Victims as a Check on Prosecutors: A Comparative Assessment

Abstract

In Against Prosecutors, Bennett Capers presents thought-provoking arguments for empowering victims in criminal cases. He proposes that victims should be given greater authority to initiate and direct prosecutions of criminal cases, and should have the options to veto prosecutions or to serve as private prosecutors themselves. Such a shift of authority from public prosecutors to victims, Capers argues, could help check prosecutorial abuses and steer enforcement of criminal law to those areas where it is most needed. Capers urges us to ponder this possibility as a way of transforming the criminal justice system into one that is fairer and more just.

The boldness of the proposal is appealing but also raises some questions, both theoretical and practical. Could victims truly represent not just their own private interests, but also the public interest in prosecuting crime? Might greater reliance on victim enforcement potentially undermine principles of consistency and equality? Might it also conflict with defense rights and fairness in the process? And could the proposal be implemented effectively in practice?

Capers analyzes U.S. history to make the case that prosecutorial monopoly over criminal law enforcement is not inevitable and that greater victim involvement is feasible. He also notes that the experience of other countries could help provide relevant insights.

This response Essay takes up Capers’s suggestion to seek out comparative lessons on victim participation. I focus on just a few jurisdictions and only one aspect of victim involvement that is central to Capers’s argument—whether and how victims could provide a check on prosecutors’ broad powers. After reviewing the way several European states have approached this question, the Essay concludes that giving victims a central role in criminal case decision-making is not likely to be the most promising way to ensure fair and just prosecutions in the U.S. context. Yet the European experience also suggests one way in which the U.S. criminal justice system can expand victims’ rights in a way that benefits society without undermining defendants’ constitutional rights—by giving victims the right to challenge prosecutorial declination decisions. Victims’ interest in challenging declination decisions coincides broadly with the public interest in ensuring equal treatment in prosecutions. At the same time, unlike some of the other participatory rights that might be accorded to victims, the right to review declination decisions does not generally conflict with defendants’ rights to due process. Declination review by victims can thus be implemented as one element of broader reforms of our criminal justice institutions to bolster prosecutorial accountability and promote fairness and consistency in the criminal process.

Keywords: victims, prosecutors, prosecutorial accountability, comparative criminal procedure, adversarial, inquisitorial, civil party, accessory prosecution, private prosecution

JEL Classification: K14, K41, K42