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Will the “Victim Revolution” Trigger A Reorientation of the Criminal Justice System?*

Published online by Cambridge University Press:  04 July 2014

Leslie Sebba
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Extract

Over the past two decades considerable interest has developed in the subject of the victims of crime. This interest reached a peak in the United States in 1982 with the establishment and report of the President's Task Force on Victims of Crime, which made numerous recommendations for legislative, executive, and other institutional action on both the Federal and State levels, including an amendment to the United States Constitution. The momentum, however, continued. Subsequent developments have included the establishment of an Office for Victims of Crime in the Office of Justice Programs, a flurry of legislative activity across the nation, and the declaration of National Victims' Rights Weeks with the participation of the U.S. President. The interests of victims have been taken up not only by special organizations established for the purpose, such as the National Organization of Victims' Assistance (NOVA), the Victims' Assistance Legal Organization in Virginia, and the National Victim Center (founded in honor of Sunny von Bulow) — as well as more narrowly focussed groups such as MADD (Mothers against Drunk Driving), but also by such mainstream professional bodies as the American Bar Association, the National Association of Attorneys General, the National Conference of the Judiciary, the American Psychological Association, and the National Institute for Mental Health.

Type
Research Article
Information
Israel Law Review , Volume 31 , Issue 1-3 , Winter-Summer 1997 , pp. 379 - 428
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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Footnotes

**

Institute of Criminology, Faculty of Law, The Hebrew University of Jerusalem.

References

1 See President's Task Force on Victims of Crime: Final Report (1982).

2 See Victims'/Witness Legislation: An Overview (1984).

3 See, e.g., Victims' Rights And Services: A Legislative Directory 1988 (1989).

4 For a recent review of federal activity in this area, see U.S. Department of Justice Office for Victims of Crime, Victims of Crime Act as Amended: A Report to the President and Congress (1994). Other developments are reviewed in Karmen, Andrew, Crime Victims: An Introduction to Victimology (2nd ed., 1990)Google Scholar.

5 Following the 1994 elections, the National Victim Center, which operates a Victims' Constitutional Amendment Network, listed 20 states as having adopted such amendments.

6 See Joutsen, Matti, The Role of the Victim of Crime in European Criminal Justice Systems (1987)Google Scholar; Melup, Irene, “United Nations: Victims of Crime — Report to the Secretary-General”, (1991) 2 Int'l R. Victimology 29–59 CrossRefGoogle Scholar.

7 See Bassiouni, M. Cherif, ed., International Protection of Victims (1988)Google Scholar.

8 See Kerstetter, Wayne A. and Heinz, Anne M., Pretrial Settlement Conference: An Evaluation (1979)Google Scholar; Heinz, Anne M. and Kerstetter, Wayne A., “Victim Participation in Plea-Bargaining: Field Experiment”, in McDonald, W.F. and Cramer, J., eds., Plea-Bargaining (1980)Google Scholar; Buchner, Deborah et al. , Evaluation of the Structured Plea Negotiation Project: Executive Summary (1984)Google Scholar.

9 See Victims' Rights, supra n. 3, at 12, 14.

10 See ibid., at 10. See also Erez, Edna, Victim Impact Statements (1991)Google Scholar; Erez, Edna, “Victim Participation in Sentencing: And the Debate Goes On”, (1994) 3 Int'l R. Victimology 17 CrossRefGoogle Scholar.

11 See sec. 3663 of Title 18 of the United States Code. Again, by 1988 restitution laws had been adopted by all fifty states (Victims' Rights, supra n. 3) — and sometimes incorporated into their constitutions: see Hillenbrand, Susan, “Restitution and Victims' Rights in the 1980s”, in Lurigio, A.J. et al. , eds., Victims Of Crime (1990) 188, at 194 Google Scholar; and see generally, Sebba, Leslie, Third Parties: Victims and the Criminal Justice System, ch. 7 (1996)Google Scholar.

12 See, e.g., Zehr, Howard, Changing Lenses (1990)Google Scholar.

13 See, e.g., Singer, Linda R., Settling Disputes (1990)Google Scholar.

14 See, e.g., Wright, Martin and Galaway, Burt, eds., Mediation and Criminal Justice — Victims, Offenders And Community (1989)Google Scholar; Galaway, Burt and Hudson, Joe, eds., Criminal Justice, Restitution and Reconciliation (1990)Google Scholar.

15 See, generally, Roberts, Albert R., Helping Crime Victims (1990)Google Scholar; Skogan, Wesley G. et al. , Victims' Needs and Victim Services (1990)Google Scholar.

16 See Parent, Dale et al. , Compensating Crime Victims: A Summary of Policies and Practices (1992)Google Scholar; Sebba, supra n. 11, ch. 9.

17 See supra n. 5. See also Sebba, ibid., chs. 1 and 10. The President's Task Force (supra n. 1) advocated an amendment to the U.S. Constitution for this purpose.

18 Cf. Von Hirsch, Andrew, Doing Justice (1976)Google Scholar.

19 Cf. Sebba, supra n. 11, ch. 7.

20 See Verin, Jacques, “La Victime et le Système Penal”, (1980) Revue De Science Criminelle Et De Droit Penal Comparé 763, at 768 Google Scholar.

