The Cassell Doctrine of Cowardice

The world of carceral feminism is a frustrating one: the movement for rape victims to be treated with respect has lots of cross-over with the liberal project in general, but you can easily imagine early feminist allies like Alan Dershowitz standing aghast as their fellow travelers walked down the path of mass incarceration apologia. You could say something similar about the world of federal judges. Though there was a period when being a federal district court judge essentially meant being on a John Birch Society watchlist, the right-wing fever dream of activist federal judges more often looks like a cabal of former prosecutors with a less-than-exemplary focus on civil liberties. These federal judges, in the conspiracy-addled minds of Americans, are part of the same hypocrisy as the Harvard professors who hung around with Jeffery Epstein long after his evil, sexually depraved pyramid scheme came to light.

And there is one man who represents the despicable intersection of “progressive” incarceration freaks, the federal judiciary, and the Epstein hangers-on: Paul Cassell. Some background on this polyp: Cassell is a former federal district court judge, and is now a practicing attorney who has represented Virginia Giuffre in various lawsuits concerning Epstein. Paul teaches law at the University of Utah School of Law, which is one more reason to be skeptical when he says anything at all about the law outside the classroom. He is also enjoying a new and flattering title that even his ideological opponents seem ready to use: victim-rights scholar. You see, Paul has some new and exciting ideas about victim’s rights; namely, Paul feels that when victims are unhappy about the rights of criminal defendants, it is the victims’ right to nullify the defendants’ rights.

“But Brennan,” you gasp, “surely that’s an exaggeration. I mean, he may be more conservative on this than you’d like, but ‘nullify?’ Get a grip, man.” I feel you, and I complain about these types of claims too often to not prove it to you. In 2017, Cassell advocated for Florida to adopt Marsy’s Law, a uniform state constitutional amendment that would create a sort of bill of rights for crime victims. Other than the obvious problem of calling someone a “victim” before a conviction, maybe it would be good for alleged victims to have some support. I know I get mad enough when my dentist doesn’t call me back on time, and just imagine trying to get prosecutors to give you any information at all about the case that may be the most significant event in your life. But the version of that law that passed in Florida in 2018, and which Cassell subsequently praised, went much farther than that. One part of this bill, something Cassell thinks is just peachy, is the right of (alleged) victims to be heard at certain stages of court proceedings. In other states, these stages include sentencing, parole hearings, and other post-conviction parts of the process. But in Florida, as Cassell describes, this “broad provision covers any decision to release on bail or other form of pre-trial release.” Quick as he is to note that this is not a veto power, he also obfuscates the extremely concerning sea change this represents for pre-trial release.

If you don’t practice criminal law (or if you do, but are a prosecutor) it may surprise you to learn that the defendant’s alleged dangerousness is a big, fat zero when it comes to being released pending trial. The purpose of bail is now and has always been to secure the attendance of the defendant at trial. Many of us have wondered with increasing volume how paying a non-refundable fee to a bondsman makes anyone more likely to appear at trial (and some of us have pointed out that it doesn’t, but it does privatize the duty of the police to apprehend bail jumpers and therefore serves the dual functions of saving counties money and allowing police to continue to be lazy). But still, we have a surety bond system in most of this country, and at least we’ve for the most part been dealing with enumerated factors that a judge is to consider in determining whether the defendant will appear at trial. But now in Florida, a(n alleged) victim is given a right to weigh in on bond. Consider what that means. The right is not to weigh in if they have information relevant to the defendant’s attendance at trial. It is not limited to that historical function of bail. This law backdoors the factor that judges have always been secretly using: how scared they are of what the defendant is alleged to have done. That is the only thing that is universal to all alleged victims: they claim that something bad was done to them, and this son of a bitch is the one who did it. Perhaps. But this son of a bitch is also presumed innocent, and if the judge makes his decision even partially on the basis that he believes the alleged victim, he is concluding that the man is guilty before he has been convicted. Maybe you think that’s a good thing. If so, I encourage you to voice your opinion in the comments to this post, so that I may laugh at you.

It gets worse. Cassell goes on to applaud the part of the new Florida law entitling (alleged) victims to proceedings free from unreasonable delay. Calling this right analogous to the sixth amendment right to speedy trial, he notes that (alleged) victims can suffer from PTSD and other disorders, and that a prolonged criminal proceeding can contribute to their distress. I sympathize. But here is where I must remind Mr. Cassell (I’m not calling him “judge,” because he isn’t one anymore, and I don’t respect him), that the esteemed “victim-rights scholar” misses one of those little, important details of constitutional law that the ideologically motivated are so prone to skip. Our federal constitution, and state constitutions as well, generally enumerate what are often called “negative rights.” These are rights against some kind of treatment, and are often contrasted with “positive rights,” or rights to receive some kind of treatment. Take the right to assistance of an attorney, for instance. There is no federal constitutional right to just have an attorney provided to you; if you haven’t been accused of a crime, no one has to give you a lawyer. But the state cannot constitutionally convict you or hold you in prison after conviction if your lawyer did not provide effective assistance. This is a right against the government: if they are going to prosecute you, they have to make sure you get a fair shake (in theory). A positive right would be something like “everyone is entitled to free internet access,” or “the government has to give everyone a universal basic income.” The right to speedy trial in the sixth amendment is a negative right: it protects you from the government accusing you of a crime and then not giving you an opportunity to clear your name. This new right is a positive one: it doesn’t protect you against any action the government may take, it simply says that the government has to give you something, namely, a speedy resolution to someone else’s criminal trial. So this right is not theoretically similar to a sixth amendment speedy trial right, and more to the point, a right always implies the secondary right of waiver. A defendant can waive his speedy trial right, and often does when he believes that he has more to gain from giving his attorneys more time to do their jobs. This new (alleged) victims’ right makes the defendants’ right to waive speedy trial a nullity, unless the (alleged) victim is gracious or lazy.

