The Victims’ Rights Mismatch

Lee Kovarsky* November, 2025

A puzzling mismatch lurks inside victims’ rights law. Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death. This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response.

The mismatch persists because American jurisdictions assign a single bundle of rights to all people denominated as “victims.” In dead-victim cases, however, the primary bearers of interpersonal harm are gone. Instead, their rights are assumed by aggrieved family members and legal estates. In those third-party scenarios, justifications for victim participation and influence collapse.

Mismatch presents normative problems along two dimensions. Along the deontological one, (1) rights to expression and confrontation expire with dead victims, (2) third-party input doesn’t provide information about retributively significant harm, and (3) dead-victim cases immorally sensitize punishment to the social worth of decedents. Along the consequentialist dimension, third-party involvement affects punishment at a margin that has no plausible effect on deterrence or incapacitation, and victim involvement can’t promote legitimacy when it estranges vulnerable communities.

A better institutional response is straightforward: Victims’ rights should be tiered. In dead-victim cases, victims’ rights must always be conceptualized as the first-party rights of survivors, rather than third-party rights asserted on behalf of decedents. Surviving harm bearers can retain rights to notice, protection, and even restitution, but rights to other forms of participation and influence should be severely restricted.

Introduction

A conceptual puzzle lingers at the core of victims’ rights law. On the one hand, the participation of living victims provides the best moral justification for modern victims’ rights practices. On the other hand, the victims’ rights movement has triumphed largely as a response to crime-caused death.^{¹See Markus Dirk Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights 179 (Richard Delgado & Jean Stefancic eds., 2002).} This Article is about the mismatch between practice and justification in dead-victim cases, the moral questions that follow, and what to do about them.

Some causes of mismatch are intuitive. There’s an interest in dignifying the direct bearers of interpersonal harm with a right to participate in punishment. In dead-victim cases, however, the primary bearers of interpersonal harm are gone. Even if decedents have some enforceable post-mortem rights,^{²See infra note 156 and accompanying text.} one can’t reasonably count the decedent’s rights to expression and confrontation among them. Secondary harm bearers—think grieving family members—should instead be conceptualized as asserting their own rights, and moral justifications for victims’ rights practices must change accordingly.

There’s also mismatch because dead-victim cases almost always involve long sentences. They’re usually homicides,^{³I use the term “dead-victim cases” rather than “homicides” because my analysis applies whenever a victim of crime-caused harm is dead, whether the crime is a homicide or not. In 2019, the FBI did break its incident reports out by “circumstances,” which contained breakouts for (1) murder and nonnegligent homicide and (2) negligent homicides. In that data, there were 6,732 murders/nonnegligent manslaughter offenses and 597 negligent manslaughter offenses. See 2019: National Incident-Based Reporting System, Fed. Bureau of Investigation, https://ucr.fbi.gov/nibrs/2019/tables/data-tables [perma.cc/V7VR-GZVW]. In the Incident Report data, then, homicides carrying long sentences accounted for over ninety percent of all homicides.} and homicides trigger executions or lengthy prison terms.^{⁴For noncapital sentences in state court, see Danielle Kaeble, Bureau Of Justice Statistics, U.S. Dep’t of Just., Time Served in State Prison, 2018, 2, 3 (2021), https://bjs.ojp.gov/content/pub/pdf/tssp18.pdf [perma.cc/323H-P3U6] (reporting that the average time served for a murder conviction in state prison is 17.8 years and that 42% of people with state murder convictions spend more than twenty years in prison); id. at 4 tbl.3 n.b (reporting that, if the statistics exclude people convicted of murder who receive life sentences, death sentences, and who die in prison, the average sentence length is 20.2 years). For federal murder convictions, see U.S. Sent’g Comm’n, Quarterly Data Report 9 tbl.6 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC-2019_Quarterly_Report_Final.pdf [perma.cc/8R3D-EZHC] (reporting that the average sentence length of a person with a federal murder conviction is just under 22 years). For capital murder convictions, see generally Tracy L. Snell, U.S. Dep’t of Justice, NCJ 305534, Capital Punishment, 2021 – Statistical Tables (2023), https://bjs.ojp.gov/document/cp21st.pdf [perma.cc/KD38-UBQZ], which provides a statistical snapshot of the death penalty as of 2021.} Even if one assumes that victim involvement generally increases punishment,^{⁵That victim involvement tends to inflate punishment is the conventional wisdom, which helps explain why the victims’ rights movement has doubled as a tough-on-crime movement. See Dubber, supra note 1, at 3; see also Kathryn Morgan & Brent L. Smith, Victims, Punishment, and Parole: The Effect of Victim Participation on Parole Hearings, 4 Criminology & Pub. Pol’y 333, 355 (2005) (finding a strong relationship between victim involvement and harsher parole outcomes). For a more comprehensive discussion of the empirical literature, which discloses mixed findings on the specific relationship between victim impact statements and the harshness of sentencing, see infra note 285 and accompanying text.} the problem in dead-victim cases is that neither deterrence nor incapacitation can justify incremental severity.^{⁶See infra Sections IV.A (deterrence) and IV.B (incapacitation).} There might be utilitarian justifications for incremental severity at lesser sentencing magnitude, but not for murderers who will spend decades in prison whether victims are involved or not.^{⁷For discussion of the empirical picture as to deterrence, see Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration 42–43 (2019), which collects studies showing minimal deterrent effect on the extreme range of punishment intensity, and J.J. Prescott, Benjamin Pyle & Sonja B. Starr, Understanding Violent-Crime Recidivism, 95 Notre Dame L. Rev. 1643, 1660 (2020), stating that “[r]esearch suggests that lengthening already-long prison sentences has little to no deterrent effect on violent crime.” For discussion as to incapacitation, see Michael Tonry, Making American Sentencing Just, Humane, and Effective, 46 Crime & Just. 441, 459 (2017), explaining that “[t]he short residual career lengths of most offenders mean that there is little incapacitative gain to be realized from imprisoning people for lengthy periods.”}

Finally, dead-victim scenarios amplify an equality problem that dogs victim involvement generally: It sensitizes punishment to a decedent’s social worth.^{⁸See infra Section III.C.} The criminal legal system becomes even more responsive to victims with certain cultural profiles, such as those who are represented by structurally advantaged groups, those who had privileged forms of social connectivity, and so forth.^{⁹See infra Section III.C.} This problem is grave enough in living-victim cases,^{¹⁰See infra note 233 and accompanying text.} but it is devastating when the victims are dead.^{¹¹See infra notes 236–241 and accompanying text.}

I proceed in five parts. In Part I, I provide readers with a (very) brief history of victims’ rights practices. Building on my fifty-state survey of victims’ rights law in Part II,^{¹²The results of this survey appear in the Appendix, infra.} I develop the concept of mismatch. In so doing, I unpack the concept of victimhood along three dimensions: (1) the definition of a victim; (2) the substantive rights that attach to victim status; and (3) who gets to demand institutional responses (remedies). For each dimension, I explain why dead-victim scenarios require different moral justifications than what the victims’ rights movement typically offers.^{¹³In general, I exclude from my analyses situations in which the defendant is a corporate fiction rather than a human being. For example, in the criminal prosecution of Boeing for causing two deadly plane crashes, relatives of dead victims objected to a deferred prosecution agreement. United States v. Boeing, No. 21-cr-5, 2022 WL 13829875, at *4 (N.D. Tex. Oct. 21, 2022). In cases like Boeing, the moral calculus looks quite different than that which applies when dealing with a flesh and blood defendant. Retributive arguments and justifications that center on the experience of a defendant forced to process harm are weaker when the defendant is a corporate fiction. On the other hand, justifications centering deterrence or financial compensation are likely stronger. I don’t consider the decision to carve business entity defendants out of my analysis to be particularly significant, because these aren’t the types of defendants for which victims’ rights practices developed.}

Parts III and IV represent the moral critique of mismatch, with Part III presenting the deontological arguments and Part IV the consequentialist ones.^{¹⁴In my moral critique, I assume that the primary purpose of the criminal legal system is to punish, rather than to perform functions like restoration or healing. See infra Section III.A (explaining the retributive theory typically used to justify punishment). Some victims’ rights practices might be subject to stronger justification if that assumption is relaxed. See infra note 281 (making this point with respect to restorative justice).} Justifications for victim involvement are weakest for the dead-victim scenarios that give the victims’ rights movement its emotional charge. Expressive and confrontative justifications for victim involvement deteriorate when there is no living victim to do the expressing and confronting.^{¹⁵See infra Section III.A.} Consequentialist justifications for victim involvement collapse when the involvement affects margins on the right tail of sentencing outcomes—when it influences sentence intensity at levels that are already severe.^{¹⁶See infra note 292 (collecting citations relating to deterrence); infra note 299 (incapacitation). As mentioned above, the same point applies with less force to a business entity defendant. See supra note 13.} Finally, in dead-victim cases, the risk that sentencing will reflect victims’ social worth swamps interests that might push in the other direction.^{¹⁷See infra Section III.C.}

In Part V, I consider the institutional implications of the moral mismatch. First, there ought not be a global category of “victims’ rights” that apply in all cases; the mix of rights and enforcement should vary meaningfully between living-victim and dead-victim cases. Second, the scope of victim involvement in dead-victim cases shouldn’t just be different, it should be diminished. There remain good reasons to keep secondary victims apprised of the legal process—and ensure their ability to observe it—but the reasons for allowing them to participate in decisionmaking are weaker. Third, and in view of a pared-down victims’ rights menu in dead-victim cases, the state should be more accountable for the rights that remain.

To say that we should think about rights differently when victims are dead neither disparages victimhood nor suggests that victims are unworthy of profound social reparation. Every life lost to crime is a tragedy that radiates a unique signature of pain and loss, and the state should take care of those bearing collateral damage. But the state response should be more appropriately tailored to the problem, not funneled into a criminal trial where rights of victims compete with those of defendants.^{¹⁸See, e.g., Wayne A. Logan, Confronting Evil: Victims’ Rights in an Age of Terror, 96 Geo. L.J. 721, 774–75 (2008) (discussing the unsuitability of criminal trial). I try to limit my observations to the American movement, because the victims’ rights movement was to some degree globalized. See Paul G. Cassell & Edna Erez, How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar’s Sentencing, 107 Marq. L. Rev. 861, 944–46 (2024) (discussing worldwide rise of victims’ rights).}

I. A Brief History of Victims’ Rights

The cultural phenomenon most responsible for the presence of victims’ remedies on the American legal landscape is the twentieth-century victims’ rights movement,^{¹⁹For material documenting the victims’ rights movement, see Paul G. Cassell & Margaret Garvin, Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for Florida, 110 J. Crim. L. & Criminology 99, 102 (2020); Dubber, supra note 1, at 151–209; Lynne N. Henderson, The Wrongs of Victim’s Rights, 37 Stan. L. Rev. 937, 938–53 (1985); and Carrie Rentschler, Second Wounds: Victims’ Rights and the Media in the U.S. 55–80 (2011).} which was itself part of a broader international trend.^{²⁰See Sue Anna Moss Cellini, The Proposed Victims’ Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 Ariz. J. Int’l & Comp. L. 839, 855 (1997).} The concept of victims’ rights doesn’t have a lengthy pedigree. What it meant to be a “victim” in a criminal proceeding wasn’t even fixed until the mid-nineteenth century.^{²¹See Andrew Nash, Victims by Definition, 85 Wash. U. L. Rev. 1419, 1422 (2008).} In fact, before about the fourteenth century, there wasn’t any public confrontation recognizable as “criminal law.” Redress for interpersonal harm—at least in the Anglo-American legal tradition—instead took the form of vendetta-driven blood feuds.^{²²See Harold J. Berman, The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe, 45 U. Chi. L. Rev. 553, 554–55 (1978).}

Over time, the state eventually assumed civic responsibility for the response to certain social transgressions.^{²³See Henderson, supra note 19, at 940–42.} A transgression was reconceptualized as a breach of social contract or as an affront to the state—what we now call a criminal offense.^{²⁴See R.A. Duff, Punishment, Communication, And Community 36–39 (2001) (discussing the cluster of liberal punishment theory).} The criminal proceeding was a forum for a public confrontation between the state and the defendant, rather than a private site of loss allocation. Because the state-centric paradigm of criminal punishment was premised on crime-caused interpersonal harm, however, victims still figured prominently in the process.^{²⁵Notwithstanding infra notes 26–29 and accompanying text, and with specific respect to the English system of privately initiated prosecution, victim involvement still lessened over time. See Henderson, supra note 19, at 940–42.} They could initiate private prosecutions^{²⁶See William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim. L. Rev. 649, 652 (1976).} and bear witness.^{²⁷See Douglas E. Beloof & Paul G. Cassell, The Crime Victim’s Right to Attend the Trial: The Reascendant National Consensus, 9 Lewis & Clark L. Rev. 481, 484–93 (2005).} There remained a sense that primary victims of interpersonal harm were entitled, in view of dignity or some other value, to demand a system of criminal accountability that worked on their behalf, at least in the aggregate.

Over time, however, victims found themselves less able to influence the state’s approach to criminal punishment in specific cases. The state and the victims might prefer different responses to a given crime. As the United States moved through various punishment paradigms—first rehabilitation, now retribution^{²⁸See Albert W. Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts About the Next, 70 U. Chi. L. Rev. 1, 1 (2003).}—victims might insist on punitive hardship as vengeance, but the state might prioritize some other objective and punish at some lower level.^{²⁹See David Alm, Crime Victims and the Right to Punishment, 13 Crim. L. & Phil. 63, 68 (2019).}

The bureaucracy of criminal punishment also marginalized victims. Broad, thick criminal codes meant more arresting, more prosecuting, and more punishing.^{³⁰For leading discussions about the effects of broad criminal codes, see Douglas Husak, Overcriminalization: The Limits of the Criminal Law 4 (2008); Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703, 725 (2005); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 507 (2001).} For example, the system came to rely heavily on plea bargaining to manage criminal dockets.^{³¹See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 6, 34 (1979); George Fisher, Plea Bargaining’s Triumph, 109 Yale L.J. 857, 865, 867 (2000).} These deals might produce less than victim-preferred punishment, and they eliminate trials that would dignify victimhood with further participation. (It’s no surprise that modern plea adjudication is a primary target of the modern victims’ rights movement.^{³²See Bruce A. Green & Brandon P. Ruben, Should Victims’ Views Influence Prosecutors’ Decisions?, 87 Brook. L. Rev. 1127, 1133 (2022); Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 752 (1996).})

The nascent victims’ rights movement was a natural fit for the tough-on-crime American politics of the 1970s, and modern movement grammar reflects that linkage.^{³³See Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure, 2007 Utah L. Rev. 861, 865 (2007) [hereinafter Cassell, Treating Crime Victims Fairly]; Rentschler, supra note 19, at 97.} The movement wanted victims to have a louder voice in criminal proceedings,^{³⁴See Dubber, supra note 1, at 123.} starting from the decision over whether to prosecute and continuing through parole. Although the early movement was a meaningful point of emphasis for feminists, antipoverty advocates, and civil-rights organizations,^{³⁵See Paul G. Cassell, In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. L. 611, 612–13 (2009) [hereinafter Cassell, Defense]; Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims’ Rights Act, 2005 B.Y.U. L. Rev. 835, 841 (2005) [hereinafter Cassell, Recognizing Victims]; Rentschler, supra note 19, at 55–56. But see Aya Gruber, The Feminist War on Crime, 92 Iowa L. Rev. 741, 763 (2007) (arguing that the victims’ rights movement was always socially conservative).} it shed progressive elements over time.^{³⁶See Dianne L. Martin, Retribution Revisited: A Reconsideration of Feminist Criminal Law Reform Strategies, 36 Osgoode Hall L.J. 151, 157–59 (1998); cf. Aya Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581, 638 (2009) (noting that the victims’ rights movement was always difficult to square with attempts to purge the influence of stereotypes from the criminal legal system).} The vast literature on the formation and growth of the victims’ rights movement reflects an overwhelming-but-not-unanimous conclusion that it was selectively oriented toward increasing punishment.^{³⁷See, e.g., Dubber, supra note 1, at 1 (“Two phenomena have shaped American criminal law for the last thirty years: the war on crime and the victims’ rights movement. These two political programs are related. The war on crime has been waged on behalf of victims against offenders; to pursue criminals has meant to pursue victims’ rights. To be pro-victim was to be anticrime, and vice versa.”); Martin, supra note 36, at 158 (“It was not inevitable that a punitive, retribution-driven agenda came to dominate criminal law reform and the most publicly accessible face of the women’s movement, but it would have been very difficult to resist or prevent.”).}

In 1982, President Ronald Reagan jolted the American victims’ rights movement by appointing the Task Force on Victims of Crime.^{³⁸See Exec. Order No. 12360, 47 Fed. Reg. § 17975 (1982).} The Task Force presented the movement as an effort to “balance” the rights of victims against those of defendants,^{³⁹See President’s Task Force on Victims of Crime, Final Report 114 (1982) [hereinafter Task Force Report]; see also Rentschler, supra note 19, at 34 (emphasizing the importance of the Task Force). For more extensive discussion of the report, and its relationship to both the movement and follow-on legislation, see Cassell, Treating Crime Victims Fairly, supra note 33, at 865–66.} and it recommended a constitutional amendment to implement that balance.^{⁴⁰ Task Force Report, supra note 39, at 114.} As victims’ rights advocates fought for constitutional change, they also racked up legislative victories.^{⁴¹These are discussed in Cassell, Treating Crime Victims Fairly, supra note 33, at 866–67.} Federal breakthroughs included: the Victim and Witness Protection Act (1982),^{⁴²Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248.} the Victims of Crime Act (1984),^{⁴³Victims of Crime Act of 1984, Pub. L. No. 98-473, 98 Stat. 2170.} the Victims’ Rights and Restitution Act (1990),^{⁴⁴Victims’ Rights and Restitution Act of 1990, Pub. L. No. 101-647, 104 Stat. 4820.} the Violent Crime Control and Law Enforcement Act (1994),^{⁴⁵Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.} the Antiterrorism and Effective Death Penalty Act (1996),^{⁴⁶Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.} the Mandatory Victims Restitution Act (1996),^{⁴⁷Mandatory Victims Restitution Act of 1996, Pub. L. No. 104-132, 110 Stat. 1227.} and the Victim Rights Clarification Act (1997).^{⁴⁸Victim Rights Clarification Act of 1997, Pub. L. No. 105-6, 111 Stat. 12.}

