Against the backdrop of the prosecutorial reform movement, this Article explores the origins of the tensions between victims’ rights and criminal justice reform efforts and argues that while victims’ rights may be in tension with diversion in some individual cases, the broader needs and interests of crime survivors do not conflict with decarceral diversion and deflection strategies. The Article describes the growing movement toward diversion among reform prosecutors and briefly recounts the history of the victims’ rights movement and “tough-on-crime” politics. The Article then discusses the demographics of crime survivors, who are disproportionately from the communities most harmed by “tough on crime” policies and highlights how portraying the needs and desires of crime survivors as in tension with reform is inaccurate and unfortunate, as survivors are underserved by the “tough on crime” status quo and often in fact support less carceral approaches. This Article then explores prosecutors’ ethical duties, including their obligation to resolve cases in a manner that best achieves justice and wellbeing for the entire community. Finally, it offers several recommendations for elected prosecutors committed to decarceral strategies, with a goal of balancing defendants’ rights, the rights and interests of crime survivors, and the needs of the community. Ultimately, efforts to reduce the footprint of the criminal legal system, such as via diversion or deflection, and efforts to promote the interests of crime survivors align. The interests of crime survivors, defendants, and communities are all served by less carceral approaches that proactively invest in addressing the underlying drivers of crime and undoing the harms of mass incarceration.
Miriam Krinsky & Liz Komar,
“Victims’ Rights” and Diversion: Furthering the Interests of Crime Survivors and the Community,
SMU L. Rev.