And what shape does this right take? Well, as Paul tells us, a prosecutor files a speedy trial demand (just typing that made my head hurt), and then the judge has to have a conference call with the attorneys within fifteen days. Afterwards, the judge must either set a trial date within sixty days of the call, or make specific, written findings of fact justifying a further delay. If you’ve ever dealt with an underage sex case before, you know the drill here. The judge, caught between doing his job and setting a trial date, is going to set a trial date. Now surely there will be times when the judge will enter those written findings. Maybe the state’s attorney moves too quickly in filing the demand, maybe the judge is actually good, and maybe there are extraordinary circumstances justifying a delay. But as an attorney who has struggled in the past to make judges understand that a death penalty trial is a two-week affair at minimum, and involves significant investigation and pretrial work, I’m sure this will lead to hasty trials, and more death sentences.

Other parts of this law don’t seem so bad at first glance: one part of it requires the state to inform the (now no longer alleged) victim when the defendant is released or escapes from custody. It’s hard to see how that could hurt the defendant, and it is easy to see how it could be beneficial to the victim. But other parts are hard to square with a liberal concern for the rights of defendants. For instance, one part of this law entitles (alleged) victims to both “fairness” and “due process.” Sounds banal enough, even inoffensive. The problem though is that a body of law and commentary has built up around Marsy’s Law that defines “fairness” as co-extensive with a defendant’s right to due process. Now, it should be noted that the right to due process does not exist in a vacuum, but instead applies when a person is deprived of “life, liberty or property.” Giving the defendant due process makes sense: any criminal case threatens his liberty, many threaten his property, and a few even threaten his life. You can’t take those away without giving him due process. But what is the (alleged) victim’s risk? The government is not threatening his life, liberty, or property. If the government proceeds quickly, shoddily, conscientiously, or in any other way, it will not take away the victim’s life, liberty, or property. The only exception to this I can possibly imagine is the unfortunate use by the state of material witness warrants to hold alleged victims in jail pending trial, to ensure their appearance. But you could end that practice just by outlawing it specifically, so why a general “due process” right is necessary or helpful eludes me.

What is more, it is clear that under this law, (alleged) victims get more rights than defendants do. Under the Florida version, both the (alleged) victim and the defendant get due process, but the (alleged) victim also gets “fairness,” a right not mentioned in any constitution of which I am aware. Even Ol’ Paul recognizes this, as he explicitly states: “In Florida, victims are promised a right to ‘fairness’ as well as a right to ‘due process,’ implying that fairness must be broadly construed to extend beyond due process.” Maybe you think it is good that a person whose liberty is not at issue in a criminal case to have more rights than the person in jeopardy, and for those rights to eclipse those of the defendant’s. If so, please comment, for the reason described above.

The Florida law also has other provisions, including one defining the term “victim,” and making sure that alleged perpetrators are excluded from that definition. I guess that’s fine, though I do bristle at Paul’s characterization that this “ensures that someone who is criminally culpable cannot attempt to take advantage of” these protections.

But Paul doesn’t stop at state constitutions, and why would he? After all, the defense bar can always argue that, under the federal constitution, these state constitutional provisions are unenforceable. Well, for starters, Paul has been trying to push his inane project in federal court as well, using the time-honored tactic of attacking an extremely unpopular defendant to pave the way for the rest of us. When a federal district court ruled that, yes, it violated the federal Crime Victims’ Rights Act for Alex Acosta et al. to conspire with Jeffrey Epstein in a famously strange non-prosecution agreement, Paul didn’t just want damages, but to rescind the agreement itself. Keep in mind what this means: Paul wants you to be able to reach an agreement with the government, to actually serve jail time as a result, and then for a later lawsuit to which you are not a party to make that agreement a nullity and reopen your criminal case. Yes, Epstein was a sex criminal of titanic proportions, but this is how it always works: set a precedent with an incendiary case, then bludgeon everyone else. Paul’s project is to make it even easier for the government to lock you up and throw away the key; do not lose sight of that just because he holds up the Charles Ponzi of sex crimes as the example.

As Paul has shown time and again, often through his own advocacy, he ultimately wants to make these changes through the federal constitution; one way would be to get the Supreme Court to rule that it is constitutional to deny bail in sex crime cases when proof is “evident,” or the “presumption is great.” Since bail, except for rare appeal bonds, only applies before conviction and therefore the presumption is always in favor of innocence, his argument is dead on arrival. However, he isn’t as dumb as he hopes you are; he knows that his project ultimately hinges on his ability to amend the U.S. constitution. Once we get rid of that pesky bill of rights for defendants, then we can get around to making one for the people who actually deserve it. That’s how rights work, right?

This is the secret doctrine of fear. This is how you get everyone under the thumb of the state: by combining the (undeserved) prestige of federal judges, the (credulous) outrage towards those accused of crimes, the (hysterical) proclamations that violent criminals and sex fiends are an epidemic, and telling everyone this is nothing more than a necessary fix for how we treat (alleged) victims. Give up your own rights if you like; when you get accused of a crime, tell your lawyers to make sure the person who accused you is comfortable. Make that decision when you’ve got some skin in the game, at the very least. Paul counts on us being more afraid of crime than enamored of our freedom. We can avoid playing into his hands by not being a nation of goddamn cowards; anyone want to bet what the odds are of that?