“When you allow emotion into the courtroom, bias rushes in alongside it.” Special guest Rachel Monroe tells Mike and Sarah how a good-faith critique of the justice system led to a decades-long crackdown. Digressions include Charles Manson, Ronald Reagan and a billionaire mugshot. Mike’s similes are worse than Sarah’s.
Continue reading →
Support us:
Subscribe on Patreon
Donate on Paypal
Buy cute merch
Where to find us:
Sarah's other show, Why Are Dads
Mike's other show, Maintenance Phase
“When you allow emotion into the courtroom, bias rushes in alongside it.” Special guest Rachel Monroe tells Mike and Sarah how a good-faith critique of the justice system led to a decades-long crackdown. Digressions include Charles Manson, Ronald Reagan and a billionaire mugshot. Mike’s similes are worse than Sarah’s.
Continue reading →
Support us:
Subscribe on Patreon
Donate on Paypal
Buy cute merch
Where to find us:
Sarah's other show, Why Are Dads
Mike's other show, Maintenance Phase
Mike: Everybody became victims-in-waiting.
Sarah: Totally.
*dog barks*
Sarah: Ah! Sorry.
Rachel: Does she disagree with that?
Sarah: Welcome to You’re Wrong About, the show where the thing you thought– wait. No. Okay.
Mike: We practiced this!
Sarah: We're getting there. Welcome to You're Wrong About, the show where you're drawn into a story for one reason, but stay there for another.
Mike: Ooh. It's like Denny's.
Sarah: Yeah, because you're drawn in for the pancakes and you stay for the human condition.
Mike: I am Michael Hobbes. I'm a reporter for the Huffington Post.
Sarah: I'm Sarah Marshall. I'm working on a book about the Satanic Panic.
Mike: And we're on Patreon at patreon.com/yourewrongabout.
Sarah: And we are here with our beloved guest and friend of the show, Rachel Monroe, today.
Rachel: Hi!
Mike: It's your third time!
Rachel: A 3-peat.
Mike: It's like Alec Baldwin on SNL. You just come back every couple of months.
Rachel: I am like Alec Baldwin in so many ways.
Mike: And today we're talking about the Victims’ Rights Movement.
Rachel: Yes.
Mike: I've been excited about this one because for HuffPost last year I was covering all the ballot initiatives that passed during the election and I remember seeing all these states – I think it was like 13 states – passed “victim's rights” laws. You could tell that something was amiss because they were all named after, like, young children, right? They were all like “Jessica's Law.”
Sarah: Yeah.
Mike: So it was like, oh, we're legislating by tragedies now.
Sarah: By the way, Rachel has a book coming out this month. Everyone who likes to learn about crime and wants to strike up a conversation with me if we hang out in an airport should read it. It's called Savage Appetites and that's I feel like, essentially one of the theses of one of your chapters, which is like, “No one can say no to ‘Stevie's Law.”
Rachel: Yeah, totally. People keep asking me about my book as if it's about, “why are women obsessed with true crime?”And it's kind of about that, but then what it came to be about was more the aftermath of these crimes and these obsessions and what political, cultural, social use is made of these crimes that become personal and national obsessions. Yeah. There's one whole section about the aftermath of the Manson family murders and the way that they are entwined with the rise of the Victims’ Rights Movement, which is itself a totally fascinating and really important part of the way that our criminal justice system is the way that it is now.
Mike: Yeah, because I remember reading around the election, “As part of the Victims’ Rights Movement, a bunch of these ballot initiatives passed” and I was like, “The what movement? What?” This was not something that I had any idea about.
Sarah: This is one of those moments when I'm like, “Oh right. You weren't raised as a girl.”
Mike: Well, I know enough about the U.S. legal system and ballot initiatives to know that it sounds pretty bad, but I don't know, like, in what ways.
Sarah: Because any description of any law or policy is probably the opposite. Like, how the clean air act was about enabling pollution. So the Victims’ Rights Movement has to be about potentially – spoiler – projecting the desires of certain political actors onto people who are dead and can't argue.
Rachel: Yeah.
Mike: Yes. So Rachel, what is the Victims’ Rights Movement reacting to? Where did this all start?
Rachel: So you have the sixties Supreme court, the Warren court, which starts issuing all these rulings that are protecting criminal defendants. So this is, I mean, law and order would be a completely different show without the Warren court, right? This is where we have the Miranda warnings. This is where we have the idea that if you can't afford an attorney, you will get a court appointed. A big one is the idea that evidence is obtained in an illegal search, you can't have that evidence presented at trial.
Sarah: I feel like they should have mentioned this in the opening of Dirty Dancing, and then we would be more likely to have learned it as a culture. It's the summer of 1963, it can be like “It was before Miranda Rights, before the right to a court appointed attorney when everyone still called me ‘Baby’ and it hadn't occurred to me to mind.” I feel like it's amazing how we believe that the legal landscape that we live in now has existed forever.
Rachel: Totally. And also, at the time, they seemed to some people really radical and messed up. They're like, “What do you mean the police can't just come in and illegally search your house and use that to criminally indict you?” That seemed really offensive to certain people, like, that you were somehow impeding the police's power or the idea that they would have to tell you that you had rights or something like that. They were like, “What? We can't do that. What a terrible impediment.” These things that seem really, completely now normalized and baked in and feel really essential.
Sarah: As someone who grew up watching Law and Order, like, I grew up knowing or feeling that I knew how to Mirandize someone.
Rachel: I kind of feel like I could. Right? At least the first three lines.
Mike: It's like the Pledge of Allegiance or something. It's one of these things that you've heard it repeated so many times that the literal meaning of the words disappears.
Sarah: It's like the Lord's prayer. Like, I know it as well as I know the Lord's prayer.
Rachel: Right. But it's funny. It's only the past 50-60 years that we've had that.
Mike: Right.
