Fault Lines
18 January 2019

Free Attorneys for Crime Victims…To Do What?

November 21, 2016 (Fault Lines) — In Illinois, a victims’ rights advocate named Denise Rotheimer is pushing a for a new “right” to be added to the list: crime victims should get lawyers at public expense. Her involvement in the justice system began in 2001, when her 11-year-old daughter was sexually assaulted:

Denise Rotheimer started her fight for victims rights in 2003 when prosecutors offered reduced prison time to the man pleading guilty to sexually assaulting her daughter two years earlier.

Prosecutors were willing to accept a six-year sentence, and allow the man parole eligibility after he served 85 percent of that time.

That wasn’t good enough for Rotheimer.

“I wanted him (the defendant) to be sent to jail for the 15 years police said he would be,” Rotheimer said.

She made her objection known to the judge. When the judge heard Rotheimer wasn’t happy, the plea deal was altered to boost the sentence by one and a half years.

Still not good enough. Rotheimer went on to sue the prosecutor’s office, on the grounds that the prosecutor did not present a victim’s impact statement from her daughter at sentencing. Rotheimer herself did get to address the court on that occasion, which explains why the negotiated sentence went from six years to seven and a half.

The suit was dismissed, with the Court holding that Rotheimer lacked standing, that the prosecutors were protected by sovereign immunity, and that the statute of limitations had expired. In the meantime (largely due to the advocacy of Rotheimer and her organization), Illinois passed “Jasmine’s Law,” which allows judges to double the sentence of sex offenders whose victims are under the influence of alcohol; and another law requiring police to inform complainants of their rights within 48 hours of making a complaint.

So, why does Rotheimer think crime victims need their own lawyers? Mostly, it’s to help exercise the rights they already have under Illinois’s Crime Victims Rights Act, which include a laundry list of stuff that makes for good copy, good publicity, and higher vote totals, but which are mostly for show. The “rights” can be broken into three categories:

  1. Protection from witness tampering.
  2. Restitution.
  3. Being kept updated about the status of the case, and the right to be heard at sentencing, bond hearings, parole hearings, and the like.

Witness tampering is already against the law. As for restitution, most jurisdictions allow for monetary losses suffered by victims to be recovered as part of the criminal case, though for really serious cases this doesn’t mean much. If the defendant is going to prison for years or decades, he won’t be paying it.[1] And if the free attorney is going to be used to pursue the defendant in civil court, the same principle applies. Something like 80% of all defendants can’t even afford a lawyer, so there’s no pot of gold at the end of the civil rainbow either.

That leaves the procedural rights, of which the most important is to be heard at sentencing. From a purely defense perspective, victim statements suck. The reason for this is because judges, prosecutors, and defense attorneys operate at arm’s length from the events in question. At sentencing, victim statements shift the focus from the (hopefully) remorseful and salvageable defendant to the complainant’s suffering, and it’s the rare judge who isn’t more moved when a face is put to the words of the sentencing report or the prosecutor’s argument.

I’ve warned plenty of defendants who had a shot at something other than hard time, “if the victim shows up, you’re toast.” It’s almost[2] impossible to mitigate the damage. Generally, these statements aren’t subject to cross-examination, and even if they were, imagine the defendant’s attorney trying go all Pozner and Dodd on an 11-year-old rape victim or her mother.

Here’s the problem with Rotheimer’s proposal: there’s nothing a “victim’s attorney” can actually do for the victim. Keeping victim’s informed of the court dates, case status, and plea negotiations, is a simple matter of getting a phone call from the prosecutor. If the defendant has enough assets to make a civil suit worthwhile, someone will pick it up on a contingency basis. As for impact statements, getting lawyers involved will pretty much destroy their effectiveness.

Here’s why: the reason these statements are so effective are because of their rawness…the unfiltered, unvarnished “truth” of the victim’s suffering. It’s a connection to the world outside the courtroom that’s a jolt back to reality, far beyond the sanitized language of presentence reports and sentencing memorandums. If the victim’s statement is prepared by her attorney, it’s just another pleading to be considered.

As Andrew King points out, victim’s rights bills are a bad idea, because “the entire coercive power of the criminal justice system [does not] operate as a right to an individual person.” But giving victims their own attorneys doesn’t even make sense it its own terms.

[1] This doesn’t stop some states from intercepting money that inmates’ families put in their commissary accounts so they can buy such luxuries as mouthwash and ramen…which has benefitted no one except inmates who owe no restitution, who take a vig for purchasing such items on behalf of their less fortunate brethren.

[2] Only almost. I have an awesome story that I will share if the opportunity ever comes up and our mean-ass editor allows it.

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  • Denise Rotheimer
    3 January 2017 at 8:09 am - Reply

    Hi Noel, I read your article about my daughter and me and the law I am pursuing to provide crime victims with legal representation to enforce their rights at no cost. I think it is important for you to know certain facts since you have an opinion on this issue. First, the rights that crime victims are afforded are procedures. These procedures are followed or carried out by criminal justice authorities, namely law enforcement and the State’s Attorney’s Office, including the Attorney General’s Office and Prisoner Review Board. You must realize that the legal representation I am seeking to provide crime victims with has nothing to do with suing defendants in civil court or writing victim impact statements for crime victims in the criminal court at sentencing. The purpose of this bill is to become law so that crime victims whose rights are violated can retain legal representation to enforce those rights since the prosecutor or law enforcement officer failed to inform the crime victim of vital information pertaining to his or her case. Why shouldn’t crime victims be notified of their legal rights? Why shouldn’t a crime victim enjoy the enforcement and guaranteed protection of his or her right to be notified of court dates, bond hearings, plea deals, etc.? Do you really think criminal justice authorities i.e., prosecutors act in the interest of crime victims without fail? If crime victims were notified and included as a participant in the legal system then they would not need to retain legal representation to enforce their rights. Unless and until you go through the system as a crime victim and become further victimized by the system you would not understand the significance of my work or the purpose and intent of my bill. I receive the calls from crime victims and hear their grievances as a result of becoming further victimized by the system–criminal justice authorities who fail to uphold the laws and deprive crime victims of the information they need to assert and enforce their rights. I can share my work, experience and knowledge with you to better educate you on this issue if you have an interest in learning the facts based on the reality of our experiences as crime victims. All my best, Denise Rotheimer