Victim Participation in the Criminal Process

Abstract

This essay does not promote the Victims' Rights Amendment16 or advocate any other specific victims' rights proposal. 17 Rather, it suggests that, as a positive matter, victim involvement in the criminal process is becoming and will continue to be a reality of our criminal justice process. Too often law professors feel content to dogmatically insist that crimes are wrongs committed against the public rather than an individual and that, therefore, victim involvement in criminal cases beyond the potential witness capacity is inappropriate.' 8 Contrary to their assertions, however, victims have been involved in the disposition of criminal cases for much longer than they have been marginalized, and they are unlikely to remain impotent forces in the disposition of cases. As a consequence, advocates must think creatively about how to provide victims with participation at a minimal cost to existing procedural protections for defendants. Part I of this essay briefly traces the evolution of state control over criminal prosecution. Part II argues that, as a matter of political economy, an unstable equilibrium is created by closing victims out of the criminal justice system. This article leaves for future discussion the identification of desirable victims' rights reforms.