The victims’ rights movement crested in the mid-2000s, at least federally.^{⁴⁹For a detailed history of movement work towards constitutional amendment, see Cassell, Treating Crime Victims Fairly, supra note 33, at 867–69.} Senators Feinstein (D-California) and Kyl (R-Arizona) pushed for the constitutional amendment,^{⁵⁰See id. at 868.} although they ultimately withdrew it on the Senate floor.^{⁵¹See id. at 869.} In exchange for dialing back the amendment push, victims’ rights advocates received almost universal support for statutory reform.^{⁵²See Cassell, Defense, supra note 35, at 616.} The 2004 Crime Victims’ Rights Act (“CVRA”) probably represents the movement’s greatest political success; it was significant both because it enumerated a specific victims’ rights menu and because it extensively specified enforcement.^{⁵³See 18 U.S.C. § 3771(a) (specification of rights); § 3771(d) (enforcement).}

The victims’ rights movement achieved remarkable success at the state level, too. Between 1982 and 2009, thirty-two states passed constitutional amendments that dealt with victims’ rights in some form or another.^{⁵⁴See Ala. Const. art. I, § 6.01; Alaska Const. art. I, § 24; Ariz. Const. art. 2, § 2.1; Cal. Const. art. 1, § 28; Colo. Const. art. II, § 16a; Conn. Const. art. 1, § 8(b); Fla. Const. art. 1, § 16(b); Idaho Const. art. I, § 22; Ill. Const. art. 1, § 8.1; Ind. Const. art. 1, § 13(b); Kan. Const. art. 15, § 15; La. Const. art. 1, § 25; Md. Decl. of Rights art. 47; Mich. Const. art. 1, § 24; Miss. Const. art. 3, § 26A; Mo. Const. art. 1, § 32; Neb. Const. art. I, § 28; Nev. Const. art. 1, § 8A; N.J. Const. art. 1, § 22; N.M. Const. art. II, § 24; N.C. Const. art. I, § 37; Ohio Const. art. I, § 10a; Okla. Const. art. 2, § 34; Or. Const. art. I, § 42; R.I. Const. art. 1, § 23; S.C. Const. art. I, § 24; Tenn. Const. art. I, § 35; Tex. Const. art. 1, § 30; Utah Const. art. I, § 28; Va. Const. art. I, § 8-A; Wash. Const. art. 1, § 35; Wis. Const. art. 1, § 9m. These amendments were originally collected in Cassell, Defense, supra note 35, at 614 n.13.} (There was another burst of activity after 2008, once states began enacting so-called “Marsy’s Laws.”^{⁵⁵Cassell & Garvin, supra note 19, at 106–08.}) Every single state now has a victims’ rights statute.^{⁵⁶See infra note 70.} The general structure of the laws broadly parallel the federal CVRA.^{⁵⁷See infra Subsection II.C.1.} The statutes define who victims are;^{⁵⁸See infra Section II.A.} award them rights to things like notice, dignity, and input;^{⁵⁹See infra Section II.B.} and specify enforcement.^{⁶⁰See infra Section II.C.}

The justifications for victim involvement are reasonably consistent across reform efforts. Advocates say that victim participation calibrates harm for the purposes of retribution,^{⁶¹See, e.g., Cassell, Defense, supra note 35, at 620 (“Victim impact statements provide information about the full harm of the defendant’s crime.”); Mary Margaret Giannini, Measured Mercy: Managing the Intersection of Executive Pardon Power and Victims’ Rights with Procedural Justice Principles, 13 Ohio St. J. Crim. L. 89, 118 (2015) (“Nonetheless, appropriately measured information from the victim regarding the extent of harm caused by the defendant helps ensure a retributively sound response to the crime.”).} facilitates more accurate restitution,^{⁶²See, e.g., Cassell, Defense, supra note 35, at 620 (“A related, secondary point is that a victim impact statement can contain important information about restitution.”).} affirms the humanity of victims themselves,^{⁶³See, e.g., Payne v. Tennessee, 501 U.S. 808, 809 (1991) (“Such evidence is not generally offered to encourage comparative judgments of this kind, but is designed to show instead each victim’s uniqueness as an individual human being.”).} promotes offender rehabilitation,^{⁶⁴See, e.g., Dubber, supra note 1, at 338 (explaining the rehabilitation rationale); Cassell, Defense, supra note 35, at 623 (referencing Dubber favorably).} and improves sentencing fairness.^{⁶⁵See, e.g., Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289, 318 (1999) (“Denying the significance of the victim’s stake by exclusion from trial is offensive to the victim and to principles of fairness.”).} These justifications rely largely on an essentialized model of victimhood in which there is a person whose interpersonal victimization must be dignified with some role in a criminal proceeding. This essentialized victimhood dominates the construction of victims’ rights law, and it is the framework I use to build out the arguments that follow.^{⁶⁶See Dubber, supra note 1, at 175.}

II. Specifying Mismatch

Part II identifies the dimensions along which victims’ rights and their justifications are mismatched in dead-victim cases. There are three: (1) which harm bearers qualify as victims,^{⁶⁷See infra Section II.A.} (2) the rights menu that attaches to victimhood,^{⁶⁸See infra Section II.B.} and (3) who gets remedies.^{⁶⁹See infra Section II.C.} Understanding the normative mismatch detailed in Parts III and IV requires understanding who gets to assert what rights on behalf of which people harmed by crime,^{⁷⁰The National Crime Victim Law Institute maintains a library of victims’ rights provisions across American jurisdictions. See Victim Law Library: Rights by Jurisdiction, Nat’l Crime Victim L. Inst., https://ncvli.org/victim-law-library-rights-by-state [perma.cc/LF7Q-5VZP].} and the difficulties that dead-victim cases present. These difficulties persist because of the extreme political salience of victimhood in homicide cases.^{⁷¹See Deborah M. Weissman, The Community Politics of Domestic Violence, 82 Brook. L. Rev. 1479, 1493 (2017).}

A. Defining Victims

Victimhood isn’t an empirical fact about the physical world,^{⁷²See Rentschler, supra note 19, at 57 (discussing the “models for conceiving of . . . victims”).} so normative questions aren’t limited to the “rights” that victims should have. Victimhood is itself a concept freighted with normative judgment.^{⁷³See James A. Holstein & Gale Miller, Rethinking Victimization: An Interactional Approach to Victimology, 13 Symbolic Interaction 103, 104–05 (1990); cf. Anna Roberts, Victims, Right?, 42 Cardozo L. Rev. 1449, 1451 (2021) (exploring the normative choice to use “victim” before conviction).} If Adam kills Bob, then Bob is certainly a victim. What about Bob’s spouse Carter, his mother Denise, his best friend Ezra, and his neighbor Felicia? Carter, Denise, Ezra, and Felicia all experience harm and loss—for some, bottomless—but are they all victims in a sense that would entitle them to claim rights against the state?^{⁷⁴For a comprehensive attempt to specify the legal coverage of the term in federal victims’ rights law, see Paul G. Cassell & Michael Ray Morris, Jr., Defining “Victim” Through Harm: Crime Victim Status in the Crime Victims’ Rights Act and Other Victims’ Rights Enactments, 61 Am. Crim. L. Rev. 329, 331 (2024).}

To phrase the point analytically, conceptualize murder-caused harm as a circle surrounding the core interpersonal violence experienced by the deceased victim. The harm radiates outwards from the core, spreading economic, emotional, and psychic loss across an affected community. The crucial legal question is where to fix the perimeter beyond which harm does not entail a victimhood that triggers rights against the state. The legal category can’t possibly include every person who experienced any harm or loss. People who didn’t even know our primary victim (Bob) might experience elevated fear, and a life insurance company might experience financial loss. But they aren’t usually entitled to claim rights as “victims” of the interpersonal harm to Bob by Adam. When specifying victims’ rights, the law must necessarily recognize as victims only a subset of all people subject to crime-caused harm.

If crime-caused harm is necessary but not sufficient for victimhood,^{⁷⁵See Luis E. Chiesa, Why Is It a Crime to Stomp on a Goldfish?—Harm, Victimhood and the Structure of Anti-Cruelty Offenses, 78 Miss. L.J. 1, 13 (2008). I am not here suggesting that harm is necessary for there to be crime. I’m just saying that there needs to be harm for there to be a victim.} then there must be some normative position about what kinds of harm qualify. One might think the easy way out is to define “victimhood” to include only the bearers of direct and proximately caused harm. This approach works well in living-victim cases, where the primary bearer of person-to-person (interpersonal) harm is also the one asserting rights in court. But it creates mismatch in dead-victim cases where those two roles separate.

1. Victims Generally

Criminal law is primarily organized around a stylized-but-largely-modal transgression—a bilateral encounter in which one person commits a crime that causes interpersonal harm to someone else.^{⁷⁶See Weissman, supra note 71, at 1493.} One football fan socks another after too many beers, a burglar steals a van Gogh from an art collector’s home, a bank robber shoots a teller, and so forth. The point is that there is a clear vector of interpersonal harm running from a victimizer to a victim.^{⁷⁷See Stephen L. Carter, When Victims Happen to Be Black, 97 Yale L.J. 420, 421 (1988).} The terminology that normal people use to talk about crime, and the ways that political communities construct criminal legal systems, reflect this modal scenario.^{⁷⁸This reason is among several that I’ve excluded cases with business entity defendants from the arguments I make here. See supra note 13.}

I primarily focus on the third of three moments during criminal punishment through which the law largely constructs the victim category, but I ought to at least mention the first two. The first and most obvious site of victim specification is through a definition of the crime itself: Human beings can form parts of criminal conduct elements. For example, a criminal assault might be defined as causing physical injury to another person with sufficient intent.^{⁷⁹See, e.g., Cal. Penal Code § 240 (West 2024) (“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”); N.Y. Penal Law § 120.00 (McKinney 2025) (defining third-degree assault in New York); see also Jeffrey Bellin, Mass Incarceration Nation 97 (2023) (setting forth the prototypical aggravated assault statute).} Or larceny (theft) might be defined as the unlawful taking of personal property with the intent to permanently deprive the lawful owner of possession.^{⁸⁰See, e.g., N.Y. Penal Law § 155.05 (McKinney 2025) (“A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”); Tex. Penal Code Ann. § 31.03(a) (West 2023) (“A person commits an offense [of theft] if he unlawfully appropriates property with intent to deprive the owner of property.”).} In each case, victimhood lives in the DNA of the crime itself. Assault victims include the person physically harmed, and larceny victims include the person deprived of stuff they own.^{⁸¹See also, e.g., N.C. Gen. Stat. Ann. § 15A-830(a)(7) (West 2024) (defining a victim as a “person against whom there is probable cause to believe an offense against the person or a felony property crime has been committed”).}

Second, the law identifies victims in sentencing guidelines that prevail across the federal and state judiciaries. For example, after a federal district court calculates a base offense level, § 1B1.1 of the Federal Sentencing Guidelines directs it to “[a]pply . . . adjustments as appropriate related to victim, role, and obstruction of justice.”^{⁸² U.S. Sent’g Guidelines Manual § 1B1.1 (U.S. Sent’g Comm’n 2023), https://www.ussc.gov/guidelines/guidelines-archive/annotated-2023-chapter-1 [perma.cc/B3UK-7QVJ] (emphasis added).} Moreover, § 3A is entitled “Victim-Related Adjustments” and, as its name suggests, contains detailed sentencing adjustments based on victim attributes and treatment.^{⁸³Id. § 3A.} There are separate adjustments for hate crimes,^{⁸⁴Id. § 3A1.1(a) (providing upward adjustment where a defendant is convicted of a crime in which they “intentionally select[] any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation”).} crimes that involve vulnerable and official victims,^{⁸⁵Id. § 3A1.1(b) (providing upward adjustment in scenarios where there is a “vulnerable victim”); id. § 3A1.2 (providing upward adjustment when crime was motivated by the victim’s status as a current or former government employee, or proximity thereto).} and crimes in which the offender restrains the victim.^{⁸⁶Id. § 3A1.3 (“If a victim was physically restrained in the course of the offense, increase by 2 levels.”).} The Guidelines contain no native definition of “victim,” and instead incorporate the definition from the CVRA, which I discuss below.^{⁸⁷ Id. at § 6A1.5.}

The third moment at which the criminal punishment sequence assigns victim status—and the one this Article focuses on—is when it specifies rights and remedies belonging to the victim category. For example, crime victims are usually entitled to some compensatory restitution.^{⁸⁸See, e.g., 18 U.S.C. § 3663A(a)(2); see also infra Appendix, sec. E (fifty-state survey on restitution for survivors).} The federal Mandatory Victims Restitution Act (“MVRA”) requires restitution for certain crimes, with funds flowing either to the victims themselves or to their estates.^{⁸⁹18 U.S.C. § 3663A(a)(1).} For the purposes of the MVRA, a victim is a person “directly and proximately harmed as a result of” a covered offense.^{⁹⁰Id. § 3663A(a)(2).} The CVRA creates victim rights to notice and participation at various phases of the criminal punishment pipeline.^{⁹¹See id. § 3771(a).} And, like the MVRA, the CVRA defines a victim as “a person directly and proximately harmed as a result of the commission of” a federal crime.^{⁹²Id. § 3771(e)(2)(A).}

The concept of “direct” and “proximate” harm, present in both the MVRA and the CVRA, is central to the process of constructing victim identity. These concepts appear across victims’ rights law in the United States, even if they are expressed in slightly different terminology.^{⁹³See, e.g., Colo. Rev. Stat. Ann. § 24-4.1-401(5) (West 2025) (defining victim to include people who have “suffered direct and proximate harm as a result of the commission of qualifying criminal activity”); Fla. Stat. Ann. § 960.03 (West 2024) (including several subsections defining victimhood by reference to directly caused injury); Ohio Rev. Code Ann. § 2929.18 (West 2024) (“The amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.”); Utah Code Ann. § 77-38b-102(6) (West 2024) (“‘Deceased victim’ means an individual whose death is proximately caused by the criminal conduct of the defendant.”).} They also form the definitional basis for victimhood in the adjacent academic literature.^{⁹⁴See, e.g., Dubber, supra note 1, at 266.} The point is simple: If a crime is direct and causes interpersonal harm to someone else, then the person harmed is a victim.

Directness and proximateness are meaningful limiting principles made necessary because (as explained above) not all bearers of crime-caused harm are victims.^{⁹⁵Moreso proximateness than directness, because proximate cause requires more than but-for cause. See, e.g., United States v. Boeing, No. 21-cr-5, 2022 WL 13829875, at *10 (N.D. Tex. Oct. 21, 2022) (explaining that something is a proximate cause only if it is “a substantial factor in bringing about the harmful result”).} Refresh the point with a new example: When a house is burgled, neighbors might become more fearful for their own security. The neighbors’ harm (fear) is quite real, and the burglary is the but-for cause of that harm. Nevertheless, the law might regard such fear as insufficiently direct or insufficiently crime-caused. No matter how the law gets to it, the result will be the same: The neighbors aren’t the types of harm bearers who can assert victimhood as a basis for claims against the state.^{⁹⁶See infra Appendix, sec. B (fifty-state survey on definition of “victim”).}

Directness and proximateness limit the universe of victims in two distinct ways. The first is experiential. Many people experience real harm from crime, and some of that might rise to the level of profound suffering. Nevertheless, in many scenarios (excluding attempt crimes), the criminal law does not recognize victimhood unless the harm bearer is injured either physically or economically.^{⁹⁷See, e.g., Ariz. Rev. Stat. Ann. § 13-4401(19) (2024) (in cases where the victim isn’t deceased or otherwise incapacitated, defining “victim” to mean “a person against whom the criminal offense has been committed”); Colo. Rev. Stat. Ann. § 24-4.1-302(5) (West 2025) (“‘Victim’ means any natural person against whom any crime has been perpetrated or attempted . . . .”) (emphasis added); Tex. Code Crim. Proc. Ann. art. 56A.001(7) (West 2023) (defining victims narrowly to include only people defined as victims in a short list of reference offenses or “has suffered personal injury or death as a result of the criminal conduct of another”).} If the only harm a person sustains is increased fear, then they are not victims with remedies assertable against the state.^{⁹⁸See infra Appendix, sec. B (fifty-state survey on definition of “victim”).} (Think of the frightened neighbor from the previous paragraph.) After all, virtually every witness to a violent crime experiences terror, at least for a time—yet the criminal law does not denominate them as victims entitled to make claims against the state.

The other way that “direct” and “proximate” harm limits victimhood is causal. Even in situations where the experiential features of harm might be physical or pecuniary, the law often refuses to recognize harm bearers as victims.^{⁹⁹See, e.g., United States v. Sharp, 463 F. Supp. 2d 556, 566 (E.D. Va. 2006) (refusing victim status for a person claiming to have been injured because the defendant sold drugs to a boyfriend who abused her); People v. Birkett, 980 P.2d 912, 915–16 (Cal. 1999) (refusing restitution to the insurer of those who experienced direct harm).} If our burglar hits several homes in a single neighborhood, then insurance premiums may rise—or the community might be forced to finance some sort of supplemental security presence. Either way, the economic loss (harm) is undeniable, but the law does not treat the loss bearers as victims because the crime-caused harm is too attenuated.

In sum, and across jurisdictions, even the narrowest definitions of “victim” tend to include people who sustain direct and proximately caused harm from crime. I refer generally to these people as either “primary victims” or “primary harm bearers.” Victimhood as primary harm bearing is amenable to straightforward application in living-victim cases but—as the next Subsection explains—is less so when the direct-and-proximate harm bearer is dead.

