The Victims' Rights Movement helps prosecutors, not victims

If you are the wrong sort of crime victim in America, you can be neglected, harassed, or worse.

The Victims' Rights Movement helps prosecutors, not victims

If you are the wrong sort of crime victim in America, you can be neglected, harassed, or worse.

On November 2, 2014, Renata Singleton had an argument with her boyfriend, Vernon Crossley. It escalated into a physical altercation — Crossley grabbed Singleton’s cell phone out of her hand and smashed it. Singleton’s young daughter called 911. New Orleans police came to the house, arrested Crossley, and jailed him overnight.

In the aftermath, prosecutors with Orleans Parish District Attorney Leon Cannizzaro’s office tried to meet with Singleton to investigate the case, but couldn’t get in touch with her. Eventually they resorted to a tactic the office had used before: sending her notices that looked like subpoenas, designed to trick her into thinking she was legally obligated to meet with them. When that didn’t work, the DA’s office got a material witness warrant to try to force her to testify. She was jailed for five days.

The ACLU sued Cannizzaro in 2017, alleging that Singleton’s treatment was part of a pattern of misconduct; many others had received one of his fake subpoenas. The DA’s office regularly threatened to jail witnesses they deemed uncooperative, and got several others thrown behind bars. Almost all of them, like Singleton, were black New Orleanians.

Earlier this year, on February 28th, a federal judge ruled that Cannizzaro’s “subpoenas” likely broke the law, and allowed that part of the lawsuit to move forward (only judges can authorize subpoenas). But the judge also ruled that Cannizzaro had every right to get witnesses jailed.

Prosecutors needed Renata Singleton’s testimony to make their case, explained Judge Jane Triche Milazzo. The government, “for the preservation of an orderly society,” has the right to compel witnesses to speak — even witnesses who are also the victims. The ruling in Singleton’s case is a reflection of broader norms: the U.S. criminal justice system systematically mistreats crime victims who fail to toe the prosecutorial line or conform to our standards of how a victim should behave.

About 1,400 years ago, medieval England was ravaged by blood feuds. To stanch the bleeding, kingdoms began to create monetary justice systems. Instead of compensatory violence, people could resolve feuds with money. There were menus of prices for various harms — everything from fence breaking to hair pulling to killing.

“For each of the 4 front teeth, 6 shillings shall be paid,” decreed King Æthelberht, sometime around the year 600 A.D. “For each of the teeth which stand next to these, 4 shillings; then for each tooth which stands next to them, 3 shillings; and beyond that 1 shilling for each tooth.”

Over the centuries, kingdoms restricted people’s right to resolve their disputes privately. They funneled them into formal courts where the king could get a cut of the money. The burgeoning idea of the “king’s peace” helped justify his cut — the monarch protected his subjects and their property; breaking the law broke his “peace,” entitling him to compensation. Royal courts helped slowly reconceptualize crime, transforming it from a private, familial problem into a public harm.

Gradually, the king took a larger and larger share of the court money, until eventually victims got none. Instead of money, a victim’s compensation was the punishment of the person who harmed them — a new kind of blood feud, reimagined as legal justice. By the 1300s, English courts treated victims as little more than witnesses of their own victimization. Criminal justice was a matter between the government and the lawbreaker — the victim was reduced to an onlooker.

This state of affairs persisted in the West for roughly the next 600 years, until the mid-20th century, when advocates started pointing out the glaring ways the criminal justice system failed them. U.S. courts didn’t give victims anything to help recover from their losses, for example, or notify them when the person who harmed them was released from custody.

Change happened fast — in 1965, California became the first state to compensate crime victims, and others soon followed. But the momentum for reform was quickly co-opted by the rise of the tough on crime, prosecutor-centered Victims’ Rights Movement, led by the lawyer Frank Carrington. The movement helped win some changes that helped victims directly, like the expansion of victim assistance programs. But it mostly succeeded at making retribution respectable again.

Victims’ rights came to mean dropping the hammer on people who commit violent crime: lengthening sentences, limiting the use of the insanity defense, and jailing more defendants pre-trial. Perhaps its signature visual is a press conference where a victim, looking pained but firm, stands at the side of a prosecutor vowing bloody vengeance.

