Second Wounds

Victims’ Rights and the Media in the U.S.By Carrie A. Rentschler

DUKE UNIVERSITY PRESS

Copyright © 2011 Duke University Press
All right reserved.
ISBN: 978-0-8223-4930-3

Contents

acknowledgments……………………………………………………………….ixintroduction THE VICTIMS’ RIGHTS MOVEMENT AND THE SECOND WOUND…………………….1one LAW AND ORDER The Dominant Ideology of Victims’ Rights………………………..33two AN ACTIVIST HISTORY OF VICTIMS’ RIGHTS………………………………………55three MEET THE PRESS Representing Victims’ Rights………………………………..83four UNDISCLOSED SOURCES Victims’ Rights and Journalism Training…………………..113five PROFILES OF LIFE News Memorials to the Dead…………………………………137six FACES OF MURDER…………………………………………………………..177conclusion GIVING FACE TO THE FAMILY AS VICTIM…………………………………..211notes………………………………………………………………………..223bibliography………………………………………………………………….233index………………………………………………………………………..257

Chapter One

Law and Order The Dominant Ideology of Victims’ Rights

This chapter focuses on the dominant law-and-order dimensions of victims’ rights, its punishing politics and talk of defendants’ rights and legal permissiveness against which the rights of victims would be defined. Law and order signifies a political ideology vis-à-vis crime that focuses on crime control and the containment and warehousing of those deemed criminal. Beginning in 1964 with Barry Goldwater’s run for the U.S. presidency on a crime control platform, the law-and-order movement gained momentum over the 1970s as part of the right-wing movement’s political ascendency (see Beckett 1997). By the 1980s, law-and-order policy became a central feature of federal politics in the United States under President Ronald Reagan, and in the United Kingdom under Prime Minister Margaret Thatcher. The term law and order crystallizes a number of specific meanings about criminal justice, “above all, that law could and should produce order, but failed to do so because of weak enforcement.” The primary purpose of the law as law-and-order advocates see it is crime control, yet lawmakers were also the movement’s greatest adversaries. Many advocates felt “shackled by excessive due process restraints that frustrated effective enforcement” of legal measures of crime control (Reiner 2007, 119). In this context, in which calls for crime control were starting to be made in the name of victims, as Alyson Colewarns, “American discourse is dominated not by claims of victimization as much as by claims against victims” (2006, 2).

I want to probe the law-and-order movement’s ventriloquism of crime victims as it defined the movement for victims’ rights. The law-and-order movement was a key site for the production of the language of victims’ rights. By the 1970s, victims’ rights would replace law and order as a rallying cry for those who blamed prosecutorial leniency and constitutional rights protections for criminal defendants for the social problem of crime and its victims (Kaminer 1995). My analysis relies on evidence found in a collection of policy texts, task force reports, and political commentary identified with law-and-order perspectives on crime and criminal justice that constitute the dominant discourse of victims’ rights. How law-and-order advocates imagined victims’ rights and the victims it represents has had profound implications for criminal justice policy and the activities of victims’ rights activists over the 1980s and 1990s, once the movement nationalized. Law-and-order conceptions of the victim of victims’ rights redefined the issue of criminal justice away from crime toward the control and incapacitation of whole populations in the United States deemed dangerous and criminal by white ruling elites.

The story of the victims’ rights movement really starts in the middle of its forty-year history in the United States. Its ascendancy was achieved in 1982, with the publication of the Final Report of the President’s Task Force on Victims of Crime. From a movement perspective, the task force report of 1982 signaled the national arrival of victims’ rights, evidence that its discourse and political practice were part and parcel of a national policy vision of victims. The report set the national policy agenda and political apparatus for victims’ rights, presenting sixty-eight recommendations to “balance the scales of justice” by creating constitutional rights of participation for victims within the criminal justice system, while some of its authors simultaneously advanced assaults on defendants’ rights in other venues (e.g., Task Force on Violent Crime 1981). Reagan had called for the task force in 1982 to help launch a federal law-and-order agenda defined around victims and their (lack of) rights. The task force held hearings around the United States, at which it heard testimony by crime victims, victim advocates, and people working in criminal justice as well as other social institutions, such as churches and hospitals. The portrayal it cast of victims’ experiences of criminal justice called out for broad reform, specifically around the constitutional rights of victims.

According to the report, the hearings compiled a picture of “all crime victims in America.” Its imagination of the social totality of crime victims in the United States took unique form in the case of a textual victim composite, a kind of worst-case scenario of institutional victimization that looked nothing at all like a typical crime victim. This was the point, for the report sought to identify all the possible forms of harm a victim could suffer after a crime and then defined these harms as kinds of victimization on a par with criminal victimization. Victims were created not by crime alone but also, more significantly, by their encounters with the criminal justice system. In its vision of victims, the report is a testament to the law-and-order focus of most victims’ rights politics, with their emphasis on the criminal justice system as the main barrier facing victims and their search for justice (see Henderson 1985; Aynes 1983/84). It argues that this same system should be reformed to serve the needs of victims—needs understood to be in conflict with the rights of defendants. In the process, the composite victim distilled the worst-case scenario as a dominant rhetorical feature of national victims’ rights texts. That the report made this point through a fictional chronicle of the travails of a composite figure rather than through a single victim testimonial also points to the authors’ belief in the political power of compound fiction—the creation of a single fiction out of a multiplicity of testimonials.

