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January 22, 2018

A timely example of a victim seeking sentencing leniency

In many high-profile cases, one hears about a crime victim advocating for a particularly harsh sentencing outcome.  But as I mentioned in class, there are plenty of example of a crime victim advocating for a more lenient sentencing outcome.  One notable current example appears in this new posting via the Death Penalty Information Center in a case from Texas.  Here is part of the posting:

Kent Whitaker, who survived a shooting in which his wife, Tricia and younger son, Kevin were murdered, has asked the state of Texas to spare the life of his only remaining son, Thomas “Bart” Whitaker (pictured), who was convicted and sentenced to death for their murders.  Kent Whitaker told the Austin American-Statesman, “I have seen too much killing already. I don’t want to see him executed right there in front of my eyes," he said. The petition for clemency filed on January 10 by Bart Whitaker's lawyers asks the Texas Board of Pardons and Paroles to recommend commuting his death sentence to life without parole, saying the execution — scheduled for February 22 — will “permanently compound” Kent Whitaker's suffering and grief. The petition asks the Board: “Is killing Thomas Whitaker more important than sparing Kent Whitaker?” ...

The clemency petition, Kent Whitaker wrote, "tries to correct the district attorney's over reach in pursuing the death penalty and how it will once again hurt all of the victims. For 18 months pre-trial, every victim — my wife's entire family, me and all of my family—actually begged the district attorney to accept two life sentences and spare us the horror of a trial and an eventual execution.  But we were ignored.”  Kent Whitaker writes that the clemency petition "is asking the board to acknowledge that Texas is a victim's rights state, even when the victim asks for mercy.”  

January 22, 2018 in Who decides | Permalink


I think this situation really speaks to the issues the American system has in understanding who is truly harmed by crime and deserves representation (and thus a voice) in deciding sentencing outcomes. The person most primarily harmed by this crime, Kent Whitaker, wants his son spared, yet the state has decided that killing Thomas is more important than sparing Mr. Whitaker from more pain. I'm also interested to know what the cost of the proceedings prior to the execution, along with the execution itself, are costing the State of Texas.

Many U.S. states are moving towards the so called "victim's rights" approach in criminal proceedings, but it seems to me that "victim's rights" is code for retributivism and malice in punishment. There is no doubt in my mind that what Thomas did is awful and is more than deserving of life in prison, but what good comes from killing him against the wishes of the primary victim? If Texas truly is a "victim's rights" state, it would take into account Mr. Whitaker's wishes, no doubt saving expense in the process. We saw in Ohio just this past year that "victim's rights" are important to voters, but my question is, are they defining victim's rights broadly, or are they masking their desire for draconian sentences?

My personal belief is that a victim's feelings should be taken into account, and those feelings alone should never allow for a harsher sentence, but if they support a lighter sentence, they should carry more weight. It is only natural that we should feel angry and wish harm upon the person who victimizes us, but a strong criminal justice system would not bow to this base impulse. We must be constantly aware in our actions that the system has purposes aside from punishment and affects more than just the punished criminal. I hope the Texas Board of Pardons and Paroles listens to Mr. Whitaker, but I doubt that they will.

Posted by: Grant Grissom | Jan 24, 2018 11:48:05 AM

This post, for me, perfectly exemplified the class discussion we had regarding how many different “whos” can be involved in a single criminal case. In this short example, we see the prosecutor’s choice to charge and then pursue capital punishment. The victims in this case are strongly making their opinions on the case known. Moreover, the legislature could be involved in the legislation making Texas a “victim’s rights state.” The Texas Board of Pardons and Paroles is also involved in deciding on the clemency proceeding. Lastly, the defense attorneys involved in his initial case and now in the clemency petitions are also involved.
The second relevant point this posting discussed was the amount of weight that should be given to victim’s preferences? This case exemplifies the language in the McGonagle case that “Crime victims are unrepresented at trial. The prosecutor is not their advocate; the prosecutor advocates for the Commonwealth.” If Texas had a victim impact statute of the nature in McGonagle I wonder what potential impact that would have had on the judge in this case (because the jury could not hear it)?

Posted by: MacKenzie Newberry | Jan 27, 2018 11:29:22 AM

When should victims' rights start and stop? Are victims entitled to tell the prosecution to stop prosecution? I certainly hope not because that would mean the prosecutors work for the victims, which they do not. Particularly, having a domestic violence victim say, "No, stop prosecution. He didn't beat me or our child," when she is clearly lieing, would be unjust. But, the victims should be consulted at the very least. Yet, the ultimate determination about what "justice" is remains with the prosecutor who must look to the whole not just the one.