Rachel: And the crucial thing that will come out of the Victims’ Rights Movement is this idea that we're building towards, which is the idea that victims and criminal defendants, criminal offenders are these diametrically opposed camps and if you give rights to one, you're taking away rights from the other and that they're engaged in this zero sum game, battle to the death. So, as these rights are given to criminal defendants, the Republican party starts to get upset and feel like this is troubling. But anyway, at the same time as the Supreme court is issuing these rulings, you also see the crime rate is starting to rise in the sixties.
Sarah: Do we know why the crime rate was rising during this time or is there prevalent theory about it?
Rachel: There was a Gallup poll and I believe they said that it was “Negroes running wild” and communists were the top two responses so…
Sarah: And, like, the top two beliefs at the time about why crime is rampant.
Rachel: Right. So it feels like things are changing, right? I mean, that's the whole thing about the sixties and then you have the Manson murders happen in August 1969.
Mike: Which I know nothing about because I’ve been keeping myself spoiler free.
Sarah: And also, you've been keeping yourself spoiler free for life because you have avoided all bloody or scary matter. So I'm just curious, as someone who has experienced this mainly through cultural drift, what's your idea of what the– what he– who he was and what the Manson murders were?
Mike: He's like the Elizabeth Holmes of murdering people.
Sarah: Because he never did any real work.
Mike: Well, for years when people talked about the Manson murders, I always thought that he was a serial killer, right? Because his name comes before murder.
Sarah: Right. Because he's claiming women's work.
Mike: Yes. So I really have avoided all these other podcasts and stories about him because I know that we're eventually going to do, like, a four hour long episode about him.
Sarah: Aw. You're so good.
Mike: But my blank slate understanding is that he's the leader of a group – I don't even know what their ideology was – that went out and killed people on his behalf, I guess, but he never actually killed anyone.
Rachel: I don't even know if we can begin to talk about this without then talking about it for four hours. But you have this hippy, counter-cultural gang. They're living together. It's this super patriarchal system where Charles Manson, who was this ex-con whose kind of ambivalent about the hippies – he's sort of more of a fifties style bad boy.
Sarah: He seems like he was, yeah, like he was more like the Pied Piper of Tucson.
Rachel: He was really into Scientology. He was really into how to win friends and influence people, like all of that.
Sarah: That’s so embarrassing.
Rachel: So they were a pretty messed up, exploitative to women, patriarchal scene when they were doing LSD and then they start to get more isolated, more paranoid, and do more speed and that culminates in this spree of murders. But maybe the more relevant thing to talk about is how after the murders happened, they were kind of metabolized by the media, which was this thing that you hear a lot – like the Joan Didion line that gets repeated all the time, which is, I don't remember it verbatim, but that the Manson murders were the end of the sixties. That we had this period of openness and freedom, and, you know, The Beach Boys were hanging out with the Manson family who was hanging out… It was, like, movie stars, rock stars, politicians, crazy hippies. Everybody was hanging out. Nobody locked their doors. Everybody was having sex with everybody. Everybody was doing drugs and like, no. That's dangerous. That has to stop. That ends with murder and bloodshed, and you got to lock it down. So, you have this reaction to the openness and permissiveness and drug culture and sex culture of the sixties.
Sarah: That also reminds me of the way that I feel like I saw Altamont framed as I was growing up and the moral of Altamont is, like, the sixties were a nice idea, but nope. Time to strike the set and move on.
Mike: We tried the sixties. We’re over it.
Sarah: Yeah. And as a kid I was like, why couldn't the sixties go on forever? And I felt like my parents' generation was like, “You know, Altamont” and it was like, no, you just wanted to stop trying and you were like, “Well, The Rolling Stones fucked up so it's all over and then we all got jobs in finance.”
Rachel: The crazy thing to me about the framing of, “Oh, it was the Manson murders that ended the sixties.” It's like, wait. Richard Nixon had just gotten elected previous to this. It's like, maybe you could look at that. There was already a reaction happening and a desire to tamp down and formulate this idea that “No, there's a silent majority that hates all of this.”
Sarah: It's a way of giving Charlie too much credit.
Rachel: Yeah, exactly.
Mike: I don’t know if this becomes relevant later but I have a friend who wrote his PhD on the youth movements that helped get Nixon elected in ‘68 and his whole thing is that there were way more young conservatives getting kind of radicalized at that time than there ever were hippies, but like the hippies, the beatniks, this whole thing, got a ton of media attention but in reality, the sixties were actually a huge ramp up in conservative thought and conservative organizing. It just didn't get the same amount of attention.
Rachel: Right. Even if you have a president who is aligned with your political views, you still feel like you're losing and you have all that resentment and energy of like, “We're being locked out somehow, even as you have political control.”
Sarah: I’m sure that zero sum thinking is a flaw in human behavior. That's something that we do as a species, but do you think that there's a rise in zero-sum political ideology at this time?
Mike: These are like SAT questions, Sarah. This is great. I love this.
Sarah: I'm living with my parents this summer. I've been watching a lot of PBS News Hour.
Rachel: But so, another strain that feeds into it is that you have at the same time, the rise of feminism and that’s the thing that's really interesting.
Sarah: Which is also, I think, a big motivator of zero sum thought, right? Because like, “Oh my God, these women want rights. How will they get them? Only by destroying our situation.”
Rachel: Right. But I mean the complicated thing always about talking about the Victims’ rights Movement is this fusion of right-wing, tough-on-crime, criminal justice, law and order policy and feminist rhetoric, right? So it's like things that I like and things that I have trouble with get kind of fused together.
Sarah: Yeah.
Mike: Right. It's like kimchi mac and cheese, two things that seem like they shouldn't go together, but actually works really well.
Sarah: No, that is an inaccurate analogy. It's like if you had a lovely, little puppy and then you gave him radioactive sludge to play in and then he became a puppy monster and destroyed Tokyo.
Mike: I like yours better. So how does this all come together?
