With Justice for Some: Victims' Rights in Criminal Trials.

• Author: Schulhofer, Stephen J.

Hard on the heels of the civil rights movement, the women's liberation movement, and the movement to expand the rights of criminal suspects, the victims' rights movement burst on the scene in the early 1970s and quickly became a potent political force. Part backlash against what it considered the prodefendant romanticism of the 1960s, the victims' rights movement was also a spiritual heir to the '60s ethos. With its suspicion of bureaucratic government and its concern for the disempowered, the victims' rights movement spoke for the "forgotten" men and women of the criminal justice system.

Victims' rights legislation sometimes sought to repeal rights recently conferred upon criminal defendants.(1) But early on, victims' rights advocates also staked out an affirmative agenda. Like the leaders of previous movements, they sought to empower their adherents by helping them obtain formal legal rights.

They succeeded across a broad front. Victims won statutory rights to be kept informed of the progress of the prosecution;(2) to express an opinion about the propriety of a proposed plea agreement;' to be heard at sentencing;(4) and to participate in parole-release proceedings.(5) Statutes require convicted defendants to pay restitution,(6) and broader victim-compensation schemes--now in effect in approximately forty-five states--provide state funds to reimburse victims for certain injuries, whether or not particular offenders are apprehended or convicted.(7) In California, a state constitutional amendment guarantees the rights to restitution, to consideration of public safety in setting bail, and to unrestricted admissibility of defendants' prior felony convictions for purposes of impeachment or sentence enhancement.(8)

The legal, social, and psychological impact of these reforms is no simple matter to assess, and existing research reveals mixed results. Victim participation in plea bargaining seems to leave some victims more satisfied with the process but intensifies the frustration of others.(9) Victim participation in sentencing and parole has had some effect on outcomes,(10) but commentators differ about the reasons for that impact and its legitimacy.(11)

Concern for the victim is a central preoccupation for George Fletcher in his latest book, an account of eight high-profile trials, followed by a provocative commentary on their lessons. Though his subtitle underscores the book's focus on victims' rights, the reform movement of the 1970s and its statutory achievements are barely mentioned; indeed, Fletcher appears to consider them irrelevant to his themes. In vivid (sometimes purple) prose, he paints a picture of crime victims who are still frustrated and uncared for, crying out in disbelief or taking to the streets in angry protest as the legal system mitigates the punishment of egregious wrongdoers or acquits them altogether.

Something, Fletcher argues, is grievously wrong. And the remedies will have to be radical. Fletcher has no patience with shilly-shallying, especially by lawyers, a group he condemns wholesale for a predisposition to focus on the marginal or irrelevant and an unwillingness "to rethink the foundations of our legal system."(12) Fletcher makes no effort to disguise his contempt for the tepid responses of cautious professional study commissions, and he dismisses as mere "pap"(13) the reforms offered by an American Bar Association task force in response to the acquittal in the first Rodney King beating trial.(14)

"This," Fletcher tells us, "is an angry book."(15) He insists that we need far-reaching change. Following his descriptions of the eight trials and references to other prominent cases, Fletcher presents his "ten solutions,"(16) a plan to revolutionize the criminal trial, reorient the purposes of punishment, and assure victims that the community stands with them in their anger and their grief.

Fletcher is clearly on to something important. He describes the emergence of what he calls the "new political trial,"(17) the high-profile case in which the victim of a criminal offense comes to symbolize an entire group defined by its socially marginalized and legally underprotected status. The core of his plan is that judges should "think of every trial as an example of the new political trial"(18) and move toward "[c]ommunitarian [p]unishment,"(19) in which [c]onvicting and punishing the guilty is our way of expressing solidarity with those who have fallen prey to the pervasive violence of American life."(20) He presents his doctrinal proposals as part of a plea for a broader change of legal philosophy and cultural mind-set.

