquency proceedings

Just who is that "victim" whose rights are now enshrined in the Oregon Constitution?  Anyone the prosecutor (or the judge in case the prosecutor missed someone) believes to have been victimized.

“Victim” means any person determined by the prosecuting attorney or the court to have suffered direct financial, psychological or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor.

That's pretty open-ended, of course.  It's also before the fact.  Notice that victims are identified before any legal determination of anything.  Did the accused commit the crime?  Doesn't matter.  Did the crime actually occur?  Doesn't matter.  All that matters to create a crime victim is that the prosecutor thinks so.  Once the prosecutor believes, Section 42 is there

[t]o preserve and protect the right of crime victims to justice, to ensure crime victims a meaningful role in the criminal and juvenile justice systems, to accord crime victims due dignity and respect and to ensure that criminal and juvenile court delinquency proceedings are conducted to seek the truth as to the defendant's innocence or guilt, and also to ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants in the course and conduct of criminal and juvenile court delinquency proceedings.

Good thing we have all that covered.  I could do a blog post (maybe more than one) about each of those clauses and why it's appalling, but I'm in Ohio where the Constitutional homage to putative victims is less specific.* And enough is enough.

Anyhow, the first of right enshrined in Section 42 is this.

The right to be present at and, upon specific request, to be informed in advance of any critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release hearing and the sentencing or juvenile court delinquency disposition.

Which is where our tale begins.

On February 28, Ivey Barrett appeared in court in Oregon and entered a guilty plea to misdemeanor stalking of Linda, his estranged wife.  He was sentenced to two years of probation.

Linda wasn't there.

The Oregon statutes, channeling Section 42, said that Linda had a right to be there if she wanted.  And she wanted.  She had a right to tell the judge what sentence she thought was appropriate if she wanted.  And she wanted.  But she wasn't there.

She wasn't there because the prosecutor didn't tell her that Ivey was going to plead and be sentenced and the judge didn't ensure that the prosecutor do his job properly.  (There are actually statutes explaining how both prosecutor and judge were to act.  Apparently they both ignored those statutes.)

So Linda sued. She, joined by the prosecutor, alleged that the prosecutor and judge had violated her rights and that what should happen is that Ivey's sentence (that two years of probation) should be vacated and he should be resentenced but that this time she should be there and have an opportunity to spew venom and argue for the death penalty.  (They probably didn't really say "spew venom and argue for the death penalty."  I made that up.  But they did say she should have an opportunity to carry on about her victimization and to urge a tough sentenced.)

The judge agreed that Linda's rights were violated but decided there was nothing he could do about it.

Linda wasn't satisfied.  She didn't want an apology.  She wanted a pound of flesh.  (I made that part up, too, though it could be true.)  What she wanted was to demand a tough sentence before Ivey was sentenced - which means that he had to be resentenced.

So Linda appealed, as the statutes said she could, said anyone the prosecutor thinks is a victim can, anytime the prosecutor or judge doesn't do what they want.

On Friday The Supreme Court of the State of Oregon (boldface because that's the closes I can come here to the trumpet flourish the full name seems to evoke) issued its opinion in State v. Ivey Barrett, Linda Barrett appellant.  

This time, Linda won.

The victim was entitled to a remedy by due course of law under Article I, section 42(3)(a). Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause. Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533. The trial court erred in not granting the victim the relief that she sought.

(Footnote omitted.)

Oh, sure, Ivey's been serving his probation.  Sure, it's all been over.  Sure, the prosecutor and the judge and the defendant were all fine with things when they happened and it wasn't Ivey's fault - the judge and the prosecutor were the ones who screwed up.  And sure, we all acknowledge the importance of finality which is why defendants don't get a do over just because their rights were violated.

But Linda isn't a defendant.  She's a victim.  (I think I need another trumpet flourish here.)  That's special.  Her rights, victim rights, must prevail.

And really, it's not like Ivey's sentence has to be increased, though of course it can be, just to make her happy.

In so holding, we do not suggest that the trial court must impose any different sentence than it did previously. That is a matter for the trial court to determine after an appropriate hearing.

Paul Cassell, now Professor Cassell, formerly U.S. District Judge Cassell, ever the advocate for harsh sentences and the need to ensure that criminals get their comeuppance and that victims of criminal acts get to spew venom and seek the death penalty [there I go again], is now advocating that those folks should be allowed to tell the judge, without rebuttal, about the foreseeable (but not to the judge) "ancillary consequences" of the criminal's act so that the judge can crank up sentences.  (See here and here.)

Scott Greenfield does a fine job of dissecting what's wrong with this iteration of Cassell's themes.  In the Beaver State, they might cost Ivey yet a third sentencing.

One imagines that the death penalty might yet be imposed for his misdemeanor stalking.

Oh, and on that pound of flesh thing.

The Merchant of Venice makes clear. It must come without spilling so much as a drop of blood.

------------------------

*Section 10a, Article I, Ohio Constitution says

Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the general assembly shall define and provide by law, shall be accorded rights to reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process. This section does not confer upon any person a right to appeal or modify any decision in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this constitution, and does not create any cause of action for compensation or damages against the state, any political subdivision of the state, any officer, employee, or agent of the state or of any political subdivision, or any officer of the court.