ROLE OF THE VICTIM IN AMERICA (FROM ASSESSING THE CRIMINAL - RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS, 1977 BY RANDY E BARNETT AND JOHN HAGEL 3D - SEE NCJ-46958)

• NCJ Number: 46971
• Author(s): W F MCDONALD
• Date Published: 1977
• Length: 13 pages
• Corporate Author: Ballinger Publishing Co
• Publication Format: Document
• Publication Type: Historical Overview
• Language: English
• Country: United States of America

Annotation

THE CHANGING EMPHASIS OF THE AMERICAN CRIMINAL JUSTICE SYSTEM WITH REGARD TO THE VICTIM OF A CRIME IS TRACED FROM COLONIAL TIMES TO THE PRESENT.

Abstract

BEFORE THE AMERICAN REVOLUTION, CRIMINALS WERE REQUIRED TO PAY TREBLE DAMAGE TO THEIR VICTIMS. IF THEY COULD NOT PAY, THEY WERE GIVEN TO THEIR VICTIMS IN SERVITUDE FOR A LENGTH OF TIME EQUAL TO THE AMOUNT OWED, AND IF THE VICTIM PREFERRED, HE COULD SELL THE DEFENDANT. IN COLONIAL AMERICA, CRIMINAL PROSECUTIONS WERE BROUGHT IN THE NAME OF THE STATE, BUT THEY WERE IN EFFECT PRIVATE PROSECUTIONS IN WHICH THE STATE USUALLY DID NOT PLAY AN ACTIVE ROLE AND DID NOT HAVE A VESTED INTEREST. CRIME WAS CONCEIVED OF PRIMARILY AS AN INJURY TO THE INDIVIDUAL VICTIM, NOT AN ATTACK AGAINST SOCIETY. TODAY, CRIME IS REGARDED AS AN OFFENSE AGAINST THE STATE. THE DAMAGE TO THE INDIVIDUAL VICTIM IS INCIDENTAL, AND ITS REDRESS IS NO LONGER REGARDED AS A FUNCTION OF THE CRIMINAL JUSTICE PROCESS. ITS PURPOSES ARE TO DETER CRIME, REHABILITATE CRIMINALS, PUNISH CRIMINALS, AND DO JUSTICE, BUT NOT TO RESTORE VICTIMS TO THEIR WHOLENESS OR TO VINDICATE THEM. THE STATUS OF THE VICTIM HAS CHANGED; HE WAS ONCE THE CENTRAL ACTOR IN THE JUDICIAL PROCESS AND STOOD TO BENEFIT BOTH FINANCIALLY AND PSYCHOLOGICALLY FROM IT. TODAY HE IS THE 'FORGOTTEN MAN' OF THE SYSTEM, AND IS OFTEN SEEN AS BEING TWICE VICTIMIZED, ONCE BY THE SYSTEM ITSELF. THE DECLINE OF THE VICTIM'S IMPORTANCE IN THE CRIMINAL JUSTICE SYSTEM OCCURRED RAPIDLY AFTER THE REVOLUTION. ENLIGHTENMENT IDEAS THAT THE CORRECT USE OF PUNISHMENT COULD DETER CRIME AND REFORM CRIMINALS WERE ADOPTED ENTHUSIASTICALLY IN AMERICA. THE VICTIM'S INFLUENCE OVER THE ADMINISTRATION OF JUSTICE WAS ELIMINATED BECAUSE IT WOULD REDUCE THE CERTAINTY OF PUNISHMENT, AN ESSENTIAL ELEMENT OF THE NEW PHILOSOPHY. THE GROWTH OF MODERN POLICE DEPARTMENTS AND PUBLIC PROSECUTORS' OFFICES FURTHER REDUCED THE VICTIM'S IMPORTANCE IN THE PROSECUTION OF CRIMES. THESE DEVELOPMENTS HAVE FOSTERED A SITUATION IN WHICH THE VICTIM IS ON HIS OWN ONCE THE CRIME HAS BEEN COMMITTED. THE COSTS TO HIM IN TIME, LOSS OF PAY, AND OTHER EXPENSES OF PROSECUTING A CASE AND SEEING IT THROUGH TO TRIAL ARE HIGH, AND THE REWARDS ALMOST NONEXISTENT. DESPITE HIS TREATMENT, THE VICTIM IS STILL AN ESSENTIAL ELEMENT IN THE CRIMINAL JUSTICE SYSTEM, AS MOST SERIOUS CRIMES THAT COME TO THE ATTENTION OF THE SYSTEM COME BY WAY OF COMPLAINTS FROM VICTIMS AND OTHER CITIZENS. HOWEVER, THE VICTIM CAN ALSO BE A POTENTIAL EMBARRASSMENT FOR PROSECUTORS, DEFENSE ATTORNEYS, AND JUDGES IF HE COMPLAINS ABOUT THE DISPOSITION OF THE CASE. VARIOUS TACTICS WHICH ARE USED TO MANEUVER VICTIMS FOR THE PURPOSES OF COURT FUNCTIONARIES ARE RECOUNTED; THEY RANGE FROM CONTINUING THE CASE FOR A LONG TIME UNTIL THE VICTIM HAS 'COOLED OFF' TO KEEPING HIM OUT OF THE MATTER ENTIRELY THROUGH PLEA BARGAINING. SOME EFFORTS HAVE BEEN MADE IN A FEW JURISDICTIONS TO IMPROVE THE TREATMENT OF VICTIMS, HOWEVER, THE AUTHOR SUGGESTS THAT A FUNDAMENTAL REORDERING OF PRIORITIES AMONG CRIMINAL JUSTICE GOALS IS NEEDED TO ACHIEVE A TRUE VICTIM ORIENTATION IN CRIMINAL JUSTICE (VDA)