21 See Braithwaite, John and Pettit, Philip, Not Just Deserts (1990)Google Scholar.

22 See Packer, Herbert L., “Two Models of the Criminal Process”, (1964) 113 U. Penn. L.R. 1 CrossRefGoogle Scholar; Packer, Herbert L., The Limits of the Criminal Sanction (1968)Google Scholar; Griffiths, John, “Ideology in Criminal Procedure or a Third ‘Model’ of the Criminal Process”, (1970) 79 Yale L.J. 359 CrossRefGoogle Scholar. See also Goldstein, Abraham, “Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure”, (1974) 26 Stan. L.R. 1009 CrossRefGoogle Scholar; Herrmann, Joachim, “Various Models of Criminal Proceedings”, (1978) 2 South African J. of Crim. L. and Criminology 3 Google Scholar.

23 See Sander, Frank A., “Varieties of Dispute Processing”, (1976) 70 Federals Rules Decisions 111 Google Scholar; Thibaut, John and Walker, Laurens, “A Theory of Procedure”, (1978) 66 Calif. L.R. 541 CrossRefGoogle Scholar.

24 See Mawby, R.I. and Gill, M.L., Crime Victims: Needs, Services and the Voluntary Sector (1987), esp. chs. 6 and 7Google Scholar.

25 See Ziegenhagen, Eduard A., Victims, Crime and Social Control (1977)Google Scholar; Sebba, Leslie, “The Victim's Role in the Penal Process: A Theoretical Orientation”, (1982) 30 Am. J. Comp. L. 217 CrossRefGoogle Scholar; Van Dijk, Jan, “State Assistance to the Victim of Crime in Securing Compensation: Alternative Models and the Expectations of the Victim”, in Helsinki Institute for Crime Prevention and Control, Towards a Victim Policy in Europe (1984) 80 Google Scholar; Van Dijk, Jan, “Ideological Trends within the Victims' Movement: An International Perspective”, in Maguire, Mike & Pointing, John, eds., Victims of Crime: A New Deal (1988) 115 Google Scholar; Cavadino, Michael and Dignan, James, Reparation Retribution and Rights (1993)Google Scholar; (but see infra, n. 32).

26 Van Dijk, State Assistance …, ibid.

27 Sebba, supra n. 25.

28 Sebba, ibid., at 231-233.

29 Ibid., at 236.

30 See Ziegenhagen, supra n. 25, ch. 5. In a later article, Ziegenhagen and Benyi consider how far the various victim-oriented programs fulfil the following four functions: (a) normative detection, i.e., identifying the deviant conduct; (b) normative definition, i.e., labeling conduct as criminal or otherwise; (c) response designation, i.e., determining the nature of the response, and (d) response execution, i.e., playing a role in the implementation of this response; see Ziegenhagen, Eduard A. and Benyi, John, “Victim Interests, Victim Services and Social Control”, in Galaway, Burt and Hudson, Joe, eds., Perspectives on Crime Victims (1981) 373 Google Scholar. Attribution of these functions to the victim is generally more consistent with the adversary- retribution model than its alternative.

31 See Black, Donald, The Behavior of Law (1976)Google Scholar.

32 See Cavadino and Dignan, supra n. 25, fig. 1. This model was modified in a later version of this article: see (1997) 4 Int'l R. of Victimology 233 CrossRefGoogle Scholar.

33 Sebba, supra n. 25, at 238.

34 See, e.g., Cohen, Stanley, “Social Control Talk: Telling Stories about Correctional Change”, in Garland, David and Young, Peter, eds., The Power to Punish (1983) 101, 116 Google Scholar.

35 See Sebba, supra n. 11.

36 See, e.g., Shapland, Joanna et al. , Victims in the Criminal Justice System (1985)Google Scholar; Sebba, ibid., ch. 5.

37 See Note, , “Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction”, (1955) 65 Yale L.J. 209 Google Scholar; McDonald, William F., “Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim”, (1976) 13 Am. Crim. L.R. 649 Google Scholar; Ward, , “Private Prosecution — the Entrenched Anomaly”, (1972) 20 N.C.L.R. 117 Google Scholar; Gittler, Josephine, “Expanding the Role of the Victim in a Criminal Action”, (1984) 11 Pepperdine L.R., 117, at 150–1Google Scholar; Davis, Peter L., “The Crime Victim's Right to a Criminal Prosecution: A Proposed Model Statute for the Governance of Private Criminal Prosecutions”, (1989) 38 DePaul L.R. 329 Google Scholar; Meier, Joan, “The Right to a Disinterested Prosecutor of Criminal Contempt: Unpacking Public and Private Interests”, (1992) 70 Wash. U.L.Q. 85 Google Scholar.

38 See Law Reform Commission of Canada (1986); Joutsen, supra n. 6; Lidstone, Ken et al. Prosecutions by Private Individuals and Non-Police Agencies (1980)Google Scholar; Philips, C., The Investigation and Prosecution of Criminal Offences In England and Wales: The Law and the Procedure, Royal Commission on Criminal Procedure, (1981)Google Scholar; Hetherington, Thomas, Prosecution and the Public Interest (1989)Google Scholar; and the leading Israeli case of Schubert v. Tsafrir (1992) 46(iv) P.D. 136.

