Paul Cassell, a former Federal judge who resigned from the bench to become a pro bono lawyer and advocate for victims rights, is now blogging on the Volokh Conspiracy, a (more or less) libertarian law-professors blog that has some of the most interesting legal analysis on the web.
Cassell’s first post is here, an account of an attempt to force the courts to recognize the victims’ right to participate in the sentencing of a man who sold a gun to a teenager. The victims in this case are the parents of a girl killed when the teenager used the gun to open fire last year in the Trolley Square murders in Salt Lake City.
The connection of the plaintiffs (the parents of a victim of the murderer) and the defendant (the man who sold the gun to the murderer) is weak, legally, and the courts have so far refused to allow the plaintiffs to compel discovery to find out how they could strengthen the connection.
But Cassell thinks that ought to change—and when we think of the grieving parents, who could not want it to change? And yet, the concept of victims’ rights is a peculiar one, and it slips very easily into vengeful understandings of law. As I wrote of the death penalty, the confusion of torts and crimes is one of the most disturbing transformations overtaking U.S. law in recent years. Our readers at the time were not happy with my rejection of the death penalty, but this element of the argument remains, I think, important. When we take crimes primarily as harms against individuals, we open up the legal system to all kinds of claims about justice and retribution that it was never designed to consider.