Towards a victim-oriented criminal process

• Pages: 221-260
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Santiago Mollis

TOWARDS A VICTIM-ORIENTED CRIMINAL PROCESS

Santiago Mollis*

ABSTRACT

The f‌igure of the victim has played a central role in the consolidation of a

uniquely punitive criminal legal system. Over the last decades, however, multiple

actors have raised serious concerns about the benef‌its of this punitive strategy.

In particular, U.S. penal abolitionists have called to abandon the current state-

driven response to crimes primarily concerned with the imposition of harsh pun-

ishment. Instead, they advocate for implementing alternative non-punitive

response mechanisms that address the harm crimes inf‌lict on victims and the

wider community. In response to these demands, abolitionists have proposed a

series of “non-reformist reforms” to unravel the punitive logic that underlies the

institutional response to crimes. Despite the merits of abolitionists’ proposals, it

is reasonable to assume that criminal trials will continue to be a necessary alter-

native when responding to crimes. Thus, questions about victims’ role in this

institutional setting continue to be relevant. Against this backdrop, this Article’s

primary goal is to rethink the scope and aims of the adversarial criminal process

in light of victims’ quest for recognition. In doing so, this Article contributes to

ongoing discussions in three distinctive ways. First, it probes the normative

grounds for shifting towards a victim-oriented criminal process. Second, it

explores the implications of this shift for the design and structure of the adversa-

rial process. Finally, it analyzes the merits of this shift in light of contemporary

critiques of the criminal legal system.

This Article proceeds in four parts. Part I critically examines the prevailing

portrayal of victims as inherently weak and punitive individuals to illustrate the

limits of this narrative. Building on Nancy Fraser’s work, Part II argues that vic-

tims’ past and present demands can be better understood as part of a broader

quest for recognition as full partners in social interactions. Under this theoretical

framework, the Article advocates shifting towards a victim-oriented criminal pro-

cess. This shift has two key implications. First, it puts victims’ experiences, inter-

ests, and well-being at the center of the institutional response to crimes. Second,

* Visiting Assistant Professor of Law, IE University. JSD (‘23), LLM (‘18) Cornell Law School. I would like

to thank Michelle Dempsey, Brenner Fissell, Daniel Fryer, Stephen Garvey, Daniel Haefke, Jacob Hamburger,

Mitchel Lasser, Chan Tov McNamarah, Aziz Rana, Teressa Ravenell, Itay Ravid, and Kai Wang, as well as the

participants in the Markelloquium and Cornell Law School’s Academic Professionals Workshop for their

feedback on different stages of this project. This piece was based on the dissertation presented to the faculty of

the Graduate School of Cornell University in partial fulf‌illment of the requirements for the degree of Doctor of

the Science of Law. See Santiago Mollis, Toward a Victim-Oriented Response to Crimes (May 2023) (J.S.D.

dissertation, Cornell University) (on f‌ile with author). © 2025, Santiago Mollis.

221

it affords victims meaningful participation in the legal proceedings. Part III ana-

lyzes the impact shifting towards a victim-oriented criminal process has before,

during, and after a criminal trial. Specif‌ically, it reviews these victims’ duty to

participate in the criminal process, reevaluates prosecutors’ role and discretion,

and discusses the application of victim impact statements. To conclude, Part IV

analyzes the benef‌its and limits of the proposed shift towards a victim-oriented

criminal process in light of abolitionists’ demand to move beyond punishment

when responding to crimes.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

I. THE VULNERABLE AND PUNITIVE VICTIM: A SIMPLISTIC ACCOUNT . . . . . 226

II. A QUEST FOR RECOGNITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

III. A VICTIM-ORIENTED CRIMINAL PROCESS . . . . . . . . . . . . . . . . . . . . . . 236

A. Victims’ Participation Within the Criminal Trial: A Duty or a

Prerogative? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

B. Rethinking Public Prosecutors’ Role and Discretion . . . . . . . . 241

1. Prosecutors, Victims, and the Political Community . . . . . 243

2. Reevaluating Prosecutors’ Discretion . . . . . . . . . . . . . . . 246

a. Prosecutorial Declinations . . . . . . . . . . . . . . . . . . . . 249

b. Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

C. Delivering Impact Statements . . . . . . . . . . . . . . . . . . . . . . . . 253

IV. THE BENEFITS AND LIMITS OF A VICTIM-ORIENTED CRIMINAL

PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

INTRODUCTION

During the second half of the twentieth century, the consolidation of a strong

victim movement fueled by political elites, victims’ organizations, and feminist

scholars, among others, led to a series of legal reforms across the country.

1

Throughout this period, victims were afforded a series of procedural and service

rights.

2

As a result, victims acquired a different status in legal proceedings. They

were no longer “the forgotten person” of the criminal process.

