Wednesday, November 2, 2011
REVISITING VICTIM’S RIGHTS 1
As promised, I am going to look at Lynne M. Henderson’s 1999 Victim-Rights (V-R) article, which follows up on the 1985 article which I looked at in the immediately previous Post. Instructions for accessing the text of the article are in Note* below.
The article in the format you will see it has a one-to-one ratio between the Adobe format and the actual numbers of the printed text, so page 1 of the Adobe version is page 1 of the printed text and we don’t have to do the usual double-page-number reference. Page 1 is page 1 and so on.
In this 1999 article, Henderson is specifically prompted by the then-current efforts to get a Victim Rights Amendment passed as a Constitutional Amendment.
She does a masterful job, and from a legal-scholar’s point of view, in analyzing the proposition.
I also note that even though the Amendment failed, Henderson’s discussion of the arguments in its favor raise some of the most fundamental issues that the SO community faces in things-Mania. Reading her, you wind up with a much clearer conception of i) how the legal mind thinks and analyzes (or should, anyway); ii) what profound conceptual and rhetorical frakkeries lie within both the V-R and SO Mania gambits; and iii) how genuinely and lethally dangerous is the substance of so much of the Victimist programme, regardless of how cutely and sensitively it was spun by shrewd PR advocacy.
Let me also say this: Henderson notes even in 1999 that some victim-rights groups themselves were opposed to the push for an Amendment and said so forthrightly. When I use the term ‘Victimist’ here I do so because what I am discussing accurately describes some element of the V-R agenda in its ‘classical’ form. But I also acknowledge that some V-R advocates do not – or no longer – subscribe to the ‘classical’ V-R agenda.
She tells (p.2) how in California back in 1982 “I was concerned that Proposition 8 appeared only incidentally to be aimed at the concerns of victims; its real purpose was to serve crime-control, ‘conservative’, and prosecutorial interests.”
This continues her acute and accurate observation that in the beginning, the Victim and the V-R movement were given their initial boost into national play by so-called ‘conservatives' seeking to put the brakes on both violent crime and the 1960s era ‘revolutions’ in culture that seemed to be feeding the increase in violent crime. The intent was to strengthen the prosecutorial hand in the criminal justice process. Yet beneath that intent was the less obvious but far more vital and lethal consequence that achieving this objective would automatically require weakening the utterly foundational Constitutional and Framing intent to protect the individual Citizen from the arbitrary deployment of the sovereign police-power against any accused Citizen.
And she quickly captures a certain baleful dynamic when she then goes on that “As it turned out, Proposition 8 was inadequate to serve crime-control interests or to mollify victims. California voters approved yet another amendment in 1991, Proposition 115, the Crime Victims Justice Reform Act”.
The dynamic here, I would say, is that once the government, through one or all of its Branches, formally commits itself to an ill-advised, unworkable policy (enacted into law) that contains the seeds of numerous possible ill consequences, it becomes verrry difficult for the government in any of those Branches to back away. And then as the policy fails and/or creates the ill consequences (which it had not taken the trouble to foresee or had foreseen but had ignored), the tendency is to try to plaster-over the freshly created problems by instituting further corrective or remedial action (policies, laws, court decisions) in order to shore up the original mistake.
This dynamic will bring back memories of the Vietnam War era to readers of a certain age, and rightly so.
In this article she wants (p.3) to “stand back and consider crime victim’s rights proposals in terms of our larger constitutional structure and practice” and also to examine “the intricacies of the relationships between prosecutors and victims”.
These, of course, are the type of reasonable and indispensable deliberations and analyses that any reasonable Citizen might have presumed the legislators – and perhaps even the advocates – to have performed before supporting the measure … but that’s not how things work in the world of ‘deal politics’ and advanced-level ‘advocacy politics’ and ‘symbolic politics’: rather, the pols and the advocates simply horse-trade until enough demands are met for the price of enough votes and PR opportunities – the Constitution and ‘consequences’ and The People and the ‘common-weal’ are wayyyy too abstract for the type of gimlet-eyed horse-trading that goes on around Beltway tables now.**
The V-R Amendment itself gathers steam after the Republican take-over of Congress in 1994, when “the concept of an amendment becomes more important than the effects of such an amendment”.