While Fletcher brings us an important subject, topical source material, and several fresh perspectives on reform, his book is less successful in its effort to separate genuine problems from trendy but spurious concerns. On almost every page, wonderful insights compete for attention with misdirected fluff. Too often, Fletcher's enthusiasm for a good phrase gets the better of his self-proclaimed commitment to staying focused on fundamentals. "Lawyers love to blame imaginary targets," he writes, in a wonderfully unselfconscious sentence.(21) Perhaps because he was writing for a broad general audience, Fletcher did not attempt to develop his pastiche of ideas or to examine the coherence and effectiveness of his solutions. The resulting book mixes fresh insight and provocative suggestion with overblown language and flawed analysis. Many readers will find it maddeningly erratic.

The ten proposals themselves constitute a curious melange. Some are sweeping and original but will do little to address the dysfunctions that Fletcher perceives; other proposals are workable but narrow, technical, and almost surely uncontroversial. An odd tension pervades the book, as Fletcher's lofty goals, fervent rhetoric, and impatience with cautious reform serve as packaging for proposals that address only peripheral problems, and mostly in a thoroughly tame manner.

An odd tension pervades Fletcher's core argument as well. If there is one central theme in this work, it is the claim that our trial process shows insufficient concern for the feelings and needs of victims. Yet Fletcher rejects the most prominent proposals for enhancing victims' rights. Stripped of his rhetoric, the content of his program would restrict (and, in one instance, repeal) new procedural rights for victims. In the end, Fletcher seems largely unpersuaded by his own thesis.

And for good reason. Fletcher's principal claim--that the justice system fails to afford victims a sufficient voice--is far off base, both empirically and normatively. Inattention to the needs of victims was at most a minor cause of the troubling results in Fletcher's eight case studies; the real difficulties lay elsewhere. Fletcher's central normative claim, that "[t]he purpose of the trial is to stand by the victim,"(22) is simply not true and could not conceivably become an acceptable touchstone for reform.

In due course, I will fulfill the reviewer's traditional role by elaborating on these objections and by touting my own agenda. Our underlying problem, I will argue, is not that our legal system still pays insufficient attention to victims but that, more than ever, our society holds superficial, emotion-laden, and powerful--but utterly conflicting--intuitions about just what it wishes to accomplish in the administration of criminal justice. But before I develop that point, it is worth taking time to canvas Fletcher's thought-provoking body of material and ideas.

One feature of my analysis may strike readers as especially surprising. I propose to consider the trouble with trials, and with high-profile trials in particular, without discussing the recent prosecution of O.J. Simpson. Apart from the fact that commentary on the Simpson case is not in noticeably short supply, this Book Review was completed before that trial ended, and there seemed to me to be a danger in trying to revise and tailor my discussion to fit, with 20/20 hindsight, the lessons we now think we have learned from that prosecution. I do not claim to have anticipated the Simpson verdict, although--like many others--I feel in retrospect that I should have. In particular, some of what was written in the original draft of this Review applied quite readily to the Simpson case and to the verdict that was forming, though I did not see all those connections at the time. Accordingly, I have chosen to leave my original discussion unaltered and to make no effort to defend its implicit claim that the broad themes developed here should, if true, have relevance for our understanding of what happened in this country's highest-profile trial ever. I will center my discussion on the eight earlier cases that form the core of Fletcher's book and try to extract from them the kind of general lessons that should have wide and lasting application.

1. THE TRIALS

   The "forgotten" victims who were at the center of the original victims' rights movement were just average citizens, "typical" Americans in every way. In the "new political trial," the victim comes to symbolize an entire group defined by its marginal, outsider status. Fletcher discusses his eight trials in four chapters: LGays," "Blacks," "Jews," and "Women."

   Fletcher's first case deals with the 1979 trial of former San Francisco City Supervisor Dan White, who assassinated Mayor George Moscone and openly gay Supervisor Harvey Milk in a fit of pique apparently fueled by homophobic rage. White's claim, subsequently ridiculed as the notorious "Twinkie" defense, was that he lacked the malice necessary for murder because of mental and emotional disturbance aggravated by high-sugar junk foods. When a jury accepted White's theory and found both killings to constitute only manslaughter, San Francisco gays poured into the streets, breaking windows, overturning police cars, and setting fires in an all-night rampage.(23)

   Fletcher's second case is the...