I have been working on a pro bono crime victims' rights case, involving the Texas City oil refinery disaster. Criminal negligence by BP Products led to an explosion that killed 15 workers and injured more than 170. The Justice Department and BP reached a plea agreement under which the company would plead to a felony and pay $50 million. The victims of the crime have objected to the plea, arguing that the fine was inadequate given the harm frmo the crime and that the plea failed to provide sufficient assurance for the future safety of workers at the refinery.
The Fifth Circuit has now ruled on the victims appeal (available here), finding that the crime victims' rights were violated by the U.S. Attorney’s Office when it reached a plea bargain without conferring with the victims. The Fifth Circuit, however, refused to block the plea deal, remanding to the district court for further proceedings.
In its decision, the Fifth Circuit found that the U.S. Attorney’s Office had violated the Crime Victims Rights Act (CVRA) in reaching the agreement. In October 2007, the U.S. Attorney’s Office had obtained an ex parte order from the district court relieving the Office of any need to notify the victims before reaching the plea. The Fifth Circuit held that “it was contrary to the provisions of the CVRA for the [district] court to permit and employ the ex parte proceedings that have taken place – proceedings that have no precedent, as far as we can determine.” Instead, the Fifth Circuit stated that the U.S. Attorney’s Office “should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims’ views on the possible details of a plea bargain.”
The Fifth Circuit concluded that “the unfortunate fact is that the plea agreement was reached without the victims’ being able to participate by conferring in advance.” However, the Fifth Circuit remanded the case to the district court for further proceedings in which the district court “will fully consider the victims’ objections [to the proposed plea bargain] and concerns in deciding whether the plea agreement should be accepted.”
Along with the other attorneys working on the case, I will filing a petition for rehearing en banc with the Fifth Circuit in light of "circuit split" that the decision deepens. The Fifth Circuit concluded that it did not have to give the victims any relief — even though their rights were violated — because the CVRA provides for relief by way of a mandamus petition. The Fifth Circuit, citing a Tenth Circuit decision, held that mandamus petitions are subject to review only for "clear and indisputable" errors. Even then, mandamus relief is purely prudential, concluded the Fifth Circuit.
But the Second and Ninth Circuits have reached the opposite conclusion — that crime victims are entitled to ordinary appellate protection of their rights.
The Second and Ninth Circuit conclusions are obviously correct if one looks at the legislative history of the CVRA. One of the two co-sponsors of the CVRA stated the law would create
“a new use of a very old procedure, the writ of mandamus. This provision will establish a procedure where a crime victim can, in essence, immediately appeal a denial of their rights by a trial court to the court of appeals . . . . Simply put, the mandamus procedure allows an appellate court to take timely action to ensure that the trial court follows the rule of law set out in this statute.”
150 CONG. REC. S4262 (statement of Sen. Feinstein) (emphases added). Rejecting the cornerstone of the panel’s holding that the decision whether to grant relief for a victim is prudential one, the other of the CVRA’s two co-sponsors stated that:
"[W]hile mandamus is generally discretionary, this provision [18 U.S.C. § 3771(d)(3)] means that courts must review these cases. Appellate review of denials of victims’ rights is just as important as the initial assertion of a victim’s right. This provision ensures review and encourages courts to broadly defend the victims' rights. Without the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country’s appellate courts are designed to remedy errors of lower courts and this provision requires them to do so for victim’s rights.
150 CONG. REC. at S10912 (statement of Sen. Kyl) (emphases added).
Surprisingly, the panel of the Fifth Circuit did not discuss this legislative history in deciding that it did not have give the victims any relief. Hopefully the full Fifth Circuit will see things differently on the petition for rehearing. Crime victims deserve the same protection in the appellate courts as criminal defendants and other litigants receive.
Related Posts (on one page):
- Fifth Circuit Finds Victims' Rights Violated ... But No Remedy
- Crime Victims' Right to Object to a Plea Agreement:
Lots of prosecutors in murder trials like to claim, in their closing argument, that they are "speaking for the victims," who cannot speak for themselves. Yet some of those same prosecutors can't be bothered to actually meet with and consider the opinions of the surviving victims.
