Who Does Justice Fail? – Part Two


Who Does Justice Fail?
Part TWO – The Victim

In 1982, President Ronald Reagan’s Task Force on Victims of Crime released its Final Report. It found
that the treatment of victims by the Criminal Justice System (CJS) is an absolute “national disgrace.”
That’s a pretty serious statement, but did it lead to any meaningful change?

Actually, it did. Between 1982 and 1994, four pieces of key legislation concerning the rights of victims
and witnesses of crime was passed into law. All states and the federal government have passed legal
rights for victims of crime, which typically includes the rights to certain information and to a limited
participation in the criminal justice process, from investigation to post-incarceration.

In the first one, the Victims and Witness Protection Act of 1982, which helps fund victim services,
Congress exposed a serious flaw in how the CJS dealt with victims and witnesses of crime. It recognized
that victims and witnesses were often being used as mere tools for exacting retribution upon offenders or
were otherwise largely ignored in the judicial process. The other three were the Victims Crime Act of
1984, the Victim Rights and Restitution Act of 1992, and the Violence Against Women Act of 1994.
These were sorely needed reforms and it amazes me that they were not in place decades or centuries
beforehand. Although they sound good in writing, in actual practice these four pieces of legislation are
certainly not all encompassing, nor do they address all needs of victims of crime. More recent
ex-prosecuting attorneys, for example, have admitted that they did not even attempt to understand the
victim’s perspective, because it interfered with THEIR pursuit of “justice for the offender.” Herein lies
perhaps the greatest flaw of the CJS: its offender driven and offender focused.

Yet, the rights afforded to victims of crime over the past four decades are important and deserve a closer
examination. We’ll take a look at them presently, but we should first consider what it means to be a victim
of crime and what preconditions are typically needed for people to move beyond the offense. Although
we’ve all heard the term ‘closure’, for many crimes there can never be such a thing, instead, some people
have to find a ‘new normal’.

People who have become victims of crime are thrust into an abrupt and chaotic situation, one which they
were generally unable to predict nor prepare for. Victims, regardless of the crime, may be affected (a)
financially, suffer (b) physical or (c) emotional trauma, as well as have their (d) spiritual or (e) moral
foundation shaken. Reactions to crime vary from person to person and can last for hours, days, weeks,
months, or years. A few brief examples of impact:

a. Insurance deductibles, security system costs, funeral/burial costs;
b. Various wounds, stress reactions, sleeping problems, loss of appetite;
c. Grief, anger, fear, inability to trust, PTSD, sadness, shame, aggression;
d. Questioning one’s faith, God or “just world” outlook, feeling punished by higher power, questioning the
goodness of humanity;
e. Abusing drugs or alcohol, becoming bigoted or hateful, seeking to have pain inflicted upon another.

Impacted in a variety of ways, victims may react differently depending upon the level of personal
violation endured and their state of equilibrium at the time of victimization. Wounds or shocks can take
different forms and may have long-lasting effects. Many of those who have suffered an offense do not
wish to be called a ‘victim’, though others may be fine with it. A common term some identify with is
‘survivor’, which is how family members of homicide victims are referred to as well. However, people are
much more than what is conveyed in a label, they are people first and foremost. People who have become
victims may also experience secondary injuries if they do not receive the support and help they need after
the crime. The justice process can leave victims feeling ignored, neglected, or even abused. The strictness
and sterility of the CJS, legal jargon, evidence gathering protocols, along with the focus on the offender
and his or her rights, often results in further frustration and victimization.

