What role should crime victims play in plea bargains?

Prosecutors represent the state, not crime victims, and they're charged with seeking justice, not convictions. But the Houston Press published a feature questioning whether prosecutors should be required to notify crime victims or get their sign-off before entering into a plea deal. The Harris County DA's Office says "There is no obligation to give advance notice to all victims of plea bargains," a policy which has the Mayor's crime victim advocate Andy Kahan hopping mad.

There's a problematic conflation throughout the article of "victim's rights," which is a largely ephemeral, political idea, with legal rights of defendants accused by the state, which are enshrined in the US Constitution. The Press article is rife with examples of crime victims who say "their rights have been walked on," but those aren't legal rights, only theoretical ones the speakers think they should have. After all, as the Press notes, "The law does not provide victims any way to enforce their rights after they've been violated." And if you can't enforce a "right" when it's violated, then it isn't one - not in a legal sense, anyway.

The main example in the story probably isn't the best one for victim's rights advocates since it atypically involves a high-profile, politically connected defendant: Former US Congressman Craig Washington. His light plea deal (2 years probation) probably isn't what the average black man firing a gun at white youth could expect in Houston, regardless of the victim's wishes.

But I was interested to notice the main reason the victims say they're unhappy at Washington's plea deal: Not at the outcome but because they didn't get the chance to say their piece. The two boys who Craig Washington shot at "wanted to tell their side of the story to a jury, and made it clear to Harris County prosecutor Lynne Parsons that they didn't want to settle for a plea deal. If a jury let Washington off, so be it."

I find fascinating this overarching desire by the victims to tell their story to 12 people they do not know. Indeed, getting to tell their story, by their own account, was more important than any punishment Washington might receive. This powerful psychological need to formally, publicly speak about what happened reminds me of an analysis by restorative justice advocate Howard Zehr, which I described on Grits thusly after hearing him speak in 2007. According to Zehr:

Victims typically have many questions: Why me or why my family member? They often want to know the details of crimes, what else happened that they didn't know about, and most frequently, why the offender did what they did?

In general, said Zehr, victimization authors three crises: A crisis of identity, a crisis of relationships (who can I trust?), and crisis of meaning. Transcending these crises requires a "re-creation of meaning" of oneself and the world. They must reconfigure their lives, "re-story" their life - they must somehow create a new narrative of self.

Part of this process is encapsulating experiences of victimhood and making them part of your own story, drawing boundaries around them, trying to articulate new metaphors for self. People seldom have adequate words for this process, he said, so they use metaphors. A central part of truly restoring victims to wholeness is enabling them find new metaphors to transform their narrative of humiliation into stories of honor and vindication.

When someone wrongs us we need to be vindicated, Zehr said. Victims want to know what their own responsibility was for what happened, if any, but most importantly for offenders to take responsibility for what they did. We search for ways to replace humiliation with honor.

A particularly important insight was Zehr's observation that the failure to make victims whole contributes to future crimes, because frequently victims later victimize others. Victims become offenders when have no other outlets, he said.

To keep that from happening, victims need safety, answers, truth-telling from everyone involved (authorities as well as the offender), empowerment (which the system generally denies them) and most importantly vindication and a chance to "re-story" what happened to them in a way that lets them regain honor.

In many ways, said Zehr, the current criminal justice system denies victims almost everything they need. He quoted Judy Herman saying that if you set out to design a system to create post traumatic stress for a victim, you couldn't do better than a court of law. This theme was repeated in other conference events so far - that the court process places unfair demands on victims that exacerbate their emotional response to crime instead of help them.

Restorative justice models focus more on giving victims that opportunity to confront both their victimizer and and their own personal demons - to publicly have their say and "'re-story' what happened to them in a way that lets them regain honor." However those approaches have proven difficult to graft onto the traditional adversarial system, where there is no real avenue for victims to "reconcile differences" with offenders.

Especially without a trial (and 98% of felony cases end in plea bargains), the adversarial system seldom provides victims that much-desired opportunity to tell their story. Yet any practitioner will tell you that, without plea bargains, the entire system would collapse under its own weight. Ditto for making victims a straight-up party to plea bargains; indeed, most crime victims likely wouldn't want that responsibility.

A lot more work needs to be done to identify the best way for the legal system to satisfy these emotional needs of crime victims, and restorative justice theories may provide a good starting point for re-imagining the system. But the adversarial process as we know it probably can't accommodate those needs without taking every case to trial, which like it or not is a practical impossibility.