Vol. 16 No. 5 (May, 2006) pp.387-390

 

VICTIMS IN THE WAR ON CRIME: THE USE AND ABUSE OF VICTIMS’ RIGHTS, by Markus Dirk Dubber.  New York: New York University Press, 2002. 412pp.  Cloth. $50.00. ISBN: 0-8147-1928-7.  Paper (2006). $24.00. ISBN: 0-8147-1929-5.

 

Reviewed by Liane C. Kosaki, Department of Political Science, University of Wisconsin-Madison.  Email: lkosaki [at] polisci.wisc.edu

 

Markus Dubber’s purpose in this interesting book is evident in its title.  He is interested not in victims of the war on crime, but in victims in the war on crime, and the choice of preposition is significant.  Dubber focuses on the way that the role of victims has been used by policy makers as part of the war on crime.  By examining the use of victims, he brings to light the ways in which the appeal to victims’ rights is used to serve the interests of the state.  What is also of importance to him is that, although policy makers are quick to use victims’ rights as a justification for policy change, the policies proposed and adopted in their name do not serve victims’ interests.  What has happened instead is that the victims’ rights movement has been co-opted by policy makers to justify increasing the punitiveness of the criminal justice system not only in sentencing, but by broadening the range of conduct that is defined as criminal to enable greater state control over individuals. 

 

The other major argument in this book is a normative one: that the victims’ rights movement needs to be divorced from the war on crime.  As Dubber puts it: “The time has come to free victims’ rights from their use as a tool for the achievement, maintenance, and expansion of state power.  The time has come to turn the pursuit of victims’ rights from a weapon in the war on crime into a cause worth pursuing for its own sake” (p.7).

 

The argument that victims’ rights have been used to justify increased punitiveness is not in itself a new one.  What Dubber adds is an analysis of how this argument plays out in two areas: “victimless crimes” and violent crime. 

 

The first three chapters of the book are devoted to an analysis of the increasing use of possession and nuisance crimes by the state to achieve greater social control over individuals.  According to Dubber, this policy illustrates several disturbing trends.  First, the victim of these crimes is not an individual, but the state.  Second, these crimes are used to punish individuals not for what they have done, but for what they might have done.  Thus, arrests for weapons possession are not for anything done with the weapon, but for the threat or possibility of what might have been done with the weapon.  This makes it much easier to convict, sentence, and incarcerate an individual.  Third, because of the concern for victim’s rights, the focus has moved from the defendant’s rights to the rights of the victim, a victim who in this case is the state rather than an individual. [*388]

 

What disturbs Dubber about this last development is that it places the state in a position where it can use its power to control those who are “different” under the guise of maintaining social order and “protecting the public.”  Given the nature of possession and nuisance offenses, it is an easy thing for the state to prosecute and, ultimately, incarcerate individuals:

 

In many cases, possession statutes also save the prosecutors the trouble of proving that other major ingredient of criminal liability in American criminal law, mens rea, or a guilty mind.  This means that many possession statutes, particularly in the drug area—where some of the harshest campaigns of the war on crime have been prosecuted—are so-called strict liability crimes.  In other words, you can be convicted of them if you don’t know that you are “possessing” a drug of any kind, what drug you are “possessing,” how much of it you’ve got or—in some states—even that you are possessing anything at all, drug or no drug. (p.35)

 

When the state takes on the role of the victim, there is also another danger involved.  Because of the sympathy for victims’ rights and the ostensibly greater role played by victims in the criminal justice process, the state as victim leads to sanctions out of proportion to the actual harm done.  Thus, Dubber’s concern in the first part of the book is about the state’s appropriation of the victim’s role and its impact on the definition of crime and increased sentences associated with them. 

 

The other important issue for Dubber is the larger role for victims in the criminal justice process.  What concerns him here is not that victims play a role, but that the inclusion of victims is really a means for increasing punitiveness.  Thus, unless victims are “deserving” victims whose desires are consistent with the state’s desire for harsh punishment, the state’s interest in victims is non-existent.  The second part of his book is devoted to a discussion of this issue and its effects.

