In Print: Volume 85: Number 6
By Andrew Nash
85 Wash. U. L. Rev. 1419 (2008)
This Note attempts to answer a deceivingly simple question: Who is the victim of a crime? After decades of “neglect” in state and federal criminal law, during the last thirty years victims have come to play an increasingly central role in American criminal justice. Our current system of criminal law is not simply a matter of defendants, prosecutors, and judges; in the federal system, the victim of a crime has a right to restitution, to confer with prosecutors handling the case, to speak at the offender’s sentencing, and to receive notice of the offender’s parole. Moreover, under the United States Sentencing Guidelines (hereinafter “the Sentencing Guidelines” or “Guidelines”), an offender’s sentence may also be influenced by whether a federal judge identifies victims of the offender’s crime.
Yet victimhood is a slippery concept. As a matter of law, whether someone is a victim of a crime may depend, among other things, on the type and extent of injury sustained, the tenuousness of the connection of injury to the offender’s conduct, and whether the victim was at fault in the criminal transaction. Further, the term “victim” is inconsistently applied in the various arenas of federal criminal law. While the definitions of “victim” found in the federal restitution and victims’ rights statutes are functionally identical, the Federal Rules of Criminal Procedure define “victim” differently. Most remarkably of all, however, the Sentencing “Guidelines do not define the term [victim], leaving the federal courts to sketch out the contours of its meaning.” In short, despite the widespread appearance of victims in federal criminal law, victimhood has yet to obtain a fixed, salient legal meaning.
This Note explores the meaning of victimhood within the Sentencing Guidelines and other areas of federal criminal law and proposes a victim definition for the Guidelines grounded in five core concepts: adequacy of victim injury, proximate cause, and victims who are imaginary, culpable, or consenting. Part II sketches the gradual appearance of victims in federal criminal law throughout the last three decades, a development that reached a new pinnacle in 2004 with the passage of the Crime Victims Rights Act (CVRA). Part III considers the role of victims in the Sentencing Guidelines, describes federal courts’ attempts to create standards for identifying victims in the Guidelines in the absence of a victim definition, and identifies the conceptual contours of victimhood. Drawing on the analysis in Part III, Part IV proposes a victim definition for the Guidelines and explains how it should be applied in an interlocking manner with other victim-related provisions of federal criminal law. Part V provides the Note’s conclusions.