Kathryn testified that she lived in constant fear of Gary Rawlings.
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Indeed, she was afraid even to testify as he sat there in the courtroom. Harriett read a prepared statement, arguing that paranoid schizophrenia can never be cured, that Rawlings needed to be carefully monitored for the rest of his life, and that without medical supervision he posed a threat to himself and to other people. She asked the court to keep him institutionalized. Judge Roberts denied Rawlings a conditional release, but asked the Smiths to face some unpleasant facts: Rawlings had a legal right to keep applying for release.
If he remained free of delusions, made no threats, and committed no violent acts, it was just a matter of time before he left the mental hospital. Rawlings was granted the conditional release, though not under the terms he had requested. He was limited to day passes in St. Joseph under the supervision of his father.
Al and Harriett felt profoundly betrayed, not only by this judge but by the entire criminal-justice system. The Jackson County Prosecutor's Office, they felt, had at important times ignored and then misled them. The Missouri Department of Mental Health was now treating them with condescension, as though they had no right to interfere in this case.
Gary Rawlings had never been in touch with the Smiths to express remorse. Nobody from the Rawlings family had attended Terri's funeral or sent condolences. Just three and a half years after Terri's death her murderer would be enjoying day passes with his father. In the eyes of the law no crime had been committed against the Smith family; a crime had been committed against the state.
Somehow the world had turned upside-down. Everyone seemed deeply concerned about the murderer and his rights. The victims of murder and their loved ones, Al and Harriett now believed, did not have any rights. In many societies throughout history a murder was avenged by the victim's family. If the killer's family offered resistance, the result was a blood feud—a vendetta—that might last for generations.
As societies became more prosperous and more settled, they gained a strong incentive to resolve such conflicts peaceably.
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The victim's clan and the murderer's clan were encouraged to negotiate an equitable solution. Tribal elders served as mediators. If negotiations broke down, the blood feud resumed. The murderer's clan was responsible for carrying out the settlement—for paying any fines and for ensuring good behavior in the future.
A murderer who violated the terms of an agreement might be killed by his or her own family in order to keep the peace. Punishments for murder varied among tribes. In Morocco the Berbers forced the murderer into exile, although the victim's family might later permit his return. In California the Yurok Indians forced the murderer to compensate the victim's family; payment might include strings of seashells, red obsidian, a woodpecker-scalp headband, and a daughter. In East Africa the Jolou often required not only the death of a man's murderer but also the impregnation by a member of the victim's clan of a woman from the murderer's clan, so that the ghost of the victim might have a wife and children.
A murderer's obligation to the victim's family, the need to appease the victim's ghost, and the threat of divine retribution are themes occurring so often in so many cultures that they seem to express some fundamental human loathing for murder and demand for justice. Under Anglo-Saxon law a murderer paid a mandatory fine, called the wergeld, to the victim's family. The exact amount of the wergeld was determined through an elaborate calculation involving the social status of the victim.
Everyone's life had a price, eventually codified in the Dooms of Alfred, a ninth-century handbook of criminal fines. If a murderer failed to pay the wergeld within a year, he or she was deemed an outlaw—a person at war with the community, who could legally be killed by anyone.
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In addition to paying the victim's family, the murderer had to pay a fine, called the wite, to the local nobleman or to the King. By the twelfth century the wite had grown so much larger than the wergeld that the nobility took the murderer's entire payment, usurping the monetary claims of the victim's family. The ancient relationship between the murderer's clan and the victim's clan was erased.
A murder was now considered a breach of "the King's peace"—a crime against the monarchy. The victim's family no longer had a protected legal status, or a right to compensation, or any authority to determine the murderer's punishment. The Founding Fathers had little reason to be concerned about the legal status of crime victims and their families.
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As the criminologist William F. McDonald has noted, the machinery of law enforcement in Colonial America functioned without any police forces or public prosecutors. A private citizen could investigate a crime, obtain an arrest, and then hire an attorney to write an indictment and prosecute the case.
In the absence of detectives, "thief-takers" pursued criminals for a bounty or a reward. Men were often obliged to go after a murderer; a New York law required them to be "ready and armed and accoutred" for the job. This reliance on private prosecutions undoubtedly favored the rich, but it also placed the victim at the heart of the criminal-justice system.
The authors of the Constitution, having recently battled the arbitrary power of the British monarchy, recognized the need to protect the rights of the accused. At the time, the rights of crime victims hardly seemed endangered. The rise of American cities in the nineteenth century was accompanied by the development of police forces, prosecutors' offices, and departments of correction. Power to enforce the law was transferred from ordinary citizens to professionals.
The state or federal government became the offended party in a criminal act and also the recipient of any fines. Crime victims were relegated to the sidelines, valued mainly for their testimony in court. The growing interest in rehabilitation as a correctional goal placed even greater emphasis on the criminal. Theorists strove to uncover the social forces responsible for crime, and penologists experimented with humane methods of reform. An individual victim's plight seemed less important in the grand scheme when a crime was not only committed against society but caused by it as well.
Von Hentig was a German criminologist living in Kansas City. His work proved influential, helping to launch a new academic discipline: "victimology. Von Hentig argued that murder victims sometimes caused their own deaths, certain women encouraged rape, a large number of incest victims were willing participants, and "the cupidity of Negroes" tended to attract confidence men and swindlers. During the s the English penal reformer Margery Fry revived the long-forgotten idea that criminals should compensate their victims.
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The payment of restitution, Fry believed, would be of great moral benefit to the criminal; the victim's gain, though desirable, was of secondary concern. Fry later became a champion of state compensation for crime victims, and compensation schemes influenced by her views were established in England, New Zealand, and California. The first federal studies of crime victims in the United States were conducted in the late s.
They measured how many crimes were going unreported, and the federal programs based on them were designed to encourage victims to testify in court. The "victims'-rights movement" began largely among feminists in the early s, with the opening of the first rape-crisis centers. Outrage at the mistreatment of rape victims soon led to a reappraisal of how the criminal-justice system treated all crime victims.
A grassroots movement in behalf of victims' rights attracted support from unlikely allies: women's groups and law-and-order Republicans. Its report condemned the treatment of victims by the criminal-justice system and called for a constitutional amendment on victims' rights.
Congress passed the Victims of Crime Act in , using revenues from bail forfeitures and criminal fines to subsidize state programs for crime victims. Prosecutors began to hire victims' advocates; crisis centers for crime victims were opened; and a number of states amended their constitutions to protect victims' rights. The rights being demanded by crime victims and the families of murder victims were hardly revolutionary.