In this particular case, the decision by the prosecutors troubles me even more. Why might public word of the plea deal endanger it? If it's a justifiable prosecutorial decision, then the U.S. Attorney should have sufficient courage to say so to the faces of those most directly affected, and to stand firm in the face of any public pressure. His job is to seek justice, not win public opinion polls. If the danger is that the defendants might withdraw their agreement to the plea, then one must ask whether they were pleading because they agreed they were guilty, or because they felt pressured to do so by the prosecutors (and perhaps their own defense attorneys)? If public outcry could kill the deal, that's a strong sign that the deal shouldn't be made at all.
When a murder commits his crime, his punishment should have been legislated by representatives, considered by jurors and administered by professionals. What special knowledge and objectivity does the status of “victim” bring?
The victim's role is to be made whole, or as whole as possible. That involves some input from them as to what 'whole' is.
In fact, victims bring a great deal of "special knowledge" to the table. They know exactly how the crime has impacted them. They know how valuable and irreplaceable the murder victim was as a son, father, wife, mother, daughter, or even just as a friend. They know exactly how heinous the crime was, exactly the damage wreaked by the criminal who killed their loved one.
There's more than one purpose to the criminal justice system. One lesser-acknowledged purpose is to satisfy the victims that justice has been done so that they don't feel an intense emotional need to seek revenge on their own. "Justice" is often portrayed as a set of scales. That's apt, because it is about restoring balance (the "societal harmony" of which you speak). That means, in part, that the amount of harm done to the victim needs to be balanced by the punishment imposed on the criminal, and you can't know what the weight of the harm is without hearing from the victim.
1. The statements in the legislative history aren't conclusive. The statute uses the word mandamus. The way Senator Feinstein uses the word "appeal" in the cited extract doesn't seem to me to mean (a) a full-blown appeal and not (b) some kind of right to petition the appellate court for review.
2. Senator Kyl's statement is closer to the mark, but again, when he says that "the courts must review these cases," I wonder if he thinks that the Supreme Court "reviews" 3000 cases per year or 100. Passing on a mandamus petition is a form of review.
3. Even assuming that Sens. Feinstein and Kyl meant for the statute to provide the right to a full-blown appeal, that begs the question of what that view isn't clearly expressed in the text of the statute. Suppose someone came across an e-mail from another senator who said "I only voted for that bill because of the word mandamus; the bill gives crime victims a voice without deforming the traditional bipolar adversarial model of criminal proceedings"?
It seems strange that Congress would use a well-worn word like "mandamus" if they meant to enact something more in the nature of a traditional appeal.
Justice Scalia's general view on legislative history seems especially apt here.
Without the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country’s appellate courts are designed to remedy errors of lower courts and this provision requires them to do so for victim’s rights.
150 CONG. REC. at S10912 (statement of Sen. Kyl) (emphases added).
Here's more. In further colloquy, the sponsors stated that this provision “provides that [the appellate] court shall take the writ and shall order the relief necessary to protect the crime victim’s right,” 150 CONG. REC. S4260, S4270 (daily ed. Apr. 24, 2004) (statement of Sen. Feinstein), and that crime victims must “be able to have denials of those rights reviewed at the appellate level, and to have the appellate courts take the appeal and order relief.” Id. (statement of Sen. Kyl).
It is possible to take the position, as Justice Scalia has, the legislative history is always irrelevant. But other courts -- like the Fifth Circuit -- look at legislative history if there is an ambiguity. Given that two circuits have already sided with the victims, it seems to me that the Fifth Circuit should at least review these statements.
On pp. 4-5 of the opinion, the Fifth Circuit essentially incorporates the Tenth Circuit's opinion by reference. It notes the debate, says that it thinks the Tenth Circuit has the better of it for the reasons stated in Antrobus, and moves on. Unless Antrobus, Kenna and Huff all failed to discuss the legislative history, I don't think there was any reason for the Fifth Circuit to discuss it here.
