The state’s monopoly power over the institution of prosecution is a feature as familiar as any in the American criminal justice system. That the criminal proceeding is between the state and the defendant leaves little doubt as to the identities of the victimized interest and the offender. But, in avenging societal harm alone, the criminal process treats another victim—the crime victim— as an outcast. Beginning in the 1970s, the victim’s rights movement mobilized to address this institutional neglect, and, by most accounts, it has triumphed. Federal and state victim’s rights laws now empower victims to attend criminal proceedings, deliver impact statements at sentencings, and collect restitution awards. Perhaps no statutory right is as emblematic of the victim’s acquired prominence in the criminal process than the right to confer with the prosecutor, codified in the federal Crime Victims’ Rights Act of 2004 and in most states’ laws. Conferral seems an intuitive mechanism to facilitate information transfer regarding developments in a case. What remains unclear, however, is whether the law contemplates the existence of a conferral right when there is no case. What, if any, are prosecutors’ obligations to confer with crime victims if they ultimately decline to bring charges? This Note illustrates that victim exclusion, especially at the outset, portends adverse consequences for both victims and the proper functioning of the criminal process. In most jurisdictions, prosecutors are under no legal obligation to confer with victims about their declination decisions, owing primarily to a judicial reluctance to circumscribe and a statutory intent to preserve prosecutorial discretion. This Note proposes that prosecutors’ offices promulgate internal guidelines to encourage—and, in some cases require—victim conferral prior to a declination decision. The guidelines would not aim to disturb such a decision nor would they create untenable administrative burdens for criminal justice actors or frustrate their discretion. Rather, they are animated by principles of procedural justice that emphasize process over outcome and thus seek to encourage meaningful conferral where victims are kept informed and their opinions solicited.
Zulkifl M. Zargar,
SECRET FAITS ACCOMPLIS: DECLINATION DECISIONS, NONPROSECUTION AGREEMENTS, AND THE CRIME VICTIM’S RIGHT TO CONFER,
89 Fordham L. Rev. 343
Available at: https://ir.lawnet.fordham.edu/flr/vol89/iss1/20