The Death of American Justice Part II: Best Intentions, Retribution, and the Tragedy of the American Victim Rights Movement

Richard Nixon, Ronald Reagan, Bill Clinton, and even Joe Biden. These men have been cast as conservative arch-villains in the story of American mass incarceration. It’s a depiction that’s taken as gospel by many in America, especially on the left, and its appeal is easy to see. Yet the full truth is much bleaker. And in order to fix our criminal justice failings going forward, it is not something we can afford to wish away. The dirty secret is punitive justice reform in the late 20th century owed itself to conservative and progressive ideology. As innocuous as it may sound, much of this unlikely marriage can be traced to the Victims’ Rights Movement. The goals of the movement were initially as noble as the name infers, with liberals and conservatives graciously reaching across party lines to help those Americans who needed it most. Yet the failings of the movement were anything but. Compassion for criminals seemed at odds with compassion for victims, so ideas of rehabilitation and preventive justice were callously thrown out the window. America, without hesitation, began the righteous march toward mass incarceration.

National Crime Victims’ Rights Week is observed April 19-25th this year (2020).

The early 1960s proved a sort of last gasp golden age for a humane justice system. Not only did the post-WW2 penal system embrace utilitarian principles, but for the only time in American history, the Supreme Court was decidedly liberal. This Warren Court, as it came to be known, radically defended the rights of criminal defendants. Then in the blink of an eye, it all began to crumble. The reasons why are complicated, although to tell this story it’s important to begin with the election of President Nixon himself. Capitalizing on a skyrocketing crime rate and severe racial unrest, in 1968 Nixon struck political gold. The “silent majority”, as he would later name it, were according to Nixon the unwitting victims of a country that had lost its way, so he successfully campaigned on a pledge to protect “law and order”

Nixon’s victory did not immediately usher in the official beginnings of the Victims’ Movement (which would begin in earnest several years later), but during his presidency, the roots coiled into the ground. For reasons legitimate and racially prejudiced crime became not just some abstract concept, but increasingly an existential threat to all. Therefore by definition, everyone became a victim or a potential victim, and pressure for reform began to grow. By 1972 an astonishing 83% of Americans believed the justice system needed to be harder on crime. Vindicated by public support, conservative crime hawks descended and began pushing for “victim rights”. Yet by the end of Nixon’s 1st term progressively minded groups were successfully pushing the idea as well. 

Nixon during his first presidential campaign (1968).

Nominally the term “victim rights” sounds empathetic, but it had a dangerous flip-side. In 1970 Vice President Agnew lamented “the rights of the accused have become more important than the rights of victims in our courtrooms”. Constitutionally there’s a good reason for this: criminal defendants by their nature are being prosecuted by the government and therefore need increased protections from abuse, whereas victims stand on the side of legality. But to the growing number who would fight for victim rights, defendants became exclusively the opposition and their sin against the innocent meant they deserved punishment. That the drivers of this movement would be predominantly white (mirroring the same ethnic POV that led to paternalistic abuses during the Progressive era) only served to further racialize and corrupt their advocacy. No longer was the criminal defendant seen as a victim of external factors. Nor could they be treated as innocent until proven guilty. To protect Americans their human rights needed to be stripped away. 

Inspired by the civil rights and anti-Vietnam war movements of the 1960s, unsurprisingly it was in response to the Warren Court that the movement officially coalesced. Beginning in the early 1970s with the creation of a number of organizations, while the movement drew inspiration from conservative and liberal thinkers its initial progressive bent is undeniable. In fact the first victim groups were conceived specifically with a focus on protecting women. Their frustration was extremely legitimate: sexual harassment was widely considered a fact of life and more egregious crimes like sexual assault and domestic abuse were largely ignored. As crime rates soared, the push to act became all the more urgent. By 1973 just under 60% of women felt scared to walk home alone at night. Riding this wave of social justice, the movement continued to grow until at the turn of the decade it found itself backed by a broad coalition of powerful social justice groups like Parents of Murdered Children and Mothers Against Drunk Driving. Yet these groups also became increasingly entwined with influential conservative reformers.

Mothers Against Drunk Driving (founded 1980).

A pioneer in tough justice reform since his days as California governor, President Reagan was a crucial supporter of the movement. His 1982 Task Force on Victims of Crime called for greater victim protections, and Reagan and the states responded with sweeping criminal justice reforms. It should be said that these reforms weren’t all detrimental: for instance increased prosecutorial awareness, financial resources, and social services to victims were undeniably important achievements.

But according to UNLV professor Lynne Henderson, this legislation was nevertheless primarily defined by “crime control concerns.” Although Reagan and hard-on-crime conservatives cared about victim-specific policies (at least for whites), their retributive focus on defeating criminals was much more pronounced. And in their mission to protect the vulnerable, progressives in the movement were more than happy to go along with policies that brought their victims vengeance and advantage. Voters agreed. 

As the term “victim rights” quickly became a winning rallying-cry for the new criminal justice campaign, no one dared speak up for those in chains. A wave of mass incarceration began sweeping over the country. When flawed victim bill of rights spread throughout the states, the same political leaders and voters responsible condemned criminals “responsible” with ineffective punitive reforms–which among other things increased arrest rates, sentence lengths, and prosecutorial power.

State and federal prison populations exploded, and this retributive lust only grew during the Clinton presidency. Backed by victim interest groups and an increasingly terrified public, Clinton and the Democrats were forced into a hardline criminal position to secure election. After all who could win votes supporting the human rights of the opposition? The result were punitive reforms that became staples in America’s mass incarceration problem–most infamously the 94’ crime bill. Yet people forget that even in this reviled legislation, leaders like Joe Biden helped fulfill years of progressive victim advocacy for domestic and sexual assault protections in tandem with the more grotesque penal retribution. It’s not unfair to criticize the legacies of men like Biden, but in truth, a broad coalition helped secure these reforms. Americans cared about their own rights, and to secure them were willing to disenfranchise others.

A young Joe Biden (1987).

Although the tide seems to have turned against mass incarceration in the present, the retributive heart of the Victim Rights Movement beats on. And to fundamentally change our approach to justice, we have to acknowledge this. Take, for instance, the case of Brock Turner. When a judge gave Turner just six months jail time for his assault, victim rights advocates and the public responded in an outcry. They recalled the judge and in 2018 the California legislature imposed mandatory minimums for various sexual assault charges. While well-intentioned, like earlier reforms these retributive efforts ultimately stripped vital judicial discretion and helped expand a punitive justice system–most likely doing little to reduce crime or satisfy the victims. It’s absolutely essential to care about those who’ve been hurt, but we need an empathetic policy that protects them without abusing defendants or convicted criminals. Although there may exist many such paths, one particularly strong option could look like restorative justice. This philosophy would provide catharsis and answers to victims while benefiting the character of criminals. And it’s a solution that some in the Me Too movement have advocated for in an attempt to steer away from punitive justice. 

 All this is not to delegitimize the pain of victims. If a loved one is hurt or worse, it’s normal to feel angry, sad, obliterated. A responsible government shouldn’t forget about you or the victim, because these feelings are valid and, at least to an extent, rectifiable. The Victims’ Rights movements understood this. And perhaps that’s what makes their legacy so tragic, or at least so achingly human. Siphoning funds for victims and mandating more care from the justice system were important ways to aid hurting people. But as history unfolded, the best intentions for reform turned into a retributive nightmare of pitchforks and mob violence. And a country so desperate to do right by those in pain, saw its noble aspirations build an institution which has created more victims than any other. As Victim Rights Week is being celebrated at the time of this article’s publication, there’s no better time to remember that.