2. Dead victims

Professor Markus Dubber has caustically observed that “the victims’ rights movement looked more like the relatives of victims’ rights movement.”^{¹⁰⁰ Dubber, supra note 1, at 185.} The dead-victim cases strain the victim category—at least conceptually—because they give rise to questions about whether the law will recognize victims other than the decedent. The definitional problem in dead-victim cases was a direct point of dissent to the senate judiciary report endorsing the federal victims’ rights amendment. The dissenters wanted a clearer definition of “victim” in such cases: “Ordinarily, we would think of the victim of [murder] as the dead person, but that answer . . . will not do here.”^{¹⁰¹ S. Rep. No. 108-191, at 95 (2003) (dissenting views).} American jurisdictions take different approaches to the problem.

Some resolve the problem by simply including decedent families in the primary victim category.^{¹⁰²See Appendix, sec. B (fifty-state survey on definition of “victim”).} The California restitution statute, for example, defines “victim” (somewhat confusingly) to include the “immediate surviving family of the actual victim.”^{¹⁰³ Cal. Penal Code § 1202.4(k)(1) (West 2024) (emphasis added).} (Who is the “actual victim”? And what kind of victim is a victim who is not an “actual victim”?) California’s restitutive category also includes people who suffered pecuniary losses and have some attenuated relationship to the victim.^{¹⁰⁴ Cal. Penal Code § 1202.4(k)(3) (West 2024). This part of the statute does not use the term “actual victim,” even though that is presumably what the drafters intended.} And Article 28 of the California Constitution limits victims to those who suffer “direct or threatened physical, psychological, or financial harm,” but it expressly includes as victims a decedent’s “spouse, parents, children, siblings, or guardian, and includes a lawful representative.”^{¹⁰⁵ Cal. Const. art. I, § 28(e).} California is a particularly illustrative jurisdiction, but many states follow the same approach, whether by force of constitution^{¹⁰⁶Examples can be found in Appendix, sec. B. See, e.g., Ariz. Const. art. II, § 2.1(C); N.J. Const., art. I, para. 22; N.D. Const. art. I, § 25(4); S.C. Const. Ann. art. I, § 24(C)(2).} or statute.^{¹⁰⁷Examples can be found in Appendix, sec. B. See, e.g., Ala. Code § 15-23-60(19) (2025); Ariz. Rev. Stat. Ann. § 13-4401(19) (2024); Colo. Rev. Stat. Ann. § 24-4.1-302(5) (West 2025); Del. Code Ann. tit. 11 § 9401(7) (West 2025); Ky. Rev. Stat. Ann. § 421.500(1)(a)(2) (West 2025); Me. Rev. Stat. Ann. tit. 17-A § 2101(2)(B)(2) (West 2024); N.J. Stat. Ann. § 52:4B-37 (West 2024); S.C. Code Ann. § 16-3-1510(1) (2024); Va. Code Ann. § 19.2-11.01(B)(v) (2022).}

Meanwhile, other jurisdictions more meaningfully limit “victim.” For example, North Carolina has an extremely narrow definition of victim, under which victims are only those people “against whom there is probable cause to believe an offense against the person or a felony property crime has been committed.”^{¹⁰⁸ N.C. Gen. Stat. Ann. § 15A-830(a)(7) (West 2024).} And Texas limits the definition of victim—at least for the purposes of its victims’ rights statute—to those who are: sexually assaulted; kidnapped; subject to aggravated robbery; trafficked; injured children, elderly people, or people with disabilities; and people who have “suffered personal injury or death as a result of the criminal conduct of another.”^{¹⁰⁹ Tex. Code Crim. Proc. Ann. art. 56A.001 (West 2023). Lest there be any confusion, the provision assigning rights to victims distinguishes between decedents and close family members when it declares: “A victim, guardian of a victim, or close relative of a deceased victim is entitled to the following rights . . . .” Id. art. 56A.051(a).} Just as California was but one example of the inclusive approach, North Carolina and Texas are but two of many jurisdictions that take a more limited approach to the victim category.^{¹¹⁰See, e.g., Ohio Const. art. I, § 10a(D) (“As used in this section, ‘victim’ means a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.”).}

In states like California—states that denominate people who survive the decedent as victims—it is the definition of victim that itself causes mismatch. All victims usually receive the same bundle of rights, so secondary victims and the primary bearers of interpersonal harm are treated the same way. They are treated the same way, however, notwithstanding that the justification for assigning rights to secondary victims looks very different from the justification for assigning rights to primary ones.^{¹¹¹See infra Parts III, IV.}

B. Specifying Rights

Once the law fixes the victim category, it specifies the menu of rights that people within the category own. As Section II.A explains, jurisdictions define the victim category differently—but there is almost no variation in rights assigned within the category. Assigning the same rights across living- and dead-victim categories produces mismatch because the salient attributes of secondary harm bearers are very different from the salient attributes of decedents.

1. Victims Generally

Texas provides an illustrative example of how a typical jurisdiction specifies victims’ rights. The Texas Constitution bifurcates victims’ rights into a subsection (a) that specifies the rights that must always be honored and a subsection (b) that specifies rights that must be honored upon request.^{¹¹² Tex. Const. art. I, § 30.} The mandatory rights are abstract injunctions to treat victims with “fairness” and to respect their “dignity and privacy.”^{¹¹³Id. State constitutions frequently award abstract rights like these. See, e.g., Ill. Const. art. I, § 8.1(a) (“Crime victims . . . shall have . . . (1) [t]he right to be treated with fairness and respect for their dignity and privacy . . . throughout the criminal justice process.”); Ohio Const. art. I, § 10a(A)(1) (declaring that “a victim shall have” the right “to be treated with fairness and respect for the victim’s safety, dignity and privacy”); Va. Const. art. I, § 8-A (assigning to victims the right to “be treated with respect, dignity and fairness at all stages of the criminal justice system”); see also Douglas E. Beloof, The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review, 2005 BYU L. Rev. 255, 263–65 (2005) (discussing abstract victims’ rights provisions in state constitutions).} The rights that are activated upon request include more tangible entitlements, including entitlements to notification of legal events, to be present at public proceedings, to confer with prosecutors, to restitution, and to information about the sentence.^{¹¹⁴ Tex. Const. art. I, § 30(b).} (I discuss these categories further in Section V.B.)

The Texas structure is typical of many victims’ rights laws in the United States insofar as the rights assigned to the victim category are of two types. One type is aspirational or otherwise subject to conspicuous enforcement limitations. In Texas, this is the type demanding that victims be treated with dignity, privacy, and fairness.^{¹¹⁵See Tex. Const. art. I, § 30(a).} Another type is more enforceable, often because it consists of rights to procedural treatment rather than to any outcomes.^{¹¹⁶See, e.g., Ill. Const. § 8.1(a)(2)–(a)(10) (assigning a specific menu of enforceable rights after an earlier subsection specified abstract principles); Ohio Const. art. I, § 10a(A)(2) –(A)(10) (same); Va. Const. art. I, § 8-A(1)–A(7) (same except abstractly specified principles appear in subsection (A)(2)).} In Texas, this is the type providing, among other things, rights to be notified about and present at legal proceedings.^{¹¹⁷ Tex. Const. art. I, § 30(b).} Federal law also works this way. The CVRA sets forth ten rights, with the eighth containing the abstractions: (1) a right to reasonable protection from the accused; (2) a right to reasonable notice of any court and parole proceedings; (3) a limited right against exclusion from public court proceedings; (4) a right to be reasonably heard at public court proceedings involving release, a plea, sentencing, or parole; (5) a right to confer with prosecutors; (6) a right to timely restitution; (7) a right to have proceedings be free from unreasonable delay; (8) a right to fair and respectful treatment of interests in dignity and privacy; (9) a right to timely notification of plea agreements; and (10) a right to be informed about CVRA rights.^{¹¹⁸18 U.S.C. § 3771(a) (emphasis added). In a subsequent habeas corpus proceeding, a victim gets the rights specified in (a)(3), (a)(4), (a)(7), and (a)(8). Id. § 3771(b)(2)(A).}

The most controversial slice of the victims’ rights bundle centers on victim involvement. Rights to victim involvement are distinct from rights to notice and dignified treatment because they require victim input. That input might come at the front end (plea deals),^{¹¹⁹E.g., Cal. Const. art. I, § 28 (awarding a right to “be heard, upon request, at any proceeding, including any . . . plea”).} the middle (sentencing statements),^{¹²⁰See infra notes 123–128.} or the back (parole).^{¹²¹E.g., N.Y. Exec. Law § 259-i(2)(c)(A)(v) (McKinney 2025) (requiring consideration of victim-provided content).} The primary examples from the CVRA would be the (a)(4) right to be heard at various points in the punishment sequence and the (a)(5) right to confer with prosecutors. Victim involvement is controversial because it most directly confounds the model of a criminal trial as an act of state justice rather than as quasi-private vindication.^{¹²²See Austin Sarat, Putting A Square Peg in A Round Hole: Victims, Retribution, and George Ryan’s Clemency, 82 N.C. L. Rev. 1345, 1347, 1350–55 (2004).}

The most conspicuous victim involvement consists of victim impact statements (“VIS”) given at criminal sentencing. Indeed, VIS have become the dominant way that victim voices find their way into the bloodstream of American criminal justice practice.^{¹²³See Tracey Booth, Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom, in Crime, Victims and Policy 161, 161 (Dean Wilson & Stuart Ross eds. 2015).} Perhaps the most vivid example of VIS are statements by famous American gymnasts at the criminal sentencing of national-team trainer and serial sex abuser Larry Nassar.^{¹²⁴See Rosemary Ardman, Comment, The Larry Nassar Hearings: Victim Impact Statements, Child Sexual Abuse, and the Role of Catharsis in Criminal Law, 82 Md. L. Rev. 782, 787–90 (2023).} VIS proponents argue that the statements provide crucial information to the sentencer,^{¹²⁵Cassell, Defense, supra note 35, at 619.} serve a restorative justice function,^{¹²⁶See Erin Sheley, Reverberations of the Victim’s “Voice”: Victim Impact Statements and the Cultural Project of Punishment, 87 Ind. L.J. 1247, 1280 n.175 (2012).} and educate the legal community.^{¹²⁷See Cassell, Defense, supra note 35, at 621–23.} Opponents, by contrast, insist that VIS discriminate in favor of socially favored victims and improperly activate sentencers’ punitive impulses.^{¹²⁸See, e.g., Susan A. Bandes & Jessica M. Salerno, Emotion, Proof and Prejudice: The Cognitive Science of Gruesome Photos and Victim Impact Statements, 46 Ariz. St. L.J. 1003, 1014 (2014) (punitiveness); William P. Marshall, The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson, 90 Va. L. Rev. 355, 367–68 (2004) (discrimination).} The following Subsection details the several reasons why VIS are an ideal vehicle to explain mismatch.

2. Dead Victims

VIS are controversial even in cases where the victims giving the statements are the primary harm bearers,^{¹²⁹See, e.g., infra notes 211–220 and accompanying text (discussing equality issues).} but the controversy levels up in dead-victim scenarios. In those cases, VIS are necessarily given by aggrieved family members under circumstances ripe for emotional decisionmaking.^{¹³⁰For a discussion of the emotional content of such testimony, see infra note 194 and accompanying text.} Within the category of dead-victim cases, VIS in capital proceedings are especially important because that is the context in which the Supreme Court has grappled with VIS most extensively.

The history of VIS at the Supreme Court is well documented, and I tender only a brief summary here. In 1987, Booth v. Maryland held that the Eighth Amendment barred capital sentencing juries from hearing victim impact statements.^{¹³¹Booth v. Maryland, 482 U.S. 496, 502 (1987).} Booth declared that “personal characteristics of the victims,” the “emotional impact of the crimes on the family,” and “family members opinions and characterizations of the crimes and the defendant” were not relevant to the capital sentencing decision.^{¹³²Id. at 503.} This information, in Booth’s view, was not information about a defendant’s moral blameworthiness, which is the variable that dictates the permissibility of a death sentence.^{¹³³Booth conceded that there were some situations in which VIS might contain information that was known to the defendant prior to committing the offense, and the known consequences of a decision to transgress criminally can be relevant to blameworthiness. See id. at 505. Booth nevertheless determined that the risk of arbitrary decisionmaking outweighed the potential value of such evidence. See id.} Booth also reasoned that VIS increased the risk that capital sentencing decisions would impermissibly reflect assessments of victims’ social value and place defendants in the impossible position of having to attack deceased victims and their families.^{¹³⁴Id. at 506–07.}

For victims’ rights advocates, the sting of Booth was short lived. Four years later, in Payne v. Tennessee, the Supreme Court reversed course and approved certain uses of VIS.^{¹³⁵Payne v. Tennessee, 501 U.S. 808, 827 (1991).} In so doing, Payne endorsed the idea that certain metrics of individualized victim harm were relevant to the capital sentencing deliberation.^{¹³⁶See id. at 820–21.} It also justified VIS admission as a measure of “fairness” between the prosecution and the defense—to make sure the prosecution can advocate for a death sentence by reference to the individual qualities of the victim, just as the defense can advocate for a life sentence by reference to the unique attributes of the accused.^{¹³⁷See id. at 822.} Payne ultimately put it this way: “A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.”^{¹³⁸Id. at 827.}

VIS place conceptual pressure on victims’ rights arguments when they appear in decedent-victim scenarios because, by definition, the deceased victim does not author the statement. Instead, the witnesses are usually aggrieved family members asserting their own rights to speak about effects on them. There may be virtues in such testimony, but they differ from the virtues of statements from primary harm bearers. How do catharsis-based justifications work where the statement-giver is a secondary harm bearer? And what kinds of secondary harm bearing should entitle a person to victim-based involvement?

C. Asserting Remedies

The question that logically comes after “victims” are assigned “victims’ rights” is who gets to assert them. The primary harm bearers are victims who get to assert their own rights (of course), but thorny issues surface when those people are incapacitated. For that reason, victims’ rights statutes provide standing to entities other than primary harm bearers.^{¹³⁹See infra Appendix, secs. C, D (fifty-state survey on standing).} As noted in Section II.A, some jurisdictions simply assign first-person rights to secondary victims.^{¹⁴⁰See supra notes 102–107 and accompanying text.} Others create something like third-party standing under which a fiduciary asserts rights that belong to the first-party harm bearer. The third-party model creates mismatch because it requires some justificatory theory, for example, about how third parties can exercise others’ rights to expression and participation.^{¹⁴¹There is some variation in the people and entities that can exercise third-party victims’ rights, although the families of decedents are usually so vested. See infra Appendix, secs. C, D (fifty-state survey on standing).}

1. Victims Generally

People who victims’ rights statutes denominate as victims will have, well, rights. But American jurisdictions tend to be longer on rights and shorter on remedies. In fact, Professor Doug Beloof has referred to the push for remedial expansion as the “third wave” of the victims’ rights movement.^{¹⁴²See Beloof, supra note 113, at 258.} Through some combination of constitutional law, statutory text, and judicial decisionmaking, American jurisdictions typically assign the powers to seek enforcement of the victims’ rights menu, although the scope of that enforcement power might be limited.

Under the federal CVRA, for example, § 3771(a) specifies rights that attach to victimhood, and then § 3771(d) provides for “enforcement and limitations.”^{¹⁴³18 U.S.C. §§ 3771(a), (c).} Section 3771(d) states that “[t]he crime victim . . . may assert the rights described in subsection (a).” If a court denies victim-asserted relief, then the victim can seek some appellate remedies.^{¹⁴⁴Id. at § 3771(d)(1).} The remedies for victims’ rights violations do not include new trials, and the degree to which they may be used to reform sentences is severely restrained.^{¹⁴⁵See id. at § 3771(d)(3).} Under no circumstances may the breach of a victim’s right form the basis for a cause of action or damages remedy against the United States.^{¹⁴⁶See id. at § 3771(d)(6).} In other words, victims’ rights are pretty much limited to involvement in the criminal proceedings, which include restitution from the defendant. However, there is no vehicle for more socialized compensation.

State laws tend to track the CVRA’s basic structure, at least insofar as they first specify rights and then provide enforcement mechanisms. For example, Article I, § 10a of the Ohio Constitution awards ten enumerated rights to victims.^{¹⁴⁷ Ohio Const. art. I, § 10a(A).} In the next subsection, Section 10a provides that “[t]he victim . . . may assert the rights enumerated in this section and any other right afforded to the victim by law.”^{¹⁴⁸Id. at § 10a(B).} The Ohio constitution, like the CVRA, allows victims to petition for prompt appellate relief.^¹⁴⁹Id. And, like the CVRA, the Ohio constitution underscores that its victims’ rights provisions do not create economic liability for the state.^{¹⁵⁰Id. at § 10a(C).} I highlight Ohio’s constitution because its victims’ rights provisions are short and to the point, but its makeup is typical of state approaches to the pertinent issues.

In fact, virtually every American jurisdiction includes a provision that empowers a third party to seek remedies on behalf of a primary victim. The federal CVRA, for example, provides a trustee of sorts for the rights of minors, people who are incompetent or incapacitated, and those who are dead: “[T]he legal guardians of the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights under this chapter.”^{¹⁵¹18 U.S.C. § 3771(e)(2)(B).} State-law provisions of this type are legion, too. The Florida Constitution includes a third-party standing provision under which victims’ rights can be asserted by “the retained attorney of the victim, a lawful representative of the victim, or the office of the state attorney upon request of the victim.”^{¹⁵² Fla. Const. art. I, § 16(c).}

The important point here is not what the victims’ rights are. It’s that, in cases where victims remain alive, they almost always assert their own first-party rights. The only exceptions are certain types of incapacity—situations where victims are, for example, children or incompetent.^{¹⁵³In this Article, I formally consider only dead-victim cases. I do not address other cases where the victim is a minor, incapacitated, or otherwise not legally competent to assert certain rights. Features of these cases differ in meaningful respects from both those in dead-victim cases and those involving competent adults. For example, participation rationales might be stronger in living-victim cases involving juveniles. Moreover, those cases are far less likely to be homicides, so the homicide-specific arguments I make herein would not apply.}

2. Dead Victims

To understand the complications that arise when victims are dead, distinguish between two different scenarios that appear across victims’ rights law. One is a third-party scenario in which an entity, including a human being, asserts the decedent’s rights. The second is a first-party scenario in which the person asserts their own rights. They look the same practically and both present significant conceptual problems—problems that Parts III and IV explore in fuller detail. My objective at this juncture, however, is just to explain why they create mismatch.