Rachel: So you have at this time with some of the women's movement stuff that's happening, people are starting to make legislative and other reforms so it's like, “Okay, what if we had a bill so that if you're a rape victim and you're trying to testify against your assailant, you don't have to be cross-examined about your sexual history?” A lot of it ends up being activism by women to reform law enforcement and the judicial system to be less traumatizing to sexual assault victims. Like, “What if police officers were trained to understand how people respond to sexual assault? What if we had rape crisis centers, places where women could go to be safe? What if you had a victims advocate? Like, somebody within law enforcement or somebody within the judicial system who was your point person if you were trying to navigate this overwhelming system by yourself?” And so these things are coming out of the feminist movement. I mean, I would say they are really positive and really important reforms.
Mike: Yeah. Those sound great.
Sarah: That's the puppy.
Rachel: Yeah. And in some ways what starts the Victims’ Rights Movement is responding to a real, interesting, and strange lack in the way the American criminal justice system is, which is fundamentally based on English criminal justice, which is when you commit a crime – like, if I hit Sarah, my offense isn't really against Sarah. It's against, in England, the king. It's like an offense against the king, right? I'm harming the social fabric or something. In the United States it's not the king, but it's the state and so there isn't really a role in the criminal justice system in the proceedings for a victim. Like, there's not space for you.
Mike: Right. They are evidence in the case of the state against the perpetrator. They're not the one driving the crime.
Rachel: Yeah. It's like Texas versus Rachel Monroe.
Mike: Right.
Rachel: So that's the only role that you could have as a victim is potentially as evidence, as a witness or something. If you're called as a witness, you get cross-examined. There's not really a role for you to say “This is what happened to me. This is the impact that it's had on you.”
Mike: Right.
Sarah: It never occurred to me to think of it this way, but, you know, the defense and the prosecution would be like, “Well, there's this blood spatter evidence and the defense can argue this way and the prosecution can argue with this way and how useful is it to each side and how can they fight over it and how can they invalidate it?” And it's like, that's what you are as a person. Like, that's bad.
Rachel: Yeah. It’s an adversarial system and so you become this thing that's kind of batted around or you just don't have a voice at all. You know, maybe you're not called to testify and then there's the crime that happened to you, but the trial is not about you.
Mike: Right.
Sarah: Right.
Rachel: Fundamentally.
Sarah: It's funny because I think of, you know, “justice for insert name” as a rallying cry that the government now uses against criminals and something that's been co-opted by the need for revenge, but the idea of, like, the system needs to be concerned with justice for the actual victims of crimes is also a new idea that we didn't seem to have before the mid-sixties.
Rachel: Yeah. And not until the eighties really, but it starts to kind of catch on. It's wild to think about, but there was just no role that carried out to all of these procedural problems that could be really traumatic. Like, the idea started to come out like, “Huh. If you were the victim of a crime, maybe somebody should notify you when a court date was happening. Like, maybe you would want to know. Maybe you would want to know if somebody was let out on parole.”
Sarah: So it’s like the American legal system is like a shitty house sitter who's like, “Oh, you wanted me to water that plant? I guess if I'm explicitly ordered to do it, I will, but I would never gather on my own that this thing needs to happen.”
Mike: Right.
Rachel: Yeah. So you would hear these terrible stories of women running into their rapist or the husband who beat them up at the grocery store and be like, “Whoa, I thought you were still in prison,” but they just weren't told because they didn't really have a place in the criminal justice system.
Mike: Right. Is it mostly women and feminists that are bringing this to light, right? I'm assuming it's not like, “My car was stolen and I, as a victim, was left out of this process.” I'm assuming that it's crimes that have more trauma involved for the victims and they're feeling like the system isn’t taking them or the crime against them very seriously.
Rachel: Totally. The figureheads and the voices of this are largely white women talking about violent, interpersonal crime. Those are the most upsetting stories to hear. But what ends up happening, of course, is that the laws that get passed are used against property crime, crimes of possession, and stuff. So it gets twisted. The way it ties back to the Manson family is that you have Sharon Tate, an actress who was coming up in her career when she was murdered by the Manson family in 1969. One reason those crimes became such a media circus is like, wow, you killed a famous, beautiful actress. She was married to Roman Polanski. Like, is no one safe?
Sarah: And she was heavily pregnant.
Rachel: She was like eight and a half months pregnant.
Mike: So, Sharon Tate was one of their victims, and that’s sort of the seed of the Victims’ Rights Movement.
Rachel: I mean, in some ways I think there are a lot of these, it's always dangerous to trace this back to one person or one event. Like, this stuff was all like a stew that was bubbling. But it gets a lot of energy from Sharon Tate's mother who, after her daughter is murdered, gets deeply depressed. I think she has some issues with pills for a little while and who could blame her?
Mike: Yeah.
Rachel: And then a number of years afterwards, she emerges from this period of depression and withdrawal into this nascent movement, which is starting to be called the Victims’ Rights Movement. Maybe. I don't think it even necessarily has that name yet, but there's a support group. This is the era of support groups, right? Like, the seventies, I guess because there aren't message boards and chat rooms yet.
Sarah: Right. No one had Reddit yet.
Rachel: And that's another thing that I think is interesting to think about. For a long time, American culture was not welcoming to people talking about trauma, talking about bad things that happened to them. It was like you stuff that aside. You do not bring that into the public. Then, in the seventies, that really shifts, and you have these Vietnam vets coming back and being like, “This war was awful. I need to tell people about it.” And women start talking about sexual trauma, domestic violence. All of these things start. It's like all of a sudden people are talking about the terrible things that have happened to them and in these groups that are kind of half group therapy, half political action groups. The one that Sharon Tate's mother, Doris Tate, gets involved in is called Parents of Murdered Children.
Mike: P.O.M.C.
Rachel: P.O.M.C, which you could imagine becomes this really powerful lobbying force because how do you say, “I oppose parents of murdered children”?
Mike: Yeah.
Sarah: The only word in that phrase that doesn't send a steak straight into your heart is “of.”