There is much to be learned from the forms such policy documents take as well as from their content. As the anthropologist Annelise Riles argues, policy documents are “aesthetic objects with uses distinct from their qualities as `texts,'” but they have often been treated as little more than “instruments of political or ideological control” in which the analyst uncovers the hidden work of norms within them (1998, 378). The norms of the task force report, however, “are not hidden but made quite explicit … [even] insistently posed and restated at every turn,” and therefore the task of revelation is largely moot (see Riles, 378). From this perspective, the point instead is to understand how and under what conditions such claims about victims, who they are, and what their needs are could be made in the first place. Understanding these conditions also helps to reveal how the task force report could have the broad-reaching effects it had on the victims’ rights policy agenda. Through its imagination of the victim and its status as the document that nationalized victims’ rights, the task force report is the primary artifact of its national story.

Legal Permissiveness and Defendants’ Rights

Leading up to 1982, the place of victims’ rights discourse in the law-and-order movement rested in part on the assaults its leaders made on U.S. Supreme Court decisions from the 1960s that protected the rights of defendants to fair and due process. Mobilizing during the late 1960s and early 1970s, after several state and U.S. riot commissions had processed the social rebellions of African American citizens in cities across the country as signs of black “crime in the streets” (Scheingold 1991, 1995; M. Lee 2007; M. Davis 1990; Kennedy and Sacco 1998), several key Supreme Court decisions established the constitutional rights of criminal defendants and abolished the death penalty. Law-and-order politicians and activists fought these decisions and in the process defined the prevailing discursive terrain of victims’ rights in terms that cast crime as racial, class-based, and urban.

Law-and-order advocates of the 1960s and 1970s depicted street crime as the work of African American outlaws who profited from a permissive legal system. Constitutional protections of defendants’ rights, they argued, let criminals off on legal technicalities and undue concern for fair investigative and prosecutorial procedures. Law-and-order advocates further challenged these landmark constitutional decisions by portraying the criminal justice system as a perpetrator against a vulnerable public besieged by inner-city criminal classes whose rights protections as defendants accounted for the increasing problem of street crime. From this law-and-order perspective, the criminal justice system created its own victims through the overprotection of defendants’ rights.

The Supreme Court decision in Mapp v. Ohio (1961) established the exclusionary rule, which meant that evidence of an accused person’s guilt would not be admissible in court if it had been obtained in the course of, or resulted from, an illegal search and seizure. Gideon v. Wainwright (1963) required courts to provide indigent defendants with legal counsel in felony cases. The Escobedo v. Illinois case from 1964 established defendants’ right to counsel and also established that the right to not speak to the police arises at a certain point in police questioning. Miranda v. Arizona (1966) established that police must advise a person of their rights against self-incrimination prior to interrogation, and if such advice is not given no statement made by a suspect can be admissible in court. Chimel v. California (1969) established that warrantless police searches incidental to a lawful arrest could encompass only areas within the arrestee’s immediate control. Each of these rulings formally codified into constitutional law that defendants are not guilty until proven so through fair and just procedures of search, seizure, arrest, and counsel.

These decisions proved to be major targets for the forces of law and order, which launched attacks on the constitutional rights of defendants that continue to the present. Defendants’ rights, they argued, trumped the rights of victims in the criminal justice system; protecting defendants was anathema to protecting the rights of victims. For law-and-order politicians and the New Right activists of the 1970s, speaking in the name of crime victims became one of their primary discursive strategies for responding to social movements of the sixties that claimed victimization as the grounds of the individual and collective activism: for women’s rights, civil rights, gay and lesbian liberation, and antiwar activism (Cole 2006, 40). The politics of victimization in the 1960s, Alyson Cole suggests, were so “resonant with the experiences of whole groups that it had to be blunted by ideological enemies” (2006, 40). Whether it had to be is a matter of interpretation, but the political right certainly used its ventriloquism of victims against major civil rights victories of the 1960s.

In each of these Supreme Court decisions, the state protects defendants from unwarranted state intrusion and retributive acts. Attacks on these decisions became central to the development of victims’ rights as a political position, whereby a law-and-order perspective on crime meant challenging the rights protections guaranteed to criminal defendants as assaults on victims by the state. Victims’ rights perspectives on crime treat the state as a coconspirator of defendants against victims. The formal protections of defendants’ rights in these Supreme Court decisions and the Furman v. Georgia decision in 1972 holding the death penalty to be cruel and unusual punishment signaled to law-and-order advocates that the state protected the defendant at the expense of the victim. The law-and-order criticism of these decisions suggests that the state should act more concertedly as a legal surrogate for victims in order to reap more punishment and retribution in the name of crime control. Yet while it should amplify the voice of the victim in law to this end, law-and-order advocates did not think the state necessarily needed to surrender this voice to victims.

