By Christine Rosen
Friday, September 29, 2023
In May
2023, in his inaugural address as mayor of Chicago, Brandon Johnson said, “The
tears of Adam Toledo’s parents are made of the same sorrow as those of Officer
Preston’s parents.”
Johnson
was referring to the deaths of Chicago police officer Areanah Preston—killed in
cold blood by a group of violent young criminals—and Adam Toledo, who was
fleeing police at two in the morning after he and a companion were caught
firing guns at passing cars. Officer Preston was murdered while returning home
after a long shift spent protecting the people of Chicago. Toledo had an
illegal gun in his possession and was killed while ignoring a police officer’s
commands to stop.
Not that
long ago, reasonable people would have seen Mayor Johnson’s efforts at moral
equivalence as despicable—and Johnson would likely have known it and would have
stopped short of saying what he said. Today, such statements are commonplace,
even among public officials charged with upholding the law and protecting the
public, local and federal prosecutors most notably. Our adversarial justice
system is meant to ensure a balance of interests. Prosecutors build a case to
seek justice for victims; defense lawyers protect the rights of the accused. Of
late, however, progressive prosecutors have upended that balanced system of
justice in favor of embracing the notion that both the perpetrators of crime
and the people upon whom they prey are all equally victims.
As
California’s Alameda County District Attorney Pamela Price told a local CBS
News reporter, “often what studies have shown—and it’s true in Alameda
County—many times people who are perpetrators or labeled as perpetrators were
actually victims.” Price recently gave an 18-year-old linked to three murders a
plea deal that would have had him serve only a handful of years in juvenile
detention due to the fact that the killings had been committed when he was
younger—even though a judge urged that he be tried as an adult given his
“extensive and violent criminal history in multiple jurisdictions.” A leaked
memo revealed that Price had told prosecutors in her office to seek probation
rather than jail time for most crimes, including violent felonies.
Conscientious
prosecutors who have found themselves working under these new approaches are
fleeing jobs in departments where DAs like Price have failed to pursue justice
for victims. Danielle Hilton, who had been a prosecutor in Alameda County for
almost 30 years, put it starkly in her resignation letter: “Victims deserve
better.” As she wrote to Price, “I have spent my career picking up the pieces and
gathering the fragments of lives shattered by violence. I encourage you to look
at crime scene and autopsy photos, meet the victims of the robberies, sexual
assaults, home burglaries and other crimes within the county. It is their
voices you were elected to empower.”
In May
2023, another long-time Alameda County prosecutor, Assistant DA Butch Ford,
also resigned, citing Price’s unwillingness to do her job—as well as the fact
that when she arrived, she “demoted almost every Caucasian male in the office
and stated, ‘the Blacks are taking over.’” Ford, like his colleague, told
Price, “You have abandoned the victims of crime in this county.” Price’s
policies, he said, “have led to violent offenders celebrating the lack of
consequences in Alameda County.” He described how, at a rally that Price
attended, “a recently paroled killer stated, ‘We gettin’ out left and right. We
can do whatever the f—k we want out here.’”
It’s not
just California. In May, Cook County prosecutor Jason Poje wrote an outraged
letter of resignation from his position as assistant state’s attorney in
Illinois. “The simple fact is that this State and County have set themselves on
a course to disaster,” the letter said. Poje noted that communities have been
endangered by policies such as “bond reform designed to make sure no one stays
in jail while their cases are pending with no safety net to handle more
criminals on the streets, shorter parole periods, lower sentences for repeat
offenders . . . overuse of diversion programs, intentionally not pursuing prosecutions
for crimes lawfully on the books.” These and other such notions have upended
the foundations of the adversarial justice system. “Once we decide that it’s
worth risking citizens’ lives to have a little social experiment,” Poje wrote,
“that balance is lost.”
The
recent effort to sideline the needs of victims in favor of emphasizing the
plight of criminals is part of a broader change that began decades ago. I’m
speaking of the flourishing of a victimology culture that confers moral and
social status on anyone claiming victimhood. As Bradley Campbell and Jason
Manning have argued in their 2018 book, The Rise of Victimhood Culture,
a victimhood arms race has broken out in which individual behavior is subsumed
beneath claims that one has been wronged—all to achieve higher moral status and
escape personal responsibility.