39 See Goldstein, Abraham, “Defining the Role of the Victim in Criminal Prosecution”, (1982) 52 Mississippi L.J. 515 Google Scholar; Gittler, supra n. 37.

40 Thus, Gittler (ibid., at 151) observes that “it is possible to envisage a criminal justice system in which private prosecutions would be revived and the victim would be able to initiate a criminal action without the authorization or approval of the public prosecutor”, and believes that “the impact of allowing victim-initiated private prosecutions would be beneficial” (p. 152); but what is envisaged here is ultimately a reserve power, to “serve as a useful safeguard and safety valve if the prosecutor was unwilling to take action” (p. 154). The Helsinki Institute Seminar went somewhat further and passed the following recommendation: “The victim should be given more independence and legal guarantees in the initiation and conduct of the criminal process. Possibilities should be studied of transfering more offenses from public prosecution to private prosecution or, alternatively, of subjecting public prosecution to the consent of the victim” (Towards A Victim Policy In Europe, supra n. 25, recommendation no. 12). More radical proposals advocated by European writers such as Louk Hulsman and Nils Christie, support the total dismantling of the penal system. In this case, however, any disputational powers conferred upon the victim would not be prosecutorial in the criminal sense.

41 107 S.Ct. 2124 (1987).

42 See Green, Stuart P., “Private Challenges to Prosecutorial Inaction: A Model Declaratory Judgment Statute”, (1988) 97 Yale L.J. 488 CrossRefGoogle Scholar.

43 ibid., at 495.

44 See McDonald, supra n. 37; Steinberg, A., “From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney and American Legal History”, (1984) 30 Crime And Delinquency 568 CrossRefGoogle Scholar; Law Reform Commission of Canada, supra n. 38, Appendix.

45 See Christie, Nils, “Conflicts as Property”, (1977) 17 British J. Criminology 1 CrossRefGoogle Scholar.

46 See Schafer, Stephen, The Victim and His Criminal (1968)Google Scholar; Sebba, supra n. 11, ch. 7.

47 See Green, supra n. 42, at 495.

48 See Erez, Edna and Tontodonato, Pamela, “The Effect of Victim Participation in Sentencing on Sentence Outcome”, (1990) 28 Criminology 451 CrossRefGoogle Scholar; Sebba, supra n. 11, ch. 5.

49 See Gittler, supra n. 37, at 153-4; Goldstein, supra n. 39, at 555.

50 Cf. Boudreaux, Paul, “ Booth v. Maryland and the Individual Vengeance Rationale for Criminal Punishment”, (1989) 80 J. Crim. L. and Criminology 177 CrossRefGoogle Scholar.

51 McDonald, in considering private prosecution practices in southern states, cited a source who observed that the main contribution of private prosecutors was to prevent plea-bargaining. A generalization of this phenomenon “would bring the courts to their knees” ( McDonald, William F., “Criminal Justice and the Victim: An Introduction”, in McDonald, William F., ed., Criminal Justice and the Victim (1976) 17, at 35 Google Scholar. It is natural that victim advocates might object to a plea bargain between defendant and public prosecutor from which they were excluded. This would not necessarily apply, however, if the victim or his advocate were the sole prosecutor — or indeed if he or she were involved in the plea bargain as a third party (cf. Sebba, supra n. 11, ch. 9).

52 See Philips, supra n. 38, at 161.

53 See Gittler, supra n. 37, at 161, n. 135; Green, supra n. 42, at 496. But see Davis, supra n. 37, at 394ff. Goldstein has suggested control by the public prosecutor who “would probably develop criteria for the classes of cases he would allow routinely to be brought by private parties, as well as those he would take over or move to dismiss” (supra n. 39, at 560). This solution, which would have some similarity to the English position (cf. Hetherington, supra n. 38), is open to the objection that bureaucratic considerations might influence the public prosecutor's policies.

54 Cf. Gittler, supra n. 37, at 155.

55 Ibid., at 130.

56 Lidstone et al., supra n. 38, at 101.

57 In the British Study referred to, 89% of the defendants were, like the prosecutors, unrepresented. The Royal Commission recommended that where a magistrate's court had granted leave to file a private prosecution, legal aid would be available. In Israel an amendment was adopted to empower the court to require the private prosecutor to appoint an attorney — without provision for legal aid — where it appears to the court that the prosecutor is unable to to handle the matter, or does so in a vexatious manner (sec. 73 of the Criminal Procedure Law [Consolidated Version], 1982).

58 In practice this right has been exercised mainly in cases of shoplifting and common assault (Hetherington, supra n. 38, at 155).

59 Law Reform Commission of Canada, supra n. 38, at 3.

60 See Joutsen, supra n. 6, at 183ff.

61 Ibid., at 187.

62 Cf. the Second Schedule to Israel's Criminal Procedure Law [Consolidated Version], 1982, which lists the offenses for which private prosecutions may be instigated.

63 111 S.Ct. 2597 (1991).