Start with the third-party scenario—where the decedent is the formal holder of victims’ rights and where a third party asserts those rights on the decedent’s behalf. The federal CVRA is an example of such a statute, where representatives “assume” the rights of the dead victim.^{¹⁵⁴18 U.S.C. § 3771(e)(2)(B).} So is the federal restitution statute, which sets forth categories of incapacity followed by the CVRA-like rule stating that there should be a “suitable” court appointee who “assume[s] the victim’s rights” specified in the subsection.^{¹⁵⁵18 U.S.C. § 3663A(a)(2).} Dead-victim cases present basic normative questions about post-mortem rights—including but not limited to whether dead people can even have enforceable rights.^{¹⁵⁶The capacity of dead people to own interests and sustain harm has been a topic that’s occupied philosophers for some time. See, e.g., 1 Joel Feinberg, Harm to Others, in The Moral Limits of the Criminal Law 31, 79–95 (1984) (arguing that dead people can have interests and experience harm); Ernest Partridge, Posthumous Interests and Posthumous Respect, 91 Ethics 243, 244 (1981) (contending that the dead “have no interests and are beyond both harm or benefit”). It has more recently entered a primary vein of legal scholarship. See Philippe Ducor, The Legal Status of Human Materials, 44 Drake L. Rev. 195, 212 (1996) (exploring how the law uses death to define the personhood necessary for rights-bearing); Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 1-20 (2010) (exploring the increasing American tendency to allow the dead to control legal interests); Fred O. Smith, Jr., The Constitution After Death, 120 Colum. L. Rev. 1471, 1475 (2020) (attacking the “legal rule that purports to categorically exclude the dead from America’s constitutional tradition”) [hereinafter Smith, Constitution After Death]; Fred O. Smith, Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195, 200 (2021) (considering how to weigh posthumous legal interests) [hereinafter Smith, Time, (In)equality, and Death]; Kirsten Rabe Smolensky, Rights of the Dead, 37 Hofstra L. Rev. 763, 763 (2009) (exploring “why the law gives decedents certain legal rights but not others”).} But the justification for crime victims’ rights is even more puzzling. If the primary justification for the exercise of rights is an expressive or participatory benefit that redounds to the victim, then how can a dead victim of crime even realize that?^{¹⁵⁷I explore this normative problem in Section III.A, infra. I make this point so that I may avoid more difficult questions about whether there are some other reparative rights, or rights against desecration of physical remains, and so forth.}

An appealing solve might be a first-party approach in which statutes simply define the victim category to include secondary harm bearers. Arizona takes this approach; it simply defines the term “victim” to include, “if the person is killed or incapacitated, the person’s spouse, parent, child or other lawful representative.”^{¹⁵⁸ Ariz. Const. art. II, § 2.1(C).} This workaround is also common, and it is in fact canvased in Subsection II.A.2. But recall that this approach solves one conceptual problem by creating another. If the menu of rights is premised on a living victim model, then how much does the justification suffer in dead-victim cases?

In still other jurisdictions, the specific nature of the rights asserted by victims’ families is blended—or, less generously, unclear. For example, the Ohio Constitution looks a little like the CVRA in that it defines a suite of rights for crime victims and then states that the victim’s “lawful representative . . . may assert [those rights].”^{¹⁵⁹ Ohio Const. art. I, § 10a(10)(B).} Somewhat confusingly, however, the pertinent section defines a victim to be a “person against whom the criminal offense . . . is committed or who is directly and proximately harmed by the commission of the offense,” and then specifies that the term “victim” does not encompass “a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.”^{¹⁶⁰Id. at § 10a(10)(D) (emphasis added).}

There are traces of this very problem in the legislative history of this failed constitutional amendment. Lawmakers dissenting from the supportive senate report first noted the failure to define the term “victim.”^{¹⁶¹See S. Rep. No. 108-191, at 95 (2003) (dissenting opinion).} They went on to observe that, in dead-victim cases, courts would have to struggle against the “plain language” of the word “victim” to give the term its meaning.^¹⁶²Id. An outcome the dissenters envisioned was one in which “activist judges . . . add words to the amendment that are not there and extend the new rights to members of the murder victim’s family.”^{¹⁶³Id. at 95–96.}

Whether one conceptualizes the families of dead victims to be exercising their own rights or the third-party rights of the decedents, there is a mismatch. Either way, the justifications typically offered for victim involvement land differently; they are simply not the primary bearers of interpersonal harm.

* *

American jurisdictions have secured victims’ rights in varied ways, although the basic structure is similar enough. Legal texts define victims, assign them rights, and specify who can seek remedies. This process produces mismatch because the victim category retains the same rights regardless of whether the victims are secondary or primary, dead or alive. Rights ordinarily justified by reference to living victims are instead exercised by others.

III. Deontological Considerations

The justification for certain victims’ rights suffers when the primary bearers of interpersonal harm die. Part III considers the deontological aspects of that complication, by which I mean moral dimensions that are independent of utilitarian and (other) consequentialist considerations. Victims’ rights in dead-victim cases can’t be justified by reference to democratic participation or retribution, and they gravely jeopardize interests in victim equality.^{¹⁶⁴Mass murder and other death-causing atrocities might create a special moral case for secondary victims to be heard. See generally Logan, supra note 18, at 724 (discussing victims’ rights practices in atrocity scenarios). On the one hand, one might be tempted to bracket atrocity scenarios in the same way that I bracket cases involving business entity criminal defendants. See supra note 13. On the other hand, and unlike the business entity cases, atrocity cases create special harm to secondary victims and create special interests in community remembering—introducing moral considerations that may well go beyond those I consider here.}

A. Participatory Rights

The best justifications for victim involvement center on the rights of victims to participate^{¹⁶⁵See Beloof, supra note 65, at 327; Robert P. Mosteller, Victims’ Rights and the Constitution: Moving from Guaranteeing Participatory Rights to Benefiting the Prosecution, 29 St. Mary’s L.J. 1053, 1054 (1998); Laurence H. Tribe, In Support of a Victims’ Rights Constitutional Amendment, 9 Lewis & Clark L. Rev. 659, 660–61 (2005).} in criminal confrontation and punishment. “Participation” in the sense that I use it here might mean a right to be consulted in a plea negotiation,^{¹⁶⁶See Elizabeth N. Jones, The Ascending Role of Crime Victims in Plea-Bargaining and Beyond, 117 W. Va. L. Rev. 97, 103 (2014).} to give a VIS at sentencing,^{¹⁶⁷See Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. Chi. L. Rev. 361, 390–410 (1996).} or provide input during a parole hearing.^{¹⁶⁸See Kathryne M. Young, Parole Hearings and Victims’ Rights: Implementation, Ambiguity, and Reform, 49 Conn. L. Rev. 431, 434 (2016).} What unifies the category is that it prioritizes the involvement of victims for involvement’s sake,^{¹⁶⁹For a general review of the victims-rights-as-participation literature, see generally Robyn L. Holder & Elizabeth Englezos, Victim Participation in Criminal Justice: A Quantitative Systematic and Critical Literature Review, 30 Int’l Rev. Victimology 25 (2024).} and not for the consequences thereof.^{¹⁷⁰I refrain from exploring whether victim participation really produces what people sometimes call “closure” because I consider that argument to be primarily consequentialist. See generally Susan A. Bandes, Victims, “Closure,” and the Sociology of Emotion, 72 L. & Contemp. Probs. no. 2, 2009, at 1 (scrutinizing this phenomenon).}

There is something to recommend more abstract versions of these participatory accounts. Many argue (reasonably) that criminal proceedings are important sites of democratic settlement.^{¹⁷¹See, e.g., Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249, 287 (2019) (positing criminal trials as sites of “democratic contestation”).} That is, participation is justified because criminal proceedings are crucial moments of social reconciliation—where different parts of a community come together to resolve conflict. However plausible participatory accounts are generally, they fail as deontic theories of consequence-independent rights that belong to dead victims.^{¹⁷²I do not here deal with utilitarian/consequentialist accounts in favor of victim participation—specifically, with the argument that victim participation produces substantial utility either in the form of satisfaction or closure. I do, however, find those accounts similarly unpersuasive, for reasons elaborated in Section IV.C, infra. “Closure” is itself an impossible-to-define concept ripe for argumentative abuse, and victims tend not to achieve closure in the popularized sense of getting over traumatic crimes. See Jody Lyneé Maderia, Killing McVeigh: The Death Penalty and the Myth of Closure 41 (2012).}

1. Which Victims?

In living-victim cases, these participatory accounts—which emphasize things like notice and voice—work well enough.^{¹⁷³See Miriam Krinsky & Liz Komar, “Victims’ Rights” and Diversion: Furthering the Interests of Crime Survivors and the Community, 74 SMU L. Rev. 527, 538 (2021) (discussing in context of diversion programs).} Primary victims own the rights and have all the predicates of personhood necessary to demand involvement; after all, they are the primary bearers of interpersonal harm. But the rationale breaks down in dead-victim cases. I am skeptical of postmortem rights generally,^{¹⁷⁴See generally Matthew H. Kramer, Do Animals and Dead People Have Legal Rights?, 14 Can. J.L. & Juris. 29, 30 (2001); Ernest Partridge, Posthumous Interests and Posthumous Respect, 91 Ethics 243, 244 (1981). See also supra note 156 (collecting references to broader discussion).} but there can be no plausible account of a dead person’s right to participate in a legal proceeding.^{¹⁷⁵See Daphna Hacker, The Rights of the Dead Through the Prism of Israeli Succession Disputes, 11 Int’l J.L. Context 40, 44 (2015). But see Joel Feinberg, Harm and Self-Interest, in Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy 45, 59–68 (1980) (defending the proposition that the dead have some rights).} Normative theory aligns with basic intuition: A person’s right to express themselves cannot be reassigned after they die. If Adam survives Barry after the latter is violently murdered, any participatory interest that Adam owns is Adam’s, not Barry’s. When we do talk of “Barry’s” rights, we use them as fictional constructs to stand in for utilitarian interests or for rights belonging to other people. This is especially true when the right at issue is Barry’s expression. With these observations in mind, I’ll start with more abstract problems and work towards more specific ones.

Subjects of rights must possess certain features, which we might describe collectively as “personhood.”^{¹⁷⁶See Dubber, supra note 1, at 153–56 (sketching the concept in context of victims’ rights).} (My argument here doesn’t implicate disputes over the rights-bearing status of animals.) There is ambiguity around the category’s periphery,^{¹⁷⁷See Richard L. Cupp, Cognitively Impaired Humans, Intelligent Animals, and Legal Personhood, 69 Fla. L. Rev. 465, 470 (2017).} but personhood as a criterion for rights-ascription usually means that not-living things don’t qualify. Even though we might be morally obligated to treat decedents in certain ways, and even though we often fictionalize that obligation as a decedent’s “right”—think rules against necrophilia or disturbing burial grounds^{¹⁷⁸The law of dead bodies gets comprehensive doctrinal and theoretical treatment in Ela A. Leshem, Dead Bodies as Quasi-Persons, 77 Vand. L. Rev. 999, 1006 (2024).}—I operate on the assumption that it’s not really because the dead are formal rights owners.^{¹⁷⁹See Anita L. Allen & Jennifer E. Rothman, Postmortem Privacy, 123 Mich. L. Rev. 285, 291 (2024).} Sure, attorney-client privilege operates after death,^{¹⁸⁰See Swidler & Berlin v. United States, 524 U.S. 399, 405 (1998).} but that rule exists straightforwardly to effectuate instrumental goals about frank communication in life.^{¹⁸¹See, e.g., id. at 407 (“Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel.”).} The justification is a form of consequentialist proof.

But even if postmortem rights bearing were a plausible account of some moral imperatives, it still couldn’t justify the specific rights to participation that animate victims’ rights practices. Unlike some other rights against mistreatment of dead bodies or spoilage of physical remains, rights to expressive ideation are intrinsically personal and nontransferable.

All of this is background for a basic point: When laws secure victim involvement, these are not the victim rights of decedents. These are the victim rights of other people—living people. A living person cannot exercise a decedent’s right to participate, because dead people don’t have those rights.^{¹⁸²See supra notes 177–181 and accompanying text.} Laws might say that a relative “assumes” the participatory rights of a dead victim, but these rights are legible only as the relative’s first-party rights to participate. There might be good reasons to recognize rights of participation that belong to secondary harm bearers, but the moral case for those rights is different—and weaker—than it is for the participation of those who bear the primary harm.

2. Participatory Rights of Secondary Victims

The prior Subsection demonstrates that, if victims’ rights in dead-victim cases are to be justified by reference to participatory interests, then those interests are necessarily those of the secondary (living) victims. Professor Dubber has observed that “victim impact evidence . . . isn’t[] and can’t be[] about the victim of a homicide. Instead, it’s about everyone else.”^{¹⁸³ Dubber, supra note 1, at 214.} And the justification for the involvement of “everyone else” is weaker.

One problem with the justification for secondary victim involvement is common to the justification for all victim involvement: It is at odds with the conceptualization of modern criminal punishment. We think of tort, contract, and property proceedings as sites of private confrontation;^{¹⁸⁴See John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 946–47 (2010).} but criminal law is a quintessentially public encounter between the state and the transgressor.^{¹⁸⁵See Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 696 (2004).} In criminal litigation, The People sit on the left side of the “v.”^{¹⁸⁶One might argue that “the people” should trigger precisely the opposite conclusion—that it elevates the status of secondary harm bearers. But “the people” represents the public interest of the political community working through the state, not just a broader-but-still-private set of grievances.} The public framing of criminal prosecution isn’t an accident; as recounted above, it results from a centuries-long evolution away from systems that privatized social responses to interpersonal harm.^{¹⁸⁷See Susan Bandes, Victim Standing, 1999 Utah L. Rev. 331, 339 (1999).}

The split institutional response to certain transgressions—private-law remedies and criminal punishment—tracks thinking about what criminal offending is. Crime-caused harm both damages a human being and offends the political community in whose name the state exercises power.^{¹⁸⁸See Woolhandler & Nelson, supra note 185, at 696–97.} Cue Blackstone: “[E]very public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community.”^{¹⁸⁹4 William Blackstone, Commentaries *5.} Retributivism, the dominant moral justification for criminal punishment, springs from this view of transgression.

On some retributive theories, the state’s right (and obligation) to punish follows from a proposition embedded in the act of criminal offending: By refusing to comply with the community’s rules, offenders have wrongly asserted their superiority.^{¹⁹⁰See, e.g., George P. Fletcher, Domination in Wrongdoing, 76 B.U. L. Rev. 347, 354 (1996).} On other theories, the state’s right (and obligation) to punish follows from a presumption of individual autonomy; to give offenders their just deserts is to treat them as fully realized sovereigns over their own behavior.^{¹⁹¹See, e.g., Jean Hampton, Retribution and the Liberal State, 5 J. Contemp. Legal Issues 117, 140 (1994).} When the offender offends, it denies their humanity to refuse them the consequences of their decision.

The precise retributive theory isn’t that important. The central point is that virtually all of them justify criminal punishment by reference to the harm experienced by a political community.^{¹⁹²See supra notes 190–191 and accompanying text.} That conceptualization doesn’t exclude victim involvement, which remains a crucial part of the community’s response to crime. But if the responsive preferences of victims diverge from those of the state, then defending the modern conception of criminal law becomes nearly impossible.^{¹⁹³Cf. Michael Moore, Victims and Retribution: A Reply to Professor Fletcher, 3 Buff. Crim. L. Rev. 65, 76 (1999) (“Everyone else who has taken the victim’s turn concludes that they don’t believe in retributive justice anymore; they believe that criminal justice systems should serve corrective justice.”).}

There are also problems unique to secondary victim involvement. Most importantly, what’s the limiting principle? It can’t be that all harm bearers are victims endowed with formal rights against the state. If all bearers of crime-caused harm can demand involvement, then the category is impossibly large. All harm bearers can’t be consulted in a plea deal, invited to testify at sentencing, or entitled to input on parole. There must be a limiting principle, and that limiting principle usually means that only the primary harm bearers have rights to participate in criminal punishment.

Perhaps one might argue that secondary victims own participatory rights only in dead-victim cases. But why? On nonconsequentialist accounts, whether harm to B entitles B to participate in a criminal proceeding can’t turn on whether person A is alive. There might be administrative reasons to say that person B can seek involvement only if person A can’t, but that distinction is a very different principle. Nor can the administrative rationale be that some victim involvement is better than none, because the law throttles victim involvement all the time. If more victim involvement were better, then secondary harm bearers would have participatory rights when primary victims remain alive.

Perhaps secondary harm bearers get rights in dead-victim cases because, as a category, they experience more harm than do secondary harm bearers in living-victim cases. There’s an intuitive appeal here: The grief and financial loss that ripples outward from death is substantial, even in relation to other serious crimes. Still, the magnitude of that loss varies tremendously across secondary victims. And if the argument is that there are administrative reasons for categorical treatment in dead-victim cases, then that argument differs from the idea that there’s some essential moral linkage between harm and participatory rights.

In the end, a participation-centered justification for victims’ rights just doesn’t work in dead-victim cases—at least as a consequence-independent moral justification. A decedent’s right to participation is nontransferable, and the involvement of secondary harm bearers requires extra layers of moral justification that are sorely lacking.