I would say that this has to reflect a curious maelstrom of political interests: the ‘conservatives’ now see a way to enact more of the actually anti-Constitutional anti-accused initiatives they had been pushing since Reagan’s first Administration a dozen years before – but the radical-feminists have now entered their still-touted era of ‘governance feminism’ when the hugely amenable Clinton Administration was seeking simultaneously to show how it was friendly to ‘women’ (or at least to the radical feminist advocacies in the Beltway) and at the same time show its chops in fighting crime.
Thus the SO Mania in the early 1990s gets a double-boost, a ‘bipartisan’ boost, from both ‘conservatives’ who are no longer Conservative and from ‘liberals’ who are no longer Liberal, and both of which groups are seeking (the conservatives perhaps unwittingly, the radical-feminists most deliberately and purposely) to undermine the Framing Vision and dynamics constructed by the Framers into the Constitution and Bill of Rights.
I also note that Henderson here does not take much note of the SO Mania that by 1999 when she writes the article, or by 1994 when the V-R Amendment movement she is studying starts to take shape, is already a wildfire of increasing intensity, burning in the national forest.
The V-R Amendment, she observes (p.4) gives the impression that dangerous criminals are going free all the time. Supporters of the Amendment provide no “empirical evidence on what truly benefits victims, how such an amendment might affect substantive and procedural criminal law, and, more generally, the State’s and the community’s interest in crime-prevention and prosecution”.
And to that last bit I would add: how far can one go in the American Legal Universe in government’s function of preventing and prosecuting crime? How far can you go, that is to say, before you cross some line in which you are no longer in the American Legal Universe and the government – more to the point – is no longer functioning according to the principles of an American government … but rather has taken on the operational dynamics of a government from some other, non-American, anti-Constitutional Universe?
She quotes a 1994 letter from Victim Services, one of the largest advocacy and victim-service organizations in the country, to Orrin Hatch, then Chairman of the Senate Judiciary Committee, that “the proposed amendment is premature and inappropriate at this time when existing [state and federal] provisions that aim to protect victims’ interests have not been evaluated”. And further, the letter urges that “what we need is research, discussion, and debate”.
But of course “research, discussion, and debate” is precisely what a ‘revolutionary’ praxis seeks to avoid: you don’t need research because the revolution already knows what has to be done and everybody else ‘just doesn’t get it’; you don’t need discussion for the same reasons; and you don’t need debate because such open analysis might reveal the flaws in the revolution’s demands and agenda or might raise ‘facts’ that are inconvenient to the revolution and anyway, all that talk and study will just slow things down and distract from achieving the demands.
These fundamentally Leninist-Soviet assumptions, dressed up in whatever ‘sensitive’ or ‘patriotic’ costumes, were precisely what drove the political agitation of the 1990s, and half-forced, half-lured the Beltway pols into debauching themselves and their sworn responsibilities in an orgy of ‘deal politics’.
Henderson then notes (p.4) that she is not urging caution “because I am insensitive to crime victims” (such a charge being one of the trademark gambits of revolutionary praxis: don’t argue the point, attack the person who makes the point) but rather “because critical distance is essential before we embrace such a change in our fundamental charter of government”.
What costumed the politics of that era was either a) this is not such a big change but only a little much-needed ‘reform’ or b) (more of a left-over 1970s trope) this is a revolution but revolutions are really great and groovy and only do good things.
It is interesting to note (p.5) that the V-R Amendment was formally co-sponsored by Jon Kyle – a conservative Republican male – and Diane Feinstein, a liberal Democratic female. Such wonderful ‘bipartisanship’ actually screamed out that both Parties had lost interest in the Framing Vision and the Constitution’s dynamics.
Any victim-rights amendment, Henderson asserts (p.5), “holds grave implications for constitutional law, government, substantive law, and victims themselves”. And it is interesting to note here that the Beltway push is not even concerned, primarily, with the well-being of the very Victims who – from the get-go – were being used as ‘fronts’ for other agendas entirely.
What she intends to do in this article is to “examine the question of giving victims of crime a formal constitutional role in the criminal justice process”. She will begin with an overview of “possible theoretical justifications” for such an agenda, since without adequately theorized grounds for the amendment “it cannot be justified”.