This
culture has warped our understanding of what a victim really is. As victimhood
expands to incorporate new groups and classes of protected people, not all of
whom deserve the status of victim, the moral weight of victimhood has been
diluted—and with it, society’s obligations to seek justice for real victims.
***
How did
we get here? The story arguably begins with the work of another former Alameda
County district attorney: Earl Warren. In the decades after Warren was sworn in
as chief justice of the U.S. Supreme Court in 1953, he helped launch a
revolution in criminal procedure, most notably with regard to the validity of
evidence gathered in an unconstitutional search (Mapp v. Ohio,
1961), the obligation to provide counsel to defendants (Gideon v. Wainwright,
1963), and law enforcement’s obligation to inform those under arrest of their
rights (Miranda v. Arizona, 1966), among many other cases.
The Court effectively tilted the balance in criminal law toward a focus on the
rights of the accused. Although wildly unpopular among Americans at the time,
such rights are now largely embraced by the public and even by most
conservative jurists.
In the
decades that followed, in popular culture, particularly on television, the new
rights guaranteed by the Supreme Court became standard. When then–Chief Justice
William Rehnquist upheld Miranda rights in a 2000 decision, he
noted how the reading of rights to suspects had become ubiquitous on network-television
crime shows. As Broadcasting & Cable Magazine editorialized
at the time, “next to the Pledge of Allegiance, the Miranda rights
may be the most familiar common litany of the baby boomer generation, thanks to
TV.”
Similarly,
advocates for a rehabilitative model of criminal justice (as opposed to
deterrence and incarceration) gained new support during those years for the
idea that crime was largely an expression of environmental factors such as
poverty—thus downplaying personal responsibility and arguing that imprisonment
should be a tool of last resort. The Prisoner Rehabilitation Act of 1965, for
example, granted federal prisoners broader rights to furloughs and work-release
programs and created halfway houses placing newly released inmates in
communities. In 1963, the infamous Alcatraz prison was shuttered, a symbol of
an earlier, harsher age of incarceration
Then
came the social upheaval of the 1960s counterculture, with its mistrust of
authority (especially the police), increased drug use, and the breakdown of
traditional families. All of this undermined existing law-enforcement efforts.
Crime rose precipitously, particularly in large cities, and by the 1970s a
backlash against soft-on-crime policies was underway. It received a significant
boost from Robert Martinson’s 1974 report, “What Works? Questions and Answers
About Prison Reform.” Summarizing his findings in the Public Interest,
Martinson offered a tough verdict: “With few and isolated exceptions, the
rehabilitative efforts that have been reported so far have had no appreciable
effect on recidivism.” Crime was rising because the policies that claimed to
change criminal behavior had failed to do so. As Martinson’s report concluded
about the rehabilitative approach: “Nothing works.”
Another
part of the backlash against soft-on-crime policies was much-needed attention
finally given to victims. States passed laws allowing victims to read
victim-impact statements during sentencing procedures, for example, and
statutes such as New York’s 1978 “Son of Sam” law attempted to prevent
criminals from profiting from their crimes.1 Congress passed a
federal Crime Victims’ Rights Act in 1984 as well as a Victims’ Rights and
Restitution Act, and most large cities and states established crime-victim
compensation funds. Following along the same backlash pattern, the 1980s and
1990s saw tougher sentencing and “three-strikes” laws, supported by majorities
of the public.
Yet even
as tough-on-crime measures took hold, the idea that blame and responsibility
for criminal behavior should be shared by society never fully receded,
particularly among legal scholars and decarceration activists. Poverty,
addiction, chaotic neighborhoods, lack of resources, mental-health issues—all
the things once regularly and correctly cited as “risk factors” for criminal
behavior were now more likely to be referred to as “root causes.”
The change
in language is significant.
