Should a Murder Victim Have Rights in the Criminal Justice Process?

In every state and in the federal criminal justice system, when a crime victim is killed, the law allows a family member or other representative to step into the victim’s shoes and assert the victim’s rights. That framework has become a routine and influential feature of modern criminal justice, embedded in statutes, constitutional provisions, and everyday courtroom practice. Yet despite its centrality, the justifications for this arrangement have received relatively little sustained scholarly attention. That gap has become more apparent following Professor Lee Kovarsky’s recent article, “The Victims’ Rights Mismatch,” which offers a serious and thoughtful challenge to prevailing assumptions about deceased-victim representation and calls for sharply limiting victims’ rights in such cases.

In a new article available on SSRN (and soon to be published in the U.C. Irvine Law Review), Professor Peter Reilly and I defend the conventional wisdom. Our article explains why a victim’s death does not extinguish the justification for victim participation when that participation is exercised through a representative. Drawing on history, doctrine, and experience in actual criminal litigation, our article shows that representation of deceased victims is deeply rooted in Anglo-American law and consistent with related doctrines such as survival actions. It further demonstrates that the core justifications for victims’ rights—expressive, participatory, and institutional—do not disappear when asserted through a representative. Nor does representative participation reduce sentencing to judgments of “social worth.”

Finally, through a detailed examination of United States v. Boeing—the deadliest corporate crime in U.S. history, arising from two Boeing 737 MAX crashes (as I have blogged about previously here, here, and here)—our article illustrates how deceased-victim representation operates in practice as an important check on prosecutorial discretion and as a safeguard for transparency, accountability, and public confidence in the criminal justice system.

To give you a flavor our argument, here’s our introduction:

A generally recognized legal principle in every state and the federal criminal justice system is that, when a victim is killed by an alleged criminal, a family member or other appropriate representative can step into the shoes of the victim and participate in criminal justice proceedings. The theory is that, because the victim is deceased, someone should be allowed to represent the victim and exercise rights on the victim’s behalf. In a recent article, Professor Lee Kovarsky challenges this widely accepted approach. In “The Victims’ Rights Mismatch,” Kovarsky finds representation for deceased victims “puzzling.” He contends that, in such “third-party” scenarios, the justifications for victim participation and influence collapse.

We disagree. While Professor Kovarsky’s important and thoughtful article is the first to analyze these issues at any length, ultimately it fails to make a convincing case against the conventional wisdom. When a victim has been killed as the result of a crime, it  remains appropriate and useful for a representative of the victim to assert the victim’s rights. A recent criminal case—United States v. Boeing— illustrates the importance of victims’ representatives’ participation. Strong institutional and instrumental justifications exist for allowing representatives to assert victims’ rights.

This Article makes the case for deceased-victim representation in criminal proceedings in five steps. Part I describes the legal framework and factual circumstances surrounding rights of victims of deadly crimes. The Article first explains how, in all states and the federal criminal justice system, representatives for victims of lethal crimes step into the victims’ shoes to assert rights. Although these representatives (often family members) may have been harmed in and of themselves by the crime, this Article focuses on—and defends—victims’ representatives asserting rights on behalf of deceased victims. Such representation is the historically accepted approach in this country. Part I concludes with a factual description of the kinds of crimes involving deceased victims. Although Professor Kovarsky asserts that such crimes are “almost always homicide cases with a harsh penalty,” many criminal cases in fact involve a defendant who caused a death without the case being classified as a homicide.

Part II illustrates the importance of representation for deceased victims. In United States v. Boeing, the Boeing Company killed 346 people as a direct and proximate result of its conspiracy to defraud the Federal Aviation Administration (FAA) about the safety of the  Boeing 737 MAX aircraft. In this case, the “deadliest corporate crime in U.S. history,” the families of the 346 victims served an important checking function on the prosecutors—a valuable role that Professor Kovarsky fails to recognize. And this checking function also exists in the law of other countries.

Part III turns to broader institutional reasons why representatives of deceased victims should be able to participate in criminal proceedings. This approach tracks other bodies of law, where after death the interests of a deceased person transfer to a representative. Indeed, it would be odd to extend participatory rights to persons injured by crimes but not to those actually killed. And representation of deceased-persons can help provide important information to judges handling criminal cases—information that turns on the unique value of the individual who was killed, rather than the social worth of that individual.

Part IV discusses instrumental reasons for allowing representatives of deceased victims to participate in criminal cases. First, having the victims’ voices heard enhances the legitimacy of criminal proceedings. Second, allowing victims’ representatives (such as families) to participate in criminal proceedings may have therapeutic benefits, regardless of any impact on the outcome. Third, victims’ representatives can help judges reach appropriate outcomes in criminal cases, such as awarding appropriate restitution. Fourth, by delivering victim impact statements, victims’ representatives can drive home to criminal defendants their crimes’ full impact, which may help in rehabilitating defendants. Finally, at sentencing, deceased-victims’ representatives can help serve a public educative function.

Part V responds to Professor Kovarsky’s policy proposal of a system of “tiered” rights. Under the plan, deceased-victims’ representatives would receive some, but not all, of the panoply of crime victims’ rights. Notably, Kovarsky would extend a right to restitution, a right that necessarily involves representatives participating in criminal proceedings. Given that representatives would necessarily be participating extensively  in restitution proceedings, there is little justification for excluding them from other aspects of the case.

The Article briefly concludes by observing that eliminating representation for deceased victims would be swimming upstream against an overwhelming tide of public opinion in this country. On the issue of whether deceased victims should have a voice in the  process, this widely shared conception of justice is well-founded.

This issue of deceased-victim representation is an important one, and I hope our article leads to more discussion of the issue. You can download our whole article here.