Victims and Criminal Justice: What's Next?

The victims’ rights movement has proven remarkably successful in the political arena.1 The success is due, in part, to popular stereotypes of “good” victims and “bad” defendants, as well as to a legislative reform program that emphasizes giving victims procedural rights analogous to those of defendants.2 These reforms are, in a sense, “easy.” They do not require a dramatic restructuring of criminal procedure, but only new opportunities for victims to be heard within the existing procedural framework. The costs of such procedural rights are subtle and—given common perceptions of victim-offender relationships as strictly adversarial—may be seen as falling most heavily on criminals, a social group that is, almost by definition, unpopular and politically disenfranchised. Conceived this way, victims’ rights can draw strength from the public’s seemingly insatiable desire to express hostility to criminals through legislation.3 To be sure, reforms that are politically easy to adopt may nonetheless prove difficult to implement. It is one thing for a politician to speak grandly of “counterbalanc[ing]” defendants’ rights,4 but quite another for the judiciary to figure out exactly how much weight to add to the scales in a host of different contexts, taking into account constitutional norms of due process and equal protection, practical resource constraints, and the many other legislative mandates imposed on the criminal justice system.5 These sorts of challenges, particularly the difficulties in implementing hearing rights for victims within the existing procedural framework of federal sentencing, were the principal subject of the last issue of FSR. Articles covered such topics as the permissible number and content of victim impact statements for capital sentencing purposes,6 the extent to which different kinds of victim impact statements give rise to strong emotional responses that may impair the rationality of sentencing decisions,7 the right of victims to deliver an oral (as opposed to a written) statement at sentencing,8 and the mechanism for victims to appeal adverse decisions regarding their hearing rights.9 The present issue of FSR includes additional coverage of such issues (for instance, the question of whether victims should have a right to review presentence reports10) but also contains approaches to the victim’s role that go beyond enhanced hearing rights and point the way to a more profound rethinking of criminal justice. If the last issue focused on the implications of adding the voice of victims to the chorus at sentencing, then this issue questions whether a genuine commitment to victims’ well-being requires that a whole new melody be sung. The victims’ movement, however, cannot be viewed in this transformative manner without first calling into question the absolutist “good victim/bad offender” stereotype, the perception of strict adversity between victims and offenders, and the equation of victim preferences with the maximization of punishment. In these Editor’s Observations, I first survey the contributions to this issue, particularly highlighting the extent to which a diverse set of authors casts doubt on common stereotypes of victims and suggest reforms that go beyond basic hearing rights. I then conclude with my own reflections on why the emergence of a powerful victims’ rights movement might be viewed as a hopeful development, even by those whose overriding perspective on American criminal justice is a concern with the system’s extraordinary harshness to defendants.