"Victims' rights" is a misnomer designed to remove whatever attempt there is in the justice system to remove prejudice and emotion from the determination of guild and assessment of punishment.
It appears that the Fifth Circuit and the Tenth Circuit properly interpreted the statute (you know, the actually enacted law) as written. If the legislators wanted a different standard of review, they could have put that in the statute. (See AEDPA's habeas provisions)
that's possibly the most favorable panel composition, save edith jones and emilio garza, that you could have for that issue in the fifth circuit. the largely conservative fifth circuit is not going to grant en banc rehearing on that issue with that panel deciding it that way.
The statute says that "the movant may petition the court of appeals for a writ of mandamus." Writs of mandamus have been around for a long time. Is there some other language in the statute that makes the question ambiguous?
Never thought I'd hear Judge Cassell siding with the Ninth on a circuit split involving criminal law. I recall the Judge dismissing the 9th Circuit precedents on Miranda (while he was still an attorney) by saying that there are no Palm Trees at the Supreme Court, or something to that effect. It was at a federalist society thing I saw him at before Dickerson was argued. I guess we will file this under broken clocks.
Which leads to two other ways that Justice Scalia's kind of jurisprudence might turn out to hamstring victim's rights legislation such as this:
1) What's the basis of the victims' standing to appeal? Are they alleging a purely procedural injury? Do they have a concrete, individual interest in one sentence or another in cases where restitution is not at issue?
2) Would Justice Scalia see the victim's right to challenge a sentence for insufficiency as violative of the Executive/Presidential power under his dissent in Morrison?
all the second and ninth seem to be saying in that section that you emphasize ("ensure") is that a mandamus remedy be available. you obviously know this happens all the time, particularly under statutes that may not provide for interlocutory review. in fact, that interpretation (ensuring mandamus jurisdiction vest) is totally consistent with everything you've excerpted in the legislative history, and nothing there suggest that the VERY VERY VERY established standard for mandamus review be altered under the specific circumstances there.
in sum, all the passages do is establish mandatory appellate jurisdiction (as opposed to having to rely on certification of an interlocutory order). they don't say anything about the substantive standard to be used during the course of mandamus review itself. if you're arguing that the standard is different, it seems like you probably need to come up with material that's not consistent with anything other than congressional intent to change that standard.
i'd further point out that in the very material from kyl that you excerpt, he butchers enough legal terminology to make any judge quite wary of relying on it as an index of statutory meaning.
a petition for a writ of mandamus is not an "appeal," it's an original action. (although the function of the extraordinary writ is to preserve appellate jurisdiction).
That said, if SCOTUS actually applies this law as written, Congress will likely change it quickly. Then, perhaps, Senators Kyl and Feinstein can put the words that they want to be law in the text of the law rather than in speeches from the floor.
The law is unwise. The victims always have the right to sue the defendants in civil court. And I wonder what cases the AUSA's are not prosecuting in the Southern District of Texas because they are busy with this appeal. Prosecutors know their docket. They often plea bargain one case down because other cases on their docket are (in their discretionary judgment) more worthy of their time.
A few criminal defendants are probably escaping prosecution altogether or getting better deals thanks to Professor Cassell.
The punishment of the company is not their problem -- it's a problem for all of us. Ditto agreements about future conduct of the company. Everyone stands to lose if this kind of accident recurs. In fact, the victims of this accident are probably less likely to be the victims of another one. They probably have first-hand knowledge of the events, and hence are important witnesses, but all members of society have an interest in the results of the proceedings. For example, I'm not sure why the size of the fine matters to them: won't the victims' damages will be sorted out in a separate tort lawsuit?
So, essentially the "victims" -- quoted due to the rather weak &wobbly definition of potential stand-ins ("family members" -- what level of consanguinity) for the deceased -- have a right to some sort of a structured ululating session in court. The court then has the right to wait for the echoes to subside... and then affirm the plea bargain that he's already approved.