64 This was seen as part of a general trend by the court to differentiate between “good” and “bad” citizens — the victims being generally identified with the former. “Arguably linked to the growing interest both in ‘Victims' rights’ and the rights of law-abiding citizens in general, the new ‘good citizen/bad citizen’ dichotomy has had a profound effect on the types of criminal case the Court has recently accepted for review”: O'Neill, Timothy P., “The Good, the Bad, and the Burger Court: Victims' Rights and a New Model of Criminal Review”, (1984) 75 J. Crim. L. and Criminology 363, at 364 CrossRefGoogle Scholar.

65 Ibid., at 379-380. The Chief Justice seems, however, to have been somewhat ambivalent on this point, for he also asserted that “inconvenience and embarassment to witnesses cannot justify failing to enforce constitutional rights of an accused” (ibid.).

66 See Gittler, supra n. 37, at 152, 162.

67 410 U.S. 614 (1973), at 619. Cf. also Goldstein, supra n. 39; Aynes, Richard L., “Constitutional Considerations: Government Responsibility, and the Right Not to be a Victim”, (1984) 11 Pepperdine L.R. 63 Google Scholar; and Gittler, ibid.

68 See Green, supra n. 42; Wainstein, Kenneth L., “Judicially Initiated Prosecution: A Means of Preventing Continuing Victimization in the Event of Prosecutorial Inaction”, (1988) 76 Calif. L.R. 727 CrossRefGoogle Scholar.

69 See Sebba, supra n. 25, at 221; Gittler, supra n. 37, at 180.

70 See Art. 1, sec. 30(e): “A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section …” However, such person “does not have standing to participate as a party in a criminal proceeding …”

71 Cf. Sebba, supra n. 25, at 221, and Joutsen, supra n. 6, at 185.

72 See Gittler, supra n. 37, at 162.

73 It should be noted that these procedures generally allow for “subsidiary” prosecutors to continue in their own right should the public prosecutor withdraw; see, Marek, A., The Position of Crime Victim in Criminal Procedure (1985)Google Scholar; Krapac, D. and Loncarevic, D., Ostecenik Kao Tuzitely U Kriuicnom Postupku (1985)Google Scholar. Damaska, however, noted that the accommodation of additional parties is easier in the so-called “inquisitorial” system, in which the proceedings are dominated by the judge, than under the adversary system where the traditional roles of the parties have a greater significance; see Damaska, M., Some Remarks on the Status of the Victim in Continental and Anglo-American Administration of Justice (1985)Google Scholar.

74 The victim's advocate may be perceived either to be acting as a private prosecutor, or to be assisting the public prosecutor; see: Davis, supra n. 37; Gittler, supra n. 37; Goldstein, supra n. 39; Note, supra n. 37. See also Fleming, Macklin, Of Crimes and Rights (1978)Google Scholar.

75 See Goldstein, supra n. 39, at 553.

76 Ibid., at 557.

77 Gittler, supra n. 37, at 177.

78 See Sveinn A. Thorvaldson, “Restitution and Victim Participation at Sentencing: A Comparison of Two Models”, in Criminal Justice, Restitution and Reconciliation, supra n. 14, at 23.

79 See Victim Rights and Services, supra n. 3, at 9; President's Task Force on Victims of Crime, supra n. 1, at 114.

80 See Sebba, supra n. 11, ch. 8.

81 See McCoy, Candace, Politics and Plea Bargaining (1993)Google Scholar.

82 Cf. the novel dichotomy discerned by O'Neill in his analysis of recent Supreme Court judgments whereby “gains for criminals result in losses for the law-abiding” (O'Neill, supra n. 64, at 372; emphasis added).

83 See Weigend, Tom, “Problems of Victim/Witness Assistance Programs”, (1983) 8 Victimology 91, at 98 Google Scholar.

84 Cf., e.g., Hogarth, John, “Alternatives to the Adversary System”, (1974) 71 Studies in Sentencing Google Scholar.

85 “Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard, when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused”: (Victims' Rights and Services, supra n. 3, at 9.)

86 See Gittler, supra n. 37, at 176, n. 183.

87 See Upson, L. A., “Criminal Restitution as a Limited Opportunity”, (1987) 13 New England J. Crim. and Civil Confinement 243 Google Scholar.

88 497 U.S. 836 (1991).

89 Cf. Sebba, Leslie, “Sentencing and the Victim: The Aftermath of Payne ”, (1994) 3 Int'l R. Victimology Google Scholar.

90 107 S.Ct. 2529 (1987).

91 Supra n. 63.

92 See, e.g., Stark, James and Goldstein, Howard W., The Rights of Crime Victims (1985)Google Scholar. See also Carrington, Frank and Rapp, James A., Victims' Rights: Law and Litigation (1991)Google Scholar, which deals comprehensively with civil remedies — primarily against third parties — but also against offenders.

93 See Karmen, supra n. 4, at 296-9, and cf. Brien, Victoria O., Civil Legal Remedies for Crime Victims (1992)Google Scholar.

94 See, e.g., Finn, Peter and Colson, Sarah, Civil Protection Orders: Legislation, Current Court Practice, and Enforcement (1990)Google Scholar.

95 See, e.g., American Bar Association, Victim/Witness Legislation: Considerations for Policymakers (1981)Google Scholar.