If
something is the cause of a behavior (rather than merely a
“factor”), individual responsibility becomes less predominant in the calculus
of accountability. In this new rendering, the perpetrator of crime is trapped
in a Skinner box of social dysfunction that makes the exercise of judgment and
free will difficult if not impossible—and thus he cannot be held responsible
for his actions. This was a seductive idea to those who remained skeptical of
the criminal-justice system, even as it overlooked the obvious fact that most
people who grow up in high-risk environments don’t become criminals, and plenty
of people who grow up with privilege do.
Alongside
this focus on “root causes” for crime was a broader self-help movement that
also contributed to the notion that, because of circumstances, people could not
always be held accountable for their behavior. The phrase “hurt people hurt
people” emerged in the 1990s, initially among self-help gurus (a book with that
title by self-help author Sandra Wilson was published in 1993) but quickly
spread into popular culture—along with the idea that even perpetrators of harm
should be understood as potential victims.
By the
2000s, criminal-justice reformers regularly invoked the “victim-offender
overlap” theory—the fact that many victims of crime are also perpetrators of
crime—to argue for more lenient consideration of criminal acts. It is true, as
the National Institute of Justice notes in a 2021 report, that “statistically,
being an individual who has committed violent crimes correlates with an
elevated risk of later becoming a victim of violent crime. At the same time,
violent crime victims have been shown to be more likely than others to later
engage in violence.”
The
error is introduced when advocates and leading legal theorists treat this as a deterministic
certainty, one that should override personal responsibility. Stanford
University professor Barbara Fried2 argued in a 2013 symposium,
“Beyond Blame,” that “the philosophy of personal responsibility has ruined
criminal justice and economic policy. It’s time to move past blame.” Imagine
being the victim of a brutal assault and hearing that one should just “move past
blame.”
Likewise,
law professor Adam Benforado argued in his 2015 book, Unfair, “Our
surroundings often exert such a powerful influence that they all but erase the
effects of disposition.” New research into brain science has prompted
biologists to add their own insight to the challenge of free will and
responsibility. Stanford’s Robert Sapolsky argued this: “Our growing knowledge
about the brain makes the notions of volition, culpability, and, ultimately,
the very premise of the criminal justice system, deeply suspect.”
Embracing
the idea of deterministic social forces as exculpatory for perpetrators
compromises justice for victims. Indeed, a new revisionist impulse to question
or erase victims is already underway in academic circles. A symposium sponsored
by the Brooklyn Law Review in 2022 showcased this approach in
its title: “The Role of the ‘Victim’ in the Criminal Legal System.” Note the
scare quotes around the word “victim.”
Writing
about the victim-offender overlap, Cynthia Godsoe, of Brooklyn Law School,
claims the criminal-justice system’s inability to see perpetrators as victims
constitutes a “failure to address the root causes and cyclical nature of
violence” that “perpetuates a racialized narrative of individual culpability
and a stark moral binary between those who harm and those who are harmed.” Yes,
Professor Godsoe, it does. That’s exactly what justice requires: an assessment
of an individual’s acts when they violate the rule of law and harm another
person, even as judges and juries are asked to consider any mitigating
circumstances. Eliminating the “stark moral binary” eliminates our ability to
discern right from wrong and in the process removes the person of central moral
importance when it comes to the pursuit of justice: the victim.
In this
new paradigm, however, even the terms “victim” and “offender” are suspect.
“Much of the terminology associated with the criminal system—including ‘victim’
and ‘offender’—are [sic] laden with normative and stigmatized concepts,
and do not accurately capture the full experiences and humanity of either those
who are harmed or those who harm,” Godsoe argues. She goes on to use the term
“offender” only in quotes and argues that offenders (excuse me, “offenders”)
suffer from “perpetration trauma,” or “trauma arising from committing
violence.” Citing studies of post-traumatic stress disorder experienced by
combat soldiers, she claims that the trauma experienced by violent criminals
(as opposed to their victims) is underappreciated, “reflecting the dominant narrative
about the moral culpability of those who commit crime, particularly violent
crime.”
Her
solution is to include violent offenders in decarceration efforts and to
“dismantle the victim and ‘offender’ categories themselves.” Ultimately, she
argues, we must “recognize the victimhood of those who harm, and conversely the
harm committed by victims.”