Rachel: Right. Exactly. And so this is this group that kind of starts out like one of these support groups, “We're going to meet together. Nobody else understands our pain, but we can talk about it with each other.” Like, really crucial things and becomes just more and more tuned into taking legislative action. Like, “We need to do things. We're not just going to talk about our feelings, but we need to make our voices heard.” So she becomes super involved in this and she's this fascinating lady. She's like… we have these women in Texas. They’re just, as a journalist, they're so incredible to quote.
Sarah: Hot tip.
Rachel: They curse. They're real down-home. They're really righteous and you're like, “Yes, ma'am.” You just want to say, like, “Yes, ma'am.”
Mike: So that means Sharon Tate’s mom was good in the media. I assume she's showing up on the morning shows. Like, she seems like she'd be a good vessel to get this issue more attention.
Rachel: She's an amazing vessel. And then also, you know, this is the period where those morning shows or those afternoon shows, I guess, those talk shows, that's also kind of a new thing, where you have people coming on TV and telling dramatic stories.
Mike: Yeah. The emotion porn. I mean, that's what a lot of that was at that time. That's even how Oprah started.
Sarah: I watched so much Maury Povich when I was a kid and that was such a “America's falling apart” show.
Rachel: Oh my God, me too!
Sarah: We all have that in common.
Mike: So that makes Sharon Tate's mom perfect. Right? That she can come on and talk about her beautiful, innocent daughter. Pregnant, innocent daughter.
Rachel: Famous daughter. And it's awful. And she really puts herself out there. I mean, I probably disagree with her politically about everything, but I would like to give Doris Tate a lot of credit. She goes on these shows and what she will do, she will give her home phone number out and she's just like, “Call me at any time if you are a victim and you are going through something,” because she felt like she had been unsupported and people did and people called and this activism totally consumed her life and became the big project of her life and it was like a real, sincere commitment to these people who were feeling like they weren't being heard.
Sarah: So what is Doris Tate asking for politically?
Rachel: So one of the big things that comes out of this that we still see today is the victim impact statement. I guess it's like the translation of the daytime TV confessional to the courtroom in a way. It's the injection of emotion into the judicial system, which we still haven't figured out, right? This idea that court proceedings should be this cold, detached, logical…
Sarah: Vulcan.
Rachel: Vulcan event. Well that seems wrong and there's a lot that gets left out of it, but then also when you inject emotion– I don't know, it's such a close cousin to bias, right? One thing that had been happening during the victim impact statement, which happens in sentencing, right? So you have the guilt or innocence phase and then this is like, “Okay, what kind of sentence are they going to get?” One thing that people have been doing is presenting these memorial videos and this gets challenged in court a lot. There's a good Jill Lepore article in the New Yorker about the Victims’ Rights Movement. She's talking about videos with 140 pictures of the victim as a child with puppies set to My Heart Will Go On. You know, just like a montage and there are companies that will do this and then I guess the other side is people are also making these for offenders. Right? So if it's like, okay, should you get the death penalty? Maybe it depends on how many cute baby photos of you there are or whether you can pay somebody $20,000 to make a sentimental video of you.
Mike: Oh my God.
Rachel: The research has shown that they don't seem to lead to harsher sentences, but there are some things that are messed up about them. Like, white victims are twice as likely as black victims to make victim impact statements. So it's, again, certain victims get heard and then also that when the jurors are asked how they feel about victim impact statements, jurors have reported that they find victim impact statements made by black victims to be less compelling than those made by white victims. So again, when you allow emotion into the courtroom, that's just like bias rushes in alongside of it.
Sarah: Right.
Mike: Was there a misogynistic tone to the original objections to victim impact statements? Kind of like, “Well, we don't want women in our courtrooms talking about their emotions after assault.” Was that part of the tone or was it actually bringing emotion?
Rachel: Totally.
Mike: Okay.
Sarah: Is that your judge voice?
Mike: I only have one voice. I'm sorry.
Rachel: Again, like, there were failures and gaps in the justice system to deal with victims and this movement rushed in and exploited and made use of those real failures. Maybe if we had done a better job of creating a justice system that didn't make people feel doubly victimized or unheard then there wouldn't have been this massive reaction, which we're still living with.
Sarah: Well, you talk about this in your book too, this thing of, you know, if you're like, “I'm doing something for this murdered person,” then if you can sell someone on the response of, “Oh my God, that murder is so terrible. I feel so sad about it.” And then implicitly it's like, “Okay, if you're sad about this murder, then you agree to this policy I'm selling,” then you can sell literally anything.
Rachel: Because we empathize with somebody and then how do you say no to somebody who you just have had this really emotional moment with? But so, I guess to answer your question, she starts advocating and everybody else in this movement, the parents of murdered children groups and a lot of Republican politicians start advocating for this thing called Proposition 8.
Sarah: Which is the original Prop 8.
Rachel: I know. You’d think they would just like, there are enough numbers. There are infinite numbers. So in 1982, Proposition 8 – let's see, I read this article in a law review, “Both in quantitative and qualitative terms, Proposition 8 made some of the most fundamental changes ever seen in the handling of criminal cases in California and created virtually overnight significant rights for victims of crime.”
Mike: What were the rights specifically? What did it change?
Rachel: And so they're like a lot of little things. Like, it defines insanity much more strictly. One of the most important things is that it starts this movement to remove or limit judicial discretion in sentencing. So that's where you start getting–
Mike: Oh, mandatory minimums!
Rachel: Mandatory minimums, three strikes laws, all of these things where it's like the judge shouldn't be allowed to make a decision. It's like we're going to have these locked in escalating punishments.
Sarah: This is like we're seeing the reasons why the seventies were the last decade, really, when you could use an insanity defense or buy property in San Francisco.
Rachel: It limits, you know, juveniles ability to be tried as a juvenile. All these things that just make it harder for offenders to… So this is where we start to see this idea that victims’ rights are not about, let's have a compensation fund so if somebody gets murdered, we can give them some money for their family, some money for counseling or funeral expenses. Or we should notify victims about things. But it starts to be this, we are supporting victims. We are giving victims’ rights by being harsher on people accused of crimes.
