Monday, April 27, 2020
Anna Roberts (St. John's University - School of Law) has posted Victims, Right? (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears before the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is the very thing to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. It matters also because of the underlying impulses that it reveals, and that surface in analogous usages such as the widespread pre-adjudication use of “offender.” When channeled into a criminal system these impulses will recur as pre-judgments of crime, in ways that threaten defendants’ constitutional protections. But we can frame and channel them in a more hopeful way. This Article posits that we turn prematurely to the word “victim” in part because of impulses, upon hearing of harm, rapidly to acknowledge and decry it; and that we rush to “offender” because of a concomitant desire for accountability and answers. Abolitionist work provides a model for honoring those impulses through structures other than a criminal system, and criminal language, with which they will inevitably clash.