Other
contributors to the 2022 symposium offered equally dismissive approaches to
victims. Two contributors criticized the rights of victims to offer victim-impact
statements at trials, while another, Steven Zeidman, doubled down on the
Skinner-box approach to personal responsibility with this observation:
“Individual traits are not the driver of criminal behavior. Yet, the inability
of those involved in the system to share evidence of their social background,
and the refusal of actors in the system to view these factors as significantly
mitigating, if not excusing, means that the problem is only swept under the
rug.”
And so,
despite the lessons learned from overly liberal crime policies in the previous
century, many of them are ascendant again. We’ve seen the return of the
decarceration and prison-abolition movement, the success of defund-the-police
activism, and the end of cash bail, as well as claims that criminals simply
can’t help themselves or their behavior because they live at the whim of
oppressive “systemic” forces that control their behavior.
These
policies have a body count.
The end
of cash bail for violent offenders has returned to the streets people who have
killed or assaulted again, even as their victims’ stories go untold or are
ignored by activists. Excessive use of diversionary- and restorative-justice
programs failed to have the desired effect of combatting crime; indeed, in many
cities, prosecutors have simply given up prosecuting some crimes.
In
Washington, D.C., awash in gun violence despite strict gun-control laws, more
than 60 percent of arrests for carrying an unlicensed firearm are “no-papered”
by the local attorney general—meaning prosecutors declined to prosecute the
case. When asked by a local reporter about the steep rise in violent crime
committed by juveniles—including the murder by a group of teenagers of a Lyft
driver who had escaped war-torn Afghanistan to build a new life in the U.S. and
the murder of a construction worker by a 14-year-old—D.C. Attorney General
Brian Schwalb sounded like an unctuous therapist rather than a representative
of law enforcement. He told a local news station that violent kids just need
more “compassion” and “support” from the community. He said nothing about the
victims or their grieving families No wonder homicide rates are climbing in
D.C. even as they decline slightly in many other cities. By the beginning of
August 2023, D.C. had more than 150 homicides for the year, which puts it on
track for a homicide rate higher than it has been for decades. D.C.’s U.S.
Attorney Matthew M. Graves has also demonstrated an unwillingness to prosecute
crime: He declined to press charges for 67 percent of the arrests his office
received.
Social-justice
concerns now predominate in discussions of crime. In a book titled In
Defense of Looting, widely praised by left-leaning media outlets, including
National Public Radio, Vicky Osterweil claims that destruction and looting
represent “a new energy of resistance” that should be celebrated as questioning
a “law and order” society that tolerates social and economic inequality.
Ostwerweil has no time to consider the impact on the lives of the people whose
livelihoods were destroyed and lives threatened by these liberating looters.
In
noncriminal settings, such as K–12 schools, the logic of victimhood culture has
encouraged the embrace of questionable restorative-justice programs to combat
bullying and assaults. Rather than remove a dangerous student from school to
protect most children, faculty make the victims of harassment and bullying
discuss their feelings with the person who attacked them. Like so much of
progressive criminal-justice theory, restorative justice is oriented toward the
perpetrator, who is meant to be made to understand the harm he or she caused by
having to confront his or her victim, as opposed to being made to accept the
blame and punishment that ordinary justice demands. Reconciliation talks, group
hugs, therapy circles—these ultimately put the perpetrator’s needs front and
center while encouraging the victim to believe that he or she has an obligation
not only to listen to the attacker but to forgive. What if a victim doesn’t
want to confront his abuser and discuss his feelings, or listen to his
attacker’s feelings?
For
adult victims of crime, the existing infrastructure for victims does not always
meet their needs. A report from the Alliance for Safety and Justice found that
although millions of Americans reported having been the victims of crime, “only
243,000 people had victims’ compensation applications approved” in 2018. Many crime
victims aren’t aware such resources exist; or they are told that to receive
them they must first exhaust all other avenues of financial support; or they
must cooperate fully with law enforcement, which in some cases, such as
domestic violence, might put them at great risk.
Even
existing victims’ funds can’t provide compensation for the full costs of
physical and psychological recovery, which include hours lost to anxiety and
trauma in addition to healing from injuries. John Jay College of Criminal Justice
estimates that between 2010 and 2020, the cost to hospitals of treating gunshot
victims was $469 million, and nearly 70 percent of that cost was borne by
taxpayers, both at the state and federal level (via Medicare and Medicaid
payments).