The CJS approaches crime as a violation of rules and laws by an offender and takes up the competitive
conflict in the intimidating battlefield of a courtroom between proxies. One might assume that the
prosecuting attorneys represent the victim and the defense attorney represents the defendant. Yet, this is
not so. Although defense lawyers are concerned with the defendant’s rights and legal interests, state
prosecutors are chiefly concerned with representing the state’s interests. Some victims even hire their own
lawyers so that they have someone to truly represent their interests. This is unnecessary if the interests of
the victim aligns with that of the state, which generally means a desire to punish the wrongdoer…period.
The primary focus of crime in the CJS is on the – obviously flawed – individual who has transgressed a
law, he or she who has committed an offense against the faceless state. Yet, crime is in reality an offense
against and violation of a human being, an injury or wrong done to a person. Victims and offenders are
commonly assumed to be fundamentally different types of humans. This is a mistaken assumption, often
resulting in the perception of offenders as ‘others’, which exacerbates the desire for retribution and
vengeance. Regardless what a victim of crime may prefer, the CJS offers them a very limited range of
outcomes. It may do us well to remember that most people who have committed crimes were themselves
victims of crime, some from a young age. Hurt people hurt people.

Preconditions For Healing
Victims have needs. They need to get to the point where the offense and the offender no longer dominate
their lives. They require, to the extent possible, the restoration of the emotional and psychological state
they were in before the offender changed their lives. How can this occur? The effects of victimization
upon people create a variety of needs, which must first be identified then satisfied if the victim is to regain
what has been lost in any substantial way. After identifying these preconditions for healing, we’ll examine
how well the CJS provides for them.

What Do Victims Need?
Crime can be extremely traumatic. The sudden and unpredictable nature of crime leaves those effected
feeling vulnerable and fearful. The offender(s) could still be “out there.” If it could happen once it could
happen again, to me or others. If apprehended, the offender could later “retaliate,” especially with a 92%
probability that he or she will be returning to the neighborhood, if they ever go to prison. What does one
need to feel secure? A sense of safety should be the first priority for victims/survivors.

When we are victimized we need answers, we need information. The biggest question is simply “Why?”
or “Why me?” There are many answers one might need in order to restore a sense of order and balance. It
is likely we would want to know the status of the offender, from arrest, arraignment, trial, sentencing,
imprisonment, parole hearings to release. But we might also want to know about the offender him or
herself. What kind of background do they come from and what led them to their criminal behavior? And
how about a sincere apology. It is so difficult to forgive and so easy to hold resentment, anger, hatred
even, when no one takes responsibility for harming us. We may need to hear the offender, not his legal
representative and not theorizing prosecutors, explain to us directly what happened.

One of the most cathartic acts for people affected by crime is storytelling. Talking about their
experiences, how the offense affected them, and having someone to “hold space” for them is necessary for
healing. Victims feel a loss of autonomy, control or power over their own lives and in the resolution of
their own cases. Therefore, they need to be strengthened, revitalized, encouraged, and they have to be
given real choices; they require empowerment and reassurance.

Compensation for losses, damages or injuries caused, which is typically referred to as restitution, must be
realized. Victims should be restored to their former or original state to the extent possible and anything
taken (or an equivalent) should be returned. Although many things can never fully be returned, restitution
has a symbolic and moral element that implies recognition of the wrongful deed and an attempt to make
things right.

Finally, in order to move down the road of recovery, victims must have an experience of justice. Part of
that may include the general recognition of their victimization by their community and having their own
feelings and actions justified; in a word, they require vindication. Victims often want not only to be
consulted along the justice process, but to be involved. Justice is a journey that may require satisfaction of
some or all of the above mentioned needs. Many people who have been harmed desire vengeance. Yet, a
demand to harm the offender may derive both from a failure to have a positive justice experience and
from being offered few other options for “justice.”

Now that we have considered what victims of crime generally need to recover and heal, let’s return to the
rights afforded to them and determine what may be missing in the CJS.

Victim Rights Overview
Due to the legislation mentioned above, victims have a right to protection from threats, intimidation, or
retaliation during criminal proceedings. In more extreme cases protective services may include police
escorts, witness protection programs, victim/witness relocation, and restraining orders.