3

Instead, victims

1. See infra Part I.

2. Service rights refer to those rights related to support services the state must provide to crime victims (i.e.,

health or social care) and the treatment public off‌icials should dispense to victims. Procedural rights are the rights

associated with victims’ direct participation in the criminal process. Andrew Ashworth, Victim Impact

Statements and Sentencing, CRIM. L. REV. 498, 499 (1993). For a detailed analysis of victims’ rights across the

United States, see Michael Solimine & Kathryn Elvey, Federalism, Federal Courts, and Victims’ Rights, 64

CATH. U. L. REV. 909 (2015).

3. See Paul G. Cassell & Michael Ray Morris Jr., Def‌ining “Victim” Through Harm: Crime Victim Status in

the Crime Victims’ Rights Act and Other Victims’ Rights Enactments, 61 AM. CRIM. L. REV. 337, 332–37 (2024).

222 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:221

became active participants, especially at the sentencing stage.

4

The generalized

concern around victims’ interests, needs, and experiences was such that, as

Jonathan Simon explains, “it is in the experience of victimization and (much more

commonly) the imagined possibility of victimization that lawmaking consensus

has been redef‌ined in our time.”

5

Undeniably, a pro-victim discourse brought about and perpetuates an extremely

punitive criminal legal system.

6

However, this is not the only way the concern for

victims of crime materializes in the United States. During the last two decades, an

emergent abolitionist movement has drawn attention to the negative consequences

of the punitive strategy for victims and the political community at large.

7

The demands of this movement vary. While the call to defund the police has

received a fair amount of attention,

8

abolitionist organizers have also expressed

particular interest in the need to rethink the design and scope of the state-driven

and retributive response to crimes.

9

In the end, a salient characteristic of the con-

temporary U.S. penal abolitionist movement is that many of the people behind it

have experienced state and interpersonal violence.

10

As Derecka Purnell rightly points out, those who discredit abolitionists for not worrying about broader

safety concerns and victims tend to forget that we are those victims, those survivors of violence. Derecka

Purnell, How I Became a Police Abolitionist, ATLANTIC (July 6, 2020), https://www.theatlantic.com/ideas/

archive/2020/07/how-i-became-police-abolitionist/613540/.

Motivated by their personal

histories and encounters with a criminal legal system that revictimizes and even

criminalizes them, abolitionists have resorted to alternative response mechanisms

that move away from the imposition of punishment and, instead, address harm

4. Douglas E. Beloof, Constitutional Implications of Crime Victims as Participants, 88 CORNELL L. REV. 282,

285 (2003) (“Victims are no longer witnesses providing opinion evidence, but are participants with state

constitutional and statutory rights to give sentencing recommendations.” (emphasis added)).

5. JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN

DEMOCRACY AND CREATED A CULTURE OF FEAR 77 (2007).

6. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 11

(2001) (“The interests and feelings of victims—actual victims, victims’ families, potential victims, the projected

f‌igure of ‘the victim’—are now routinely invoked in support of measures of punitive segregation.”).

7. See infra Part I. While the U.S. prison and police abolitionist movement has gained momentum over the

last decades, it is important to understand and recognize the global character of this movement. See Ma

´ximo

Langer, Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then, 134 HARV. L. REV.

F. 42, 46 (2020) (“Engaging with the work of non-American penal abolitionists may thus provide insights to

understand, discuss, and deal with American penal institutions.”).

8. The literature on police abolition has grown considerably in recent years. For some examples, see Eduardo

Bautista Duran & Jonathan Simon, Police Abolitionist Discourse? Why It Has Been Missing (and Why It

Matters), in THE CAMBRIDGE HANDBOOK OF POLICING IN THE UNITED STATES 85 (Tamara Rice Lave & Eric

J. Miller eds., 1st ed. 2019); Jocelyn Simonson, Police Reform Through a Power Lens, 130 YALE L.J. 778 (2020–

2021); Tracey Meares & Gwen Prowse, Policing as Public Good: Ref‌lecting on the Term “To Protect and Serve”

as Dialogues of Abolition, 73 FLA. L. REV. 1 (2021).

9. See Chloe¨ Taylor, Anti-Carceral Feminism and Sexual Assault—A Defense: A Critique of the Critique of

the Critique of Carceral Feminism, 34 SOC. PHIL. TODAY 29, 32, 34–35, 41–42 (2018); Patrisse Cullors,

Abolition and Reparations: Histories of Resistance, Transformative Justice, and Accountability, 132 HARV.

L. REV. 1684, 1688, 1694 (2019); Mimi E. Kim, Transformative Justice and Restorative Justice: Gender-Based

Violence and Alternative Visions of Justice in the United States, INT’L REV. VICTIMOLOGY, Nov. 2020, at 1, 8–

10.

10.

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