We say that the criminal justice system assigns responsibility for deviant conduct to those who violate communal norms. Of course, not all communal norms carry penal consequences. Only some violations carry a criminal sanction. And because of the gravity of that sanction, we take pains to avoid punishing those who are not responsible for their conduct due to mental disease or defect. In some cases, the mental state of a defendant at the time a crime was committed mitigates the seriousness of the consequences – thus, often, the difference between murder and manslaughter.
But I wonder why, given the gravity of what takes place in a criminal court, we have left the door ajar when it comes to moral agency and responsibility. Why, for example, do we give some participants in the system the ability to speak knowing full well that they are undone by their situation in the world? Why, I wonder, are victims and their advocates given a front row seat without being charged the price of admission?
I was reminded of all this last week while attending a seminar at the University of Connecticut School of Law on the intersection of mental health and the criminal law. The seminar was well-attended, and the panel was an impressive array of scholars, policy activists, and legal and medical practitioners. Although the seminar was focused primarily on broader policy issues and did not focus on the sort of practitioner-focused advice I crave, it was nonetheless reassuring to sit and listen to those who recognize that an overwhelming amount of what goes on in the criminal courts has less to do with evil than it does to do with mental health.
The first question posed by a member of the audience after the break shattered the illusion of consensus, however. It appears as though a victims’ advocate was present and attending. What about victims?, she asked. They want to see criminals punished. They don’t want to hear excuses about mental health. They want people held accountable and without excuses. She spat these words out as though possessed herself of some inchoate hatred that needed to be expressed. The room sat in stunned silence. One person next to me, who appeared to know the speaker, conveyed a sense of embarrassment: "she’s burned out," I was told.
The rage of the interlocutor was absorbed, noted, and, like the drunken relative crashing a baby shower, she was showed a quiet corner in which to sit and nurse her hate-filled drink.
As I listened to the questioner, I wondered why none of the panelists raised the obvious question. In a criminal justice system struggling with how to assign responsibility while recognizing the role of mental health issues in undermining human agency, why no discussion of the mental health limitations of victims? Are we permitting folks who are undone by their sorrows too much impact on a process in which we are trying to draw fine legal, moral and medical distinctions?
I am often asked how I can defend men and women accused of horrible crimes. What if they had assaulted a member of your family?, I am asked. The answer in such cases is simple: I could not defend such a person. I would be angry, vengeful, wrought in ways that would consume me. I would have the good sense, I hope, to realize that my sorrow and rage were my undoing; these emotions, and their capacity to overwhelm, indeed, to override, reason and good judgment, would render me unfit to participate in a process designed and intended to make sober assessments of accountability and social utility.
We say in the law that no one can be a judge in their own case. We recognize that personal involvement in a controversy warps and skews the perspective of a person in such a way as to make them unreliable. Why, then, the great rush and insistence that victims have a role in the criminal justice system?
A prosecution pits the state versus an alleged transgressor. The purposes of prosecution are to deter the offender and others like him, rehabilitation and punishment. We rely upon a professional police force and professional prosecutors rather than private posses and private prosecutions as a means of assuring the justice is done. I say justice is not served when we permit victims the rights of participation in the criminal justice system without assuring that they have some minimal responsibilities. Our courtrooms were never intended to become temples or rage, or satellite studios for those who earn television ratings courting an audience’s "oohs" and "ahhs."
Last week as I listened to the hate-soaked tone of a woman demand vengeance, regardless of the character of the accused, I wondered why defendants don’t have the right to insist on competency hearings, or independent medical evaluations, of victims seeking to participate in the process. Surely, justice isn’t served by permitting an aggrieved party to dump the hurly-burly contents of a shattered psyche on the courthouse floor. That’s not justice; that’s just a bizarre and barbaric form of something like entertainment, but more closely resembling a psychological stoning of the accused.
We can do better, and we should do better. Unless we are content simply to call the howl of the wounded the voice of justice.