Disrupting Victim Exploitation

• Citation: Vol. 69 No. 3
• Publication year: 2018

Disrupting Victim Exploitation

David A. Singleton

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Disrupting Victim Exploitation

by David A. Singleton^*

Introduction

Violent-crime survivors have powerful stories to tell.¹ Prosecutors use these stories to convict the accused and advocate for harsh sentences.² Legislators use these narratives to pass punitive sentencing measures locking away the convicted for increasing periods of time.³

Though prosecutors and legislators serve the entire community,⁴ many present themselves as speaking for victims, particularly those who call

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themselves "tough on crime."⁵ But do the interests of those who advocate for punitive, retributive justice⁶ always align with those of crime victims? And when their respective interests diverge, is it exploitative for prosecutors and legislators to suggest that they represent the interests of all victims?⁷

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This Article explores the exploitation of crime survivors and how progressive criminal justice reformers can partner with them to reclaim their voices. Part I defines exploitation as used in this Article and provides examples of the concept. Part II uses narrative storytelling to discuss the difficulty in identifying true instances of victim exploitation. I contrast the experience of one crime survivor after she recanted her testimony against my client with what I believe to be a clearer instance of victim exploitation: the passage of New Jersey's Megan's Law just one month after Megan Kanka's brutal murder, and specifically, the role played by New Jersey's Speaker of the House as he prepared to run for the United States Senate. Part III concludes by providing two recent examples of crime survivors' joining with criminal justice reformers to achieve progressive change.

I. The Meaning of Exploitation

Throughout two decades of work in the criminal justice system, I have frequently observed prosecutors, victim advocates, and politicians using victims' stories to advocate for long sentences in individual cases, new laws to impose even lengthier sentences, and burdensome collateral consequences. I sometimes found the use of these victim narratives appropriate, while other times it seemed inappropriate and perhaps exploitative. Identifying what separates the appropriate from the inappropriate requires understanding exploitation.

One scholar has noted that "[t]he ambiguous and ill-defined concept of exploitation has been widely applied, taking on an open-textured and almost all-encompassing meaning."⁸ I use the term in this Article to mean "unfairly taking advantage of someone."⁹ This sense of exploitation has been used to describe how southern plantation owners built their

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fortunes on the backs of slaves;¹⁰ the use of child labor to enrich industry owners;¹¹ the use of adhesion contracts by merchants who have asymmetrical bargaining power over their customers;¹² the taking advantage of vulnerable people by unscrupulous caregivers;¹³ and the treatment of trafficked individuals by pimps.¹⁴

Exploitation also refers to the misappropriation of a marginalized group's culture.¹⁵ Examples include: The Education of Little Tree, an alleged autobiographical account of an orphaned white boy raised by Cherokee "grandparents," written by a white supremacist who was neither orphaned nor raised by Cherokees;¹⁶ the use of Native American themes in Outkast's Grammy performance;¹⁷ and the use of black cultural elements by white fashion designers¹⁸ and performers.¹⁹ In discussing the line between cultural borrowing and cultural misappropriation, one legal scholar notes that "borrowing may become appropriation when it reinforces historically exploitative relationships or

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deprives [cultures] of opportunities to control or benefit from their cultural material."²⁰

The concept of cultural misappropriation is particularly helpful in shaping the contours of "victim exploitation" as used in this Article. As will be discussed later, tough-on-crime proponents often co-opt victim narratives to serve political agendas many crime survivors do not support. For example, when politicians, particularly those who are not crime survivors themselves, purport to speak for all victims, they engage in behavior akin to white musicians culturally misappropriating black music. Thus, the concept of victim exploitation this Article proposes borrows from the idea of cultural misappropriation.

For this Article's purposes, victim exploitation exists where (1) a criminal justice system actor (such as a prosecutor, victim advocate, judge, or legislator) (2) unfairly appropriates victim narratives to (3) advance the actor's, rather than the victim's, interests. As illustrated in the two case studies below, whether exploitation exists often turns on whether the criminal justice system has used the victim's narrative unfairly.