Mike: It's also interesting because, I mean, as I came across a lot in the research for the sex offenders episode, there's a lot of victims that don't want to come forward against their abusers because they're afraid that they're going to get a life sentence. They're afraid that they're going to get such harsh punishment that it's like, I don't want to send my uncle or whatever to jail for the rest of his life so I'm just not going to come forward at all. And so, tell me if I'm wrong, it sounds like it keeps victims from asking for leniency or asking for an apology. I want him to publicly admit what he did, and I want nothing else. I don't need him to go to jail forever.” It seems like it's kind of taking away those voices too.
Rachel: It's interesting because in Europe, the things that have been passed under the umbrella of victim's rights have enabled more of that. Like, more kind of flexibility in sentencing and mediation if that's something that the victim is on board with. But it's exactly the opposite in the U.S. And in the U.S. the assumption is only that victims must want the harshest, most punitive, longest sentence possible. That's what “victim” gets defined as wanting.
Mike: It’s also an interesting structural thing because it also prioritizes crimes that have individual perpetrators and individual victims. Whereas something like, you know, the water had lead in it and my child is at an 8% greater risk of having a low IQ as they get older. Like, you can't really do a victim analysis statement for that, right? Like, it doesn't have the same emotional impact. So you're prioritizing crimes that have these emotional impacts, which are murders, rapes, the sort of stranger danger type crimes.
Sarah: Which is very interesting because that's exactly how media coverage of crime functions, where it's not about what actually is the threat that X demographic is most likely to encounter or what is the kind of crime we see most often in the city or what have you, but what plays the best? What do people want to hear about? What scares people? What gives them a sense of emotional connection? What cooks up into a narrative best?
Rachel: Totally.
Sarah: If it's the same rules for a trial or for the legal system as it is for TV news, then I'm not crazy about that.
Rachel: No. And also, a lot of the rhetoric that you'll find when you're reading this stuff from this era of the Victims’ Rights Movement is that testimony from experts or statistics, those are actually kind of deeply offensive, right? Because you're saying these statistics are somehow contradicting my personal– it’s this very populist reaction.
Sarah: Right.
Mike: Which is interesting because these institutions of government, law are all sort of set up with the purpose of looking at statistics and not emotion. That's the reason why we have the state as a middleman.
Sarah: And that's what it claims to do even as it is not doing it.
Mike: Right.
Sarah: Yeah.
Mike: There's a reason why we don't structure them as “I want vengeance. Let's have me, the vengeance instincts driving this process rather than what is good for society.” Like, from a public health perspective, public spending perspective – this sounds so bad when you put it like this – but it's once you put victims in the driving seat of that process, all of those concerns become secondary.
Sarah: Well, they're not in the driving seat though. They're still in the trunk, right? If your dead, no one knows what you want politically to be done about your own murder.
Rachel: Yeah.
Mike: Okay. So they have a victory in California, Prop Eight passes. What’s sort of the next political step for this movement?
Rachel: Reagan is president at this point. He founds this task force on victims of crime, which is supposed to study and make recommendations about how the federal government can approach this crisis and just talking about the emotional stakes here. So this is how the chair of that committee introduces it to, I think, the Senate, “Something insidious has happened in America. Crime has made victims of us all. awareness of its danger affects the way we think, where we live, where we go, what we buy, how we raise our children, and the quality of our lives as we age. The specter of violent crime and the knowledge that without warning any person can be attacked or crippled, robbed or killed lurks at the fringes of consciousness.”
Mike: Wow.
Sarah: Well, help me with this backpack because we have a lot to unpack.
Mike: Okay. Before we all dunk on this, which I'm looking forward to, my understanding is that crime rates were actually pretty high at this point and were rising at this point. Like, they're obviously using this for purposes that none of us are going to agree with ultimately, but there was a real statistical problem with crime at the time, no?
Rachel: That is true. That is true. But again, I think one of the things that riles me up so much about this is that throughout this report, over and over again, they use this phrase, “Innocent victims.” Innocent. Innocent. Innocent victims. It was just like they can't stop saying it and it's really hard not to read that as white victims.
Mike: Yeah.
Sarah: Yeah.
Rachel: Because when you look at the statistics actually, crime has made victims of us all. We could all be victims of crime. Like, no. Actually crime is concentrated. Crime victims are concentrated in particular areas statistically speaking. Like, young black men are the ones who are likely to be victims of crime and they're not the ones that are being talked about in this report.
Mike: Yeah.
Sarah: I don't think we've ever talked about young black men as victims of crimes in America really. It's always just an afterthought of, like, “And then there's young black men who by existing deserve to have crimes happen to them, deserve to be targeted, deserve to have violence perpetrated on their bodies.”
Mike: I'll say, with all the homeless people that I've interviewed in the last couple of years, homeless people statistically, I think it's something like fifteen times more likely to suffer an assault.
Rachel: Homeless people, sex workers, drug addicts.
Mike: Undocumented immigrants probably, because they wouldn't report the crimes.
Rachel: But these people all get excluded from this category of no, we're talking about the innocent victims. The people who it's, like, not their fault. So in one way, they want to make this idea of victimhood extremely broad because they're like, “We are all victims, whether or not anything has happened to you, you are afraid of crime and so that makes you a victim by proxy.” But at the same time, they also super narrow it and say, “Well, if it's in any way your fault, you're not an innocent victim so you don't count.”
Mike: Right.
Sarah: Let me try and say this and see if it sounds right. It's like whether you're affected by crime in America, whether you're a victim of crime, it's like… if you're like, “Well, a crime has actually happened to me, but I'm a person of color or I'm homeless or I'm a sex worker or whatever.” It’s like, “No, not you. Not you.”
Mike: “No. We mean crime-crime.”
Sarah: Yeah. And then if you’re like, “Well, I have never been affected by a crime directly. I've never had a crime perpetrated against me or anyone I know, but I'm scared of it and I live in a state of anxiety and I'm a white person.” It's like, “Yes, you. Ding.”
