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Aya Gruber, A Redistributive Theory of Criminal Law, 52 Wm. & Mary L. Rev. 1 (2010), available at SSRN.

Every time I teach a course in which the role of victims in the criminal justice system comes up, I find myself explaining to my students that crime victims and their families have played a prominent role in the system only since the 1980’s—that it wasn’t always thus.  For my students, the reference is akin to a mention of the role of counsel at British common law—something that happened a long time ago and probably won’t be on the exam.   In one sense this reaction is accurate—the role of victims in the system is firmly entrenched both in law and in the public perception.   The problem is that while the role of victims expands, criminal justice theory stays frozen in the pre-victims’ rights era, with little attention to where victims fit into the adversarial framework or the goals of punishment.

Should victims have a say on whether the defendant is charged with a crime, or on the seriousness of the charges? Should the families of murder victims weigh in on whether the death penalty is warranted? Who should prevail in a conflict between prosecutor and victim, or between the needs of victims and the rights of defendants? What should happen when victims are divided on charging or sentencing issues?  It’s hard to give any good answer to those practical questions in the absence of a theory of victims’ role in the criminal process.

Criminal law continues to stick to the standard story that we punish to deter, to exact just deserts or to incapacitate. All these rationales center on what the defendant deserves or on protecting society as a whole. Where the welfare of individual victims fits into that story is rarely specified.  Although retributivist scholars have grappled with the question, they’ve had a hard time linking a theory of just deserts with a satisfying account of how much say a particular victim should have over the fate of the offender.  Victim-centered goals end up wedged uneasily into retributive frameworks.

Aya Gruber’s article, A Redistributive Theory of Criminal Law, is a bracingly provocative examination of the theoretical bases for victim-centered changes in the law.

Gruber asserts that a range of substantive and procedural doctrines, including felony murder, the attempt-completed crime divide, sentencing reforms keyed to victim harm, and the ability to give victim impact testimony, are best understood as distributive. That is, they are premised on the system’s role in securing equilibrium between punishing the offender and making individual victims whole. Her goal is not to defend this approach, but to describe what has thus far gone unarticulated so it can be evaluated in the light of day.

Gruber points out that criminal law, unlike tort law, lacks the theoretical scaffolding to guide its distributive goals.  For example, criminal law, unlike tort law, is unaccustomed to evaluating what is needed to make individual victims whole and how to balance victims’ needs against those of other parties.  Two central tenets of criminal law have until recently made such evaluation unnecessary.  The first is the principle that the prosecution acts in the name of the people, not on behalf of individual victims. Providing victims with a role in charging and sentencing decisions is in tension with this principle. The second is the principle that every human life is equally precious.  Initiatives like victim impact statements in capital cases, which, despite the Supreme Court’s assurances to the contrary, have been shown to encourage the comparative valuation of victims, are at odds with this principle.  Assuming that there is a distributive logic to victim-centered initiatives, Gruber raises important questions about where that logic should lead, and how it can be squared with traditional rationales.

In the article’s final section, Gruber considers the cultural, political and emotional forces that have led to the immense success of victim-centered initiatives in criminal cases, and to far less enthusiastic reactions to victim suffering in the tort area, especially with respect to punitive damages. Not all the parallels she draws are convincing, but the comparison is illuminating.  She also trenchantly observes that even in the criminal arena, not all victims are considered equal, and that once the criminal law begins to focus on individual victims, it begins to matter tremendously which victims evoke empathy or compassion.  She draws fruitfully on her previous work on the criminal justice system’s attitudes toward rape victims to illustrate the influence of stock stories about “true” or “deserving” victims on legal and popular notions of fault, blame and entitlement to compensation.  She argues that these stock stories of victimhood are both reinforced and relied upon by policymakers, and that we need to be more attentive to how they are constructed and for whose benefit.

Our criminal justice system has become increasingly punitive in the last several decades. As Gruber’s article reminds us, much of the change has been made in the name of victims, and we ought to look carefully at whether it has, in fact, improved victims’ lives.  This is a thoughtful, passionate exploration of the consequences of criminal law theory. I liked it a lot.

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Cite as: Susan Bandes, One Solution to the Enigma of Victims’ Rights Theory, JOTWELL (January 27, 2011) (reviewing Aya Gruber, A Redistributive Theory of Criminal Law, 52 Wm. & Mary L. Rev. 1 (2010), available at SSRN),