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Wednesday, July 20, 2005

Victims and Prosecutors: A Worrisome Alliance

Eric Rudolph is a murderous scumbag who attacked and killed people in abortion clinics, gay clubs, and the 1996 Olympics.  Turns out he also has some savvy.  According to this recent story,

Prosecutors had agreed not to seek the death penalty if Mr. Rudolph helped them recover more than 250 pounds of explosives he had hidden in western North Carolina, buried in the wilderness where he had taken cover while in hiding. Officials announced the deal in April, after law enforcement agents recovered the explosives.  Prosecutors have said that finding the explosives, which could have been a danger to hikers and scouts, made the plea agreement worthwhile. After his plea, Mr. Rudolph issued a statement in which he gloated that he had "deprived the government of its goal of sentencing me to death."

Putting aside the fact of my disagreement with the use of the death penalty as retributive punishment, I'm a mite worried about the nature of this prosecutorial deal for two reasons. 

First, the prosecutors agreed to make this deal after consulting the families of the victims of Rudolph's rampages and the majority of them agreed. (Interestingly, the story reports that not everyone agreed; so was the consultation made with the idea of giving victims voice or veto?)   Though it is sometimes tempting to view them in such terms, the prosecutors don't represent the victims or their families qua victims and survivors.  They represent them as citizens, along with everyone else; that's what it means to speak on behalf of "the People" or the "United States." Prosecutorial decisions should not be contingent upon the approval (whether by unanimous or majority vote) of the victims.   As Cesare Beccaria wrote centuries ago, “the right to inflict punishment is a right not of an individual, but of all citizens, or of their sovereign.” Or, as Robert Nozick wrote, a “victim occupies the unhappy special position of victim and is owed compensation, [but] he is not owed punishment.”

Victims and their families deserve compassion and care, but letting them influence sentencing decisions will have disparate effects on offenders, depending on whether they chose victims with families who were especially merciful or not.  That kind of arbitrary fact shouldn't impinge on what sentence one receives.  (That said, I don't think there's anything wrong with informing victims' families of prosecutorial decisions and explaining their reasoning; that might just be good practice, and sensitive too.) 

The other reason to be worried about this deal is

the incentives it gives to murderers, or offenders generally.  Seems like if you want to innoculate yourself against the most severe punishment, you should always leave some explosives around a schoolyard, which will be automatically triggered unless the prosecution agrees to a short sentence for you, and then you can dismantle the bomb.   Perhaps if plea bargaining is informed by contract law principles, then the government should have a duress defense for breaching here.  Of course if that happens, and the offenders know about that, then ... offenders won't strike deals with prosecutors in the first instance (knowing that they can breach with impunity), and will just go around leaving bombs to endanger scouts and hikers. 

Update: Doug Berman from SLP reminds me of these  developments in federal criminal law regarding victim participation in the criminal adjudication process. Especially noteworthy is Judge Paul Cassell's testimony before Congress.

Posted by Administrators on July 20, 2005 at 12:15 PM in Criminal Law, Dan Markel | Permalink


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On Law & Order (my authority for most crim law matters), the same moral conundrum was depicted in an episode about a serial killer who agreed to give the D.A. the locations of the bodies of missing girls in return for taking the death penalty off the table. The families of the missing girls so wanted closure that they urged the D.A. to take the deal, even though an extremely heinous serial killer would get life without parole. I don't know how common this occurrence is, although Zitrin has a chapter on the ethics of defense attorneys not divulging locations of bodies, so maybe it is common.

I would also be interested to know how this game works in jurisdictions without "life without parole." Texas does not have life without parole as an option, which is obviously one reason why juries give death sentences so often ("seven years and out with good behavior or death?" is the question bandied about in jury rooms). So, this tactic couldn't work in those jurisdictions.

Posted by: Christine Hurt | Jul 20, 2005 12:38:40 PM

In the David Westerfield / Danielle van Dam murder case, prosecutors were were prepared to give Westerfield LWOP if he told them where he disposed of the body. As Westerfield was considering this deal, police uncovered the body. As you might know, they took the deal off the table, tried Westerfield - a jury sentenced him to death.

Here's a quote and link to the story: "The van Dams said they knew nothing about a San Diego Union-Tribune report that Westerfield was on the verge of striking a plea deal with prosecutors when searchers found Danielle's body. The paper quoted unidentified law enforcement sources who said Westerfield would have received a life sentence without parole in exchange for revealing the location of Danielle's body, a rural roadside 25 miles from the van Dam's home."

Posted by: Mike | Jul 20, 2005 2:28:50 PM

Under the new Victim Rights statute (passed in late 04) federal prosecutors are REQUIRED to consult with victims before reaching plea agreements. There's a lot to object to about this -- beyond the problems that you raise, Dan, there are also issues in a securities fraud case where you have thousands (sometimes millions) of victims about how this can even be done. My understanding was that DOJ opposed the legislation vigorously, but it's law now. And it contains language saying that if AUSAs don't follow the requirements of consulting with victims, they will be subject to OPR-like internal review that can lead to sanctions, reprimands and worse. As for victims, the law gives them the right to petition to re-open sentencing proceedings if they are unhappy with the result or fear that they have been inadequately consulted.

Posted by: anon | Jul 20, 2005 3:45:07 PM

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