Mike: Yeah. It's like victims-in-waiting. So have you been reading all these old documents and just freaking out the way that we do every weekend now?
Rachel: The whole Reagan thing is so incredible. That report. Yeah. It's like wow. And it starts out… It's kind of amazing. It sort of starts out in, like, “choose your own adventure” format because it's like, you are a 50 year old woman living alone. And then it walks you through this assault and then you're assaulted by the criminal justice system that doesn't pay attention to you.
Sarah: But it's so interesting how it's like the criminal justice system will pay more attention to you by putting this person in prison for longer, whether they need to be there or not.
Rachel: Right. So that's the– when you look at the recommendations of this taskforce, some of the recommendations are not awful, right? There are, like, four recommendations for police and there are, like, law enforcement should be trained about how to talk to victims. Law enforcement should inform victims when a case is closed. If people are reporting threatening behavior to them, law enforcement should write that down and take it seriously and follow up. You know, things where you're like, “Okay, cool.” But the vast bulk of recommendations… There are four recommendations for police and then, I think, there are twelve legislative things which all go like, A, B, C, D, E, F, you know, like sub-recommendations. And there are things like “We should abolish parole. We should just get rid of parole.”
Sarah: Wow. We should have no incentives for good behavior. Just fuck that.
Rachel: It's called Truth in Sentencing or something. It's if you get sentenced to twenty years, you do twenty years.
Sarah: Which again, you're like “Truth in Sentencing. That sounds good.”
Mike: Yeah. I like truth. I like sentences.
Rachel: Yeah. Again, like, they hate this Supreme Court ruling about evidence obtained in illegal searches. They're like “No. We should just, like, get rid of that. We should– I don't even understand how they think this is going to work.” They think they should just pass a law contradicting the Supreme Court and they want to make bail higher and make bail more difficult to get.
Reading some of this victims’ rights stuff reminds me of when I was doing all this reporting on essential oils and the way that people thought that essential oils were going to cure their cancer or their child's autism or something and it was so upsetting because people had these real needs, right?
Sarah: Yeah.
Rachel: These sinister multi-level marketing companies that are exploiting people wouldn't have been able to arise if these people’s real healthcare needs were being addressed and so it's similar here where it's yes. There were these real gaps in the criminal justice system. I don't know, just the wrong people found those gaps and exploited them, and I think the real problem is that you have the stories that get told over and over again are these awful stories of interpersonal violence, but the policies that get enacted, like these mandatory minimum sentences or three strikes laws or parole denials, automatic parole denials, the majority of the cases they actually get used on are like, drug crimes, right? Like, possession crimes where there is not an interpersonal violent action. So, really heart-wrenching emotional stories have an impact that is kind of unforeseen or just not accounted for
Sarah: Or kind of in bad faith because you're like, we need this power so we can use it in this specific way. And voters are like, “Okay.” And then you’re like, great. Okay. So, whatever. I know that I said that, but I don't care. I'm going to use it for this now. I'm going to use it for prosecuting low-level drug possession offenses.
Rachel: It's just, to me, that fatal flaw really is this idea that you have victims on one side, and you have defendants, offenders, whatever on the other side. And these are completely separate groups. And that you need to give rights to one and take them away from the other when, actually, if you look at any of the demographics or statistics, victims and offenders, like, that’s a super overlapping group. A lot of people who commit crimes have themselves been victims of crimes. Right? So it doesn't have to be that way. Right? If we just were able to imagine ourselves as like, okay, I am potentially going to be the victim of a crime. I would like a system that really affords me dignity and allows me to have some sort of participation. But also, I could commit a crime. I could be accused of committing a crime. Somebody that I love or care about could be accused of committing a crime and I would like the most strong defenses there as well. You know, I could be either.” But the idea is it's like a splitting of, there's an ‘us’ and ‘them’, and I could only ever be on this side and you were on that side and it becomes this war.
Sarah: Yeah. And I would add to that, one of the things I find most stunning about Reagan's career, where when he was governor of California in the seventies when it had one of the most liberal policies in the country in terms of giving furloughs to prisoners and so on, there was a prisoner who had been furloughed or out on work-release and had committed a violent crime, maybe even a murder and the system itself was under fire and they were like, should we have work releases? Should we have furloughs? Like, maybe this is too liberal. And Ronald Reagan was like, “Listen, this is one out of a lot of people. Ultimately, it's a good system. It's economically very feasible. It's working in the long run. Let's not get carried away” and he changed his tune.
Rachel: Yeah. And this is not just under Reagan, it's under Clinton, too. Right? A lot of it is under Clinton. Like, “We've got to stop giving prisoners Pell grants. We've got to stop letting people have family visits.” Like, all this stuff where you're like, “Okay, well, how does that in any way impact the victim of a crime? Like, what if a prisoner can take a college class?” Yeah, but the thing they just say over and over again is, “Well, you killed my daughter. My daughter can't take a college class.” You know?
Mike: I am reminded constantly of when I was studying abroad in London when I was twenty-one, the biggest scandal when I was there was that a prisoner was released on furlough, bought a lottery ticket, and won.
Sarah: Are you sure that wasn't a Mike Lee movie?
Rachel: And then what happened?
Mike: And then literally Tony Blair weighed in and they were like, “We're trying to get the money removed.” I believe they passed a law that said they can't engage in any games of chance.
Sarah: Which is terrible because they can't go to the racetrack now.
Mike: And it's also, like, people pointed out that the lottery system has been around for six decades, and this is the first time that has ever happened. So, if once every 60 years a prisoner gets lucky and wins a million dollars and then goes back to jail, what is the terrible outcome there that we're trying to prevent? But it was this massive scandal.
Rachel: Yeah. It's really hard to argue against, “This person killed my daughter. They should essentially be removed from humanity and given nothing ever again”, versus “We're all humans and how we treat the least among us is reflective of us and rehabilitation is a possibility.”
Mike: And also methodologically, it sounds really fucked up to say, like, “The father of this murdered child should not have a say in the sentencing of this criminal. I'm sorry. This is what the state does. We've made a calculus based on all these other factors.”
