From the Intermediate Impossible to Core Democratic Check: The Future of the Right to Counsel for Crime Victims

Document Type

Article

Publication Title

The University of the Pacific Law Review

Journal Abbreviation

U. Pac. L. Rev.

Abstract

It cannot be disputed that there is immense concentration of power in the American prosecutor; prosecutors hold the power to decide whether to charge a case, what charges to bring, against whom to bring those charges, when to bring those charges, whether and when to offer a diversion or plea or to go to trial, and what sentencing recommendations to make if a conviction is secured. In the moments that they exercise this power, prosecutors have nearly unbound discretion. For as long as prosecutorial discretion has existed, arguments that checks on that discretion are critical to ensure the system’s democratic ideals have also existed. Among the more recently proposed checks on prosecutorial power are calls for increased crime victim input and participation. While these proposals for increased victim input and participation are facially appealing to many crime victims and those in the victims’ rights movement, when viewed through a critical lens it becomes clear that, standing alone, they will not achieve the goals of the victims’ rights movement or serve as a check on prosecutorial power. In fact, merely increasing opportunities for victim input and participation in the current system of entrenched prosecutorial power risks creating the very “tokenism” of victims in criminal justice that that the victims’ rights movement has spent decades trying to overcome. To avoid tokenism and promote participation that provides a meaningful check on prosecutorial power requires counsel for crime victims. Certainly, the call for independent legal counsel for crime victims is not new, but to date these calls for counsel have been treated as an intermediate impossible. The ideas of crime victims routinely having counsel generally, and that such counsel should be afforded pursuant to a right to counsel, are seen as interesting but far-fetched; and instead counsel for victims is seen as a rarity that serves to advance the broader discussion of how to improve victims’ experience of criminal justice.

This symposium essay posits that beyond the benefits of counsel for the victim themselves, recognizing a positive right to counsel for crime victims is in fact a democratic imperative for our system, as only when victims have counsel can there be timely checks on expansive prosecutorial power. Part I of this essay provides a brief overview of the state of prosecutorial discretion and highlights calls for checks on that discretion, including those for increased victim input and participation, noting how most of the proposals fail to provide a timely check on the exercise of power. Part II provides a brief history of victims’ rights and articulates conceptual frameworks for understanding what a meaningful victims’ participatory role in criminal justice looks like. Using a recent case to illustrate the role of independent victims’ counsel as a check on prosecutorial discretion, Section III lays the foundation for why counsel for crime victims is a necessary democratic check on prosecutorial discretion. Part IV briefly discusses lessons from the Civil Gideon Movement as a way to move toward a right to counsel for victims. The essay concludes with a call to recognize that a victim’s affirmative right to counsel is a necessary check on prosecutorial discretion that helps to ensure transparency, accountability, and fairness within the criminal justice system.

First Page

585

Last Page

595

Publication Date

2025

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