The movement was effective — how could anyone oppose “victims’ rights”? But its success has helped silence, neglect, and even punish crime victims who don’t comply with its punitive vision.

Cloaked in the rhetoric of victims’ rights, prosecutors can treat victims as little more than cannon fodder for the broader war on crime.

In 2014, Bob and Lola Autobee wanted to speak at the sentencing of the man who murdered their son, Eric. Colorado prosecutor George Brauchler wouldn’t let them. Victim Impact Statements are one of the major victories of the Victims’ Rights Movement. Every state now enshrines a victim’s right to testify about a crime’s effect on their life. But the Autobees opposed the death penalty, and Brauchler didn’t want their merciful influence on the jury. The parents sued to try to speak.

Brauchler treated them like “second-class victims,” the Autobees wrote in their lawsuit. “This is sadly consistent with the general experience of murder victims whose rights are ignored when their interests diverge from those of the prosecution.”

In a similar case from 2017, a Texas court uncovered how a prosecutor lied during a capital trial. The prosecutor told jurors that Jonas Cherry’s parents — and “everyone who loved him” — wanted the death penalty for Paul Storey, the man who killed their son. But Cherry’s parents actually opposed the death penalty, and the prosecutor knew it.

Despite the country’s fixation on the plight of its crime victims, the majority are mistreated because most of them aren’t “ideal victims.” Suffering criminal harm is only one of many requirements to be recognized as a real victim, wrote the Norwegian sociologist Nils Christie in his seminal 1986 paper, “The Ideal Victim.” Accessing resources depends on conforming to restrictive ideas about what a crime victim truly is. Under Oregon’s state constitution, for example, prosecutors literally get to decide who is and isn’t a victim.

Some, like the Autobees and the Cherrys, are denied the full rights of victimhood because they’re insufficiently punitive — the Autobees lost their suit against the prosecutor.

Others lose out because they’re not innocent enough to be real victims. Thirteen states block assistance to some victims who have criminal records, a 2014 study found, a bitter irony considering the large overlap between the victims of crime and the people who commit it. (Americans in gangs might actually be the most victimized population group in the country.)

Last year, for example, The Marshall Project reported on an Ohio man, Andre Winston, who was stabbed to death trying to protect someone from an attacker. His partner’s mom pulled together money for his funeral, and applied to the state’s victim compensation program to cover the cost. But her application was denied because Winston had a conviction for cocaine possession from seven years prior. To the state of Ohio, he wasn’t a real crime victim.

Sixty percent of sexual assaults don’t have a real victim either. Neither do 51 percent of robberies, and 53 percent of domestic violence. Across the U.S., state laws dictate that victims can’t get help if they don’t report the crime to police, despite the fact that unreported crime is the norm. In 2017, 55 percent of violent crime wasn’t reported. None of its victims had access to the country’s ballyhooed rights for crime victims.

Even victims who do call the police, like Renata Singleton, are sometimes made to regret it. They must continue to cooperate with law enforcement to stay eligible for assistance, and if they don’t, they can be punished themselves. Cloaked in the rhetoric of victims’ rights, prosecutors can treat them as little more than cannon fodder for the broader war on crime — “for the preservation of an orderly society,” as Judge Milazzo put it.

Leon Cannizzaro’s penchant for getting victims thrown in jail drew public outrage. A city councilor called it “barbaric,” reported the New Orleans Advocate, and a state lawmaker introduced a bill to ban the incarceration of uncooperative victims of sex offenses and domestic violence. But the powerful Louisiana District Attorneys Association opposed a total ban, forcing a revision. Now, the bill would still allow courts to jail victims, if it’s “absolutely necessary.”

The Louisiana DAs aren’t alone. Some district attorneys offices in Tennessee, Hawaii, Maryland, and others, continue to punish uncooperative victims, Leigh Goodmark a law professor at the University of Maryland, told The Outline over email. Nobody knows how many jurisdictions punish victims overall.

Prosecutors expertly weaponize the trauma and tragedy of American crime. When victims are camera-ready and cooperative, their rights are paramount in the pursuit of justice. If not, they are neglected and harassed — or worse.

F.T. Green is a reporter in Toronto. His website is ftgreen.xyz