96 Cf. Greer, Desmond, Criminal Injuries Compensation, (1991) 145 Google Scholar.

97 Cf. Christie, supra n. 45.

98 Cf. Karmen, supra n. 4, at 298.

99 See Thibaut and Walker, supra n. 23.

100 Cf. Sebba, Leslie, “Victims and the Parameters of a Justice System”, in Separovic, Zvonimir Paul, ed., Victimology: International Action and Study of Victims (1989) 13 Google Scholar; and Sebba, supra n. 11, ch. 3. The “parties involved”, in this context, refers to (a) victims, (b) offenders and suspects, and (c) the public at large.

101 See Saks, Michael J., “Do We Really Know Anything About the Tort Litigation System — and Why Not?”, (1992) 140 U. Penn. L.R. 1147 CrossRefGoogle Scholar.

102 See e.g., Gittler, supra n. 37, at n. 72.

103 Linden, Allen M., The Report of the Osgoode Hall Study on Compensation for Victims of Crime (1968)Google Scholar.

104 See Friedman, K. et al. , Victims and Helpers: Reactions to Crime (1982), at 169 Google Scholar.

105 See Shapland, et al., supra n. 36, at 124-5.

106 Cf. Mueller, Gerhard O.W. and Cooper, H.H.A., “Society and the Victim: Alternative Responses”, in Drapkin, Israel and Viano, Emilio, eds., Victimology: A New Focus (1974) 85, at 87 Google Scholar; Karmen, supra n. 4, at 298-9. O'Brien, however, refers to the “myth of uncollectability”, and points out that courts are increasingly holding insurance companies liable for wrongful conduct committed by insured persons; see O'Brien, supra n. 93, at 8.

107 This may not be applicable in jurisdictions where prison earnings are realistic. The idea that prisoners' earnings be specifically earmarked for compensation of the victim has appeared in a number of codes and has a history dating back to Ferri, Garofalo and even Herbert Spencer; see Silving, Helen, “Compensation for Victims of Crime — A Round Table”, in Hudson, J. and Galaway, B., eds., Considering the Victim (1975) 198 Google Scholar.

108 Tort litigation itself, however, has a relatively high probability of succeeding: see Miller, Richard E., Erratum for “Grievances, Claims and Disputes: Assessing the Adversary Culture”, (1983) 17 Law and Society R. 653 Google Scholar.

109 See Harland, Alan T., “Monetary Remedies for the Victims of Crime: Assessing the Role of the Criminal Courts”, (1982) 30 U.C.L.A. L.R. 52 Google Scholar.

110 See Curran, Barbara, The Legal Needs of the Public (1977)Google Scholar.

111 See Cappelletti, Mauro and Garth, Bryant, “Introduction”, in Cappelletti, Mauro, ed., Access to Justice (1978), Vol. I, bk. 1Google Scholar.

112 Thus Professor Palmer wrote of the New Zealand accident compensation law: “… a lot of people who received nothing under the old (tort) system are being compensated and compensated quickly” (cited in ibid., at 119).

113 Cf. Englard, Izhak, The Philosophy of Tort Law (1993), ch. 7Google Scholar.

114 See Greer, supra n. 96, at 145.

115 See Calabresi, G., “Access to Justice and Substantive Law Reform: Legal Aid for the Lower Middle Class”, in Cappelletti, M. (ed.), Access to Justice, vol. 3 (1979) 169, at 177–183 Google Scholar.

116 See Victims' Rights and Services, supra n. 3, at 29.

117 See Sebba, supra n. 25.

118 Cf. Joan M. Covey, “Alternatives to a Compensation Plan for Victims of Physical Violence”, in Considering the Victim, supra n. 107, at 220, 229.

119 See Goldstein, supra n. 39, at 542-3.

120 Cf. Israel's Courts' Law [Consolidated Version], 1984, sec. 77.

121 See McDade, Robert J. and O'Donnell, Keara, “Parallel Civil and Criminal Proceedings”, (1992) 29 Am. Crim. L.R. 697 Google Scholar.

122 See Victims' Rights and Services, supra n. 3, at 15.

123 See Finn and Colson, supra n. 94, at 30-31.

124 See House of Commons, Home Affairs Committee, Third Report: Domestic Violence, Vol. 1 (1993), at VIII Google Scholar; in Israel the police may file a petition for a protection order, but in a separate civil proceeding: see sec. 2 of the Family Violence Prevention Law, 1991, S.H. no. 1352, p. 138.

125 Cf. Joutsen, supra n. 6, at 192-6.

126 See Spinellis, Dionysios D., “The Civil Action: A Useful Alternative Solution to the Victims' Problems?”, in van Dijk, Jan et al. eds., Criminal Law in Action (1986) 405 Google Scholar.

127 See P. Kobe, Paper presented at the Second International Symposium of Victimology (1976).

128 See Eleventh International Congress on Penal Law: Resolutions, at 31.

129 Ibid., at 32.

130 See Mueller, Gerhard O. W., Sentencing: Process And Purpose, (1977) 76 Google Scholar.

131 See Joutsen, supra n. 6, at 196 and n. 1.

132 See Harland, supra n. 109.

133 See Kaiser, Michael, “The Status of the Victim in the Criminal Justice System According to the Victim Protection Act”, in Kaiser, G. et al. , eds., Victims and Criminal Justice Vol. 51 (1991) 543, at 546–9Google Scholar.

