Bloodied But Unbowed

It was almost impossible not to be moved by the testimony in Judge Donald Belfi's courtroom last week, but Colin Ferguson, whose main accomplishment in life has been to show how much suffering one man with a gun can inflict in three minutes, seemed to pull it off. His own court-appointed lawyer wept quietly as Joyce Gorycki read a statement by her 11-year-old daughter, Karen: Karen's father, James, was one of six people Ferguson shot to death aboard a Long Island Rail Road commuter train on Dec. 7, 1993. Through it all the defendant maintained the creepy detachment he had shown during the month-long trial, moved to tears of neither pity nor remorse. Nor did he flinch a day later, when Belfi sentenced him to 200 years in prison. But the spectators, including relatives of the dead victims and some of the 19 wounded, were, not so reticent; they burst into applause.

In our imperfect world, we can never have perfect justice. Belfi said he regretted that he could not sentence Ferguson to death, although even if he could, Ferguson killed six times and can die only once. The victims may have their own ideas; Robert Giugliano, a burly 39-year-old contractor who was shot in the chest by Ferguson but survived, shook his fist at the unperturbed defendant and vowed that in five minutes alone with him he could teach him the meaning of suffering. Most New Yorkers seemed to believe that Ferguson got at least what he deserved, but many, were surprised at the way his sentence was arrived at. Never before has such a parade of victims 15, including the wounded, relatives of the dead victims and two people who were aboard the train Ferguson terrorized but wern't shot--come before a court to ask for vengeance.

And while the testimonies may not have had much of an impact on Ferguson (who clung to his bizarre assertion that he was framed, despite being captured at the scene by three passengers), they did wonders for the victims themselves. "I had a much lighter heart" after speaking, says Carolyn McCarthy, whose husband and son were both shot by Ferguson. The son, Kevin, spoke too; he survived but suffered permanent brain damage. "The pain in our lives has not changed dramatically," Carolyn concluded. "but I felt really good."

Victims find sentencing pleas empowering," says Abraham Goldstein, Sterling Professor of Law at Yale. Standing before the now impotent defendant, they experience a reversal of the humiliation and helplessness they felt when he attacked them. Atter weeks of staring at the back of Ferguson's head during the trial, Carolyn McCarthy finally got to face him, and her fear of him was gone. "He didn't have the gun anymore," she says. "He was nothing . . . a pathetic person." Giugliano was one of 15 victims who identified Ferguson at the trial, and because Ferguson acted as his own lawyer, Giugliano confronted him directly from the stand. "I was glad I had that opportunity," he said. "I went through 50 therapy sessions and none did what this one chance to testify did."

Until fairly recently, crime victims rarely spoke for themselves in court -unless, like Giugliano, they were called as witnesses. The parents of a murdered child were granted only the same abstract interest injustice as every other citizen, represented collectively by the State. The writer Bruce Shapiro, who survived a savage knife attack by an apparently deranged man last summer, describes in the current Nation how he went from being the center of concern to an outsider as soon as the formal prosecution began. ". . . [It] became his case [the defendant's], not mine. I experienced an overnight sense of marginalization, a feeling of helplessness bordering on irrelevance."

And as many victims discover, in practice the State's interest in a given case may or may not coincide with theirs. Prosecutors in most big cities offer plea bargains to the great majority of defendants in order to save the expense of a trial, or because their case is shaky, or to get the defendant to testify in another case they consider more important. The public interest may be served by letting mob informer Sammy (The Bull) Gravano out of jail after only 11 months in exchange for his testimony against John Gotti, but how would you feel if you were the spouse of one of the 19 people Gravano admitted killing?

As crime, and therefore plea bargains, exploded in the 1970s, a "victims' rights" movement began to demand the right to be heard in court. A 1982 presidential Task Force on Crime Victims proposed revising the Sixth Amendment (which gives defendants the right to a speedy trial and to confront witnesses) to also guarantee victims' rights to be "present and heard at all critical stages of judicial proceedings." Although that was never seriously entertained, at least 18 states have incorporated some version of this "right of allocution" into their own constitutions. Almost every state now has statute or case law allowing victims to be heard at sentencing.

The practice, though, raises the mildly disturbing question of how much weight judges ought to give victims' statements. Ferguson caused immense suffering and grief to the parents, spouses and children of his victims. But-bearing in mind that he chose his victims at random-should he therefore be punished more severely than if he had chanced to shoot only despised and miserable loners? Punishment, says the well-known legal scholar Yale Kamisar of the University of Michigan Law School, "ought to turn on the reprehensibility of the crime, the criminal and his prior record. The persuasiveness of the victim's surviving relatives should have nothing to do with the sentence." "Victims are important," agrees John Kip Cornwell, assistant professor of law at Seton Hall University. "But it's a disturbing trend if they become a proxy for the rest of society."

The U.S. Supreme Court has ruled on one aspect of the issue, holding in Payne v. Tennessee (1991) that judges could take victim impact into account in sentencing a murderer. In any case, the National Organization for Victim Assistance, a victims' rights group formed in 1975, says it has seen no evidence that statements by victims at sentencing or other times make any statistical difference in the sentences actually handed down by judges.

John Stein, the victim-assistance group's deputy director, spoke himself at the trial of a man who killed Stein's cousin a few years ago; he describes it as "an existential act, done for its own end, not to influence the judge ... to express hatred for what [the defendant] had done, and hatred for him. Of all the various kinds of punishment we can inflict on any one offender," he adds, "the one they most deserve is the rage of the victims they have hurt. Ferguson earned that."

Yes, surely he did, and much more besides. Still, the cheers at his sentencing ring uncomfortably on some people's ears, even toughminded scholars like Columbia's George P. Fletcher, author of a new book on victims' rights, "With Justice for Some." Fletcher points out that if Ferguson had held off his rampage until later this year, when New York's capital-punishment law takes effect, the judge could indeed have sentenced him to death. "Asking for someone to be killed is very different from asking them to be put in jail. Imagine if this had been a death-penalty case; the victims now so articulate and poetic would be saying, "I want to see you fry'." That may not be strictly true in this case - Carolyn McCarthy, who opposes the death penalty herself, says she believes the six families were split down the middle on the question but Fletcher is surely right in suggesting we proceed cautiously down the road toward "empowering" victims. Otherwise we could just give Giugliano his five minutes with Ferguson and be done with it. But then we wouldn't need courts at all.

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