Sarah: Although we do say that when people ask for clemency for the killers of their family members.
Rachel: I mean, I guess it's interesting. I guess the other two things that I thought we could talk about… one is the way that the victim compensation boards that a lot of these states have – this is also a relatively new idea that started in the sixties, that victims would get compensation and it didn't really catch on with the Victims’ Rights Movement. This was not super big for them because it was kind of too close to welfare. Right? The idea that the state would afford you some money for burial costs or counseling.
Sarah: Right. And it's like, you're saying that no one else can have that. So if you give this to me, is it a trick?
Rachel: Exactly. Most states have this now where there's a victim’s compensation fund so you don't have to go on Go Fund Me and they will give you a few thousand dollars to, like, make sure your murdered child can have a funeral and it's often linked to– so the one in New Jersey, which I was reading some reporting on, that pool of money comes from federal grants, but also commissary fees.
So you have this big pool of money, and the idea is you can get I think in New Jersey it's $5,000 for funeral support and up to $25,000 for other support which could include mental health counseling, but you can get some money to pay to clean up the crime scene.
Sarah: Right. Cause we don't think about all the expenses and just the basic stuff that goes with it.
Mike: So far this sounds pretty good.
Sarah: Yeah.
Mike: Or is it not?
Rachel: No, it really is. But the problem is people get denied all the time. Like, more than half of the people applying to New Jersey got denied and they have enough money. They have so much money that they were returning federal grant money back to the federal government. It’s not that they ran out of money. We’re just disqualifying people because they weren't the right kinds of victims. So in some cases that's because if you have gotten a criminal conviction or if you have a warrant outstanding, you don't qualify. There was a story of a young woman who got into a car with a guy who was driving drunk, and he crashed the car and she died and she was ruled as culpable in her own death because she got in the car with a guy who was drunk. And then there are also things like you lived with your partner and maybe you were engaged, and you had a kid together, but you weren't married and so you don't count as a victim. It's just all of these ways of not reckoning with the reality of people's lives.
Sarah: But then if you're like, “Well what's being done for victims or families of victims?” Then people can be like, “Well, look at all these prisons we have. Who can argue with that?”
Mike: I mean, it does seem really striking the extent to which a huge driver of these kinds of administrative processes is the existential fear that someone who doesn't deserve it will get money.
Sarah: Yes. Even if it’s a very small amount of money. Even if it's like $5,000 for a funeral. It's like, “Well, they weren't married. So like, at what cost?”
Mike: Yeah, totally.
Rachel: Well, it's all about who counts as deserving.
Sarah: We're running a society as if we’re casting a reality show. It's like, “Who should get compensation for major traumas?” It's like, “Well, only people we like.”
Mike: It gives the lie to the name the Victims’ Rights Movement because if it were a victims’ rights movement, you would see every victim as victims.
Sarah: Right.
Rachel: And then we're immediately looking away from the victim and looking at the offense, like, how can we punish this person? If we're talking about victims’ rights, why do we need to talk about the offender at all?
Mike: Right. I've been thinking a lot about Patty Wetterling whose son, Jacob Wetterling, was one of the original stranger danger disappearances and she was a huge victims’ rights advocate in the beginning of the sort of stranger danger panic and now she has shifted and she's now an advocate for reforming the sex offender system because she thinks that it's gone too far and it's sort of like, “Don't do this in my son's name.” There's literally a law named after her son. Are there other victims’ rights advocates, like, on the other side that are like, “We need to clean up this whole thing.”
Rachel: I mean, there was a very interesting moment. This is not a prominent person at all, but because I write about the Manson family stuff in my book and Doris Tate, Sharon Tate's mother, so she is instrumental in passing proposition eight. Proposition 8 is the law that allows victims to speak at parole hearings and Sharon Tate's mother is actually, I think, the first person maybe in the United States or maybe just in California to speak at a parole board hearing and so she, of course, is like, “I think these people should be in prison forever. I think these people are infinitely dangerous. We can never let them out,” which is fine.
But then a few years later, one of the other Manson family victims, this woman Susan LaBerge, whose mother and stepfather were murdered by the Manson family, comes to the parole board hearing and she's been writing letters to Tex Watson, one of the Manson family murderers in prison. And he has been born again and she is also a born again Christian, and she believes in his conversion. And so she uses her victim impact statement to say, “I think he should be granted leniency.” And this makes Doris Tate so mad. She thinks it's a completely inappropriate use of this right that she’s advocated for and, to me, that's such a clear indication of, there's only one right way to be a victim, and we only want to hear the voice of certain victims. And it's this punitive, tough-on-crime voice. And if it's a voice that is saying, “Actually, I kind of dissent from that,” then it's “Shut up. You're harming the victim.” Even though you yourself are a victim.
Mike: Because it's a victim impact statement. It's not a victim preference statement, right? Like, they've specifically framed it to talk about how you were impacted by the crime and impact usually connotes a negative impact. Right?
Rachel: I guess there was one other thing that, like, I don't know if you want to include this or not, but I would like to tell you about it.
Mike: Do it.
Rachel: So, much of this is happening in the eighties and the nineties, right? Like, all these crime bills that are passed. But there's this interesting resurgence of victims’ rights that's happening now. What's really fascinating to me is that a lot of it is being driven by this one guy who is super fascinating. Oh, can I do the thing where I ask you guys to Google somebody's picture?
Sarah: Yes! Oh yes, I love this thing!
Mike: Yeah, yeah, yeah.
Rachel: So Google ‘Henry Nicholas mugshot’.
Sarah: Ooh.
Mike: Ooh. Okay. What?
Rachel: Did it work?
Mike: He's got his eyes closed.
Rachel: He doesn't look good, right?
Sarah: No, he's got kind of a Nick Nolte thing happening, if we're talking about mugshots as a genre.