134 Ibid., at 575, 561.

135 Ibid., at 563.

136 See Klaus W. Kraintz, “The Position of Injured Parties in the Austrian Criminal Procedure — First Results of an Empirical Investigation”, in Victims and Criminal Justice, supra n. 133, at 629, 645, 665.

137 Ibid., at 655, 666.

138 See Sabatie, V., Approche evaluative du comportement des victimes d'actes delictuels devant les tribunaux repressifs (1985)Google Scholar.

139 See Bouzat, Pierre and Pinatel, Jean, Traite de Droit Penal et Criminologie, Vol. II (1970) 929 Google Scholar.

140 Ibid., at 930.

141 See Jacques Verin, “La Reparation due aux Victimes d'Infractions Penales”, in Towards a Victim Policy in Europe, supra n. 25, at 120.

142 See Martine Merigeau, “Evaluation of the Practice of Compensation within Recent Victim-Related Crime Policy in France”, in Victims and Criminal Justice, supra n. 133, at 237.

143 This notionally civil character, however, is affected by the penal character of the proceeding “pour prendre un caractère mixte, mi-penal, mi-civil” (Bouzat et Pinatel, supra n. 139, at 930). Cf. also the Resolutions of the Eleventh International Congress on Penal Law (supra n. 128, at 31): “The adhesion process must necessarily be a mixed structure of civil and criminal procedure elements”.

144 Spinellis, supra n. 126, at 413-4.

145 Cf. Mueller, supra n. 130, at 82.

146 Cf. Joutsen, supra n. 6, at 195.

147 Ibid.

148 See Sebba, supra n. 25, at 225-6. Even in modern times it has proved difficult to provide an unequivocal differentiation between the two areas; see Kenny's, famous essay “The Nature of a Crime?”, in Turner, J.W. Cecil, ed., Kenny's Outlines of Criminal Law (16th ed., 1952) 530 Google Scholar. For some thoughtful reflections on the similarities and differences, see Epstein, Richard A., Crime and Tort: Old Wine in Old Bottles (1977)Google Scholar. See also Shuman, Samuel I., “Responsibility and Punishment: Why Criminal Law?”, (1970) 14 Am. J. Jurisprudence 25, at 58–60 Google Scholar; Hadden, Tom, “Contract, Tort and Crime: The Forms of Legal Thought”, (1971) 87 L.Q.R. 240 Google Scholar; and Ashworth, Andrew, “Punishment and Compensation: Victims, Offenders, and the State”, (1986) 6 Oxford J. Legal Stud. 86 CrossRefGoogle Scholar.

149 See Holmes, Oliver Wendell, The Common Law (1881)Google Scholar; cf. Hall, Jerome, “Interrelations of Criminal Law and Torts”, (1943) 43 Colum. L.R., 753 CrossRefGoogle Scholar. and Epstein, ibid.

150 See Lamborn, LeRoy L., “Toward a Victim Orientation in Criminal Theory”, (1968) 22 Rutgers L.R., 733 Google Scholar.

151 Cf. Mann, Kenneth, “Punitive Civil Sanctions: The Middleground between Criminal and Civil Law”, (1992) 101 Yale L.J. 1795, at 1813 CrossRefGoogle Scholar.

152 Cf. Epstein, supra n. 148.

153 See Wright, Martin, Justice for Victims and Offenders, (1991) 41–2Google Scholar, and Wright, Martin, Making Good, (1982) 249 Google Scholar, respectively, for references to these events.

154 Grube, Jeffrey E., “Punitive Damages: A Misplaced Remedy”, (1993) 66 Southern Calif. L.R., 839 Google Scholar.

155 Cf. Galanter, Marc, “Punishment: Civil Style”, (1991) 25 Is. L.R., 759, at 769 Google Scholar.

156 In this last case, the jury awarded $5 billion in punitive damages to Alaskan fishermen and others: see the Wall Street Journal, 19th Sept. 1994.

157 See e.g., Englard, supra n. 113, ch. 11.

158 See Mann, supra n. 151, at 1849-51.

159 Ibid., at 1800.

160 See Kenny, supra n. 148.

161 See Mann, supra n. 151, at 1848.

162 See, e.g., U.S. v. Halper, 104 L Ed 2d 487 (1989).

163 Maidment has suggested (in the context of the issue of domestic violence) that the effectiveness of the remedy may depend less on its designation as civil or criminal, and more on pragmatic considerations — but that ultimately the efficacy of both types of remedy are limited by the underlying societal attitude to the form of victimization in question: see Maidment, Susan, “Civil v. Criminal: The Use of Legal Remedies in Response to Domestic Violence in England and Wales”, (1983) 8 Victimology: An International Journal 172 Google Scholar.

164 For a discussion of other differences in the two types of procedure from which the victim would benefit — although emphasizing the disadvantages to the defendant — see Freiberg, Arie and O'Malley, Pat, “State Intervention and the Civil Offense”, (1984) 18 Law and Society R. 373 CrossRefGoogle Scholar.

165 See Mann, supra n. 151.

166 See O'Barr, W. M. and Conley, J. M., “Lay Expectations of the Civil Justice System”, (1988) 22 Law and Society R. 137 CrossRefGoogle Scholar.