As for
the “root causes” invoked to explain away responsibility for the perpetrators
of crime, the discussion of crime is conveniently turned into a hazy question
of social justice, which is far more amenable territory for the (usually white)
progressive activist class whose privilege protects them from the experience of
crime. It has become impossible for a section of American elite opinion to even
acknowledge that there is a place for punishment in a society where elites
insist on tolerance (while insulating themselves from the effects of their
tolerance by installing actual or virtual gates that prevent the bad guys from
coming too close).
They are
aided and abetted by the many progressive prosecutors happy to throw good money
after bad platitudes when it comes to the perpetrators of crime. Jamila Hodge,
a former federal prosecutor in Washington, D.C., claimed in The Appeal, “In all
my time, I never met a person who had caused harm who hadn’t been a victim
first, often facing trauma and harm beginning in childhood.” Her solution? To
“shift away from punishment, rooted in slavery and racism, toward solutions
that address the needs of communities ravaged by violence. What we build must
deliver healing, safety, and accountability that repairs for all parties
involved in harm—including the person who caused it.”
This is
wrongheaded and dangerous. It is wrongheaded because it grants equal moral
status to victims and perpetrators; and it is dangerous because, however nice
such wishful thinking and “healing” rhetoric sound, its methods are ineffective
at protecting innocent people from violent criminals. As D.C.’s crime rate
demonstrates, Hodge and her ilk would have done better to spend more time
reading history and criminal procedure and less time delivering their special brand
of “healing.”
It is
good and just to set boundaries for who is and who is not a real victim.
Invoking broad claims of victimhood should never be used as an excuse for
criminal behavior or as a tool of moral equivocation. It is true that many
offenders are also victims. But distinguishing between good and criminal
behavior, even within the lifespan of a single person, is possible and
necessary.
In the
communities often hardest hit by crime, minority neighborhoods, people are
getting fed up—and some organizations are finally responding to them. Recently,
the NAACP in Oakland issued an open letter calling on politicians to do more to
prevent crime, including announcing a state of emergency: “Oakland residents
are sick and tired of our intolerable public safety crisis that overwhelmingly
impacts minority communities. Murders, shootings, violent armed robberies, home
invasions, car break-ins, sideshows, and highway shootouts have become a
pervasive fixture of life in Oakland.”
Violent
crime is so common in Oakland that utility workers now require private security
personnel to accompany them when they do their jobs. The reasons, according to
the NAACP? “Failed leadership, including the movement to defund the police, our
District Attorney’s unwillingness to charge and prosecute people who murder and
commit life threatening serious crimes, and the proliferation of anti-police
rhetoric have created a heyday for Oakland criminals. If there are no
consequences for committing crime in Oakland, crime will continue to soar.”
And yet,
the public officials charged with ensuring public safety place the consequences
elsewhere. Mayor Johnson of Chicago recently responded to the precipitous rise
in carjackings and car theft in the city (many committed by armed assailants)
not by announcing policies to crack down on the criminals committing such
acts—but by announcing that he would be suing the manufacturers of car such as
Hyundai and Kia for making them too easy to steal! Many of the “reforms” touted
by progressive activists and elected officials (making more crimes
misdemeanors, eliminating cash bail, refusing to prosecute many crimes) benefit
perpetrators while leaving victims and law-abiding citizens everywhere feeling
as if their concerns and their rights no longer matter.
If we
don’t reject a culture of victimhood so expansive that it encompasses violent
criminals, the consequences will be far more dire than rising crime rates. We
will have failed, as a society, to protect one another and to ensure swift and
sure justice for our fellow citizens. Crime rates rise and fall, but a society
whose citizens stop believing that justice is fair and right and possible can
move in only one direction: downward.
1 The U.S. Supreme Court declared
New York’s law unconstitutional in 1991, calling it “overinclusive” and
violative of the First Amendment.
2 Fried has been in the news in
the past year because she is the mother of Sam Bankman-Fried, currently under
indictment for massive financial fraud.
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