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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 05:13 PM
Original message
*Picks up DU... SLAP, SLAP, wake up!*
You all know what a danger BushCo is. You know what he is trying to do to the Constitution, the Bill of Rights and habeas corpus. Not to mention privacy and spying on us. Some here even call him a fascist. Whether a fascist or not, we pretty much agree that he is dangerous to our freedom and sense of what America is all about.

But do you know or care that the same thing is covertly going on right here inside the country and has been? BushCo didn't pull this bullshit out of a hat. He thought Americans would support his unlimited power because we condoned other loses to the Bill of Rights and habeas corpus. Why care about a bunch of terrorists and their rights?

In fact, the greatest surrender had to wait until BushCo was president:

At that point, the amendment was within a few votes of passage in the Senate; the main stumbling block was opposition from the Clinton administration, which had endorsed the amendment in principle but had doubts about its language. The Justice Department sent the amendment's backers a list of four changes it required, three of which the coalition was willing to concede. The deal-killer, however, was this line proposed by the administration: "Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution."

The amendment's supporters rejected that proposal, claiming that it would forever subordinate the rights of victims to the rights of the accused. "To put that language in would have perpetuated the very problem we were trying to solve," says Cassell. They proposed adding yet another line: "In cases of conflict, the rights of the accused or convicted offender and the victim shall be reasonably balanced." But the Justice Department refused to accept that language, and senators Kyl and Feinstein withdrew the amendment from consideration until next year.

please read it all: http://www.prospect.org/web/page.ww?section=root&name=V...


Does this mean Clinton's Justic Dept. was "soft on crime" or anti-victim's rights? Of course not. We all agree that victim's should have the right to a voice and respect of that voice, and should have the right to protection. Who could be against that?

But Clinton knew about the vast rightwing conspiracy. He knew that Cassell was a wingnut lunatic fighting for a police state against the Bill of Rights. He knew that Cassell was using the victim's rights movement to accomplish what he failed to accomplish through the courts: a covert subversion of the Bill of Rights. Clinton knew about The Federalist Society. It doesn't matter if Feinstein knew that or not. Clinton knew.

And BushCo, being part of that vast rightwing conspircy, had no problem leaving out "Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution."

Why? Hell, it's obvious! He think the Constitution is just a goddamn piece of paper!

Fighting for victim's rights is fine and noble, but "It is bizarre to think one can protect victims by taking away rights of criminal defendants..." Or as John Sands quotes in the Ninth Circuit Blog:

Sir Thomas: "The law, Roper, the law. I know what is legal not what is right. And I'll stick to what is legal."
Roper: "So now you'd give the Devil the benefit of law?"
Sir Thomas: "Yes. What would you do? Cut a great road through the law to get after the Devil?"
Roper: "I'd cut down every law in England to do that!"
Sir Thomas: "Oh? And when the last law was down and the Devil turned round on you, where would you hide, Roper, the laws all being flat."

I'm tellin' ya, whatever these wingnuts say they are doing, they are doing at least 95% something else.

Don't trust them no matter how good the cause.
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Straight Shooter Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 05:17 PM
Response to Original message
1. Only a vengeful society strips the rights of the accused.
Those who would strip the rights of the accused will also demand the right to declare guilt or innocence over all others, lack of evidence notwithstanding.

The devil, indeed.
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The Velveteen Ocelot Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 05:22 PM
Response to Original message
2. "A Man for All Seasons" should be required viewing in every high school...
When I started law school they showed it to us during orientation. This line has stuck with me ever since: "And when the last law was down and the Devil turned round on you, where would you hide, Roper, the laws all being flat?" And in more recent years I've used it in many arguments against the authoritarian bastards who have been trying their best to shred the Constitution. It pretty much says it all... If you take those rights away, where will you hide?
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 05:36 PM
Response to Reply #2
5. How do you explain Cassell then?
He was up for nomination for a US District Court bench in Utah. Did he fall asleep during the film? I don't get it.
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The Velveteen Ocelot Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 05:38 PM
Response to Reply #5
6. He must have. Obviously he doesn't get it. Or the Constitution, either.
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 06:44 PM
Response to Reply #6
7. Is it now Judge Cassell?
Was he appointed to the Circuit Court by BushCo or is this someone else with the same name?

The comments in the first link are enlightening:

http://sentencing.typepad.com/sentencing_law_and_policy...

Then Professor Berman seems to backpedal some:

http://sentencing.typepad.com/sentencing_law_and_policy...