 

The primary example used to illustrate Dubber’s concern in the second part of the book is homicide.  His insight here is to look at the “victim” in these cases—although there is attention to the suffering of the murdered person, Dubber points out that the focus is actually on survivors.  Thus, the impetus for change in criminal justice policy is based not on the actual desires of these victims (obviously, those desires cannot be ascertained).  Instead, the drive comes from those who survive the victim, and policy initiatives are based on their desires.  Thus, he argues that “[T]he victims’ rights movement look[s] more like the relatives of victims’ rights movement” (p.185).  This confusion about who is actually a victim, Dubber argues, leads to a focus on “indirect victims,” and this articulate and sympathetic group is highly effective in getting anti-crime legislation (interestingly, anti-crime legislation that is consistent with a conservative anti-crime agenda) adopted.  Dubber’s question about this set of legislation rests on its relevance and effectiveness in addressing the actual victims’ needs.  For example, in one case the relative of a murder victim was instrumental in getting legislation passed allowing concealed handguns.  “A murder victim could benefit from the right to carry a [*389] concealed weapon about as much as from the right to attend the execution of her murderer,” argues Dubber.  “Once again, the victim’s relative is claiming a right not for the victim but for herself. . . . The victim’s rights are invoked to claim rights for another” (p.188). 

 

Dubber’s point here is not to argue that the relatives and friends of homicide victims are not affected by the murder of their loved one.  Instead, it is to argue that the focus on homicide in the victims’ rights movement is yet another example of manipulation and cooptation of the movement by those who seek to make the system a more effective and powerful force to punish and incapacitate not only criminals, but those who look like they might be criminals.  The other significant point of his analysis is that the focus on homicide victims narrows the scope of the movement by looking at the most extreme victimization; this narrow scope leads away from recognition of those victimized by more common types of crime.

 

The analyses in the first two parts of this book are interesting and original.  This is also true of Dubber’s final argument that the goal of victims’ rights ought to be to restore the victim to wholeness.  If the victims’ rights movement is to achieve this goal, then the focus of the criminal justice system will be on victim compensation, rather than constructing and implementing policies that focus on prosecution and punishment of the offender.  Thus, in order to truly serve victims, the state must think about victims’ rights as a movement that requires the criminal justice system to recognize both victim and offender as persons, to analyze the roles both play (or do not play) in the commission of the crime, to assess the injury that is actually inflicted on the victim as a result of the crime, and to restore the victim to full personhood.  Dubber then identifies the factors that will go into the construction of a victim compensation system to achieve these goals.  Although too complex to fully describe here, a major component is that the system weigh each individual incident from the standpoint of the victim’s and offender’s roles in order to assess fair compensation and punishment.

 

Dubber’s proposed victim compensation reform is certainly bold, for it flies in the face of at least two major principles that currently underlie the criminal justice system.  First, he argues that part of the problem for American criminal law is that it is based British law.  British law, as summarized by Blackstone, assumes that there is a king.  Thus:

 

[T]o Blackstone the power to police was simply the king’s patriarchal prerogative as “father” of his people, to provide for “the due regulation and domestic order” of his subjects, conceived of as “members of a well-governed family” . . .

 

To reconstitute itself after the war on crime, American criminal law must find more solid ground than the eighteenth-century speculations about the nature of English royal power by an English jurist who delighted in styling himself “Solicitor General to Her Majesty.”  Such a modern theory of American criminal law as state governance would take into account some of the more momentous changes that have occurred [*390] in American political life since Sir William published his COMMENTARIES, including the establishment of a democratic government built on the ideal of equal rights of persons as persons. (pp.151-152, emphasis mine)

 

Dubber argues for a concept of crime that does not rely on considering harm to the state—instead, it argues for considering harm to the individual.  It is thus not surprising that his discussion of victim compensation sometimes relies on principles of civil law (e.g., tort law).  However, in discounting the Blackstonian heritage, Dubber takes Blackstone’s concept of “sovereign” a little too literally.  For in a democracy, the sovereign can rest in the collective.  To discount the cost to the state, and the state’s interest in reducing crime, is to downplay crime’s cost to the larger community and the community’s justification in considering its own interest in punishment and victimization.

 

The other principle in the criminal justice system is that the current system operates as a bureaucracy.  The requirement in that system is that cases be reduced to their commonalities and handled as quickly and efficiently as possible.  Dubber’s victim compensation plan looks to me to require that cases be examined in their complexity.  Although victim compensation could be handled bureaucratically, if the purpose is to restore individual victims to autonomy, then that implies the kind of consideration of individual circumstances that contradicts the routine handling that is at the heart of bureaucracy.

 

However, I raise these issues not to diminish the value of the argument in this book, but to illustrate the questions and arguments that came to mind as I read it.  Dubber’s presentation is interesting, well-argued, and provocative.  He raises new and important issues about the role and impact of the victims’ rights movement. 

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© Copyright 2006 by the author, Liane C. Kosaki.