She is particularly concerned with the deeply complex demands for victims to be “co-equal parties” in the criminal justice process; and also with the relationship between victim and prosecutorial interests, since the usual assumption is that the interests of the victim and of the prosecutor simply and easily “converge” (which is not at all the case). (p.5)
Henderson’s own conclusion will be that meeting any workable victim-rights goals does not require a Constitutional Amendment. (p.6)
Further, she considers (p.6) it vital to correct what was by then a curious skew in scholarly legal concern: that since V-R agitation seemed to do basically with criminal law and procedure, little concern had been given to V-R demands from the standpoint of constitutional law.
She is also critical (p.7) of a (convenient, I would say) “severance” of the Bill of Rights from the Constitution, such that what legal attention is being paid from a constitutional point of view does not take the profound guarantees of the Framing Vision’s Bill of Rights into account.
The Constitution, she notes (p.9), has almost always been interpreted as governing relations between the individual and the State, not relations between individuals and other individuals. And further, that the relationship between the individual and the State has mostly to do with a) participation in democratic process and b) “certain rights of the individual against the State”. (italics mine)
The Bill of Rights and the XIV Amendment both contain limitations to the State’s power over an individual and also contain certain rights of the individual against the State. (p.10)
Even the ‘liberal’ legal scholar Ronald Dworkin, she points out (p.11), has said that “men have moral rights against the state”. (Dworkin said that back in 1978; I’m not sure his position still supports that nowadays; ‘moral’ rights have not fared well in liberal discourse in the past 30-plus years).
In Notes 21 and 22 on page 11, Henderson gives a quick peek into some profoundly interesting legal questions – not irrelevant to her or our analysis – as to whether the government has a responsibility to positively re-balance inequities in human society, or whether it is constitutionally bound merely to refrain from “being complicit” in continuing such inequities. This type of question raised serious issues concerning government’s authority but also its competence (as a human institution and not simply as a Constitutionally-grounded political mechanism) to actively manipulate society for the eradication of evils or inequalities that, it would seem, have been rife among human societies from the beginning of human history.
To give victims a formal role in criminal process would be to endow with a ‘right of participation’ persons (i.e. the victims) who are not at risk of losing life, liberty, or property through the deployment of the sovereign government police power. (p.14) And in a case where the actual victim is deceased, the government is going to be giving such power to relatives and ‘survivors’ who will have the power to affect how the government is going to conduct a case where the accused’s life itself may be at stake.
And while at first this seems ‘sensitive and humane’, it presents upon closer examination many serious problems. (p.14)
For example, there is a ‘federalism’ problem: if victims and their relatives or ‘survivors’ (however broadly defined) have a Constitutional right, then they will have a right to appeal any State case to a Federal court merely on the basis of any perceived insult to their ‘victim rights’, which a) interferes with the independence of State courts and b) can result in Federal courts actually supervising State courts (sort of the way the Federal courts supervised school-districts in the busing era of the 1970s).
Nor (p.15) does the government have “a constitutional duty to protect citizens from private violence”. This is tremendously relevant to the SO Mania community, I think, because what we have seen for decades now has been the government increasingly intensifying its legal power’s ‘violence’ against ‘sex offenders’ – through laws often passed and sustained with no regard for the factual accuracy of their presumptions nor for Constitutional principles – precisely on the pretext of preventing violence to imagined future potential victims. Yet in any criminal trial, it is the defendant who immediately steps into the Constitutionally-envisioned role of the ‘accused’, in whose defense powerful provision was made by the Framers.
So, Henderson insists (p.16) “there must be some very special justification for privileging crime victims by giving them constitutional rights”. After all, she will say, victims of war or natural disaster have no such constitutional rights against the government.
Of course, that “very special justification” has been comprised of the Right’s desire to give prosecutors more power against the accused than the Constitution does, and the Left’s desire to relieve ‘oppression’, especially that exercised by ‘men’ against everybody else.
Henderson will now get to the structural framework of the bulk of her article. There are many rationales put forth by the V-R amendment advocates (pp.15-6).
First, that there is a sort of social contract in play: since the government somehow ‘needs’ the victim to prosecute crime, then the government ‘owes’ the victim something.
