Victims’ Rights in the Diversion Landscape
22 Pages Posted: 20 May 2021 Last revised: 17 Dec 2021
Date Written: February 1, 2021
In this piece I explore the practical and theoretical conflicts that might surface when the diversion movement and the victims’ rights movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning victims’ rights movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the context of fiscal responsibility, compassion for the offender, and proportionality in the justice system that lie at the heart of diversion schemes. Any other arrangement risks elevating retribution over rehabilitation and inserts a level of arbitrariness into the diversion process that would subvert our commitment to fairness and transparency.
Keywords: Victims’ Rights, Restitution, Retribution, Diversion Process, Marsy’s Laws, Prosecution, Behavioral Expectations
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