Was Judge Cassell trying to set the tone in the sentencing debate with his "precedent"> (meaning, offering his own guideline)... If so, he apparently succeeded. Frankly, I don't understand the mandatory sentencing debate all that well other than...

1. judges are happy to go for higher sentences but, it seems, lower are taboo. In short, more years, good; less years, against the law.
2. The SCOTUS ruled that judges do have some discretion and the guidelines are just that: guidelines.
3. Rumors ("relevant conduct"?)not proven before a jury can no longer be used for sentence enhancement.

I think.

Kind of irrelevant to the thread except it seems Judge Cassell, if the same man, is still an activist and tried to be with this ruling.
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porphyrian Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 05:25 PM
Response to Original message
3. I'll kick that. - n/t
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Old and In the Way Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 05:30 PM
Response to Original message
4. Anyone who thinks the Republican Syndicate has our best interests
in mind is quite delusional. Changing a few words here and deleting a few phrases there...pretty soon you got yourself a dictatorship.

Impeach the Decider.
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WinkyDink Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 07:31 PM
Response to Original message
8. The key word is "ACCUSED". I.e., INNOCENT citizens have RIGHTS
Edited on Wed Nov-29-06 07:33 PM by WinkyDink
until a conviction---which MIGHT NOT EVENTUATE.

Victims have NO rights in regards to the merely ACCUSED. It is the latter who may confront his accuser, not the other way around.
Are "victims" even mentioned in the U.S. Constitution?

Bless the Clinton Administration.
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 08:57 PM
Response to Reply #8
9. Good point. If victims during trial, the defendent must be guilty.
Many do think the defendant is guilty when arrested and I guess there was a pretty good debate here on that during the Duke lacrosse fiasco. There's the rub. Whichever side someone chose there might be the side they would choose here. It's not that simple though and it doesn't have to be either/or.

I've been searching for more and LYNNE HENDERSON has been on this conservative hijacking since the beginning in 1985, when she wrote "The Wrongs of Victim's Rights," wherein she argued that it was a conservative ploy. This is a new article of hers on the Constitutional amendment:

Revisiting Victim's Rights

LYNNE HENDERSON
Indiana University School of Law - Bloomington
Utah Law Review, 1999


Abstract:
This article argues against adoption of the proposed victim's rights amendment. The first set of arguments addresses the lack of fit between claims made by proponents of the amendment and constitutional theory and practice. The second set addresses the difficulties posed by issues of legal representation under the amendment. The final part discusses the author's experience with the criminal justice system in a rape case; the story contradicts the claim that a constitutional amendment is necessary to afford victims human dignity, respect, and individual participation in cases. Discussions of the problems of identifying who properly is a victim entitled to rights under the amendment, determining what assists victims of crime, and knowing the effects of the amendment on substantive criminal law and the criminal justice process are woven into discussions of individual legal issues.

The victim's rights amendment would be unique in requiring the government to provide an indeterminate class of individuals with positive liberties and claims on government resources. There is no strong constitutional argument to support such liberties and claims. Whether examined from a social contract, majoritarian, or fundamental rights approach, none of the proponents' claims justify the amendment. Arguments that the amendment is necessary to reduce trauma or provide some form of therapy for victims are unsubstantiated and may be contradicted by what we know about trauma and recovery. Reconciling the amendment with the Bill of Rights, including the First Amendment, raises major concerns about the abrogation of long-standing individual rights against the state.

Although the victim's rights amendment does not provide for a right to counsel, the question of representation in exercising consitutional rights cannot be overlooked. The article argues that the assumption prosecutors easily can represent victims as well as the community's interests in criminal cases overlooks the many instances when victim's rights and obligations to criminal justice conflict. The use of private counsel also introduces further uncertainty in the process.

The article concludes that the amendment is not necessatry to achieve decent treatment of victims, and that we lack sufficient information and justification for the amendment.

links to download at the bottom of this page: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1732...


A lot of people think the Right hijacked what was a legitimate movement.

Victim's Rights and the Constitution: Reflections on a Bicentennial
Emilio Viano

This article examines the unfolding, activities, and successes of the victim's rights movement within the American constitutional framework of the Bill of Rights. It analyzes the general importance of "victims" as an effective political symbol and probes the connection between the victim movement and the powerful conservative forces that have dominated American life and the shaping of the criminal justice agenda during the 1980s.

