Why crime victims need their own voice in the criminal justice process

January 27

Last week, I argued before the Supreme Court in Paroline v. U.S. & Amy.  As the case caption itself suggests, our criminal justice system is shifting, at least to some modest degree, from a two-sided, “State v. Defendant” model to a three-sided model in which crime victims are free to enforce their own rights.  This change is long overdue, as crime victims have their own independent concerns in the process that ought to be recognized.

In this post, I don’t want to revisit the merits the case — a subject I blogged about last week and have written about at greater length in this law review article appearing this week.  (I was pleased, however, to see this supporting op-ed appear Sunday here in the Washington Post.)  Instead, what may be more interesting is the larger issue of how our criminal justice system is transitioning, in fits and starts, from barring crime victims from any role to allowing them to be heard, independently of the prosecutor, in defense of their own interests.

Paroline v. U.S. & Amy has an interesting procedural history illustrating this transition.  The case began nearly five years ago, when my co-counsel on the case, James Marsh, submitted a detailed restitution request for Amy, a victim of child pornography crimes.  The request was supported by a forensic psychological evaluation and econometric projection.   She sought restitution in the amount of $3,367,854 for lifetime psychological counseling costs and lost income.  The government supported Amy’s request.  Following two evidentiary hearings, the district court denied Amy’s request, finding that it was not possible to identity precisely what part of those losses was specifically attributable to the defendant, Paroline, as opposed to thousands of other criminals who were victimizing Amy.

The case might have died there if Amy had no rights in  the process, as the government was not interested in pursuing any appeal.  But Amy sought review in the U.S. Court of Appeals for the Fifth Circuit, filing a petition for a writ of mandamus with the Court.   Under the Crime Victims Rights Act (CVRA), crime victims are entitled to seek appellate review of a denial of their rights under the act.  Amy argued that the district court’s failure to award her any restitution under the CVRA violated her “right to full and timely restitution as provided in law.”  The defendant argued against Amy, and the government joined him in arguing that the district court had acted within its discretion in denying Amy any award.  Acting on an accelerated time frame, the Court of Appeals in a terse 2-1 opinion that denied Amy any relief.

Amy next asked the Court of Appeals to reconsider this denial.  Following new briefing and full oral argument, the Court of Appeals agreed, concluding that Amy was entitled to restitution for the “full amount” of her losses under the plain text of the restitution statute covering child pornography crimes.

Paroline and the government then both sought rehearing en banc, and the full Court (15 judges) agreed to reconsider the case.  In the briefing before the en banc Court, Paroline continued to defend the district court decision while the government staked out new turf.  The government argued that the proper way to calculate restitution for Amy was to take the number of defendants who had been ordered to pay restitution to her (about 170) and divide that into her total losses.

Following an en banc argument, the Fifth Circuit supported Amy’s request for full restitution, rejecting the government’s and the defendant’s positions.  The Court remanded to the district court for an award of full restitution.

Paroline then sought certiorari before the Supreme Court, pointing to the split in the circuits as to how to interpret the restitution statute.  While the government opposed certiorari, Amy asked for a cert grant to clarify the law on restitution.  The Court granted cert last summer and — recognizing the trilateral nature of the issues — gave  Paroline, the government, and Amy each 20 minutes to make their case.  The Court held oral argument last week.

A number of press reports described how the oral argument went before the Court.  The striking thing about those reports was how they all consistently noted the three different positions being articulated to the Court.  For example, The Post’s report was organized along the lines that Paroline was arguing for no restitution, I was arguing for full restitution, and the government was arguing for some, undefined, middle ground.

This three-sided argument is emblematic of how crime victims increasingly have their own interests in the criminal justice process, apart from the government.  Indeed, the differences could not be more striking in this case, where Amy is seeking a very substantial restitution award, while the government is seeking only a very modest amount (perhaps as little as $50 or $100 — the government has refused to give Amy a figure for how much restitution it is willing to support for her in this case).

This kind of involvement by crime victims in the criminal justice process is a salutary development.  The child pornography restitution statute is, after all, a law enacted by Congress.  While often the government will interpret the law consistently with how victims would like to see it interpreted, that will not always be the case.   When victims disagree with the government, a court should hear from the victims and thus have the full range of interpretive options before them.

In response to this point, some might argue that victims can be heard — but should only be heard through the filing of an amicus brief.  But an amicus filing is a poor substitute for the ability to directly enforce rights in a criminal case.  Again, this case provides a convenient illustration.  If Amy had been limited to mere amicus participation, the district court would have ruled against Amy and should would have had no way to seek appellate review of that ruling — a ruling that 10 of 15 judges in the en banc Court later found to be clearly and indisputably wrong.

I have also heard defense attorneys argue against victim participation by claiming that this is ganging up on the defendant — double counting the prosecution’s view by adding in the victim’s view.  Here again, that’s not quite right.  While victims often are aligned with prosecutors, other times they may align with defense attorneys.  Victims’ interests are not necessarily the same as prosecutors’ interests.  Indeed, restitution may be an area where victims and defendants could make common cause.  While prosecutors focus on long prison terms, victims are often worried about receiving compensation for their injuries.  Victims might prefer, for example, a sentence under which the defendant is placed on work release and can make payments towards restitution instead of one that simply locks him up and throws away the key. Doug Berman has made exactly this same point about U.S. v. Paroline & Amy, explaining in a recent post that shifting our focus away from purely punitive criminal justice responses is why he is cheering for Amy to win a complete victory before the Supreme Court.  My former law clerk and now federal defender, Benji McMurray, has expanded on this point at length in “The Mitigating Power of a Victim Focus at Sentencing,” 19 FED. SENT’ING RPTR. 125 (2006).

So while I’m very optimistic that Amy will win her case on the merits before the Court, in a larger sense, Amy may have already won an important victory.  Amy’s case is the first time (so far as I am aware) that a crime victim has argued before the Supreme Court to enforce her own rights in a criminal case filed by the government.  My VC colleague Will Baude helped me add the qualifier about the criminal case being filed by the government, as in Robertson v. United States ex rel. Watson, a crime victim argued in her own, “private prosecution” — although the case was ultimately dismissed as improvidently granted.  The fact that her presence in the case — as a party — was taken for granted is the sign of a maturing crime victims’ rights movement and perhaps signals that victims will be further integrated in the criminal justice system in years to come.  Having the victims’ voice heard in the process takes nothing away from prosecutors or defendants, but adds a valuable, alternative perspective that courts should be allowed to consider.

 

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah.
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David Bernstein | January 27