Victims have a right to be informed. This includes what to expect from the criminal justice system, how
to contact criminal justice officials and to receive notification of important events in their cases. Not all
states are the same, but some of what victims may be informed of are:

– the arrest and arraignment of the offender
– bail proceedings
– pretrial proceedings
– dismissal of charges
– plea negotiations
– trial
– sentencing
– appeals
– transfer to a different facility or medical unit
– probation or parole hearings
– death of the offender

There is a right to restitution from the offender and to apply for compensation. In order for victims to
recover some of the costs resulting from crime, all states provide a Victim Compensation Fund for
financial assistance. Victims must apply for compensation for their financial losses and show that the
losses occurred through no fault of their own. Medical and counseling expenses, lost wages, and funeral
expenses are what may be typically covered. Additionally, in an attempt to hold offenders directly
responsible to victims for the financial harm they caused, many states have the right to restitution.
Offenders are ordered to pay to repair some of the damage caused by their wrongdoing. Restitution is
ordered by the court and may include lost wages, property loss, and insurance deductibles.

Inconvenience to victims is somewhat mitigated by the prompt return of their personal property. Crime
investigators and other criminal justice officials must return such property as soon as it is no longer
needed. This is a legislated right, along with the right to speedy trial, although “speedy” is a relative term.
Trials are often concluded years after the crime.

Victims are now afforded a general right to be treated with dignity, respect, fairness and sensitivity by
criminal justice officials. Yes, this really did need to be legislated as well. There is also a right to the
enforcement of victims’ rights. In order to enforce victims’ rights, states have increasingly created offices
to receive and investigate reports of violations of their rights. Legislation to enforce victims’ rights is
being passed in various states and some even permit victims to assert their rights in court. How nice of

Victim advocates are sometimes available to provide crime victims with needful information, become
aware of their rights, aid them in finding the services they need, and help them navigate through the
criminal justice process. This is a tough occupation and, no doubt, requires a compassionate and dedicated
person. Typically, these professionals are tied to the prosecutor’s office and are, therefore, not necessarily
neutral actors in the CJS.

What’s Missing?
Crime is essentially about harm, therefore, the primary focus of justice should be about healing. Yes,
impersonal law codes punish, but they cannot heal. If the state is focused on which laws were broken and
who broke them, who is focusing on the harm caused? Defining crime as an offense against the state fails
to recognize the suffering and feelings of injustice by the actual person harmed. Having examined the
general needs of victims and reviewed what the CJS provides, we can now go through the list and
determine what is missing.

Safety. Although the CJS is not perfect, it does take steps to ensure the safety of victims. One of their
chief missions is to apprehend and incapacitate the accused. Whether they succeed in this endeavor or not,
victims’ feelings of fear need to be relieved. This is the reason they often empower themselves by
purchasing personal protection devices, security systems, and they may even resort to moving to a
different location.

Answers/Information. The CJS largely fails victims in this category. Although the relatively recent
legislation has required that victims be given more information about their own cases and victim
advocates do help as well, much of what they most want to know is commonly not provided. Many
victims are not even informed if there has been an arrest in their case, let alone interpersonal information
and answers about the offender or why they were victimized. The CJS is constructed for the offender to
quickly lawyer-up, clam-up, and claim “not guilty.” Often without considering victims’ desires, most
cases end in plea bargains. This results in unanswered questions for victims. In the relatively few times
that offenders have been given the opportunity to provide answers directly to the victims, which
transpired in spite of and not because of the criminal justice process, it has generally encouraged remorse
by offenders and a measure of healing for the victims.

Apology. Victims can become trapped in anger and will have difficulty forgiving and moving beyond the
offense if there is no expression of regret, remorse or sorrow by the offender for their behavior. Before
being able to truly empathize with the victim, an offender must first understand the impact of their hurtful
acts and recognize that they didn’t just break a law but harmed a person. (Indeed, the effects of crime
typically ripple well beyond the direct victim, into families and communities.) The way the CJS is set up,
unfortunately, there is little opportunity for genuine remorse or apology from the offender.