Posted by: PSims | Jan 27, 2018 4:52:47 PM

Lots of great comments here, and those by PSims highlight the need to think about both formal/legal and informal/practical elements to this story. Formally/legally, a DV victim cannot stop a prosecution, but informally/practically lots of domestic violence goes unreported and thus unprosecuted. And even once reported, often a DV victim will not want a prosecution to go forward and the prosecutor will often then have a very hard time securing a conviction. A number of jurisdictions instituted mandatory prosecution policies in the 1980s and 1990s to try to prevent police and prosecutors from being too dismissive of DV victim, but subsequent research suggested that rigid rules about prosecution may often do more harm than good if/when a victim was resistant to a prosecution going forward.

Posted by: Doug B | Jan 27, 2018 6:05:58 PM

This case in Texas throws a wrench into my thoughts about a victim-centric sentencing system. The family of the victim, especially the mother, in The Penalty touched on the consistent thoughts that keep running through my head.

It is impossible to walk in any of those family members’ shoes. It is impossible to imagine how that mother feels when she wakes up in the morning. The family is and will continuously go through a personal grieving process I cannot pretend to know.

The family in The Penalty went through and continues to go through the emotional ringer. While I cannot truly understand what that family continues to go through to this day, it was eye opening to see the emotional transition of the mother. Even though I cannot put myself truly in her shoes, it was not difficult to understand the mother’s transition of wanting the man who killed her daughter dead to just wanting the whole ordeal behind the family, without a death sentence.

You hear it and see it every time in the comments of news articles of atrocious crimes such as murder and rape: “that person deserves to die and rot in hell.” I was not surprised to hear the mother’s vehement and angry statement of wanting him dead. I was also not surprised to see time extinguishing part of that fire.

There are two things that her transition touches on with the proposal a victim-centric sentencing system: (1) unwilling and hesitant victim involvement and (2) regret. When a family is grieving the loss of a loved one, a strong part of me is against pushing them into the legal process even more.

While it may be certainly cathartic for many of Larry Nasser’s victims to confront him in the courtroom, there are certainly unwilling survivors and victims. There are the more random and less personal crimes, where confronting a random face may be the opposite of cathartic. I cannot help but think of the personal victim stories I know where the individual did not want anything to do with the process. Even though both individuals were familiar with the legal system, neither wanted anything to do with the process. There is something that resonates with the phrase, “I want to forgive you, but I want to forget you.”

The last question that really popped up in The Penalty was what should, if anything, the victim know about the defendant. It is easy to harbor hatred when you see and hear about a crime. It becomes more and more complicated when you start revealing the layers of the accused. It was more difficult to villianize the defendant when you learned about his low IQ and difficult upbringing. Ignorance may be bliss, especially with anger. When you start revealing different layers of the story, it is often difficult to hang onto anger.

With so many anecdotes, I do not personally know how I feel about a victim-centric sentencing system. The considerations are countless, as shown through this Texas case. The considerations also continue when you start thinking about the accused. My consistent concern for the victim’s family remains. I am concerned there is the chance of leaving a survivor or victim’s family with more pain and uncertainty by making them an integral cog in the wheel of our justice system. I think it should certainly be a factor, as shown through the Texas and The Penalty case, but I am just generally wary and left with these floating questions.

Posted by: Maggie O | Jan 29, 2018 10:50:00 PM

I strongly agree with Maggie on how this story affects and confuses my view of victim centric sentencing. Here, Kent Whitaker, father and wife to the murder victims, pleaded for sentencing leniency. However, victims do not always plead for leniency.

I cannot begin to understand what families of murder victims or rape victims feel after such a tragedy. Earlier today, the father of three Nassar victims pleaded with the Judge to give him 5 minutes in a locked room with Nassar, and when she said no, he charged at Nassar. Hoping to see Nassar get punched in the face, I decided to check out the video. In a truly heartbreaking video, the father was subdued by police officers as he charged at Nassar. Like I said, I cannot begin to understand this man's pain, and I certainly do not blame him for doing what he did. However, this just shows another extreme of victim centric sentencing. This man would love to quite literally beat Nassar to death. There may be others in the Nassar case who would like to someday forgive him. In a case such as Nassar's, where there are well over 100 victims (not even counting the loved ones affected by the tragedy), there will be plenty of different views from the victims on how Nassar should be sentenced. This illustrates the problems with victim centric sentencing. I certainly think that victims' voices should be heard, but they should not be the ultimate decider. Judges should weigh victim impact statements in sentencing decisions, but these should not be determinative.

Posted by: Jack Meadows | Feb 2, 2018 1:05:06 PM

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