April 3, 2024

Beyond “Two Sides”: Reframing the Discourse of Criminal Justice

Meg Garvin

Last month, I was engaged in an email discussion about how trauma presents in criminal justice when a really intelligent criminal law professor and practitioner wrote something to the effect of “That’s really interesting; I would encourage both sides to learn about that.” I paused before responding. I knew what she meant when she typed “both sides”. She meant the prosecution and defense. I also knew that she didn’t mean any disrespect to me personally. But I was in the conversation. I am a victims’ rights attorney who works with and represents victims on their rights in criminal cases. I am a law professor who teaches Victims in Criminal Procedure. How was it that even when I was in the proverbial room, victims who are legal participants with enforceable rights were not part of the conversation?

Cultural and discursive norms are interrelated. To allow the conversation to continue unchallenged within the traditional framing of “the two sides” – the prosecution and the defense – allows the culture of ignoring victims and their rights to continue. It operates to undermine decades of law reform designed to recognize the victim as an independent legal participant. To create the normative change in criminal justice we are hoping for we must challenge the false dichotomy of “both sides” every time.

So I responded. Politely, I hope, with educating.

Victims of crimes are not mere witnesses to a crime or passive observers of the legal process; they are persons with legal rights often of constitutional magnitude. While victims’ specific legal rights vary by jurisdiction generally they include the rights to be informed about their rights, to be notified of key proceedings, to be present and heard when their rights are implicated, and to privacy and restitution. At the federal level, these rights are enshrined in the Federal Crime Victims’ Rights Act (18 USC 3771). Many states have enacted constitutional amendments and all states have passed statutes to bolster victims’ participatory role in the system. These rights have been leveraged by victims, often through counsel, to ensure meaningful right to confer before a plea deal is finalized; undo sentencing proceedings that occurred in violation of these rights; quash subpoenas for and searches of their private information and homes; secure technological accommodations to ensure they can be present; and so much more.

The pursuit of justice is not a zero-sum game where the rights of victims are pitted against those of the accused. Rather, the pursuit of justice requires acknowledging the rights and perspectives of all – victims, defendants, and society at large – if we are to strive toward a more equitable and effective system of justice.

To get there we must start rejecting the discourse of “the two sides”. We need to ensure the human beings impacted (victim and accused) and the community are each independent in the conversation. So next time any of us hear “both sides”, let’s agree to jump in!