The Victims' Rights Mismatch

A puzzling mismatch lurks inside victims’ rights law. Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death. This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response.

The mismatch persists because American jurisdictions assign a single bundle of rights to anyone denominated as a “victim.” In dead-victim cases, however, the primary bearers of interpersonal harm are gone. Instead, their rights are assumed by aggrieved family members and legal estates. In those third-party scenarios, justifications for victim participation and influence collapse.

Mismatch presents normative problems along two dimensions. Along the deontological one: rights to expression and confrontation expire with dead victims, third-party input doesn’t provide information about retributively significant harm, and dead-victim cases immorally sensitize punishment to the social worth of decedents. Along the consequentialist dimension, third-party involvement affects punishment at margins that have no plausible effect on deterrence or incapacitation, and victim involvement can’t promote legitimacy when it estranges vulnerable communities.

A better institutional response is straightforward: victims’ rights should be tiered. In dead-victim cases, they must always be conceptualized as the first-party rights of survivors, rather than third-party rights asserted on behalf of decedents. Surviving harm bearers can retain rights to notice, protection, and even restitution, but rights to other forms of participation and influence should be severely restricted.