The Volokh Conspiracy
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The Crime Victims' Rights Movement's Past, Present, and Future (Part I - the Past)
The victims' rights movement is rooted in America's long tradition of private prosecution, in which crime victims were able to initiate and pursue their own criminal prosecutions.
I've just posted on SSRN my comprehensive law review article on the crime victims' rights movement's past, present, and future. This is the first of three posts this week, summarizing my article. This post discusses the roots of the movement. Historically, crime victims played a central role in criminal justice processes through private prosecutions—i.e., the ability of victims to initiate or participate in criminal prosecutions. In light of this history, the recent efforts to protect victims' interests in the criminal justice system are a throwback to times past.
Interestingly, while the crime victims' rights movement is often alluded to, no definitive history has yet been written. Perhaps this is because, at least among legal academics, relatively little interest exists in victims' rights. But whatever the reason, this absence of a clear description of the movement has had important consequences. With the victims' rights movement inadequately described, some critics have tried to paint it as nothing other than a "carceral rights movement"—a thinly veiled, retributive effort to lock up as many criminals as possible for as long as possible. Because the movement is broadly based, these academics have been free to cherry-pick a few victims' initiatives and argue that they prove the movement's general, punitive thrust.
My article responds to the critics who have capitalized on the void in scholarship to unfairly critique the movement's aims and policy successes. Contrary to the simplistic portrait often drawn, the movement's primary goals do not focus on substantive criminal case outcomes, such as increasing death sentences or extending prison terms. Instead, the movement is concerned with the procedural objective of ensuring that victims' voices are heard throughout the criminal justice process. The movement contends that criminal justice procedures should incorporate victims voices without regard to any outcomes that may result. And the movement can powerfully argue that, properly understood, American history supports this procedural inconclusion.
The relevant history begins with America's system of private prosecution—that is, criminal prosecutions pursued by private citizens. In a world of private prosecution, crime victims' rights become a redundancy. Because historically crime victims could initiate and pursue their own prosecutions, their rights were automatically protected.
In reviewing the history of private prosecution, we are fortunate to have four recent scholarly endeavors shedding light on the practice. First, in 2020, Professor Bennett Capers published his provocative article—"Against Prosecutors"—which critiqued the overwhelming power of prosecutors in modern criminal justice. Capers sought to show that private prosecution is "part of our collective cultural DNA." Indeed, Capers concluded that the American public prosecutor is a "historical latecomer," whose arrival was not inevitable. The public prosecutor's ascendancy meant that "[v]ictims have lost power," particularly victims who were "already disadvantaged because of gender, or race, or class, or sexuality." Capers noted that this shift of power is "all but absent from criminal law casebooks" but sheds important light of how a criminal justice system with more victim involvement might operate.
Two years later, in 2022, two comprehensive historical reviews of private prosecution were published. In an extended law review article, historian Jonathan Barth assessed what he called the "confusion and mystery surrounding the history of the office of the public prosecutor in early America." Barth noted that some historians believed that private prosecution had disappeared by the time of the Constitution's ratification. But his meticulous scholarship demonstrated that early Americans used "a hybrid system of criminal prosecution through at least the middle of the nineteenth century."
At the same time in 2022 as Barth's article appeared, Professor John D. Bessler published his impressive book, Private Prosecution in America: Its Origins, History, and Unconstitutionality in the Twenty-First Century. Bessler outlined the history and use of private prosecution in the United States. Tracing its origins to medieval Europe and English common law, Bessler showed how private prosecution became a common feature of early American criminal procedure. In colonial and early America, private prosecutors pursued criminal cases on behalf of victims (and, in homicide cases, their families). But he also documented how, in more recent times, many courts continue to allow private prosecutions. Bessler provided a fifty-state survey of the status of private prosecutions, along with his arguments against continuing the practice.
Most recently, in 2024, Professor Emma Kaufman reviewed "the puzzling persistence of private prosecution." Kaufman began by describing the alleged "state monopoly of criminal law." But Kaufman then contrasted this monopoly with the well established history of private prosecution. Kaufman explained that "the government has long relied on private actors to manage criminal law, and the state's capacity for crime control has never matched its ambitions. In important and underappreciated ways, the state monopoly on criminal law has always been something of a myth."
In light of the extensive record of private prosecution in America, the question naturally arises whether this "dusty history" tells us anything useful for our day and age. Joining several other recent articles, this article contends that the history demonstrates that victims could usefully play an important role in criminal processes today. These four sources, along with a burgeoning body of other scholarship, demonstrate convincingly that private prosecutions were an important part of America's criminal justice past. In the past, criminal prosecutions were often driven by victims and their families. Thus, the modern victims' rights movement stands on well-trodden ground in urging that victims should be part of America's criminal justice present and future.
You can download my full article here. I will be presenting the article as a keynote address at the University of Pacific Law Review's Annual Symposium this Friday, starting at 8:30 a.m. Pacific time. You can find more information about how to watch the symposium here.