B. Harm (Retribution)

Another justification for victim involvement is that such participation helps courts understand the crime-caused harm at issue.^{¹⁹⁴See, e.g., Payne v. Tennessee, 501 U.S. 808, 821 (1991) (articulating such an argument for capital cases); see also Logan, supra note 18, at 723 (describing this phenomenon).} Judicial identification of such harm is, in turn, central to the retributive function of criminal punishment.^{¹⁹⁵I eschew a lengthy digression about “harm-based” retributivism versus what one might call “intent-based” retributivism. The former sets desert by reference to intended harm. See, e.g., Kevin Cole, The Voodoo We Do: Harm, Impossibility, and the Reductionist Impulse, 5 J. Contemp. Legal Issues 31, 31–32 (1994). The latter sets it by reference to actual harm. See, e.g., Robert Nozick, Anarchy, State, and Utopia 60 (1974).} The problem with this argument is that it equates information about “harm” with information about the social worth of the victim,^{¹⁹⁶For general discussions about how VIS create a problem involving the social worth of victims, see Susan A. Bandes, What Are Victim Impact Statements For?, 87 Brook. L. Rev. 1253, 1264 (2022), and Karen-Lee Miller, Purposing and Repurposing Harms: The Victim Impact Statement and Sexual Assault, 23 Qualitative Health Res. 1445, 1455 (2013).} and the latter is a terrible proxy for the former. In dead-victim cases, victim involvement adds, if any, only the smallest amount of information about retributively significant harm.

1. Retributively Significant Harm Generally

Victims’ rights advocates often argue that victim involvement ensures a more accurate account of harm,^{¹⁹⁷See supra note 61 and accompanying text; Cassell & Erez, supra note 18.} and harm is a central determinant of retribution.^{¹⁹⁸See Andrew von Hirsch, Proportionality in the Philosophy of Punishment, 16 Crime & Just. 55, 81 (1992).} One reason this justification fits the dead-victim scenario so poorly is a more general problem with how it fits all victim scenarios. Victims can be helpful in ascertaining retributively significant harm, but that’s because they’re good witnesses and not because of their victimhood per se. Philosopher Michael Moore frames the mainline thinking: “[V]ictims should and must be ignored if you are claiming to be doing retributive theory.”^{¹⁹⁹See Moore, supra note 193, at 68; see also Joshua Kleinfeld, A Theory of Criminal Victimization, 65 Stan. L. Rev. 1087, 1090 (2013) (characterizing Moore’s view as “typical of the field”).}

I mentioned a few constitutive elements of retributive thought already,^{²⁰⁰See supra notes 190–195 and accompanying text.} but some additional background is in order. In the main, retributivists are committed to the ideas that criminal punishment is justified because it is deserved and is constrained by the degree of that desert.^{²⁰¹See Michael S. Moore, The Moral Worth of Retribution, in Principled Sentencing: Readings on Theory and Policy 110, 110 (Andrew von Hirsch et al. eds., 3d ed. 2009). The origin of retributivist thought is generally attributed to Kant and Hegel. See G.W.F. Hegel, Elements of the Philosophy of Right § 101, at 129 (Allen W. Wood ed., H.B. Nisbet trans., 1991) (1821); Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right 195 (W. Hastie trans., 2002) (1797).} Notwithstanding considerable variation along many dimensions,^{²⁰²For a useful summary of retributivist thought, including internal variation, see David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1659–72 (2010).} most retributivist theory proportions desert by reference to some combination of the offender’s culpability and the offense’s harm.^{²⁰³See Robert Nozick, Philosophical Explanations 363–65 (1983); Moore, supra note 201, at 150–54.} More desert justifies and permits more punishment. The positive relationship between desert and punishment represents a foundational rule of proportionality in the criminal law.^{²⁰⁴See Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 76–79 (2005) (capturing the relationship of theory to dominant practice).}

According to victims’ rights advocates, more victim participation appropriately calibrates punishment to harm.^{²⁰⁵See Julian V. Roberts, Crime Victims, Sentencing, and Release from Prison, in The Oxford Handbook of Sentencing and Corrections 106 (Joan Petersilia & Kevin R. Reitz eds., 2011).} The thinking is that, if victims have input on charging decisions, testify at trial, or offer sentencing assistance, then their participation ensures that state-imposed suffering tracks harm and, by extension, desert. Forget dead-victim scenarios momentarily; this argument struggles to justify practices even in cases where the primary harm bearers survive.

The retributive-input argument depends on what the victim is providing information about. Criminal law necessarily uses harm to calibrate retribution when it defines offenses, sets statutory penalties, and enacts sentencing guidelines. When we are talking about retributively significant harms, the victim’s additive capacity is largely that of a witness. If the victim is moving the needle on charging and sentencing because they are providing information about retributively significant harms, then the argument is stronger. But if the information is retributively insignificant, then victim involvement isn’t properly calibrating retribution. Testimony that goes to the unique social worth of a victim or that otherwise emphasizes something besides experiential harm creates precisely this problem.

And even if victims are providing retributively material information about harm, the value of that information may be swamped by other content. For example, even when a living victim provides retributively material information about harm to a sentencer, that information is likely to be commingled with content that is retributively immaterial—such as emotional pleas to co-opt the state in pursuit of private vengeance. I join others who fear that the retributively immaterial elements of the victim-to-sentencing communication will only push in one direction.^{²⁰⁶See, e.g., Bandes, supra note 167, at 399–402 (explaining why more information is not always better because emotional processing works differently in different contexts); Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Ariz. L. Rev. 143, 156–65 (1999) (documenting the problem across jurisdictions).} It will tend to make sentences more severe, and not because the communication captures harm that should make a normative difference.

2. Retributively Significant “Harm” in Dead-Victim Cases

The harm-based justifications for certain victim practices break down when the primary victim is deceased. I want to focus on two such practices: (1) victim impact statements and (2) the role of victim families between death sentences and executions. Despite considerable literature on the first practice,^{²⁰⁷See, e.g., Bandes, supra note 196, at 1253–54 (introducing the article length inquiry); Bandes, supra note 167, at 394–95 (discussing in context of capital cases); Cassell, Treating Crime Victims Fairly, supra note 33, at 931–38 (discussing the use of victim impact evidence in federal cases); Cassell, Defense, supra note 35, at 611 (defending such practices against academic criticism); Logan, supra note 206, at 143–69 (conveying how VIS were used after the landmark Supreme Court case).} the fit between the traditional justifications for victim involvement and the practice itself remains undertheorized. And the second practice is, to my knowledge, almost totally unremarked-upon in the existing victims’ rights literature.^{²⁰⁸There is some current and proposed legislation that would restrict contact between capital defendant representatives and victim families before a clemency decision, and this legislation certainly applies in capital cases. See, e.g., H.L.S. 24RS-190, 2024 Reg. Sess. (La. 2024), proposed bill at https://legis.la.gov/legis/ViewDocument.aspx?d=1346998 [perma.cc/D5QD-PZ69].}

Start with victim impact statements. A VIS in a decedent-victim case cannot, by definition, be communicative content from the primary victim. In decedent-victim scenarios, some states restrict VIS to surviving family members, but others permit VIS to be given by “family, friends, neighbors, and even co-workers.”^{²⁰⁹Logan, supra note 206, at 153–54.} In other words, many jurisdictions do not enforce boundaries on the sources of victim impact evidence.^{²¹⁰See Dubber, supra note 1, at 213–16; Logan, supra note 206, at 155; see also, e.g., Beck v. Commonwealth, 484 S.E.2d 898, 906 (Va. 1997) (requiring only that the potential statement-offeror not be “so far removed from the victims as to have nothing of value to impart to the court about the impact of these crimes”).} The sources of potentially relevant evidence become anyone in the “community,”^{²¹¹See, e.g., Logan, supra note 18, at 729–31 (describing the tendency in federal cases).} and the limits thereupon are largely administrative concepts like duplicativeness.

The information that secondary victims provide via VIS is less likely to be retributively significant—less likely to pertain to offense conduct or the primary victim’s experienced harm. In many cases, VIS-friendly law is used to admit naked evidence of victim sentencing preference,^{²¹²See Wayne A. Logan, Opining on Death: Witness Sentence Recommendations in Capital Trials, 41 B.C. L. Rev. 517, 518 (2000).} which has nothing to do with retributively significant harm.^{²¹³See id. at 538–39.} Victim impact evidence in dead-victim cases also packs an explosive emotional punch.^{²¹⁴See Logan, supra note 18, at 742.} It often takes the form of testimony about the social harm to a community or retributively immaterial evidence about the victim’s social worth.^{²¹⁵I don’t mean to suggest that all victim attributes are morally irrelevant. There are, for example, good reasons to punish people who harm children more harshly. See Kleinfeld, supra note 199, at 1091.} The idea that social worth could be a valid determinant of punitive suffering is a moral outrage; if social worth mattered, then the murder of lower-statused people would require less punishment than the murder of higher-statused people.

The role of victims after capital sentences is largely unexplored in the academic literature. I have written extensively on the process that follows death verdicts, both describing it and critiquing it normatively.^{²¹⁶See, e.g., Lee Kovarsky, Delay in the Shadow of Death, 95 N.Y.U. L. Rev. 1319, 1321 (2020) (explaining unique circumstances that produce a flurry of pre-execution litigation) [hereinafter Kovarsky, Delay]; Lee Kovarsky, The American Execution Queue, 71 Stan. L. Rev. 1163, 1165 (2019) (exploring the “second American death penalty”) [hereinafter Kovarsky, Execution Queue].} The topline numbers are staggering. Fewer people on death rows will die of executions than will exit because of summed suicides, vacated sentences, and natural-caused deaths.^{²¹⁷See Snell, supra note 4, at 12 tbl.5.} Of those that die at the state’s hand, the average time between death verdict and execution is about twenty years.^{²¹⁸See id. at 19 tbl.12.}

With respect to executions, both the “who” and the “how long” are enormously sensitive to victim preferences. Higher-statused victims are more likely to leave behind family and extended communities that agitate for executions.^{²¹⁹See Kovarsky, Execution Queue, note 216, at 1210.} People are less likely to get clemency if the murdered victims come from communities that are media-fluent or otherwise capable of exerting cultural power.^{²²⁰Texas Governor Greg Abbott, for example, pardoned an ex-Austin police officer who shot and killed an Air Force veteran who was protesting at a Black Lives Matter event. See William Melhado, Gov. Greg Abbott Pardons Daniel Perry, Veteran Who Killed Police Brutality Protester in 2020, Tex. Trib. (May 16, 2024), https://www.texastribune.org/2024/05/16/daniel-perry-greg-abbott-pardon [perma.cc/5N9S-WVAL].} By contrast, people who kill victims with few community connections will draw far fewer objections to a clemency push.^{²²¹See Kovarsky, Execution Queue, supra note 216, at 1210.} The social worth information that drives the clemency dynamic also drives differential death-sentence implementation at various sites of institutional discretion.^{²²²See id.}

These problems illustrate the important point. Charging, trial, and sentencing proceedings largely exhaust retributively significant information about harm. What could the harm-based justification for making sentence implementation sensitive to victim preferences even be? Notice to aggrieved families is one thing, but input is another altogether.

C. Equality Objection

I allude to an equality concern throughout this Article because it relates to other observations I make about dead-victim cases. Here, I sketch that concern as a stand-alone objection. The improper influence of victim social worth is already a problem in living-victim cases;^{²²³See, e.g., Maisie Hall, Agata Debowska & George K. Hales, The Effect of Victim Attractiveness and Type of Abuse Suffered on Attributions of Victim Blame and Credibility in Intimate Partner Violence: A Vignette-Based Online Experiment, 30 Violence Against Women 2396, 2396 (2024) (finding that attractive victims were treated as more credible in intimate-partner violence cases); Miller, supra note 196, at 1455 (studying victim involvement in sexual assault cases); Deborah Tuerkheimer, Criminal Justice and the Mattering of Lives, 116 Mich. L. Rev. 1145, 1146 (2018) (identifying acute pockets of the problem). See generally Leigh Goodmark, Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism (2023) (developing a broader theoretical framework for imperfect victimhood); Itay Ravid, Inconspicuous Victims, 25 Lewis & Clark L. Rev. 529, 532–33, 536–42 (2021) (discussing the relationship of ideal victims to victims’ rights practices).} in dead-victim cases, the problem is overwhelming.^{²²⁴See Bandes, supra note 167, at 392–93, 397–98 (making the argument); Logan, supra note 18, at 741 (describing the argument); see also, e.g., Scott E. Sundby, The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims, 88 Corn. L. Rev. 343, 369 (2003) (“The California CJP data suggest that a juror’s perception of the victim’s character and role in the crime can have an important influence on a juror’s inclination to vote for death or life in a capital case.”); Heather Zaykowski, Ross Kleinstuber & Caitlin McDonough, Judicial Narratives of Ideal and Deviant Victims in Judges’ Capital Sentencing Decisions, 39 Am. J. Crim. Just. 716, 729 (2014) (finding the effect of worthiness in a study of judicial behavior in Delaware capital cases). But see Cassell & Erez, supra note18, at 954–59 (offering a rebuttal to the equality concern, relying substantially on the idea that VIS don’t increase sentencing magnitude).} Not only does the victim-worth effect degrade other justifications for victim involvement, but it also violates an independent moral principle of non-arbitrariness.

I begin with an explanation of what I mean by the “social worth” of victims, a concept best crystallized by Professor Susan Bandes.^{²²⁵See Bandes, supra note 167, at 406.} When I refer to a victim’s social worth, I am not trying to capture the value of their professional output, or any economic value for that matter. I am instead describing, more abstractly, the varied social value that a political community assigns to different identities.^{²²⁶See Bandes & Salerno, supra note 128, at 1037–40.} The concept is straightforward and corresponds roughly to social status, although the controlling Supreme Court precedent doesn’t acknowledge it. In Payne—the decision permitting the use of victim impact evidence—the Court rejected the idea that such evidence creates a problematic hierarchy of victims.^{²²⁷Payne v. Tennessee, 501 U.S. 808, 823 (1991) (“As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind . . . . It is designed to show instead each victim’s ‘uniqueness as an individual human being’ . . . .”).} In an almost impossibly obtuse passage, Payne says that the “evidence” does not expressly call for a comparison across cases.^{²²⁸See id.} Of course, there can be moral problems with sentencing patterns even if a jury isn’t told to compare its sentence to that imposed in other cases.

And whether morally problematic patterns are inevitable or not, they certainly dominate American-style punishment. In the criminal legal system, it is difficult to dispute that the lives of some victims matter more than others.^{²²⁹See, e.g., Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255, 1267 (1994) (discussing racial dimensions of this phenomenon).} The state funnels resources to the policing and prosecution of crime that affects higher-statused communities.^{²³⁰See, e.g., Jeffrey A. Fagan & Amanda Geller, Police, Race, and the Production of Capital Homicides, 23 Berkeley J. Crim. L. 261, 266–67 (2018).} Cultural biases creep into other aspects of criminal punishing, too. Judges and juries, for example, still carry documented biases about what makes a rape “serious” and its victim “credible.”^{²³¹Bandes, supra note 196, at 1264 (citing Mary Lay Schuster & Amy D. Propen, Victim Advocacy in the Courtroom: Persuasive Practices in Domestic Violence and Child Protection Cases 551–81 (2011)).} Simply put, social worth is a determinant of punishment across the legal landscape.

The victims’ rights movement, with a call for “closure” that legitimates the use of criminal proceedings as a site for catharsis, amplifies this problem.^{²³²See Bandes, supra note 170, at 1–2, 9–15.} It’s not that vindicating victims’ rights necessarily aggravates existing inequalities; it’s certainly possible though, as a theoretical matter, that increased victim involvement might offset structural disadvantages. The problem is that a right’s value is contingent on the social value of its bearer. The return on involvement is higher when the involvement vindicates the interests of high-statused people. Awarding victims’ rights as a category disproportionately benefits those people. For example, a Canadian study showed that higher-statused victims were more likely to offer oral, rather than written, victim impact statements at criminal trials.^{²³³See Miller, supra note 196, at 1446 (2013) (making the same point in the context of sexual assault cases in particular).}

In dead-victim cases generally—that is, dead-victim cases that are also noncapital—the rights to victim involvement generally redound to family members.^{²³⁴See infra Appendix, secs. C, D.} English-speaking families and families with greater cultural capital are in a far superior position to influence prosecutors, juries, judges, correctional officials, and institutions that wield clemency power. One commentator memorably reinterpreted VIS law as a commandment that “Thou Shalt Not Kill Any Nice People.”^{²³⁵Amy K. Phillips, Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in Capital Sentencing, 35 Am. Crim. L. Rev. 93 (1997).}

The problem is particularly severe in death penalty cases. An enormous body of empirical work—dating all the way back to the famous Baldus Study at the center of McCleskey v. Kemp—demonstrates that capital sentencing is quite sensitive to victim race.^{²³⁶See McCleskey v. Kemp, 481 U.S. 279, 286–87 (1987) (describing the Baldus study); see also David C. Baldus, George Woodworth & Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990) (study in book form).} Baldus and his co-authors estimated that killing a white victim was over four times as likely to result in a death verdict than killing a Black victim.^{²³⁷McCleskey, 481 U.S. at 287 (discussing the Baldus findings).} The race-of-victim effect in death penalty prosecutions is a well-documented phenomenon that persists across time, studies, and specifications.^{²³⁸See, e.g., U.S. Gen. Acct. Off., GGD-90-57, Death Sentencing: Research Indicates Pattern of Racial Disparities 5 (1990), http://www.gao.gov/assets/220/212180.pdf [perma.cc/AT76-LM4F] (determining that over 80% of empirical work on this question disclosed a race-of-victim effect); David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner & Barbara Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Corn. Law Rev. 1638, 1661 (1998) (finding race-of-victim disparities in 90% of death-sentencing states); Fagan & Geller, supra note 230, at 273–75 (surveying more recent empirical work on the race-of-victim effect).}

The problem of social worth remains acute even after a jury returns a death sentence for capital murder.^{²³⁹My arguments herein apply generally to all dead-victim cases, which obviously include all homicides. There are nonetheless people who argue that it is potentially misleading to elevate the salience of capital cases in VIS discourse. See, e.g., Cassell & Erez, supra note 18, at 907 n.181.} In those cases, victim-family involvement can last twenty years or more.^{²⁴⁰See Kovarsky, Execution Queue, supra note 216, at 1176 (discussing data).} After the capital sentence, structurally advantaged victims have a much greater chance of influencing decisions about whether to seek execution; if so, on what timeline; whether prosecutors stipulated to findings that require a sentencing revision; and whether clemency is awarded.^{²⁴¹Cf. id. at 1210 (discussing moral dimensions of seeking executions by reference to socially favored characteristics).}

The literature does contain some responses to this objection—most notably, in the VIS context, by law professor and former federal judge Paul Cassell.^{²⁴²See Cassell, Defense, supra note 35, at 638–42.} Although I disagree with him in ways big and small, I often use Professor Cassell’s arguments as stand-ins for those of the broader victims’ rights movement because he has been its most persistent and thoughtful academic supporter.^{²⁴³I discuss and cite Professor Cassell’s work extensively, including sources cited at note 3536, supra, and note 284, infra.} In terms of the equality effects of VIS, Professor Cassell’s first response is that there’s no evidence that victim impact statements have any effect on sentencing at all.^{²⁴⁴Cassell, Defense, supra note 35, at 638–39.} The second is that “maybe ‘articulate’ victims are simply those victims who have been harmed the most.”^²⁴⁵Id. Both answers are unpersuasive.

