Victim Standing

Abstract

Standing doctrine erects formidable hurdles for crime victims as well as for others concerned about inconsistent or inadequate enforcement of the criminal laws. Unfortunately, it is difficult to have a reasoned debate about victim standing, both because of the arcane nature of some of the procedural doctrines involved, and because of the polarized nature of the victims' right debate in general. This paper seeks to separate some of the strands of this debate which are too often conflated.

Although many victims' rights initiatives pose dangers to the ability of defendants to receive a fair trial and sentence, there is nevertheless ample room to reform the treatment of victims without diluting defendants' trial-related rights. Many legitimate reforms sought by victims' rights advocates have been thwarted by judicial construction of standing law and related doctrines designed to insulate government, and particularly prosecutors, from any meaningful oversight or accountability.

The thesis of this article is that the sorts of victim initiatives that have been successful have been those, and only those, that advance the prosecution's own agenda, while preserving the prosecution's complete freedom from third-party interference. To the extent victims seek their own standing to litigate or enforce interests that might diverge from the prosecution's, they have been unsuccessful--ending up instead mainly with unenforceable promises and the opportunity to assist (or, some would say, be used by) the prosecution in attaining a harsh sentence.

The victims' rights debate conflates a number of separate issues, which this article seeks to disentangle and examine carefully. First, the abuse of prosecutorial discretion can reach constitutional magnitude, to the extent it singles out protected groups like racial minorities or women, and any discussion of victim standing must recognize the issues raised by such cases. Second, a number of reforms that would be advantageous to victims would not conflict with the rights of the accused. Finally, the assumptions underlying the denial of standing in many of these cases are at best malleable and politically charged, at worst wrongheaded and harmful--to victims and to others as well.