It focuses in particular on the cooptation of the victim's movement by the proponents of the "crime control" model of criminal justice. It contrasts the liberal and conservative approaches. solutions, and agendas and the clashes between the rights of the accused and those of the victim. It also looks for points of convergence and working agreement. Restitution is utilized as an example of an idea and plan that could bring disparate interests together. The article dedicates considerable space to a consideration of a possible constitutional foundation for victim's rights and concludes by pointing out the inherent dangers and destructive divisiveness that can be generated by an exclusive or excessive or excessive emphasis on "rights."

http://cad.sagepub.com/cgi/content/refs/33/4/438


Would the Right do that? Hell, yes.
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 10:57 PM
Response to Reply #8
11. She says exactly what you say...
From a constitutional perspective, there is no crime until a jury unanimously agrees that the prosecution has proved beyond a reasonable doubt that this defendant committed one, or the defendant, by a plea of guilty, admits its commission. Likewise, until a crime has been proved, there is no victim.

By merely altering the characterization of the participants, the nature of the process is transformed from accusatorial to inquisitional. If there is a victim in the courtroom at the defendant's first appearance when bail is set, there must have been a crime.29 If a crime took place, it must have been committed by the man in custody, whom everyone is now referring to as the perpetrator. And, these revisions of the legal vernacular are almost benign compared to the state constitutional and state and federal legislative changes that have occurred.30

Prosecutors recognized early on how the victims' rights mantra could be used to make drastic changes in criminal law and procedure that would increase their ability to obtain convictions and death sentences, but had little to do with meeting the needs of crime victims.31 For example, two California ballot initiativesin 1982 and 1990-were passed under the victims' rights banner head that changed the rules of evidence in criminal cases, abolished the right to bail, deprived the state supreme court of the ability to interpret the state constitution in a way that was more protective of our rights than the federal constitution allowed, and eliminated the right of lawyers in criminal cases to question prospective jurors.

http://www.gtu.edu/news-events/events/lectures-and-addr...
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-29-06 10:45 PM
Response to Original message
10. MURDER VICTIMS FAMILIES FOR RECONCILIATION
STATEMENT OF AMICUS CURIAE INTEREST
Murder Victims Families for Reconciliation
(MVFR) is a victim-founded, victim-led national
organization of family members of murder victims who
oppose the death penalty. MVFR supports programs
that address the needs of victims of violence, enabling
them to heal and rebuild their lives. MVFR also
advocates for programs and policies that reduce the rate
of homicide and promote crime prevention and
alternatives to violence. MVFR includes people of a wide
variety of faiths and belief systems, and its members are
geographically, racially, and economically diverse.
MVFR works to ensure that our members,
notwithstanding their opposition to the death penalty,
are treated with equal fairness, dignity, and respect
under the victims rights laws and constitutions of the
states.

MVFR seeks to provide the court with the broader
perspective of victims views on the juvenile death
penalty. Our perspective is of murder victims survivors
who believe that the execution of 16- and 17-year-old
juveniles will not vindicate victims rights or heal their
grief, but only create more pain and loss. MVFR
members believe that their loved ones lives will not be
honored by the violation of these juveniles human
rights, but by the prevention of more killing.1

snip

By invoking victims rights in support of the death
penalty, JFAA promotes the inaccurate assumption that
all victims believe that the execution of offenders is
justice for the crime.6 Yet many victims who have
experienced the loss of a family member to murder have
strong beliefs that the death penalty is not the answer to
their loss, and in fact can create more pain in their
lives.7 MVFR members have had to confront the issue of
the death penalty directly, and have concluded, often
through a long and searching process, that execution
does not honor the memory of their loved ones, or help
to heal their own suffering. It is therefore especially
painful to them when their anguish is used in the
politics of crime control or law enforcement to add
emotional weight to support a policy that they so
profoundly oppose.8

death penalty debate? Ask them to read this: http://www.abanet.org/crimjust/juvjus/simmons/mvfr.pdf (pdf)
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Nov-30-06 12:54 PM
Response to Original message
12. The 'Justice for All' Act and abortion
'Justice for All' Act Now in Effect
By Jeralyn, Section Legislation
Posted on Sun Oct 31, 2004 at 10:31:54 AM EST
Tags: (all tags)

Peter Rose served ten years in prison for a rape DNA tests have proven he did not commit. He left jail this week amid tears from his children, relatives, friends and the law students at Golden Gate in San Francisco who worked to free him.

Congress' watered-down, lop-sided DNA testing bill went into effect Saturday. Make no mistake, it's a crime victim's bill, not an Innocence bill. However, even the paltry amount designated for DNA testing of inmate's innocence claims is better than no funding at all. Imagine if John Kerry were President instead of Bush the past three years. We would be celebrating a real legislative advance, along the lines of the original Innocence Protection Act introduced in 2001, of which he was a co-sponsor.