II. Victim Exploitation or Non-Exploitative Advocacy: Two Case Studies

A. One Crime Survivor's Experience

I recently handled a clemency petition based on actual innocence for my client, Tyra Patterson.²¹ Tyra and her four co-defendants were accused of robbing five young women at gunpoint, and in the process, murdering fifteen-year-old Michelle Lai.²² At trial, the four survivors identified Tyra as one of the robbers.²³ The jury convicted Tyra, and the judge sentenced her to forty-three years to life.²⁴

The Ohio Parole Board held a hearing on our petition in January 2015, but none of the evidence supporting Tyra's innocence²⁵ appeared to move the board members. Then, the prosecutor began by displaying Michelle's

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nude autopsy photograph as he argued that she and her friends were the victims in the case, not Tyra.²⁶ He also chastised those who urged the Board to recommend clemency, arguing that they ought to be supporting the victims, not Tyra. Without hesitation, he presented himself as the voice of Michelle Lai and the other survivors of that awful night.

But it later became clear the prosecutor did not speak for all of the victims. In March 2016, I met with Michelle's sister and co-victim Holly Lai Holbrook.²⁷ Clutching her only picture of Michelle, she told me how much she missed her sister and cried as she told me about the toll Michelle's murder had taken on her. But the conversation soon turned to Tyra, when Holly told me that Tyra was innocent and that she wanted to do whatever she could to free her. Holly told me that she did not want to speak to the prosecutor because she did not trust him. She also worried that, if she wrote to the governor and it became public, her family would disown her.

Nevertheless, Holly decided to write Governor John Kasich.²⁸ In addition to recanting her trial testimony, Holly acknowledged the fear and anxiety she felt because of her family. She stated, however, that "what's more important is that I tell the truth about how I feel."²⁹ Holly also explained that writing the letter "has helped to free me from the pain I have held in all these years. Writing this letter also has helped me see that I actually have a voice that deserves to be heard."³⁰ Holly closed her letter by urging Governor Kasich to "release Tyra now because the sooner you do so, the quicker I can begin to fully heal."³¹

Regarding her need to heal, Holly asked if she could meet with Tyra in person. I told her she would need to get special permission from the prison, and I put her in touch with a victim advocate. After speaking with the victim advocate, Holly told me the advocate advised her not to talk with me and suggested that Holly call the prosecutor to get "the other

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side."³² After Holly responded that she did not feel comfortable talking with the prosecutor,³³ the victim advocate pushed her to reconsider.³⁴

Holly also asked the victim advocate if I could be present during the meeting with Tyra, but the advocate responded with a firm "no."³⁵ When Holly asked if she could tell me about their conversation, the victim advocate warned her that doing so could jeopardize the office's willingness to arrange a meeting with Tyra.³⁶ Finally, Holly expressed interest in writing to Tyra periodically in an effort to befriend her.³⁷ "Absolutely not," the victim advocate answered.³⁸ Holly told me that the victim advocate made her feel bad for wanting to speak to Tyra.

Holly knew that the prosecutor would eventually learn of her support for clemency when she agreed to sit for an interview with The Guardian, which in 2015 had published a three-part series on Tyra's case.³⁹ Holly explained to me that she wanted to do the interview despite concerns about her family and the prosecutor because she wanted to be as helpful to Tyra as possible. In December 2016, The Guardian published its story on Holly's coming forward to urge Tyra's release.⁴⁰ The Dayton Daily News published a follow-up story, in which the prosecutor responded,

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"While [Holly's letter to the Governor] is emotional, it is in direct contradiction to her own testimony . . . given under oath."⁴¹

I was quick to deride the prosecutor and victim advocate for dismissing Holly's interests once it became clear she wanted Tyra released, and to accuse them of exploiting Holly to keep Tyra behind bars. In hindsight, however, I recognize that the line between appropriate advocacy and exploitation is a difficult one to draw.

With respect to the prosecutor, I realize that he is entitled to dispute Tyra's innocence claim. After all, there is no evidence, such as DNA, to exonerate Tyra with 100% scientific certainty. Likewise, I recognize that courts are generally skeptical of recantations like Holly's because witnesses can disavow their testimony for reasons having nothing to do with the truth.⁴² Moreover, Holly was the only victim to recant her testimony. What troubled me the most about the prosecutor was his suggestion that the trial evidence was the only thing that mattered in determining Tyra's innocence, and that any new information was irrelevant.⁴³ If the prosecutor's goal was only to...