Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment.
Admittedly, victims and their sentiments have come to play a major role in sentencing in the United States. Victims are encouraged to speak at the time of sentencing and to express their personal preferences about what should happen to the convicted defendant. Since the victims usually are interested in making the defendant suffer as much as possible, this practice services the interests of prosecutors. But the sentiments of the particular victims seem to me less important than the class of victims violated by the particular offense. In the crime of homicide, for example, it should not matter whether the decedent is a solitary old lady killed for her money or the mother of three killed in a drive-by-shooting. After Susan Smith killed her two children in South Carolina, her mother and ex-husband weighed in with their views on whether she deserved the death penalty or not. It would seem odd that the determination of the death penalty should depend on the general affection or hostility of the defendant's relatives.
Victims definitely have a place in the definition of the interests protected by the criminal law. The crime of homicide protects life – not the life of particular persons but the right to life in the abstract. The crime of heterosexual rape protects sexual integrity – again not sensibilities of the particular victim but the interests of women as a class of potential victims. The abstract nature of these protected interests accounts for the minimal relevance of the views of the particular victims about sentencing a convicted offender.
Criminal Law | Law | Law Enforcement and Corrections
George P. Fletcher,
The Place of Victims in the Theory of Retribution,
Buff. Crim. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1060