Berkley Journal of Criminal Law
Disparate understandings of the primary justification for criminal punishment have in recent years divided along new lines. Retributivists and consequentialists have long debated whether a community ought to punish violators of legal norms primarily because the violator has usurped communal standards (the retributivist view), or rather merely as a means toward some end such as rehabilitation or deterrence (the consequentialist view). The competing answers to this question have demarcated for some time the primary boundary in criminal jurisprudential thought.
A new fault line appears to have opened between those who maintain the historical view that criminal punishment promotes the common good and those who believe that criminal punishment should primarily or exclusively serve or vindicate the interests of individual victims. For lack of commonly-used labels, this article shall refer to the former as "Blackstonian retributivists" and the latter as "victim-centrists." Victim-centrists would allow states and communities to punish those who usurp certain rights of particular victims and would, in some instances, excuse conduct that has historically been understood as criminal on the ground that such conduct best serves a victim's interest.
Victim-centric justifications for punishment or forbearance from punishment can naturally be understood from a consequentialist perspective. Consequentialist reasoning provides a link between the harm suffered by a particular victim and the culpability of the perpetrator. For this reason, consequentialism and victim-centrism make an obvious fit. However, the divide between the Blackstonians and the victim-centrists is not contiguous with the line between retributivists and consequentialists. Rather, some retributivists, most notably George Fletcher, have pitched their tents with consequentialist victim-centrists.
This article will review briefly the Blackstonian conception of criminal punishment. It will then examine some victim-centric schemes, taken as representative of victim-centric schemes offered from consequentialist and retributivist perspectives. Finally, it will survey three putative victim-centric developments in positive law. The goals of this survey are to discern whether victim-centrism constitutes an improvement upon Blackstonian retributivism and whether Blackstonian jurisdictions, including the common law states in the United States, have anything to learn from putative victim-centric developments in positive law.
Adam J. MacLeod, All for One: A Review of Victim-Centric Justifications for Criminal Punishment, 13 Berkeley J. Crim. L. 31 (2008).