By Michael J. Nichols
Boxing has a wonderful rule: if you are hit below the belt you have as much time as you need to recover: but you have to keep fighting or else you lose.
In our justice system, however, when property owners are hit with a loss of property or loss of value to property at the hands of a criminal act and then seek retribution above and beyond that loss, are we denying them chance to keep on fighting or creating a victim mentally?
The victim mentality is one that seeks to extract as much pain from the wrongdoer as possible no matter how far the limits of causation are stretched; no matter how far we go to metaphorically cradle the person who suffered a loss in our arms and pat their heads; no matter how far we want to let the victim go in pointing fingers in court at the wrongdoer?
I stand in courtrooms all the time when the person in the most authority—the person who wears the black robe—sits on the elevated platform of the judicial bench and invites this victim mentality.
I can understand: judges don’t want to look soft on crime at a sentencing or restitution hearing when guilt has been established. If the person had not been convicted by trial or by plea, a sentencing or restitution phase would not be necessary. When people are encouraged by prosecutors, victim’s advocates and judges to speak in vengeful tones with inflammatory words and insults and seek every penny of recompense possible and then some, what message are we sending?
If our criminal justice system wants to foster this attitude of blaming a wrongdoer for everything bad that happens to the victim regardless of a causal nexus, well I cannot stop that. The current is swift enough as the criminal defense attorney swims upstream, so it makes no sense to only make it harder by pointing out what should be obvious through cross examining a victim about the propriety of his or her claims for payment: “I’m sorry that low-blow happened to you—it was wrong, it was bad, take as much time as you need to get over it—but, like the boxers, you have to keep fighting or you forfeit.”
I told a judge at a sentencing that my client wanted to apologize to the victim in a case—a property damage accident. The judge’s response: “that’s not appropriate.” Why not? Life is about survival for the living. A bad thing happened but it could have been worse. Let’s touch gloves and move on.
Then there are the insurance companies. Too many trial judges have not read carefully enough the cases that interpret the Crime Victim Rights Act (CVRA). The CVRA defines insurance companies as victims. That does not mean that they are victims entitled to compensation in every situation. The court of appeals made clear that an insurance company could be a victim entitled to compensation, notwithstanding the provisions of the No Fault Act (500.3116). However, in People v Gourd, 200 Mich App 493, the Court of Appeals held that a sentencing court must find “special facts” before the court can order restitution to an insurance company when it is not otherwise entitled to compensation.
In Gourd, the issue was whether the insurance company could not be a victim because of the interplay between the No Fault statute and the CVRA. The case involved a drunk driver who damaged property and under the No Fault Act, the insurance company would not have been entitled to compensation. However, the CVRA defines an insurance company as a victim. The defense attorney argued that the insurance company could not be a victim in such a circumstance because of the No Fault Act.
The court of appeals held that such an interpretation was at odds with the CVRA since the legislature defined the insurance company as a victim. However, the court went on to say that when the insurance company is not otherwise entitled to compensation, the sentencing court must find “special facts” that support awarding restitution in the “interest of justice.” Therefore, when an insurance company does what it is supposed to do, such as pay a claim, the company must show special facts to support a restitution request.
It makes sense. Feeding into public castigation of wrongdoers by victims and making a victim a hero creates a society in which being a victim is glorified and being a survivor is minimized. Would we rather have a society in which the criminal justice system validates victims but also encourages them to turn their victimization into opportunity? It is not an easy choice but a choice that we should revisit if we are truly leaders as players in the justice system.
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Mike Nichols is a member of the American Chemical Society; a member of The American Academy of Forensic Science Jurisprudence Section; author of the “Michigan OWI Handbook” by West Publishing; and an adjunct law professor of DUI Law and Practice at Thomas M Cooley Law School. He can be contacted at mnichols@nicholslaw.net or 517-432-9000.
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