Start with the idea that VIS have no real impact on sentencing. My argument is mechanistically broader than the one to which Professor Cassell responds insofar as the social worth problem arises from victim involvement generally—not just VIS. Those other mechanisms, accessible through unequally distributed cultural capital, also compromise the principle that victims should be treated equally. Higher-statused victims leave behind loved ones who are more capable of advocating for prosecutions, trials, and harsher sentences, and advocating against plea deals, parole, and clemency. Unevenly distributed cultural capital does much of its work outside the jury’s sight line.

Second, there are problems even with the inferences Professor Cassell draws from the pertinent VIS studies. For example, Professor Cassell writes off simulated juror studies showing that VIS do affect sentences, remarking that simulations, as a category, provide limited “insight[].”^{²⁴⁶Id. at 634–35.} But in the absence of well-designed experimental or quasi-experimental studies, these simulations produce perfectly legitimate information about cause and effect.^{²⁴⁷See, e.g., Edith Greene, The Many Guises of Victim Impact Evidence and Effects on Jurors’ Judgments, 5 Psych. Crime & L. 331, 345 (1999) (“[T]hese findings suggest that during the sentencing phase of a capital trial, . . . victims portrayed in a VIS as assets to their families and their communities may be perceived differently than victims portrayed in less glowing terms.”); Edith Greene, Heather Koehring & Melinda Quiat, Victim Impact Evidence in Capital Cases: Does the Victim’s Character Matter?, 28 J. Applied Soc. Psych. 145 (1998) (finding effect).} In fact, some of the nonsimulation studies on which Professor Cassell relies show that victim “admirability” indeed correlates substantially with increased involvement—even if they indicate that victim impact statements, in the aggregate, don’t affect the volume of capital sentencing.^{²⁴⁸See Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells, Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases, 88 Corn. L. Rev. 306, 307–08 (2003).}

Furthermore, the evidence on “real-world juries” isn’t nearly as robust and conclusive as Professor Cassell suggests. Professor Cassell’s major data point is a Cornell study in which researchers interviewed jurors who sat in South Carolina death penalty cases between 1985 and 2001.^{²⁴⁹See Cassell, Defense, supra note 35, at 635 (discussing Eisenberg, Garvey & Wells, supra note 248, at 308).} As the study authors recognize, however, the Cornell data was collected long after the twenty-seven interview subjects rendered their capital case verdicts,^{²⁵⁰The number twenty seven is the number of jurors asked about VIS. See Eisenberg, Garvey & Wells, supra note 248, at 310–11.} and it’s potentially distorted by implicit bias and limited recall.^{²⁵¹See id.} Setting aside that certain victim characteristics didn’t affect ultimate case outcomes, the study actually provided some support for the broader hypotheses circulating through the experiential and legal literature: “[M]ore-admired victims are viewed as the victims of more-serious crimes.”^{²⁵²Id. at 327.} The result, moreover, was not particularly robust across specifications, as the model revealed an inversion between victim admirability and likelihood of a death vote when the study designers tweaked features of the dependent variable.^{²⁵³The inversion was statistically insignificant, however. See id. at 335.} Finally, the study authors don’t have a substantive rebuttal to the observation that the absence of effect could be attributable to significant bias in the defendant cohort actually put on capital trial—that is, killing of high-statused white victims has an enormous effect on who goes to trial in the first place.^{²⁵⁴The only thing the authors were able to do was show that the ratio of death sentences to defendants tried was unaffected by the increased use of victim impact evidence. See id. at 334–39. This statistical check doesn’t address the fact that the methodology for the main model is masking upstream influence of perceived victim worthiness.}

Professor Cassell also relies on a 1987 California survey of “presiding judges, probation departments, district attorneys, and victim/witness programs.”^{²⁵⁵ Edwin Villmoare & Virginia V. Neto, Victim Appearances at Sentencing Hearings Under the California Victims’ Bill of Rights ix, 61 (1987) (finding that victim statements to courts do not usually impact sentencing decisions) (cited in Cassell, Defense, supra note 35, at 635 n.123).} The survey was designed to understand California’s 1982 Victims’ Bill of Rights. Because the survey wasn’t an experiment, the authors expressly disclaim any causal findings: “[M]easuring actual effect was beyond the purpose and scope of the study.”^{²⁵⁶Id. at 52.} Indeed, the central insight of the survey was that a right to victim allocution didn’t substantially affect statewide sentencing rates because victims didn’t invoke it. As the survey put it, “[w]hile the study shows that victims desire the right to participate in sentencing, few victims show any great predisposition to exercise the right.”^{²⁵⁷Id. at 61.} The survey didn’t suggest that allocution in individual cases had no effect.^{²⁵⁸See id. at 52.} Judges seemed to think that victim allocutions had little marginal effect simply because the effect was already captured by some form of written VIS.^{²⁵⁹See id. at 55, 59.} (Seventy percent of district attorneys and forty-five percent of victims thought the effect of allocation was substantial.^{²⁶⁰See id. at 55.})

Finally, Professor Cassell relies on a 1994 quasi-experimental study that randomly assigned Bronx County, New York defendants to one of three treatments to determine whether victim impact statements had any impact on sentencing. Perhaps the most noteworthy finding from the study is the degree to which it undercuts other arguments made by victims’ rights advocates: It suggested that VIS provided no meaningful information about retributively significant harm.^{²⁶¹See Robert C. Davis & Barbara E. Smith, The Effects of Victim Impact Statements on Sentencing Decisions: A Test in an Urban Setting, 11 Just. Q. 453, 466 (1994) (cited by Cassell, Defense, supra note 35, at 635 n.124).} The study’s conclusion is not that victim involvement has no effect on sentencing; rather, it’s that VIS are a lousy vector for victim involvement, at least in less serious cases. And in more serious cases involving direct, interpersonal harm—“homicides, rapes, and aggravated assaults”—the authors concede that victim impact statements might have greater effects.^{²⁶²See id. at 468.}

In short, the study-based evidence doesn’t substantially undermine the equality objection. The simulation data remains formidable in an empirical environment devoid of robust, controlled experimentation. The surveys that Professor Cassell discusses focus almost exclusively on the operation of victim involvement at trial, as opposed to upstream involvement in the decision to prosecute or downstream involvement in decisions about parole or clemency.^{²⁶³But see Morgan & Smith, supra note 5, at 355 (“The results of these studies suggest that a strong empirical relationship between victim participation and parole denials.”).} When the cited studies find that victim involvement doesn’t increase sentences, it generally involves a finding that the mechanism isn’t being used—not a finding that usage has no effect.^{²⁶⁴I discuss these studies in conjunction with my responses to consequentialist arguments. See infra note 285.} These studies also tend to be about the effects of VIS programs in the aggregate, and not about whether differences in victim involvement affect sentences in individual cases. Finally, none of these studies undermine the claim that, whatever the categorical effect of victim involvement on outcomes, the effect is stronger with respect to higher-statused victims.

The second responsive volley that Professor Cassell offers to the equality objection assumes that what he calls victim “articulateness” exerts some effect on outcomes. For example, he remarks that perhaps “‘articulate’ victims are simply those victims who have been harmed the most.”^{²⁶⁵Cassell, Defense, supra note 35, at 639.} There’s no data cited for the counterintuitive proposition that people whose harm is especially resonant are, in fact, harmed more. To the contrary, the idea that structurally advantaged groups obtain superior outcomes from the criminal process is well documented,^{²⁶⁶See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 98–99 (rev. ed. 2012) (describing racially disparate penalization of drug use); Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2114 (2017) (arguing that poorer communities get lower quality policing services); Stephen Rushin & Roger Michalski, Police Funding, 72 Fla. L. Rev. 277, 286 (2020) (linking differences in policing impact to tax structure of financing).} and victim involvement is one specific instance of that broader phenomenon. Victims from structurally advantaged groups are likelier to have appealing characteristics amenable to communal grieving, to be survived by English-speaking advocates capable of speaking in court, and to come from communities with the cultural and political influence necessary to combat any institutional pressure for lenience.

Professor Cassell then offers something of a “so what?”—assuming both that “articulateness” affects sentences and that articulate victim impact witnesses get better results, then that state of affairs doesn’t differ meaningfully from the way legal institutions treat all witness testimony. As he puts it: “Even assuming a new study finds a unique ‘articulateness’ factor unrelated to the merits of the case, this sort of difference is hardly unique to victim impact evidence.”^{²⁶⁷Cassell, Defense, supra note 35, at 639.} To be fair, Professor Cassell is focused on VIS specifically rather than on victim involvement generally, so he may not object to my observation that differentiated social worth is a problem outside the courtroom.

Having said that, I still disagree with even a narrower claim about victim impact testimony. Something can be morally unproblematic even if it’s tolerated in related contexts. But more importantly, victim impact testimony isn’t like all other witness testimony. And the specific differences go directly to the boundaries we observe when witnesses testify. Witness testimony is not unbounded—it must be relevant,^{²⁶⁸See, e.g., Fed. R. Evid. 401, 402 (federal evidence test for relevance and general admissibility rule).} and, even for relevant testimony, sometimes the difference between prejudice and probativeness can be impermissibly large.^{²⁶⁹See, e.g., Fed. R. Evid. 403 (federal evidence rule permitting evidence exclusion where probative value is substantially outweighed by unfair prejudice).} That’s the problem with victim testimony specifically and victim involvement generally. There is an unacceptably high risk that immaterial information dominates the rest.^{²⁷⁰See supra note 206 and accompanying text.} And there’s no slippery slope here; a rule constraining the scope of victim involvement wouldn’t need to interfere with the basic testimonial practice of nonvictim witnesses.

Or perhaps, as Professor Cassell argues, these problems exist but are uniquely acceptable because—at least in capital cases—they “balance” a defendant’s right to introduce mitigating evidence. Professor Cassell writes that “[e]quality demands fairness not only between cases, but also within cases.”^{²⁷¹Cassell, Defense, supra note 35, at 640.} This argument is puzzling. Mitigation evidence is relevant because substantive law makes a capital defendant’s culpability strictly relevant to the sentence. To make the parity argument persuasively, it must be the case either that (1) substantive law makes victim social worth legally relevant or that (2) victim social worth should influence outcomes notwithstanding that it’s irrelevance under substantive law. The first is descriptively false and the second doesn’t make sense analytically. The parity position makes a poorly justified assumption that the function of a criminal proceeding is to balance rights of offenders and victims, rather than to fulfill some other normative mandate.^{²⁷²See Ahmed A. White, Victims’ Rights, Rule of Law, and the Threat to Liberal Jurisprudence, 87 Ky. L.J. 357, 410 (1999).}

The parity argument draws on a gauzier proposition about complete equality across a criminal prosecution. But the prosecution and defense are always situated differently. They are endowed with different resources,^{²⁷³See Kate Weisburd, Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule, 60 UCLA L. Rev. 138, 175–76 (2012).} have different burdens of proof,^{²⁷⁴Tom Stacy, The Search for the Truth in Constitutional Criminal Procedure, 91 Colum. L. Rev. 1369, 1403 (1991).} must prove different things,^{²⁷⁵See id.} and are subject to different constitutional constraints.^{²⁷⁶For example, the prosecution only must disclose evidence favorable to the opposing party. See Brady v. Maryland, 373 U.S. 83, 87 (1963). And only a defendant has a constitutional right to effective representation. See Strickland v. Washington, 466 U.S. 668, 685–86 (1984).} If differences in the admissibility of character evidence simply reflect a difference in the material elements of a sentence, then what’s the within-case equality problem to weigh against the enormous risk of inequality across cases? Fairness and equal treatment are not the same thing.^{²⁷⁷See Herbert J. Gans, More Equality 73–74 (1973); Martha Minow, Equality vs. Equity, 1 Am. J.L. & Ineq., Sep. 2021, at 179, 180, 182.}

* *

Deontological arguments cut against victim involvement in dead-victim cases. Because it is the secondary harm bearers who are speaking and participating—rather than the decedent—the expressive and participatory interests that might otherwise underwrite the moral case disappear.^{²⁷⁸See supra Section III.A.} Nor does retributive logic work, as evidence unrelated to blameworthiness overwhelms information about retributively significant harm.^{²⁷⁹See supra Section III.B.} Finally, secondary victim involvement threatens a moral obligation to treat victims equally.^{²⁸⁰See supra Section III.C.}

IV. Consequentialist Arguments

Other arguments about victims’ rights fall into a loosely related category that one might describe as utilitarian, or at least consequentialist. Most are familiar arguments about deterrence or incapacitation, but one is closer to the idea that victim involvement has a legitimacy dividend. All such arguments consist either of dubious-but-unfalsifiable claims or falsifiable claims without empirical support.^{²⁸¹In what follows, I focus on deterrence, incapacitation, and legitimacy. I don’t include substantial content on restorative justice practices, because the menu of victims’ rights memorialized in American statutes and discussed herein is not a set of restorative practices. See Lara Bazelon & Bruce A. Green, Victims’ Rights from a Restorative Perspective, 17 Ohio St. J. Crim. L. 293, 296–97 (2020). But see Alexandra Giannidi, Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment (June 25, 2024), http://dx.doi.org/10.2139/ssrn.4874762 (arguing that republican theory might justify victim-oriented criminal justice practices centered on restorative justice and use of lengthy incarceration as a last resort). Nor do I include substantial content addressing the suggestion that victim involvement facilitates defendant rehabilitation. See Cassell & Erez, supra note 18, at 935. The rehabilitation argument is primarily about VIS by living victims, see id. at 935–36, and it is so speculative that there is little productive to say. Of course, it’s possible that victim-offender confrontation could accelerate offender rehabilitation—but there’s no empirical evidence indicating that, and certainly no evidence suggesting the magnitude of the effect in a way that allows one to evaluate tradeoffs.}

A. Deterrence

Begin with a basic utilitarian argument articulated to support harsher criminal justice outcomes: Victim involvement reduces future offending by the defendant (specific deterrence) and other people (general deterrence).^{²⁸²Cf. Igor Primoratz, Justifying Legal Punishment 9–11 (1989) (explaining that utilitarianism and retributivism are the major justificatory theories of punishment). For an example of an argument that victim involvement performs a deterrent function, see Tyrone Kirchengast, Victims and the Criminal Trial 192 (Matthew Hall & Pamela Davies eds., 2016). See also Phillip A. Talbert, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 UCLA L. Rev. 199, 216 (1988) (suggesting that effect “may” exist).} Measuring deterrent effect is difficult enough,^{²⁸³Throughout this discussion, I rely on the exquisite treatment of research in Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Just. 199, 200 (2013).} and there is (to my knowledge) no empirical evidence suggesting that victim input provides information about harm that promotes the law’s deterrent effect. There is perhaps a causal intuition behind a deterrence argument, but—ironically—advocates for victims’ involvement often deny the premise upon which it necessarily rests.^{²⁸⁴See, e.g., Paul G. Cassell, On the Importance of Listening to Crime Victims . . . Merciful and Otherwise, 102 Tex. L. Rev. 1381, 1403 (2024) (“And the claim that involving victims makes the system more punitive lacks significant empirical support.”).}

Specifically, if one assumes that (1) any increase in punishment has a nonzero effect on deterrence and that (2) victim involvement only increases punishment, then one could argue that victim involvement increases deterrence along some margin, however slight. I don’t dwell on this argument too much—though it has plenty of problems—because victims’ advocates don’t generally want to claim this deterrence effect. They want to say that victim involvement isn’t unidirectional^{²⁸⁵The evidence on the relationship between victim impact statements and trial sentencing, however, is mixed. Data from juror simulations suggest a significant effect, especially in capital cases. See, e.g., Greene, Koehring & Quiat, supra note 247, at 145 (finding effect based on manipulation of victim impact evidence from famous case); James Luginbuhl & Michael Burkhead, Victim Impact Evidence in a Capital Trial: Encouraging Votes for Death, 20 Am. J. Crim. Just. 1, 13 (1995) (finding “strong” effect); Raymond Paternoster & Jerome Deise, Heavy Thumb on the Scale: The Effect of Victim Impact Evidence on Capital Decision Making, 49 Criminology 129, 153 (2011) (finding effect in capital-case simulation). Non-simulation data from South Carolina, however, failed to disclose an effect. See Eisenberg, Garvey & Wells, supra note 248, at 308. Some studies of noncapital cases, whether simulated juror studies or based on real-world data, are smaller or zero. See, e.g., Cassell & Erez, supra note 18, at 949–54 (collecting empirical support regarding VIS); Edna Erez & Leigh Roeger, The Effect of Victim Impact Statements on Sentencing Patterns and Outcomes: The Australian Experience, 23 J. Crim. Just. 363, 367–69 (1995) (finding no increase in custody rates or sentence lengths associated with the introduction of victim impact statements in Australian proceedings); Maarten Kunst, Giulia de Groot, Jelmar Meester & Janne van Doorn, The Impact of Victim Impact Statements on Legal Decisions in Criminal Proceedings: A Systematic Review of the Literature Across Jurisdictions and Decision Types, 56 Aggress. & Violent Behav. 1, 8 (2021) (finding a more ambiguous result in noncapital cases); Bryan Myers, Draven Godwin, Rachel Latter & Scott Winstanley, Victim Impact Statements and Mock Juror Sentencing: The Impact of Dehumanizing Language on a Death Qualified Sample, 22 Am. J. Forensic Psych. 39, 42, 50–51 (2004) (documenting a failure to replicate simulation studies showing effect). There has been some criticism leveled at the methodology of, as well as attempts to extrapolate from, the noncapital case studies. See Susan Bandes, Reply to Paul Cassell: What We Know About Victim Impact Statements, 1999 Utah L. Rev. 545, 549 (1999). The most recent, well-designed study involves a sample of 1,332 Canadian sentencing rulings. See Gena K. Dufour, Marguerite Ternes & Veronica Stinson, The Relationship Between Victim Impact Statements and Judicial Decision Making: An Archival Analysis of Sentencing Outcomes, 47 L. & Hum. Behav. 484, 493 (2023). The Dufour et al. study showed that higher VIS likelihood predicted more incarceration, but that the effect was insignificant once the designers controlled for crime severity. See id. at 494. I am nonetheless hesitant to infer too much from the Dufour et al. results, for the following reasons: (1) Canadian VIS are subject to more stringent legal constraints than American VIS, so inflammatory information is less likely to appear before the Canadian sentencer, id. at 495; (2) because Canada does not have the death penalty, VIS are always given to judges and never to juries, and the effects might be very different in the two scenarios; (3) there was an exceptionally strong measured correlation between oral delivery and sentencing magnitude, and oral delivery to juries is a feature of sentencing in American capital cases; (4) there’s a huge endogeneity problem insofar as the cases producing more impact statements are likely to be the cases that are up-charged because of sympathetic victim involvement upstream. In other words, with respect to (4), both the measured crime severity and VIS likelihood correlate with sympathetic victim involvement.} and that its effect on sentence intensity depends on the specific case.