167 See Mann, supra n. 151, at 1855-8.

168 Ibid., at 1801, n. 22.

169 See Englard, supra n. 113, at 149.

170 See, e.g., Dolliver, James M., “Victim's Rights Constitutional Amendment: A Bad Idea whose Time Should not Come”, (1987) 34 Wayne L.R. 87, at 91 Google Scholar.

171 106 L Ed 2d 219, 243 (1989).

172 Even Justice O'Connor's vigorous dissenting opinion, which sought to apply the Eighth Amendment in this case, was based, inter alia, on the government's potential to “abuse its power by allowing civil juries to impose ruinous punitive damages as a way of furthering the purposes of the criminal law” (ibid., at 253). Two of the majority justices observed that the Fourteenth Amendment might apply in such cases to constrain excessive damages between private parties as an abuse of due process.

173 Cf. Blum-West, Steve and Carter, Timothy J., “Bringing White-Collar Crime Back in: An Examination of Crimes and Torts”, (1983) 30 Social Problems, 545, 548–9CrossRefGoogle Scholar; Englard, supra n. 113, at 147.

174 See Cane, Peter, Atiyah's Accidents, Compensation and the Law (5th ed., 1993)Google Scholar.

174a Cf. Sebba, supra n. 11, ch. 11.

175 See Mann, supra n. 151, at 1868.

176 Cf. Grube, supra n. 154.

177 See Sebba, supra n. 11, chs. 5, 8.

178 See Cane, supra n. 174, ch. 18.

179 Tune, Andre, “Introduction”, International Encyclopedia of Comparative Law, Vol. 11: Torts, 10 (1971)Google Scholar.

180 See Harris, Donald et al. , Compensation and Support for Illness and Injury (1984), at 140ffGoogle Scholar.

181 See Reynolds, D. and Blyth, D. A., Occurrence, Reaction to, and Perception of Victimization in an Urban Setting: Analysis of a Survey of the Twin Cities Region (1976)Google Scholar.

182 See Sessar, Klaus, Public Attitudes Towards Offender Restitution in Germany (1984)Google Scholar. The expression “private asessment outside the criminal justice system” did not apply specifically to civil procedures, but to various non-penal solutions including mediation: see ibid., at 19.

183 See Zawitz, Marianne W. et al. , Highlights From 20 Years of Surveying Crime Victims (1993) 31–2Google Scholar.

184 “If the victim secures compensation, he has restored the relationship to equity” ( Walster, E. et al. , “New Directions in Equity Research”, in Berkowitz, L. and Walster, E., eds., New Directions in Equity Research (1976) 24 Google Scholar; see also Sebba, supra n. 11.

185 See Yona Cohn, “Crisis Intervention and the Victim of Robbery”, in Victimology: A New Focus, supra n. 106, at 17.

186 See Lafave, Wayne, Arrest: The Decision to Take a Suspect into Custody (1965)Google Scholar; Smith, Barbara, Non-Stranger Violence: The Criminal Court's Response (1983)Google Scholar.

187 See Williams, Glanville, “The Aims of the Law of Tort”, (1951) Current Legal Problems 137 Google Scholar.

188 See Stoll, H., “Penal Purposes in the Law of Tort”, (1970) 18 Am. J. Comp. L. 3 CrossRefGoogle Scholar.

189 Not only was the positivist school utilitarian or “consequentialist”, but also the classical school which preceded it. It will be recalled that Beccaria laid emphasis on deterrence as the aim of the criminal law — and it was he who coined the utilitarian objective of “the greatest happpiness of the greatest number”: see Hart, Herbert L. A., Essays On Bentham (1982) 40 Google Scholar.

190 See Wootton, Barbara, Crime and the Criminal Law (1981)Google Scholar; Gramatica, Fillipo, Principes de Defense Sociale (1963)Google Scholar.

191 Cf. Posner, Richard A., Economic Analysis of Law (1986)Google Scholar.

192 See White, G. Edward, Tort Law In America: An Intellectual History (1980)Google Scholar.

193 The fault vs. strict liability controversy, however, may be distinguished from the morality-utility controversy: see Englard, supra n. 113, chs. 1 & 3.

194 See: Englard, ibid., at 11; White, supra n. 192. The differentiation between distributive and corrective justice dates back to Aristotle: see Englard, ibid., at 11.

195 See White, ibid., at 218.

196 See Englard, supra n. 113, at 14.

197 But see Sadurski, Wojciech, Giving Desert its Due (1985)CrossRefGoogle Scholar.

198 See Thorvaldson, supra n. 78.

199 See: White, supra n. 192, at 239; Veitch, Edward and Miers, David, “Assault on the Law of Tort”, (1975) 38 Modern L.R. 139 CrossRefGoogle Scholar; and Englard, supra n. 113, at 153.

200 See Coffee, J C., “Paradigms Lost: The Blurring of the Criminal and Civil Law Models — and What Can be Done About It”, (1992) 101 Yale L.J. 1875 CrossRefGoogle Scholar.