Cynical, I know, but from the text of the code this seems to cover the ground...
Are the interests of the victim occasionally at odds with the interests of "society" at large? Sure. That's why the victims aren't given veto power over what happens and aren't allowed to conduct the prosecution themselves. But they should indeed have a voice in the process.
To alias and Prof. Cassell: You both responded to me regarding ambiguities (or not) in the statute. I don't think I said anything at all earlier about the statute or whether it is ambiguous. Am I missing something? Did you mistake me for another commenter? Was there a glitch in the comments again (they've been acting up all day)?
That brings up a major problem. Trial courts routinely pay very little attention to the accuracy of the amount of restitution ordered. The victim says, "that was worth $4,000," so the court orders $4,000 restitution. Defense counsel often fails by not contesting it, but even when they do, appellate courts allow trial courts to impose restitution based solely on the victim's contested allegation.
Criminal courts test the accuracy of a victim's restitution demand far less than a small claims court tests a plaintiff's complaint in a fender bender.
So here's the paradox: For criminal courts to impose restitution fairly and accurately, they require far more resources than the restitution is frequently worth (this BP case is an anomaly on many, many levels).
Baltimore Sun Story
http://mdcourts.gov/opinions/coa/2008/87a07.pdf
On the general topic, I thank Prof. Cassell for answering questions... the statute says mandamus, but the surrounding language about how the procedure is to work suggests something other than traditional mandamus. I'll be interested to see how the en banc briefing turns out.
My memory of the details is a bit hazy (perhaps a lot hazy), but this reminds me a bit of the Terry Schiavo legislation. As I recall, the sponsors of the legislation wanted the courts to keep Schiavo alive while Michael Schiavo and the Schindlers continued to litigate. Unfortunately for them, after all of the debate over the legislation, the resulting bill wasn't as strong as they wanted, and the text of the statute only required the courts to consider whether a preliminary injunction was appropriate. The courts did precisely that, and found that there was no claim on which Terry Schiavo's representatives had a likelihood of success on the merits.
So no injunction, and lots of complaints afterward by the sponsors of the legislation... As I recall thinking at the time, though, the courts applied the legislation as written, and rightfully so, as it seems from the legislative history that the only reason the bill passed in the form it did was that it was significantly watered down from what the sponsors wanted... and the sponsors hoped in vain that the courts would apply the statute to achieve the sponsors' purposes rather than applying it as written.
His post makes it seem like the Ninth Circuit cited to legislative history on the standard of review (mandamus standard v. abuse of discretion). That's not correct. The Ninth Circuit cites only on the question of what the right to be "heard" means. See pages 1171-2.
On another note, the professor writes, "The Second and Ninth Circuit conclusions are obviously correct if one looks at the legislative history of the CVRA." If you have to look at legislative history to make your statutory interpretation point, it ain't obvious.
Paraphrasing Scalia, legislative history is the language you didn't have the votes to get into the text.
I see his point about the structure of the act, but the act still used the word "mandamus," and that should mean something. My speculation is that Kyl and Feinstein wanted a right to a full appeal, but that the Justice Department convinced other senators to water down the actual text.
Heh. So all punishment is cruel and unusual, being arbitrary and capricious?
But seriously, it's remarkable to me that our courts issue sentences every day without having any coherent agreement as to why we punish, and what punishment is meant to do.
Not that there has to be only one answer, but I think the motive and purpose of punishment ought to be inseparable from determining what the punishment is.
Not traditionally. The purpose of civil actions is to make the plaintiff whole. The two goals of criminal actions were deterrence and retribution.
The Kyl/Feinstein law (as they interpret it) is a radical (and very non-conservative) departure from tradition. And when Congress intends to radically depart from existing law, it needs to be a lot clearer in what it writes.