Rachel: Totally. So Henry Nicholas is a billionaire. He was, I think, the founder or something, he was high up at Broadcom, which is some tech component company, whatever and his younger sister was murdered, and he had one of these traumatic situations where his family was not notified that the man who murdered her was out on parole and they ran into him at the grocery store and so he has made it his cause to pass victims’ right amendments to state constitutions.
Sarah: Well, nothing like a highly motivated rich white guy to change a state's direction.
Rachel: Totally. So these are, this is Marsy's Law, which has passed in a lot of states. This is what you've probably been thinking about.
Mike: Yes. These are the ones that passed in 2018. Yeah.
Rachel: Yeah. And he has this brilliant strategy that started with, I think it was Montana, North Dakota, South Dakota. He went to a lot of these states that would allow you to pass a constitutional amendment through a ballot initiative and this is a completely one person funded campaign that is changing the constitutions of dozens of states across the country.
Sarah: What does Marsy's Law do?
Rachel: And so it does a lot of the things that these other laws have done. One of its big things is parole denial. So, up to fifteen year parole denial. You used to not be able to get denied that long before you got another hearing.
Sarah: Wow.
Rachel: It also means, like, one of its mandates is that the victim doesn't have to be interviewed by the defense. So that's one that people get really worried about. I guess the argument is “That's super traumatizing, right? Like, you're going to grill me about my rape?”
Sarah: Well, yeah. But you know, as we all learned in My Cousin Vinny, there's this thing called discovery.
Rachel: Yeah.
Sarah: So you're essentially, you know, the defense can't have adequate resources. That's too traumatic.
Rachel: Yeah, it's getting a lot of legal challenges and a lot of people… In many of these states it's opposed by both the defense lawyers association and the D.A. offices, because it's a super vaguely written law. It's written kind of from emotion, but it hasn't necessarily been vetted in all these proper ways. There's some vague language about a right to speedy proceedings and so there's a concern that it's going to speed up death penalty cases because, you know, it's traumatizing to the victim if this lingers on and on and there are all of these appeals.
Sarah: Right. So if we cut down on grounds for appeal, the victims, the victims, it's all about the victims and the victims would do better if we executed people faster and with less time for retesting of forensic evidence and so on.
Rachel: Yeah. So it's super new and it’s being challenged that he's spending his billions to push it through all these state constitutions, but the interesting thing about him, Henry Nicholas, is you could see maybe from his mugshot that he has his own pretty dramatic criminal past. There was some white collar crime stuff involving stock backdating, but those charges were all dropped and then he recently, six months ago or something, got arrested in Vegas.
So, this is kind of a funny story. He was staying at the Wynn Hotel in Las Vegas and he couldn't get in the room, and so he called security and they broke down the door and got him in. Because it was latched, I think, from the inside. And when they broke down the door, his girlfriend or whatever, the woman that he was staying in this hotel room with, was passed out on the bed with a balloon on her face, because she had been doing Nitrous and they were like, “Uhhhh”. And then there was just like drug paraphernalia everywhere. So they were, like, extremely stupid on his part and so they found heroin, methamphetamine, cocaine, and several psychedelic substances. It's just suitcases full of drugs, enough that they were investigating him for drug trafficking.
Mike: Whoa.
Rachel: And meanwhile, he's got this extremely prominent non-profit that's doing all this victim's rights, harsh-on-crime.
Mike: Yeah. It’s like, crack down on crime.
Rachel: It's so funny. His lawyer is saying stuff like, “Look at him. He's not a criminal.” And so he did recently take a plea deal that completely avoided jail time. He will do 250 hours of community service and twice monthly personal drug counseling and give a million dollars to a rehab facility in Vegas.
Mike: Oh my God.
Rachel: And so those laws are still– I think New Hampshire is the only one that didn't pass it, which is like, New Hampshire is so independent.
Sarah: Live free or die.
Rachel: Yeah, exactly. I think that's what's so scrambling about the Victims’ Rights Movement and that's why we have to, I think, be really careful as evaluators of policy and law and stories is that there are these words that we can associate with positive things. Like “victim,” right? That's something. I want to support victims.
Mike: Yeah. It sounds great.
Rachel: We have to be really careful about what gets put under that umbrella and we unfortunately have to read the fine print and read the whole statement of the proposition or whatever, because these things get weaponized. The word victim has completely been weaponized and it's a real shame.
Mike: And also another fucking nutrition label that we have to read. I mean, it's like with all of these things. It's like, oh, now I have to do the work and I have to be skeptical of anyone who wants to pass a law that’s like, “This is going to feed all the puppies.” And then it's like, oh fuck. Now I have to read this thing and you read it and it's like, “Oh, by ‘puppies’ we're talking about meth addicts and by ‘feed’ we're talking about murder. So we're just defining those things like that and…” It's like now I have to do all this work of, like, when somebody says, “I'm doing this on behalf of victims,” I now have to be like, are you though? Then get into the size eight font on these fucking laws.
Sarah: Right. And how people love to use sex trafficking now as a blanket cause for infringing on the rights of anyone it seems like lately.
Mike: Yeah. All that stuff sounds great. Right? It's fortified with like eight vitamins and minerals and then you look at it and it's like all the vitamins are mandatory minimums and the minerals are three strikes laws.
Sarah: Mandatory minerals. The thing that I feel like keeps getting revealed here is that the Victims’ Rights Movement feels like something that became co-opted by white supremacy. And if we're defining a victim in this way where it's like, well, it's not necessarily about whether you're literally a victim of crime. It's more about how you feel and how much society wants to protect you.
And also, going through and anecdotally cherry picking crimes where, like, this kind of person who represents a population that we want to keep under control ,has assaulted this kind of person who the average voter is sympathetic with. And then using that to make some argument about what's happening in society. You know, we've taken a movement that began for important reasons and in good faith and continues to advocate in good faith in many ways, for things that still need to happen and still have never happened but that also is so ripe for being co-opted and has been so thoroughly co-opted by people whose main goal is keeping things as they are and have always been.
Mike: I just think before you vote on any ballot initiative, Google it and ‘billionaire mugshot’.