Law-and-order activists questioned the very presumption that defendants should be treated as innocent until proven guilty, that their rights should trump their possible guilt. To them it was the relationship between defendant and victim before the law, not that between the state and the defendant, that represented the primary inequality. Police particularly attacked the Miranda decision as an imposition on their ability to do their jobs. Their criticisms helped create a backlash against the rights of the accused, making it appear as if criminals’ rights took precedence over issues of guilt or innocence (see Weed 1995, 6) and presuming further that defendants are innocent only if proven not guilty.

Frank Carrington was one of the principal law-and-order advocates who linked assaults on defendants’ rights with the struggle for victims’ rights. A right-wing movement regular, Carrington brought the issue of victims’ rights to Reagan as a New Right comrade in the late 1970s. At the time, Carrington headed Americans for Effective Law Enforcement (AELE), a small think tank that responded to criticism of the notions of expanding law enforcement powers and widening punitive crime control practices. In 1979, Carrington left AELE because he reportedly could make more money fundraising for victims than for law enforcement. According to the present executive director of AELE, Wayne Schmidt, Carrington cared much more about advocating for the rights of victims than for law enforcement (interview with author, 28 October 1999). Carrington founded the Victims’ Assistance Legal Organization (VALOR) in 1979 to help lead the effort by a coalition of groups to pass a constitutional amendment to secure victims’ rights. Currently, VALOR helps run the National Victim Assistance Academy, a credentialing academy for professional victim advocates and service providers located at California State University, Fresno, as well as the National Crime Victims Research and Treatment Center at the Medical University of South Carolina, in conjunction with the federal Office for Victims of Crime.

In many ways Carrington served as a charismatic single-person node in the network between victim advocacy organizations, right-wing leaders, and the presidency. According to Schmidt, Carrington knew a number of wealthy socialites and was aligned with several conservative organizations, which meant that he had a number of personal connections to right-wing political elites (author interview with Wayne Schmidt, 28 October 1999). Through these political connections Carrington lobbied for victims’ rights with Reagan and the U.S. Congress. Additionally, through his association with the Heritage Foundation he published several books on crime and its victims, including Neither Cruel nor Unusual: The Case for Capital Punishment (1978) and The Victims (1975).

In an article from 1970 entitled “Speaking for the Police,” Carrington made an impassioned call for the professional policeman to find his political voice so that he might speak out against the Supreme Court decisions “restricting the police and enlarging the rights of criminal defendants and suspects.” Citing a national Gallup poll of 16 February 1969, on public attitudes toward the Supreme Court’s leniency on criminal defendants (246–47), he declared that the Court was “undeniably the leader in the atmosphere of permissiveness and leniency that has so irked the public.” In a line of argument that demonstrates how central the figure of the armed rioter was to law-and-order assaults on the constitutional protections of defendants’ rights in the 1960s, Carrington’s article further criticized the Chimel v. California decision for the ways in which it restricted police seeking to make arrests “under the stress of riot conditions” in the following hypothetical situation: “Officers under fire on the street pinpoint a suspected window from which shots are being fired. They enter and arrest the lone occupant of the apartment from which the shots emanated. They seize a rifle from him. Now, how much further do they go? … What about a careful search of the apartment for a cache of weapons and ammunition? … What if a carefully concealed cache of arms and ammunition is discovered in a closet in a room other than that in which the suspect was arrested? Ought this evidence be suppressed because the warrantless search violated Chimel‘s mandate?” (253). Carrington also filed an amicus brief written by James R. Thompson of Northwestern University Law School on behalf of AELE to illustrate an effective act of speaking for police against the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund’s own brief in Terry v. Ohio, in which the Supreme Court granted police the right to stop and frisk individuals who appear to be in the process of committing, or about to commit, a crime. Thompson’s brief makes its point by imagining the police withdrawing from the ghettoes of American cities:

The police could, of course, withdraw from the ghetto and end all police-citizen conflicts. This alternative might be somewhat tolerable, if only criminals lived in the ghetto; at least their interferences with human liberty in the form of murder, robbery, rape and other crimes, would be practiced only on each other. But, others live in the ghetto as well—innocent, law-abiding American citizens; by far the overwhelming majority. They are entitled under the same Constitution that the amicus says compels the rejection of stop and frisk to live their lives and experience the safety of their homes and their streets without fear of criminal marauders. They have suffered enough—discrimination, poverty, lack of education, appalling conditions of housing, and community alienation. Must they also be deprived of their right to the protection of the laws as well? (quoted in Carrington 1970, 263)

(Continues…)

Excerpted from Second Woundsby Carrie A. Rentschler Copyright © 2011 by Duke University Press. Excerpted by permission of DUKE UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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