You've provided no more support for the notion that; "The [criminal justice] system has always been largely about providing justice to the victims; the focus on the offender is the newcomer" than Public Defender did for his point. If you believe in some long ago time the prosecutor always conferred with the victim, you'll have to show that.
How about this 1977 article by conspirator Randy Barnett that argues for a "new" focus on restitution as opposed to the "cumbersome paradigm, [] that has dominated Western thought for more than 900 years."
He points out that the old punishment paradigm involved two "types of arguments are commonly made in defense of punishment. The first is that punishment is an appropriate means to some justifiable end such as, for example, deterrence of crime. The second type of argument is that punishment is justified as an end in itself [i.e., retribution]." Emphasis added.
Although somewhat off-point, I'd like to discuss this.
There may be judicial findings about mitigation or enhancement, which are similar to but not identical to this victim impact statement.
Doesn't a victim impact statement quantify a life's value? Does this mean a crack-head hooker is worth less as a murder victim that a minister with 12 children? Should that be?
First, there's here, on the predominance of private prosecutions (i.e., criminal prosecutions brought forth technically in the name of the Queen but in reality by representatives of the victim, or indeed the victim himself) in England and Wales during the 18th through the 20th centuries.
For early American practice, turn to Wikipedia's article on the history of criminal justice. Speaking of the practices of colonial America, it says:
See also the comments and citations at footnote 3 of this article. As that author notes, the further removed victims are kept from the process, the less likely they are to actually incur the sacrifices and expenses which must be incurred by victims. If your views are not considered relevant, why miss work, relive the emotional trauma of the crime, and subject yourself to brutal cross-examination and potential retaliation in order to help obtain a conviction?
We're there in the criminal courtroom because the defendant harmed some particular individual. The impact of the crime on that individual is inevitably central to any decision regarding punishment.
But if we look at it from a subjective stand-point, all but the vary worst, most isolated crack-head hookers have someone who loves them, who grieves for them. The subjective value of the dead hooker to her momma is the same as the subjective value of the dead minister to his.
At any rate, my assertion is not that the victim's voice should control the prosecution, simply that the victim's voice should be heard. There are times when victims are so filled with rage that their demands for vengeance should be discounted. There are other times when victims have been so conned or intimidated by the criminal that prosecution should continue despite the victim's request to "drop charges." But in each and every case, the judicial system should listen to the victim's views and give them consideration in his or her decision-making process.
My problem with "victim's rights" laws is that the proponents always say what you say, they can't control the prosecution, but they should have input. What that means, in reality, is that the victim's have input if they agree with the prosecutor, or if the defense calls them as a witness. Unfortunately, most prosecutors display the attitude you did in your most recent post, if the "victim" wants the charges dropped, they must have been conned or intimidated. This is especially true in DV cases if the victim's story changes. It never occurs ot the prosecutor, that maybe, just maybe, the person who was drunk, pissed off and out for blood might have exaggerated or outright lied.
The word is derived from Latin words meaning, essentially, "repay." How can one measure out recompense or repayment without knowing the cost or value of what was taken?
Hattio... I'm not defending the practices of any particular DA. Certainly plenty of DAs have taken grants to hire "victims rights coordinators" or other such staff, who in reality don't do a whole lot of work with victims. I'm in favor of laws like the one in question here because I don't think the DAs themselves pay adequate attention to the victims.
I agree. I'll even go a step farther (further?). If we begin to differentiate among an assigned value of differing human lives, then where might this end? A capital felony for the rich victim, a life felony for the middle class fellow, and a misdemeanor for the hooker? A civil trial may assign values, based on salaries, age, all that stuff, but in a criminal trial, homicide victims should all be equal. Which is why I'm leery of victim impact statements.
"At any rate, my assertion is not that the victim's voice should control the prosecution, simply that the victim's voice should be heard."
That's reasonable. We're letting the victim's family vent, in essence.
Given the Supreme Court's holding in Dickerson, it seems to me that the broken clock in your story wasn't the Ninth Circuit.