The baseline deterrence arguments are weak, even before considering how they might play out in dead-victim cases.^{²⁸⁶The deterrence argument might play out differently in business-entity defendant cases, if they perceive some reduced ability to secure a sweetheart plea deal in a criminal prosecution. See, e.g., John C. Coffee, Jr., NOSEDIVE: Boeing and the Corruption of the Deferred Prosecution Agreement, *17–18, https://dx.doi.org/10.2139/ssrn.4105514 (detailing victim attempt to derail Boeing settlement in criminal prosecution of the company).} There is at least some evidence that making legislatively specified punishment more sensitive to the harm caused by an offense increases deterrence.^{²⁸⁷See Don Stemen, The Prison Paradox: More Incarceration Will Not Make Us Safer, Vera (2017), https://www.vera.org/downloads/publications/for-the-record-prison-paradox_02.pdf [perma.cc/NX7M-ATCU]; Nagin, supra note 283, at 251–52; Joan Petersilia, Beyond the Prison Bubble, 268 Nat’l Inst. Just. J. 26, 27 (2011); Donald Ritchie, Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence 16 (2011), https://www.sentencingcouncil.vic.gov.au/sites/default/files/2019-08/Does_Imprisonment_Deter_A_Review_of_the_Evidence.pdf [perma.cc/M7NX-MGLJ].} But the argument for victim involvement is three degrees removed from even that middling zone of statistical support.

First, the argument for victim involvement isn’t about increasing average punishment legislated; it is about increasing sentencing within a legislative range. And sure, one might string together some studies to support the idea that, within a legislatively specified range, higher average sentencing might produce more deterrence. But the effects of incremental harshness don’t matter nearly as much as other determinants of expected punishment. The upstream likelihood of apprehension and conviction, for example, matter much more than the magnitude of downstream penalty.^{²⁸⁸See Nagin, supra note 283, at 201–02.}

Second, arguments for victim involvement aren’t so much about raising average punishment as they are about calibrating the punishment to harm. There is no empirical evidence substantiating a complex causal story in which such calibration reduces future offending. Nor is the story of causation intuitively appealing. Even assuming that, over some sentence ranges, there is a marginal effect of increased punishment, there is no reason to think that the incremental information victims might provide about harm—specifically, increments of information that they would provide beyond that which they would provide as simple witnesses—would have any effect on behavior.

Third, even if the totality of this causal story was to be indulged, and if the punishment expectancy did affect behavior, it would be sensitive to what potential offenders perceive about the information provided.^{²⁸⁹See id. at 204; see also John C. Ball, The Deterrence Concept in Criminology and Law, 46 J. Crim. L. Criminology & Police Sci. 347, 351 (1955) (“A law can have no deterrent influence upon a potential criminal if he is unaware of its existence.”); Raymond Paternoster, How Much Do We Really Know About Criminal Deterrence?, 100 J. Crim. L. & Criminology 765, 780 (2010) (“[S]cholars began to understand deterrence as a social psychological theory of threat communication and to realize that if the objective properties of punishment are important, it is only because they affect crime through individual perceptions.”).} And if potential offenders perceive victim involvement as providing information about victim status and social worth, rather than about retributively material harm, then the whole story falls apart. If there is any causal story there, it’s that offenders would seek out lesser-statused victims.

These problems are amplified in dead-victim cases. When the victim involved is alive, one might at least argue that information about status and social worth coexists with retributively material information about the effect of a crime. But that offset vanishes in dead-victim cases.^{²⁹⁰See Logan, supra note 212, at 541–43.} In those cases, the shape and intensity of victim involvement necessarily involve information colored by status and social worth.^{²⁹¹See supra Section III.C.} There’s no harm-deterrence calibration happening.

On matters of capital sentence implementation—questions about which death-sentenced prisoners get executed and how fast—the logic flounders even more. There are no reliable studies about how capital sentence implementation affects offending, even generally. And the more specific causal story approaches absurdity, at least if the story is that making capital sentence implementation sensitive to victim preferences reduces offending. If we’re insistent on specifying small incentives, then the more intuitive effect is an incentive to kill marginalized, lower-statused victims.

But perhaps the biggest reason to doubt deterrent effects in dead-victim cases is that they’re almost always homicide cases with harsh penalties. Consider some easy examples: (1) at the front end, victim involvement prevents a prosecutor from offering a fifty-year sentence as a plea deal; (2) during trial, victims give impact statements that induce the sentencer to impose a life sentence instead of a fifty-year term; or (3) at the back end, surviving family members successfully oppose parole after fifty years in prison. In these scenarios—scenarios that bump sentence severity above fifty years of incarceration—what increment of deterrence does victim involvement serve? Existing empirical work strongly indicates that adding increments of punitiveness to already-harsh treatment has no marginal effect on deterrence.^{²⁹²See Nagin, supra note 283, at 252; see also Barkow, supra note 7, at 42–43 (collecting studies); John J. Donohue III, Assessing the Relative Benefits of Incarceration: Overall Changes and the Benefits on the Margin, in Do Prisons Make Us Safer? 269, 274, 301–02 (Steven Raphael & Michael A. Stoll eds., 2009) (showing inverse relationship between marginal incarceration and marginal deterrence); Anthony N. Doob & Cheryl Marie Webster, Sentence Severity and Crime: Accepting the Null Hypothesis, 30 Crime & Just. 143, 146 (2003) (“[S]tandard social scientific norms governing the acceptance of the null hypothesis justify the present (always rebuttable) conclusion that sentence severity does not affect levels of crime.”); Prescott, Pyle & Starr, supra note 7, at 1660 (“Research suggests that lengthening already-long prison sentences has little to no deterrent effect on violent crime.”).} As mentioned already, potential offenders are much more sensitive to enhanced probability of apprehension than they are to enhanced penalty,^{²⁹³See supra note 288 and accompanying text.} and that’s especially true at the highest ranges of punishment. There, the effect that sentencing practices have on deterrence virtually disappears.^{²⁹⁴See supra note 292.}

There is just no empirical support for the idea that victim involvement helps deter crime. Nor is there a plausible causal story, since such story would require that potential offenders calibrate their conduct based on whether they expect victims to be involved in subsequent criminal proceedings and the increased punishment expectancy that such involvement would entail.

B. Incapacitation

Another utilitarian argument for victim involvement is incapacitation. More precisely, the argument is that victims provide vital information about potential future harm, and that information helps a community incapacitate its most significant threats.^{²⁹⁵See Lynne Henderson, Co-opting Compassion: The Federal Victim’s Rights Amendment, 10 St. Thomas L. Rev. 579, 592 (1998) (“Victims’ rights presently appear to focus almost entirely on an individual’s right to have an offender swiftly punished, with the punishment based on revenge and incapacitation . . . .”); cf. Talbert, supra note 282, at 219 (“[V]ictim participation serves the incapacitation goal only if the victim has a special basis of knowledge about the defendant’s potential for future criminal activity.”).}

My concerns about this logic should sound familiar insofar as I doubt multiple pieces of the incapacitation rationale generally.^{²⁹⁶As was true with respect to deterrence, this dynamic might also differ in a business entity prosecution, where victims push for some corporate monitoring or supervision that would reduce future harm. Cf. Coffee, supra note 286, at 24 (discussing possibility of monitors in Boeing case).} For example, there may be good reasons to incapacitate offenders to protect the community, but if that’s true, then incapacitation isn’t quite the same thing as punishment—and it should have a separate moral justification.^{²⁹⁷See Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 321 (2015); Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Harv. L. Rev. 1429, 1446 (2001); John F. Stinneford, Punishment Without Culpability, 102 J. Crim. L. & Criminology 653, 683 (2012).} And because a criminal sentence is a fundamentally punitive form of state action, asking that it effectively double as a well-calibrated mechanism for incapacitation is a bridge too far.

Moreover, the system will constantly misfire in both comparative and absolute senses. Comparatively speaking, it will produce more incapacitation for highly culpable offenders and less incapacitation for those with lower culpability. But unless past culpability tracks future danger, the equation doesn’t work.^{²⁹⁸See Adam J. Kolber, Punishment and Moral Risk, 2018 U. Ill. L. Rev. 487, 523 (2018); see also Guyora Binder & Ben Notterman, Penal Incapacitation: A Situationist Critique, 54 Am. Crim. L. Rev. 1, 3 (2017) (disputing intuition).} And in absolute terms, the length of most criminal sentences far exceeds the state’s incapacitating needs.^{²⁹⁹See Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 221 (2019); Binder & Notterman, supra note 298, at 53–54; Josh Gupta-Kagan, The Intersection Between Young Adult Sentencing and Mass Incarceration, 2018 Wis. L. Rev. 669, 716–19 (2018).}

Setting aside more general issues, there is no evidence that victim involvement properly calibrates incapacitation. True, information about harm might track the interest in incapacitation for individual defendants. But it’s a leap to argue that modal victim involvement captures that interest. Recall that victim involvement, at least within offense categories, tends to reflect social value and cultural influence more than harm.^{³⁰⁰See supra Section III.C.} And there’s no reason to believe that social value and cultural influence parallel the incapacitating needs of the state.^{³⁰¹The arguments I make apply equally to victim involvement at any phase in the criminal punishment process, including sentencing and parole.}

All these objections are magnified in dead-victim cases, where victim involvement takes the form of families and affected community members who can offer little other than information about the social worth of the decedent.^{³⁰²See supra notes 224–226 and accompanying text.} That increment of ancillary information does little to calibrate incapacitation, especially at the right tail of already-long sentences. And data on the incapacitating effect of increments to already-harsh punishment is even clearer than the comparable deterrence work.^{³⁰³See supra note 299.} People quickly age out of periods marked by violent criminality, so incremental incapacitation of aged and enfeebled people doesn’t reduce danger.^{³⁰⁴See id.}

I have one final point about incapacitation, and it might apply equally to deterrence. These arguments in favor of victim involvement are ultimately utilitarian, and so the social value of the practice must contemplate both benefits and costs.^{³⁰⁵See generally Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 11–15 (J.H. Burns & H.L.A. Hart eds., 1996) (1789) (setting forth the classic formulation).} I have tried to accurately characterize—“near zero,” “close to zero,” etc.—the deterrence and incapacitation effects of increments to already-long punishment. A reasonable person might then question whether there can be a utilitarian objection to such practices, given that these effects are potentially nonzero.

Yes, in fact, there can be a utilitarian objection because those effects coexist with real costs—especially in dead-victim cases that already involve long sentences. If one assumes that victim involvement generally increases punishment, then more punishment produces negative utility alongside any deterrent and incapacitation gains. That’s because increments of punishment produce additional suffering (disutility) in the person punished,^{³⁰⁶See Gray, supra note 202, at 1620.} and that suffering might be even greater when the punished person is older and no longer able-bodied.^{³⁰⁷See Brandon L. Garrett & Lee Kovarsky, Viral Injustice, 110 Cal. L. Rev. 117, 124 (2022) (detailing the link between age and carceral suffering in the context of COVID litigation).} It will often leave those people in prison longer and when their age makes them vulnerable, and that vulnerability can further increase suffering and victimization.^{³⁰⁸See Ashley Nellis, The Sent’g Project, Nothing but Time: Elderly Americans Serving Life Without Parole 9 (Kate Epstein ed., 2022).} It also entails the disutility that comes with incremental imprisonment generally, which disproportionately burdens vulnerable communities and exacts a great fiscal cost.^{³⁰⁹See Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation, 111 Q.J. Econ. 319, 346–47 (1996); Lois Presser, The Restorative Prison, in The American Prison: Imagining A Different Future 20–21 (Francis T. Cullen et al. eds., 2014); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271, 1297 (2004).}

C. Legitimacy

A final consequentialist justification often cited as the strongest victims’ rights claim is that victim involvement adds some unquantifiable measure of legitimacy to criminal punishment.^{³¹⁰See, e.g., Cassell, Defense, supra note 35, at 625 (linking fairness of letting victims speak at sentencing to interest in “legitimacy” of punishment); Giannini, supra note 61, at 124 (framing victim participation in the pardon process as a legitimating function); Dana Pugach & Michal Tamir, Nudging the Criminal Justice System into Listening to Crime Victims in Plea Agreements, 28 Hastings Women’s L.J. 45, 57 (2017) (“In line with the Procedural Justice Theory, victims’ participation may enhance perception of the fairness of an official decision, an issue often raised in relation to defendants.”); Zulkifl M. Zargar, Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, and the Crime Victim’s Right to Confer, 89 Fordham L. Rev. 343, 356 (2020) (“To the extent that victims’ experiences do not comport with these procedural justice norms, victims may question the legitimacy of decision makers and consequently avoid cooperating with authorities in the future.”).} Legitimacy arguments like this are often maddening because they rely on complex feedback loops that are either unfalsifiable or empirically unsubstantiated. In the victims’ rights context, the causal story would have to involve something like the following steps: that involving victims will be perceived by some (undefined) subset of the population as dignifying, that the external perception of the dignifying effect will exceed any external perception of degradation, that the perceiving community will “respect” certain criminal justice institutions more, that such respect will translate to increased compliance and cooperation with some criminal justice practices within or across (unspecified) communities, and that such compliance and cooperation is a social good. There’s not strong empirical support for many of these propositions, let alone all of them.

Arguments that aspire to more rigor and greater grounding in established literature often latch casually onto Professor Tom Tyler’s well-known work on procedural justice.^{³¹¹See, e.g., Michael M. O’Hear, Plea Bargaining and Victims: From Consultation to Guidelines, 91 Marq. L. Rev. 323, 326–27 nn.16–20 (2007) (referencing Tyler to make argument); Pugach & Tamir, supra note 310, at 54 n.60 (same); Zargar, supra note 310, at 356 (same); Giannini, supra note 61, at 86–87 n.236 (same).} Briefly summarized, Tyler’s work asserts that procedures for deciding contested social questions should be perceived as respectful, fair, and neutral, because (1) losing contestants will more readily accept the loss and (2) the community generally will view the pertinent institutional practices as things to be respected.^{³¹²Professor Tyler has made this argument broadly and across many publications. See, e.g., Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231, 240–41 (2008) (arguing that criminal legal institutions are perceived as more legitimate when they are perceived as promoting equality); Tom R. Tyler, Social Justice: Outcome and Procedure, 35 Int’l J. Psych. 117, 120 (2000) (same); Tom Tyler, Comment, Governing Pluralistic Societies, 72 L. & Contemp. Probs. 187, 187–88 (Spring 2009) (explaining that legitimacy is linked more closely to process than to outcomes); Tom R. Tyler & Yuen J. Huo, Trust In The Law: Encouraging Public Cooperation With The Police And Courts 53–56, 84 (2002) (reviewing empirical support).} This argument—victim involvement increases the legitimacy of the criminal legal system—should be taken seriously, but it still falters in dead-victim cases.

First, victim disappointment is something that victims’ rights statutes can’t fix. The disappointment reflects, among other things, that victims cannot make binding decisions^{³¹³See Bandes, supra note 198, at 1269 n.10; Erin Ann O’Hara & Maria Mayo Robbins, Using Criminal Punishment to Serve Both Victim and Social Needs, 72 Law & Contemp. Probs. 199, 209 (Spring 2009); cf. Aya Gruber, The Feminist War on Crime, 92 Iowa L. Rev. 741, 778 (2007) (noting tendency to ignore victims who prefer mercy).} and that most states refuse to provide compensation for victims’ rights breaches.^{³¹⁴See infra Appendix, sec. F.} The criminal legal system rarely satisfies those who expect more than the thinnest rights to notice and respect because it is an “adversary system that too often cloaks punitive aims in the language of healing, making promises it cannot . . . keep.”^{³¹⁵Bandes, supra note 196, at 1269.} Second, victim involvement aggravates the inequality examined in Section III.C,^{³¹⁶See supra Section III.C.} and that aggravation devastates procedural justice arguments.^{³¹⁷See supra note 312 and accompanying text.} If victims’ rights practices make the most estranged communities feel worse,^{³¹⁸Cf. Bell, supra note 266, at 2114 (developing concept of estrangement).} then the procedural justice rationale fails.

