Monday, November 25, 2019
Bruce A. Green and Rebecca Roiphe (Fordham University School of Law and New York Law School) have posted Punishment Without Process: 'Victim Impact' Proceedings for Dead Defendants (FLR Online, 2019) on SSRN. Here is the abstract:
After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do so here, where the defendant was dead and there were no contested issues of law or fact that the victims input might effect. The article concludes by discussing how the #MeToo movement may have effected the judges in these two cases and cautions that social movements like this one ought not to dictate courtroom procedures that are crafted to uphold constitutional rights and principles.