Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing

Criminal law systems throughout the world have evolved to a stage where they no longer ask, What is the appropriate role of the victim in a criminal trial? The questions now relate to the scope of the victim\u27s rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the prosecution stepping into the victim\u27s shoes, whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the victim. The view that will be developed here as the main thesis of this Article, that victims should be heard at the sentencing stage, irrespective of their views, is far from common. This Article will first establish the theoretical basis for this view by drawing on an expressive theory, discussed in Part I, and will take this theory a step further, into the sphere of the particular victim who asks for leniency

Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing

Criminal law systems throughout the world have evolved to a stage where they no longer ask, What is the appropriate role of the victim in a criminal trial? The questions now relate to the scope of the victim\u27s rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the prosecution stepping into the victim\u27s shoes, whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the victim. The view that will be developed here as the main thesis of this Article, that victims should be heard at the sentencing stage, irrespective of their views, is far from common. This Article will first establish the theoretical basis for this view by drawing on an expressive theory, discussed in Part I, and will take this theory a step further, into the sphere of the particular victim who asks for leniency

Nudging the Criminal Justice System into Listening to Crime Victims in Plea Agreements

The Crime Victim’s Rights Act has given victims “the right to participate in the system.” However, crime victims remain marginalized as their involvement in plea agreements is yet under enforced. This article reveals the largely unnoticed gap between the victim’s rights and the disadvantaged reality they experience in plea agreements. Further, the paper identifies the legal causes that led to this gap; namely, the broad discretion and dominance of the prosecution on the one hand, and the victim’s lack of enforcement mechanisms to participate on the other. The article provides a solution whose novelty is twofold. First, the solution advocated by this article embodies the nudge theory; a theory, explained in this article, which is unfortunately yet to be adequately utilized in the context of criminal law. Second, the article demonstrates a choice architecture mechanism that leaves the prosecutor’s discretion intact; while at the same time nudges the participation of the crime victims. The rightreality gap identified in this article threatens to leave crime victims unheard. This article analyzes the importance of victims’ voice in plea bargains, identifies the causes of this entrenched gap, and provides a unique and practical solution to the problem