Should Victims’ Views Influence Prosecutors’ Decisions?

This article seeks to promote a conversation about how prosecutors, particularly in misdemeanor cases with identifiable victims, should take account of what victims want, including what they regard as the just result. The criminal law assumes that victims want retribution, which means incarcerating offenders, and prosecutors’ offices largely accept that premise. We argue that in a process that generally is weighted toward punishment and excessive use of state power, prosecutors should ascertain victims’ actual views and take them into account as a counterweight. That is, when prosecutors would otherwise pursue a misdemeanor prosecution, they should generally defer to victims’ informed and reasoned preferences for nonprosecution and noncarceral resolutions.

The article draws on the recent experience of one of the coauthors, a public defender in Prince George’s County, Maryland.