In response to:
The Plight of the Victim from the March 6, 1980 issue
To the Editors:
I feel compelled to take issue with Graham Hughes’s review of The Invisible Victim, by Robert Reiff. The discussion contains a number of inaccuracies and displays an offensive callousness toward crime victims in our society. Contrary to Mr. Hughes’s statement, the failure to prevent crime does indeed make the state at fault. Under the concept of “social contract,” a concept treated in a most lackadaisical manner in the review, citizens agree to the state’s exclusive prerogative to violence in return for the guarantee of life, liberty, and in the case of the United States, the pursuit of happiness. Crime violates each and every one of these guarantees. Let me also point out that no political authority can long survive an ever increasing crime rate without subsiding into anarchy and vigilantism. Crime has eroded the quality of life for many Americans in the past decades. Today, many are forced to live in fear with little hope for an improvement of their fate.
To reverse the trend, a number of developments are necessary. First, government has an obligation to aid victims and compensate for their losses, whenever such aid is unattainable from other sources, such as insurance or restitution. Second, the criminal justice process should display at least as much concern for the victim as it does for the offender. In this respect, I vehemently object to Mr. Hughes’s statement that gentle and sympathetic dealing with victims can “only be incidental behavior” for the criminal justice process. Since when, may I ask, have the basic tenets of an evenhanded and balanced approach impeded the fair assessment of culpability in a legal and constitutional way? Third, and most importantly, government has a primary obligation to prevent crime. This must be accomplished by assuring all people of equity and justice under the law, a principle that applies to the offender and the victim alike. Government should also guarantee fair equality of opportunity and meet the basic human needs of those who cannot provide for themselves. Finally, government will have to assume a more active role in rendering assistance to those institutions in our society having primary responsibility for the socialization of the young: the family, education, and the community. Even a precursory review of crime statistics will tell the interested reader that crime—especially violent crime—is a young man’s game. We also know that commitment to criminality occurs early in life in most cases. We may also be the first industrialized society to have abdicated the socialization of our young.
The question of crime prevention does not depend on what happens in criminal justice. It is dependent upon whether or not we can reconstitute our primary institutions of socialization. How well government succeeds in assisting these institutions and rallying the people will quickly decide on whether there will be a continuing deteriorarion of the quality of our life or whether this decline can be reversed.
Edith E. Flynn
Professor of Criminal Justice
Northeastern University, Boston, Mass.
Graham Hughes replies:
I am sorry to be so misunderstood that anyone should think me callous towards crime victims. This seems to me an unreasonable reading of what I wrote.
Mr. Kofsky has had a terrible experience and appears to have just complaints. They mostly have to do with an inefficient compensation program for victims and the danger of criminals escaping too lightly through plea-bargaining, both of which were matters on which I too expressed concern. His final point is directed to delay in civil trials while my comments on the adversary system related to criminal trials. (Ironically, plea-bargaining with all its evils has grown up to avoid in criminal cases the very delays that Mr. Kofsky finds so galling in his civil suit.) His wryness at my comments on the embarrassment we feel about crime victims is understandable. I was of course not pointing approvingly to this embarrassment but was indicating one of the psychic elements that underlie our inexcusable neglect of victims and which we therefore need to air and overcome.
Professor Flynn allows indignation to overwhelm good sense. The state certainly has a general duty to seek to prevent crimes but this is very different from saying that the commission of any particular crime makes the state to blame. Of course the state might be (and is sometimes found by the courts to be) liable for the commission of a particular crime, as when a dangerous convict who was negligently allowed to escape attacks someone. But this does not seem a central issue since I argued that, in any case, there are other good moral reasons that define a public duty to compensate crime victims.
Professor Flynn’s serious logical error is in her disagreement with my argument that helping victims can only be an incidental concern of a criminal justice system. She appears to take this (unwarrantably) as meaning that I think it unjustified to be preoccupied with helping crime victims. But I was discussing institutional competence and not the existence of public duties or priorities. There is an urgent public duty to do more for crime victims but it has little to do with the criminal justice system just as the urgent duty to improve public education has little to do with the Department of Agriculture.
I take a criminal justice system to refer to the body of rules of criminal law and procedure together with the institutions and officials who seek to enforce the law by apprehending offenders, disposing of their cases and then incarcerating some of them. The victim figures in this system principally at its inception, with the definition of crimes, and then again at its conclusion with the fixing of the particular sentence. In the public centerpiece of this process (the criminal trial), which was the subject of my remarks, the parties are the state and the accused. The rules of criminal procedure and the Bill of Rights are designed to mediate this adversary confrontation so that there is no institutionally acceptable way in which a court can refuse to recognize the constitutional rights of the defendant even if protecting his rights conceivably might result in an appearance of a lack of solicitude for a victim. In fact I cannot see how giving the defendant his rights could reasonably be interpreted as displaying indifference to the welfare of the victim and neither Dr. Reiff, whose book I reviewed, nor Professor Flynn offers any convincing examples. Nor do they tell us which provisions of the Bill of Rights they would like to see deleted.
The fact that a victim has been hurt cannot in itself be a good reason for abandoning constitutional provisions that were designed precisely for regulating cases in which victims have been hurt. At least this could not be so until someone has made a convincing case that it is the protection of a defendant’s rights at a criminal trial that does such great harm to victims. I have not heard even the beginnings of such a case. The frustration and anger expressed by those who have been victims of crime or claim to speak on their behalf are understandable and have a proper moral foundation but they are in some measure wasted by assaults on the wrong target.