Here's a section by section analysis of the bill. Here's a description of the bill. Here's a timeline, from 2000 to 2004.

links at site: http://www.talkleft.com/story/2004/10/31/184/15494



I didn't know anything about the Justice for All Act until the last few days and didn't even know it passed. Nor did I know that LifeTime Telivison did a petition to get it passed and 100,000 women signed it.

Why aren't they speaking up here? There are some good, common sense sections in it. Some are questionalbe and may or may not pass Constitutional challenge, like the elmination of the statute of limitations, but others are fair and just.

The Right of course was glad for the help in pushing through a tough on crime measure, but as we know, they always have a hidden agenda. Beyond the flagrant assault on the Bill of Rights, they always have abortion in the back of their minds. There are more abortions per year than, say, rapes or robberies combined, and they honestly believe fetuses are people from conception. Now everything is in place for a fetus to have the right to an attorney, to appeal an abortion decision through the courts on behalf of the fetus, and in general to justify the claim that the fetus is a victim and deserves rights under the law just like everyone else. I wonder what those 100,000 women will say when that happens.
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Nov-30-06 01:36 PM
Response to Original message
13. What the ACLU says....
H.R. 5107 Justice for All Act: Crime Victims' Rights/DNA/Innocence Protection Acts (11/23/2004)

H.R. 5107 Justice for All Act
Crime Victims' Rights/DNA/Innocence Protection Acts

Crime Victims' Right Act

The ACLU expressed concerns to Congress that the Senate passed Crime Victims Rights Act would change some of the basic tenets of the federal criminal justice system by allowing victims to hear other witnesses testimony before they testify during a trial, allowing victims to re-litigate plea and sentencing hearings, and requiring the government to giving victims' a "right" to counsel. The House version of the Crime Victims' Rights Act addressed several of the concerns that the ACLU outlined for the House Judiciary Committee.

ACLU Concerns Regarding Crime Victims' Rights Act:
Victim/Witness Testimony

If victims who are witnesses were able to attend the whole trial their testimony would be biased after hearing other witness testimony during the case. Generally, witnesses at a trial are excluded for the proceedings so that hearing the testimony of other witness will not influence their own testimony.

How H.R. 5107 Addressed ACLU Concerns

The House bill includes an exception similar to that currently in federal law that requires the court to determine if testimony by the victim would be materially affected if the victim heard other testimony at the proceeding.

ACLU Concerns Regarding Crime Victims' Rights Act: Re-litigating proceedings in a Criminal Case.

Victims would have the right to re-open bail, plea agreements and sentencing hearings under section 3771(d)(3), which gives them the ability to seek writ of mandamus if victims believe a federal court has violated any of their "rights".

How H.R. 5107 Addressed ACLU Concerns

Section 3771(d)(5) of the legislation limits the victim's ability to reopen plea or sentencing decisions. A victim has 10 days to assert that their right to be heard in a public proceeding has been denied. In addition, in the case of a plea agreement, the accused has to plea to highest offense charged to prohibit victim from challenging the denial of their right to be heard during the plea hearing.


ACLU Concerns Regarding Crime Victims' Rights Act: Could have created a "right" to counsel for victims.

It was not clear whether the Senate version of the Crime Victims Rights Act intended to create a "right" to counsel for victims. The bill provides that when any material conflict of interest occurs between the prosecutor and the crime victim, "the prosecutor shall advise the crime victim of the conflict and take reasonable steps to direct the crime victim to the appropriate legal referral, legal assistance, or legal aid agency."

How H.R. 5107 Addressed ACLU Concerns

The legislation that will be enacted removes the language requiring a prosecutor to "take reasonable steps" to direct crime victims to a legal referral and merely obligates the prosecutor to advise victims that they can seek legal advice in regarding the "rights" included in the bill.

DNA Provisions

H.R. 5107 will significantly expand the Combined DNA Index System (CODIS) to include DNA for any federal felony as well as for any DNA collected under applicable state law. Among other things, this provision would permit the inclusion of records from states that collect DNA profiles from people who have not even been convicted of a crime. In addition, this legislation will indefinitely toll the federal statute of limitations for crimes involving DNA, except in cases of sexual abuse.