Talking about their experiences/Storytelling. An explanatory narrative for why and how the crime
occurred is desired by virtually all victims. People who have been hurt, however, also want to be heard, to
tell their story of how the offense affected them and to have someone listen to them. Specifically, people
who have been harmed want the person who harmed them to hear the effects of their behavior. The
courtroom has proven to be an inadequate place for these narratives. This is often very painful for crime
victims, whose experiences, whose anger, and whose voices are not given an appropriate venue.

. Sadly, even with the reforms mentioned above, the only input or storytelling
that many of those directly affected by the offense are allowed is the well-known victim impact statement.
This statement is typically used by prosecutors during the sentencing phase of a trial and can come into
play at parole hearings as well, for those states which still have parole. Victimization is felt as a loss of
control, the crime robs people of their power. The CJS does little to empower victims. (Deciding whether
or not to testify is hardly an expression of autonomy.) Instead, it compounds their injury by not allowing
them to participate in the justice process. Would you not agree that if justice is being sought for the
victim, he or she would have a significant role in the process? Their wishes and input should be given
serious consideration.

Restitution/Compensation. In times bygone and today in cultures much different than ours (e.g., the First
Nations People of Canada, the Maori of New Zealand), it was/is realized that justice means restoring to
the extent possible those who have been harmed by crime. Further, that people and relationships can be
restored, not by way of intentional pain infliction, but chiefly through just compensation. Restitution and
compensation (also known as accountability!) by the offender directly to the victim should be one of the
top priorities of justice. There is room here for great creativity as well, however, a warehoused human can
do little to help the victim nor the community. Since any fines or restitution imposed upon offenders is
viewed as additional punishment – because it is paid to the state – the link between offending behavior and
harm to the victim is, unfortunately, lost on offenders. But victims can take comfort knowing that the
person who harmed them, secreted away for years in a concrete palace, is playing plenty of basketball,
card games, binge watching The Walking Dead, plus learning to be even more antisocial and
manipulative until their release date arrives. (See, again, Part 1 of this article.)

Experience Justice/Vindication. The CJS, which is offender-focused and retributive in nature, suggests
that the infliction of pain will vindicate. Yet, as the pioneer of a more restorative style of justice, Howard
Zehr, states in his Changing Lenses, “…what truly vindicates is acknowledgment of victims’ harms and
needs combined with an active effort to encourage offenders to take responsibility, make right the wrongs
and address the causes of their behavior.” The experience of justice is a basic human need, hence it can be
found in every religion and culture. In order to have some measure of healing, victims of crime require a
feeling of justice. “Secondary victimization” is the term commonly used to refer to the victim’s experience
of going through the criminal justice process. How very sad. This is due to the unfortunate fact that
instead of healing, the CJS often further harms. Regardless of whatever “progress” has been made over
the recent decades, we obviously have a ways to go.

Finally, a new and interesting field is emerging and gaining traction in criminal justice. Known as DIVO
(Defense Initiated Victim Outreach), it is made up of truly neutral actors seeking to provide greater
options for victims by working as “middlemen” between the defendant/defense lawyer and the victim. It
is chiefly a channel of potential communication whereby a DIVO professional let’s the victim know that if
they have any questions for or requests of the defense, the option is available. Yes, they are essentially
circumventing the CJS and its demand to keep the victim and offender in perpetual conflict, but it does
give victims choices, which is empowering in itself. Many victims would prefer a conversation rather than
a confrontation. Unfortunately, the field is so new its almost unheard of and since it is a NGO that inserts
itself into the justice process, CJS officials have shown a reluctance to accept it nor promote it.

In the final installment of Who Does Justice Fail,? we will take a step back to examine the bigger picture
of communal and societal relationships and, hopefully, conclude with a step forward towards the future.
As always, these are simply my humble thoughts and I welcome any comments.