Second, that a majority of citizens support ‘victim rights’.
Third, that crime victims have “some sort of” basic or fundamental right to participate in the criminal process relating to ‘their’ (accused) perp.
Fourth, that government somehow “re-traumatizes” victims in the criminal process and actually ‘victimizes’ them itself.
Fifth, that participation in the criminal process is somehow “therapeutic” and that therefore this therapeutic desiderandum should be somehow recognized in the Constitution.
Sixth, that victims ought to have a right to “corrective justice” even if the Constitution didn’t originally say it or consider it.
By examining in detail each of these classic victim-claims Henderson will start to pull apart the tissue of interconnected assertions, conceptions and misconceptions, and – I would say – misleading illusions that have fueled not only the V-R movement but also the SO Mania Regime.
Since her analysis of these six ‘justifications’ comprises the central bulk of her 98-page article, I am going to save it for my next Post.
But already by this point I think it becomes clear that ‘conservatives’ and ‘liberals’ have both substantially departed from the Framing Vision and the Constitution’s dynamics, for whatever reasons – and that these departures are not ‘reforms’ or ‘progress’ but rather embody dangerous regressions in American law and culture.
Henderson – although she doesn’t use the term – is also starting to give precise and detailed form to the ways in which Victimist (and Mania) law trends necessarily and inevitably against the American Legal Universe and introduces elements from other, fundamentally different, alien Legal Universes. Indeed, she will mention that some of the most vocal V-R law legal scholars have actually asserted that in their view European legal systems that place much less weight on the rights of the accused are preferable to what they slyly call American “adversarial” law, coyly ignoring the brute fact that the American “adversarial” system evolved precisely to best embody the Framing Vision’s concerns for the protection of the accused Citizen against the arbitrary or unjustified deployment of the Sovereign police-power.
(In this regard, I would add that the American military-justice system’s profoundly governing dynamics of ‘controlling the outcomes’ introduces operating dynamics from an alien and anti-American Legal Universe, and that this is true despite the constitutionally-familiar ‘furniture’ and ‘discourse’ through which that system is publicly presented discussed, and despite the fact that perhaps nowadays well-intentioned individual military lawyers might be trying to ‘change’ that: the system cannot be changed without deranging its fundamentally necessary ‘control’ dynamics, which were taken from Stalin’s playbook to begin with in 1950.)
And lastly – especially if you read Okrent’s book mentioned in the Note below or watch the PBS Ken Burns video history of Prohibition – you can see how many deep dynamics, political and cultural, are involved in the American tendency toward serious Mania.
Although as I have said above, the SO Mania of our own era is also fuelled not only by a bipartisan disrespect for the Framing Vision but also by the historical appropriation of propaganda agitprop and anti-democratic praxis and a fundamentally anti-Constitutional ‘revolutionary’ vision that are hell-and-gone from anything that occurred to the fevered yet calculating supporters of Prohibition in the early 1900s.
So much remains to be learned – and to be done.
*To access this article (and it’s free and well worth the look): follow this link; it will take you to an abstract of the article. Then at the top of that abstract page click on the option for One-Click Download; that will take you to several options depending on what part of the country you are in and you can simply click on one of them and the article will come up.
This is the Social Science Network Research (SSRN) site and it’s a valuable resource indeed.
**I can heartily recommend to you Daniel Okrent’s 2010 book “Last Call: The Rise and Fall of Prohibition” (and also the acute and excellent Ken Burns documentary on PBS). For those who are interested in wondering how American Manias happen and how they work, Okrent’s readable and thorough history of how Prohibition got rolling, got erected into a Constitutional Amendment, created monstrous and semi-permanent damage to the country, and was finally repealed after 13 years … all of this will shed valuable light for students and future-scholars of the frakkery of the SO Mania Regime.
Although, not to get too far off topic, I note that Prohibition was pretty much a home-grown American disaster, constructed and fueled by mostly homegrown American urges, ideals, and illusions. By the time of the SO Mania 70 or so years later, matters are also densely informed and driven by radical-feminism’s appropriation of fascist propaganda techniques and Leninist-Maoist thought and Soviet praxis, either directly or as filtered through various French and German anti-cultural thinkers of the immediate postwar period.