Expands the Federal DNA database

H.R.5107 will inappropriately expand the scope of persons whose DNA profiles will be collected and maintained by the federal government. Under current law, CODIS includes DNA profiles only of people convicted of serious violent federal crimes and those convicted of qualifying military and state offenses. The bill vastly expands the definition of "qualifying federal offense" to include any felony, sexual abuse crimes, crimes of violence, any attempt or conspiracy to commit the above crimes and additional qualifying military offenses.

However, the final version of H.R. 5107 excludes DNA of arrestees, who have not been indicted, from the federal database.


Eliminates The Statute Of Limitations
For Various Federal Crimes Involving DNA Evidence

Innocent people could be convicted of crimes if this bill eliminates the statute of limitations for some crimes. The bill indefinitely tolling the federal statute of limitations for crimes involving DNA, except in cases of sexual abuse. Under the bill, the statute of limitations would not begin to run until a suspects DNA is match with DNA from a crime scene.

H.R. 5107 would allow John Doe DNA indictments to be used in sexual abuse cases, however the statute of limitation will be tolled for other crimes which DNA testing implicates an unidentified person in a felony.

Innocence Protection Act Provisions

Title IV of H.R. 5107, the Innocence Protection Act (IPA), would establish a procedure in federal court to access DNA testing under certain circumstances and encourage states to provide such a process as well. The IPA would create a process by which post-conviction DNA testing would be available to people in prison after a trial for federal offenses.
The major change in H.R. 5107 from previous versions of the IPA is that it would create a rebuttal presumption that an inmate's motion for DNA testing is timely if made with in 3 years of conviction and 5 years after enactment of this law. After that time period there will be a rebuttal presumption against the timeliness of the motion for DNA testing unless the person was incompetent at the time of trial, if there is newly discover DNA, if it would be a "manifest injustice" to deny a prisoner DNA testing or upon a showing of "good cause."

http://www.aclu.org/capital/federal/10625leg20041123.ht...
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Nov-30-06 01:55 PM
Response to Original message
14. habeas corpus
TJP Continues to Fight the Streamlined Procedures Act

On November 16, the Senate Judiciary Committee held its second hearing on the Streamlined Procedures Act. Former US Solicitor General Seth Waxman and U.S. District Court Judge Howard D. McKibben testified at the hearing in opposition to the legislation. Waxman criticized the bill for making it nearly impossible for innocent prisoners to get their cases heard by a federal court. Meanwhile, Judge McKibben, chair of the Judicial Conference Committee on Federal-State Jurisdiction, argued that a real study of the habeas appeals process needs to be undertaken before Congress makes further changes to the writ of habeas corpus. Read Waxman's full written testimony and McKibben's full written testimony.

On November 10, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security held its second hearing on the Streamlined Procedures Act. At the hearing, Washington, DC attorney Ruth E. Friedman, a former senior counsel at the Equal Justice Initiative, commented that the legislation was written based largely on anecdotal information about cases in the 9th Circuit Court of Appeals. Friedman noted, "Unlike any prior reform or revision, this legislation would strip the federal judiciary of jurisdiction to consider claims of serious constitutional error arising from state court convictions. In so doing, it would dismantle years of Supreme Court jurisprudence and wreak havoc on the administration of criminal justice. HR 3035 would deal this crippling blow to habeas corpus without any evidence of a need for such extreme measures." Read Friedman's full testimony (pdf).

Despite widespread opposition to the bill (see a list (pdf) of groups and individuals opposed to the legislation), some members of the House and Senate Judiciary committees are continuing to push hard to pass the Streamlined Procedures Act. The Senate version of the legislation has been amended twice to address some of the problems with the original bill; however, the concerns of many, including the Conference of Chief Justices and the Judicial Conference of the United States, remain. The House version of the bill has not yet been amended and remains an even more serious threat to fairness and accuracy in the criminal justice system.

links included at site: http://www.thejusticeproject.org/about/newsletter/the-c...


At least they had some hearings, but I think it passed as part of the "Justice for All" bill sponsored by the Ministry of Truth.
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madmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Nov-30-06 02:30 PM
Response to Reply #14
15. Why limit habeas corpus? Too many convicted were found innocent.
Any punishment is just fine, even the execution of minors, because the state never makes a mistake. But The Innocence Project is too successful and undermines the meme of the "state is always right." The wingnut/victim's rights solution? "Stop them damn habeas corpus appeals. They make us look bad!" Their solution to injustice is more injustice. And if you disagree, you're a traitor supporting the terrorists! Ur, I mean the criminals. That meme is so prevalent that I have to include this disclaimer: "I don't not think victims are the ones who should go to prison while the criminals go free. Honest."

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