Sunday, June 19, 2011

Voices Redux

A week and a half ago, I wrote about the petition signed by families of eight of the eleven alleged victims of the crimes for which Anthony Sowell is on trial for his life, even included the petition. 
The petition calls on Bill Mason, the Cuyahoga County Prosecutor, to cut a deal with Sowell - essentially to take murder off the table as a sentence if he'll plead guilty in exchange for a sentence of life without parole (death in prison).  I closed the post this way:
In the courtroom, they were picking the jury.  In the office of Cuyahoga County Prosecutor Bill Mason, they were receiving the petition.
I wrote about these families the other day.  About how they didn't want to live through the trial, to hear the details, to wallow.  About how they didn't need blood, they needed an end.
A week ago, Mason said he was determined to get Sowell sentenced to die.  Leila Atassi, writing in the Plain Dealer, has a sort of update.
When asked to react to the petition, Mason said, "It's their right." 
Sure.  But that doesn't really answer the question, does it Bill?
This morning, a blogger in Australia posted a comment.
But surely what the victims want isn't the point? The prosecution is conducted by the state on behalf of the state, not on behalf of the victims (something the victims rights lobby, at least here in Australia, can't seem to grasp). Just as I don't want alleged offenders prosecuted purely because their alleged victims are noisy, I'm not interested in alleged criminals *not* being prosecuted purely because their alleged victims don't want them to.
I started to do a reply comment, but decided to make it a post instead since this is close to an issue I've addressed on many occasions.  These are the points.
  • Yes, crimes are violations of the social fabric not individuals (though individuals may be victims of criminal actions).  The victim of a crime is society.  It is emphatically not one or more individuals.  The individual victims of criminal actions are victims of torts and can sue.  (As the commenter says it is in Australia, so it is here.  Victims of criminal acts and their lobby and legislators and prosecutors and judges and the mass of the public don't understand that.)
  • What follows is that victims shouldn't be driving prosecutions.  (I once nearly blew up a good deal for my client when I told the prosecutor who explained that he needed permission from the family of the guy killed that I was tired of all the "kowtowing to victims.")
  • And yes, it follows that what the families of the dead want is not and should not be controlling on the prosecutor who should be making independent judgments about how to proceed.
  • We don't live in a world where that's routinely what happens.
  • Nobody was asking that Anthony Sowell not be prosecuted.  Essentially, the fmailies who signed the petition were asking that Bill Mason negotiate for a sentence of life without parole in exchange for a guilty plea.  
  • So, is their view something Mason should consider? Yeah, I think it is.  Counterintuitive views are pretty much always worth considering (though sometimes only for as long as it takes to hit "delete").  As a prosecutor, Mason acts in these cases as the embodiment and representative of society - not properly by polling, but by considering and evaulating.  The voices of these families are worthy of his  attention precisely because they aren't what he expects or we too often hear.  Maybe they have a legitimate perspective on what the proper societal response to the crimes he believes Sowell committed.  
  • As they challenge Mason, so they challenge their friends and neighbors and everyone else to consider the appropriate response to a horrific set of alleged facts. 
But the real question isn't whether their views should control. 

The real question is whether their views are important and should be listened to and considered - not just by Mason, but by all of us.
That's easy.
Of course they should be.


  1. Jeff, thanks for the comprehensive response.

    I'm still not convinced that the victims' wishes should have any significant influence on prosecutorial decisions. In this case, I want the prosecutor to listen to the victims because the result is taking death off the table. In other words, because I agree with them. But if the victims - as is more usual - are baying for blood, should that still influence the prosecutor's decisions on the case? I would want to say no.

    It seems to me that there's a fundamental problem: if victims' views are taken into account when prosecutors are deciding how to conduct a case, the trial of an accused is going to be run differently depending on who their alleged victims were. Their punishments are going to be different. That sounds to me like an arbitrary system, not a fair and impartial one.

    All that said, however, the human part of me screams that it's obvious that victims' views are important and should be considered. I'm just not sure how to make that work within a fair, just and consistent system.


  2. It's a dangerous path, but so are the alternatives.

    We endow (necessarily, by the way) prosecutors with a degree of discretion in determining what to charge, how to pursue cases, and even which cases to pursue. They exercise that discretion, in theory at least, by considering a host of factors. There are clearly improper considerations (bribes [real or winking], horse trades, race, class, status, the list is probably endless), but if there's to be the exercise of discretion there are going to be considerations.

    I'm not advocating just buying into whatever any one group says, but I think it's probably unavoidable that those victimized by criminal acts will be heard to some extent. The thing is that the kill-him-now voice will commonly be imputed. The counter-intuitive (in this society) voice calling for something else, that's worth paying some attention to - even if not slavishly obeying.

    Frankly, and I tried to suggest this, it's probably generally good advice, in most contexts, at least briefly to pay attention to counter-intuitive ideas as long as they're not self-evidently insane.