Using Criminal Punishment to Serve Both Victim and Social Needs

The criminal offender often commits two distinct wrongs with each criminal act. First, the offender commits a wrong against the victim, who is left feeling both aggrieved and vulnerable. Second, the offender wrongs society by engaging in conduct that violates social norms, thereby undermining others’ senses of personal security. The two wrongs are often addressed in different ways, and an exclusive or even primary focus on one can interfere with effective redress of the other. For example, “criminal justice” in early western legal systems often began with vigilante justice, which was left entirely to victims and their allies. Even when the formal legal system was involved, victims were responsible for apprehending and punishing criminals. In the United States’ early colonial period, victims actually paid sheriffs to make arrests, hired private attorneys to prosecute cases, and then paid jailers to incarcerate those transgressors who were unable to compensate the victim as required by the judgment. Under this system, in which the onus to prosecute and the costs of punishment were borne by victims, pervasive underenforcement of the law often left social needs unsatisfied. In recent decades, the criminal-justice pendulum has swung to the opposite extreme. Criminal law is often described as covering disputes between the offender and the state. Victims are not direct parties to criminal proceedings, they have no formal right to either initiate or terminate a criminal action, and they have no control over the punishment meted out to offenders. In this state-centric system, victim needs have been left unsatisfied, giving rise to a politically powerful victims’ rights movement that has had success in giving victims rights of access to prosecutors and rights to be heard in the courtroom. In this article we propose changing the manner in which control rights over criminal sanctions are distributed. This modest change has the potential to increase victim well-being without interfering with social needs. Specifically, victims should have the right to determine whether an offender will serve the last ten to twenty percent of his prison term. The control right can do more than help restore a sense of victim empowerment: it will likely encourage voluntary victim–offender mediation (VOM), which has been demonstrated to assist the emotional healing process for victims while perhaps decreasing recidivism rates. Section II of this article briefly describes both recent victims’ rights reform efforts and the recent rise in the use of VOM. Section III describes the proposal involving the distribution of control rights and possible objections to it