201 See Englard, supra n. 113, at 56.

202 See Jolowicz, J.A., “The Dilemmas of Civil Litigation”, (1983) 18 Is. L.R. 161, at 172 Google Scholar.

203 Ibid.

204 Freiberg and O'Malley, supra a. 164, at 390.

205 Most evaluations suggest that informalism is a popular mode of dispute processing: see, e.g., Robert B. Coates, “Victim-Offender Reconciliation Programs in North America: An Assessment”, (1990) in Criminal Justice, Restitution and Reconciliation, supra n. 14, at 125; and see generally, Sebba, supra n. 11, ch. 11.

206 Sander, supra n. 23.

207 The importance of vesting this discretion in the victim was emphasized by Maidment (supra n. 163), in her consideration of remedies for domestic violence in Britain. See also Recommendation no. 19 of the Helsinki Seminar (supra n. 40): “… the victim should have the opportunity of proceeding according to different options, in accordance with his or her own needs”.

208 Cf. Felstiner, William F., “Influences of Social Organization on Dispute Processing”, (1974) 9 Law and Society R. 63 CrossRefGoogle Scholar; Sander, supra n. 23.

209 Mann, supra n. 151, at 1802.

210 Cf. Freiberg and O'Malley, supra n. 164, at 380; Coffee, supra n. 200.

211 See Galanter, supra n. 155, at 775.

212 See Wright, Making Good, supra n. 153, at 258.

213 See Jolowicz, H. F., Historical Introduction to Roman Law (1939) 174 Google Scholar. The analogy may be appropriate, in that most crimes were at that time dealt with by private actions; see ibid., at 321.

214 See Frieder Dunkel and Dieter Rossner, “Law and Practice of Victim/Offender Agreements”, in Mediation and Criminal Justice, supra n. 14, at 152, 155-6.

215 See Sebba, supra n. 11, ch. 7.

216 Cf. Thorvaldson, supra n. 78.

217 Cf. Galanter, Marc, “Why the ‘Haves’ Come Out Ahead; Speculations on the Limits of Legal Change”, (1974) 9 Law and Society R. 95 CrossRefGoogle Scholar; and Galanter, supra n. 155, at 775.

218 Cf. Tallack, William, Penological and Preventive Principles (1889)Google Scholar; Ashworth, Andrew, “Punishment and Compensation: Victims, Offenders and the State”, (1986) 6 Oxford J. Legal Stud. 86, at 95 CrossRefGoogle Scholar.

219 See Ashworth, Andrew, Sentencing and Penal Policy (1983)Google Scholar.

220 See Wright, supra n. 153 (1982).

221 Even Christie (supra n. 45), generally opposed to any formal judicial processing, seems to allow for this possibility. Similarly, Wright (supra n. 153, 1982) provides for various measures of restraint which the court would be empowered to impose in serious cases, including supervision of the wrongdoer. These are ostensibly directed at protecting the victim, but seem to have a wider protective purpose vis-à-vis society as a whole.

222 Cf. Miers, David, Compensation for Criminal Injuries (1990) 325 Google Scholar; Sebba, supra n. 11, ch. 7.

223 See Grube, supra n. 154, at 854, esp. n. 81.

224 In this context it may be noted that the tension between the two models — an interparty, individual responsibility model, as opposed to a state responsibility, welfare model — has its direct parallel in the civil law literature on the respective roles of tort and insurance (especially public insurance) in compensating personal injuries (see, e.g., Harris et al., supra n. 180).

225 See Finn and Colson, supra n. 94.

226 Cf. Sebba, supra n. 89.

227 See Newburn, Tim, The Use and Enforcement of Compensation Orders in Magistrates Courts (1988) 47 Google Scholar, citing Miers.

227a Cf. Sebba, supra n. 11, Part II.

228 See, e.g., Rice, P. R., “Mediation and Arbitration as a Civil Alternative to the Criminal Justice System — An Overview and Legal Analysis”, (1979) 29 Am. U.L.R. 17 Google Scholar.

229 Cf. the seminal article on decentralization of the criminal justice system by Danzig, Richard D., “Towards the Creation of a Complementary Decentralized System of Criminal Justice”, (1973) 26 Stan. L.R. 1 CrossRefGoogle Scholar.

230 I have elsewhere expressed reservations regarding the developing practice of the imposition of levies on offenders in order to compensate victims of other offenders: see Sebba, supra n. 11, ch. 9. These reservations are not applicable — or at least not to the same extent — in the instant case. Here the assessment of punitive damages is determined as a matter of principle, as an appropriate sanction for the wrongdoing, and not for the purpose of meeting a particular social or economic need.

231 See Wright, supra n. 153 (1982), at 283. See also Robinson's proposal for sanctions of equal “punitive bite”, incorporated in the “hybrid approach” of Cavadino and Dignan, supra n. 25.

232 This is the phrase applied to the designated role of the victim in the constitutional amendments.

233 Cf. Mnookin, Robert H. and Kornhauser, Lewis, “Bargaining in the Shadow of the Law: The Case of Divorce”, (1979) 88 Yale L.J. 950 CrossRefGoogle Scholar.

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235 Cf. Cavadino and Dignan, supra n. 25.

236 See Braithwaite, John and Pettit, Philip, Not Just Deserts (1990), esp. p. 91 Google Scholar.