These two problems are worse in dead-victim cases. First, secondary harm bearers often experience profound disappointment in the implementation of capital sentences.^{³¹⁹See Maderia, supra note 172, at 43.} Death penalty jurisdictions may not be able to honor preferences for closure or mercy,^{³²⁰See Charles F. Baird & Elizabeth E. McGinn, Re-Victimizing the Victim: How Prosecutorial and Judicial Discretion Are Being Exercised to Silence Victims Who Oppose Capital Punishment, 15 Stan. L. & Pol’y Rev. 447, 468 (2004) (families who favor mercy over severity); Carol S. Steiker & Jordan M. Steiker, Capital Punishment: A Century of Discontinuous Debate, 100 J. Crim. L. & Criminology 643, 687 (2010) (families waiting for execution).} and ongoing involvement during the lengthy period between sentence and execution tests even the most resolute survivors.^{³²¹See supra note 216 and accompanying text (noting length of post-conviction victim involvement); see also Susan L. Karamanian, Victims’ Rights and the Death-Sentenced Inmate: Some Observations and Thoughts, 29 St. Mary’s L.J. 1025, 1029 (1998) (discussing role of families during this period); Steiker & Steiker, supra note 320, at 687 (same).} Of course, not all dead-victim cases involve the death penalty, but even longer sentences for other homicides—with endless parole hearings and post-conviction litigation—present similar problems.^{³²²See Young, supra note 168, at 460 (parole hearings); cf. Susan F. Hirsch, In the Moment of Greatest Calamity: Terrorism, Grief, and a Victim’s Quest for Justice 251 (2006) (“[T]he penalty phase promises agency to victims but often delivers something quite different.”); Henderson, supra note 19, at 996–97 (explaining that the retaliatory preferences of victims diverge significantly over time).} Second, and as explained above, the equality objections are the most urgent in the dead-victim cases,^{³²³See supra Section III.C.} and it is therefore the victims’ rights practices in those cases that represent the greatest threat to vulnerable communities’ perception of equal treatment.

One might be tempted by a clever-seeming rejoinder: If the problem is that jurisdictions don’t sufficiently align with victim preferences, then perhaps the answer is to give them even more influence. Maybe, but such influence aggravates all the other problems associated with existing practices in dead-victim cases. It would push punishment even further toward a quasi-private process for redressing personal grievances and away from a public process for punishing harm to political communities.^{³²⁴See Steven Eisenstat, Revenge, Justice and Law: Recognizing the Victim’s Desire for Vengeance as a Justification for Punishment, 50 Wayne L. Rev. 1115, 1165 (2005).} It would also amplify the inequality of victim worth.^{³²⁵See Katie Long, Community Input at Sentencing: Victim’s Right or Victim’s Revenge?, 75 B.U. L. Rev. 187, 225 (1995).} Thus, it is better to set clear limits on expectations, ensuring victims have the rights to dignified treatment and notice but not to control decisionmaking.

* *

In dead-victim cases, the consequentialist justifications in favor of existing victims’ rights practices confront two insurmountable challenges. First, that homicides involve long sentences means victim involvement affects sentencing margins that have no deterrent or incapacitating effect. Second, the victim-worth problems defeat any legitimacy dividend that increased victim involvement might otherwise produce. Whatever the case for victims’ rights, it’s not a consequentialist one traditionally used to justify punishment practices.

V. Institutional Implications

American jurisdictions tend to award the aggrieved survivors of dead victims the same rights they afford to living ones,^{³²⁶See, e.g., Ala. Code § 15-23-60 (stating that certain family members may assume victims’ rights of decedent).} even though the justifications for victim involvement across the two categories differ significantly. Part V lays out the best institutional responses to the mismatch. The first is the most obvious: Victims’ rights ought to be tiered, with survivors of dead victims having a pared-down menu of rights that correspond to their first-party interests. The rest reflect the view that criminal punishment is a poor site for addressing the manifold harm of secondary victimhood.

One global comment first. I urge sub-constitutional responses to mismatch. Even for the narrow slice of VIS activity that the Supreme Court addressed in the early 1990s,^{³²⁷See supra notes 135–138 and accompanying text.} Payne is unlikely to be revisited, let alone reversed. And even a Payne reversal wouldn’t address victims’ rights practices broadly; it would address only the admissibility of victim impact statements at capital trials. The response to mismatch must come in other forms: changes to state constitutions, statutes, and regulations; changes to judicial norms; and better articulated critiques of the victims’ rights agenda itself.

A. Victims’ Rights Should Be Tiered

In dead-victim cases, normative support for victim involvement collapses—whether one is talking about deontic theories of victim participation^{³²⁸See supra Section III.A.} and retribution^{³²⁹See supra Section III.B.} or about consequentialist theories of deterrence,^{³³⁰See supra Section IV.A.} incapacitation,^{³³¹See supra Section IV.B.} and legitimacy.^{³³²See supra Section IV.C.} In light of this significant justificatory deficit, American jurisdictions should reconfigure victims’ rights.

Recall from Part I that most American jurisdictions deal with victims’ rights in three steps: (1) specify a set of people who have status as victims,^{³³³See supra Section II.A; see infra Appendix, sec. B (fifty-state survey of victim definitions).} (2) define a menu of victims’ rights,^{³³⁴See supra Section II.B.} and (3) determine which people they empower to seek remedies.^{³³⁵See supra Section II.C.} Mismatch arises because there is a single bundle of “victims’ rights” that attach to very different forms of crime-caused harm. A decedent’s survivors either receive that bundle as first-party rights in virtue of their own victimhood,^{³³⁶First, and at step (1), many jurisdictions simply define surviving harm bearers as victims. For example, Michigan defines the “victim” category to include spouses, adult children, parents, guardians of minor children, siblings, grandparents, and guardians of the decedent. Mich. Comp. Laws Ann. § 780.752(1)(m). Virginia defines the category to include “a spouse, parent, sibling, or legal guardian of . . . a person who . . . was the victim of a homicide.” Va. Code Ann. § 19.2-11.01(B)(v). In these situations, there is an assignment of first-party rights to survivors of dead victims.} or they “assume” the primary victim’s rights as a third party.^{³³⁷Second, and at step (3), other jurisdictions don’t expressly award victim status to survivors of dead victims but instead provide various mechanisms to assert or succeed to the rights that formally belong to the deceased victim. The easiest example is the CVRA, which states that “[i]n the case of a crime victim who is . . . deceased, the legal guardians of the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights under this chapter.” 18 U.S.C. § 3771(e)(2)(B).}

The basic principle for reconfiguration is that primary and secondary harm bearers should have different bundles of rights. Surviving families (and estates) shouldn’t have the exact same rights as living victims; those entities shouldn’t belong to an undifferentiated first-person victim category or be assigned to exercise third-party rights on a dead victim’s behalf. Survivors of dead victims should have their own (first-party) rights to notice and dignified treatment; such rights might include notice that proceedings are pending, notice of significant developments, and notice that they own rights at all. In dead-victim cases, however, their rights should not extend to decisionmaking and influence.

Whether the mismatch results from a failure to differentiate first-party rights or wholesale assignment of third-party rights, both produce the problem I tackle here: a rights bundle selected for, and justified by, reference to materially different circumstances. This institutional fix should change that. Those owning rights in dead-victim cases should have some of the rights that belong to surviving victims, but not all of them.

B. Tiering the Rights

In what follows, I discuss how these rights should be tiered. Rights to dignity, respect, and protection are perfectly defensible as first-party rights of surviving harm bearers. Rights to involvement are not. The toughest issues surround victims’ rights to restitution in criminal proceedings, although those are ultimately defensible on economic grounds.

1. Dignity, Respect, and Protection

There is no moral problem with retaining laws that require secondary victims be treated with dignity and respect. For example, the federal CVRA requires that crime victims “be treated with fairness and with respect for the victim’s dignity and privacy.”^{³³⁸18 U.S.C. § 3771(a)(8).} California provides that victims have a right “[t]o be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.”^{³³⁹ Cal. Const. art. I, § 28(b)(1).} A great many states have laws with similar statutory language.^{³⁴⁰See, e.g., Ariz. Const. art. II, § 2.1(A) (“To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.”); Fla. Const. art. I, § 16(b)(1) (“The right to due process and to be treated with fairness and respect for the victim’s dignity.”); Ill. Const. art. I, § 8.1(a)(1) (“The right to be treated with fairness and respect for their dignity and privacy and to be free from harassment, intimidation, and abuse throughout the criminal justice process.”); Ohio Const. art. I, § 10a(1) (“[T]o be treated with fairness and respect for the victim’s safety, dignity and privacy . . . .”).} These hortatory provisions generally lack enforcement beyond the more specific rules and remedies identified in the pertinent statutes,^{³⁴¹E.g. Mary Margaret Giannini, Note, The Swinging Pendulum of Victims’ Rights: The Enforceability of Indiana’s Victims’ Rights Laws, 34 Ind. L. Rev. 1157, 1182 (2001) (advocating for change in Indiana on this ground).} but they may nonetheless ground worthy norms about how the criminal legal system accommodates the presence of privately harmed parties.^{³⁴²See Alex Geisinger, A Belief Change Theory of Expressive Law, 88 Iowa L. Rev. 35, 63–72 (2002) (exploring how change in laws affect belief structures).}

Also worthy of protection are rights to reasonable safety from defendants. For instance, the very first right that the CVRA enumerates is the “right to be reasonably protected from the accused.”^{³⁴³18 U.S.C. § 3771(a)(1).} Many states have constitutional or statutory rules that protect victims from things like harassment, intimidation, and physical abuse.^{³⁴⁴See, e.g., Colo. Rev. Stat. § 24-4.1-302.5 (protecting “[t]he right to be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process”); Nev. Const. art. I, § 8A(1)(b) (entitling victims to the right “[t]o be reasonably protected from the defendant and persons acting on behalf of the defendant”).} Rights that exist to protect the safety and mental health of victims’ families—rights easily conceptualized as the first-party rights of the families themselves—do not implicate the equality-based problems specified in Section III.C.

2. Notice

Another group of first-party rights reasonably retained by surviving harm bearers involves notice. The first tranche of notice rights are the rights to be notified about case developments—things like arrests, decisions to prosecute, trials, verdicts, post-conviction proceedings, parole decisionmaking, clemency, and executions. Rights to notice of this sort are core principles of the federal CVRA.^{³⁴⁵See 18 U.S.C. §§ 3771(a)(2), (c)(1).} They’re also an essential piece of state victims’ rights laws, with notable examples including Arizona,^{³⁴⁶See Ariz. Const., art. II, § 2.1.(A); Ariz. Rev. Stat. §§ 13-4405, 4415.} California,^{³⁴⁷See Cal. Const., art. I, § 28(b)(6); Cal. Penal Code §§ 679.02(a)(14), 1191.15(a), 1191.16.} Florida,^{³⁴⁸See Fla. Const., art. I, § 16(b); Fla. Stat. § 960.001(b).} Illinois,^{³⁴⁹See Ill. Const., art. I, § 8.1(a)(2); Rights of Crime Victims and Witnesses Act, 725 ILCS 120 § 4.} Michigan,^{³⁵⁰See Mich. Const., art. I, § 24(d); Mich. Comp. Laws §§ 780.755, 780.756, 780.758, 780.763, 780.768.} New York,^{³⁵¹See N.Y. Exec. Law, art. 23, §§ 640(1), 641(1), N.Y. Crim. Proc. Law §§ 440.50(1), 380.50(1).} and Texas.^{³⁵²See Tex. Code Crim. Proc., art. 56A.051, 56A.053.}

The other tranche of first-party notice rights reasonably retained by surviving harm bearers involves not notice of some case development but rather notice of the victims’ rights menu itself. In other words, it is analytically sound—even in dead-victim cases—for states to insist that the decedent’s survivors be told that they have things called victims’ rights and educated on what those rights are. The federal CVRA lavishes considerable statutory language on this principle, including a provision that entitles victims “to be informed of” victims’ rights specified in various parts of the U.S. Code.^{³⁵³18 U.S.C. § 3771(a)(10).} It also includes a best efforts provision, requiring prosecutors and other federal employees to do the best they can to see that “crime victims are notified” of the rights menu that the CVRA specifies.^{³⁵⁴Id. § 3771(c)(1).}

Again, what both notice-right tranches share, and what they have in common with the rights mentioned in Subsection V.B.1, is that they can be intelligibly justified as first-party rights. Even secondary harm bearers have real interests in information about the pace and content of legal proceedings, and the notice rights that reflect such interests don’t create victim-worth problems.

3. Restitution

I sound a more ambivalent note about criminal restitution generally, although those concerns don’t strongly implicate a distinction between living- and dead-victim cases. In the criminal sentencing context, restitutionary remedies order a victimizer to compensate a victim for financial loss.^{³⁵⁵See Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 97 (2014) (taking issue with this development).} Restitution has been part of criminal punishment for a long time, and it became a meaningful part of federal sentencing after the victims’ rights push in the early 1980s.^{³⁵⁶See Matthew Dickman, Should Crime Pay?: A Critical Assessment of the Mandatory Victims Restitution Act of 1996, 97 Cal. L. Rev. 1687, 1688 (2009). See generally Lula Hagos, Debunking Criminal Restitution, 123 Mich. L. Rev. 470, 483–94 (2024) (providing historical background on criminal restitution).} I do not mean to endorse punitive versions of restitution—nor expansive, compensatory restitution at all, really. Instead, I make only the more modest observation that there’s less reason to distinguish restitutionary remedies based on whether the primary victim is living or dead.

I strike this ambivalent tone because restitutionary remedies are, at least in the abstract, better conceptualized as tort remedies stapled to the criminal process. As Judge Richard Posner wrote twenty-five years ago, “Functionally, the [federal MVRA] is a tort statute . . . .”^{³⁵⁷United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999).} Restitution isn’t a fine, and although I understand the efficiency-based justification for consolidating all facets of a dispute into a single proceeding,^{³⁵⁸See id.} I remain uneasy about blurring lines between the public elements of criminal punishment and the private elements of loss-allocation.^{³⁵⁹See Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775, 793 (1997).}

Having copped to my ambivalence about these restitutionary remedies generally, there’s no reason to distinguish between living-victim and dead-victim cases. The fundamental purpose of restitutionary remedies—at least in criminal cases—is to compensate victims for loss,^{³⁶⁰See Lollar, supra note 335, at 95, 101.} and estates or family members have easily justified first-party interests in compensation for the primary victim’s death. These estates or families would presumably be entitled to compensatory remedies in separate tort action anyway.^{³⁶¹See Bach, 172 F.3d at 523.}

At first glance, the MVRA seems to offer a narrow vision of restitutionary compensation. In dead-victim cases, it provides expressly that victims be compensated only for funeral and related expenses.^{³⁶²18 U.S.C. § 3663A(b)(3).} But remember that the MVRA provides that families and estates can “assume” restitutionary rights,^{³⁶³Id. § (a)(2); see also, e.g., United States v. Bedonie, 317 F. Supp. 2d 1285, 1299, 1333 (D. Utah 2004), rev’d on other grounds and remanded sub nom. United States v. Serawop, 410 F.3d 656 (10th Cir. 2005) (awarding restitution to the estate on the theory that it assumed restitutionary rights of the dead victim).} which means that they unlock restitutionary entitlement to income that the deceased victim lost at death.^{³⁶⁴18 U.S.C. § 3663A(b)(2)(C). The fact that the MVRA eschews a first-party rights approach in favor of an approach that assigns to survivors the rights that belonged to the dead victims produces an odd result: At least under the plain text of the statute, they can’t recover costs associated with their participation in the legal proceedings. They could only recover the costs that the dead victim incurs, which are necessarily zero. Id. § (b)(4).} Many states take a more direct route to restitutive victim compensation, awarding broad first-person rights to secondary harm bearers. For example, the California constitution provides, “all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.”^{³⁶⁵ Cal. Const. art. I, § 28(b)(13)(A).} In Florida, the next of kin is treated like the decedent and is therefore entitled to “restitution in every case and from each convicted offender for all losses suffered, both directly and indirectly, by the victim as a result of the criminal conduct.”^{³⁶⁶ Fla. Const. art. I, § 16(b)(9), (e).} Florida statutes, moreover, provide broad restitutionary rights for any “[d]amage or loss caused directly or indirectly by the defendant’s offense.”^{³⁶⁷ Fla. Stat. § 775.089(1)(a)(1).}

No matter how the statutes get there, they usually end up awarding surviving harm bearers a compensatory way to recover economic loss. As long as the amount awarded is conceptualized as a first-party loss experienced by the secondary victim, there is no reason to distinguish between living and dead-victim cases.

4. Involvement

My final observation about the existing rights bundle should be obvious. Secondary victims should have limited rights to active involvement—maybe none at all—when the primary victim is dead. Secondary victim input should not be required at plea negotiations,^{³⁶⁸The considerations are, as I’ve indicated elsewhere, different in business entity prosecutions. See supra note 286.} nor during the trials and post-conviction proceedings that follow. Secondary victims should not have rights to offer, and usually should not offer, victim impact testimony at sentencing. And they should not have a say in execution scheduling.

These institutional changes flow inexorably from the normative positions I take in Parts III and IV. There is little to justify victim involvement in dead-victim cases. More precisely, the expressive justifications for victim participation don’t work the same way when the primary victim is dead,^{³⁶⁹See supra Section III.A.} the utilitarian justifications vanish at large sentencing magnitude,^{³⁷⁰See supra Section IV.A.} and unequal victim treatment is a nearly insurmountable moral problem.^{³⁷¹See supra Section IV.B.}

None of this should suggest that the moral interests favoring involvement are zero. Surviving family members, for example, certainly bear harm from the killing of a loved one. For that reason, they have first-party interests, both expressive and instrumental, in participation. But those moral interests are different and smaller than those attached to the experience of a primary harm bearer—a surviving victim.^{³⁷²See supra Subsection III.A.2.} In view of the considerable tension between victim involvement and a public approach to state punishment,^{³⁷³See supra notes 184–192 and accompanying text.} the differential moral accounting is material to institutional design.

Moreover, dead-victim scenarios present an incompatible-preference problem. In most living-victim cases, the primary victim’s preferences dominate the preferences of other harm bearers. But in dead-victim cases, the preferences of surviving family can diverge, sometimes substantially.^{³⁷⁴See Rachel King, Why a Victims’ Rights Constitutional Amendment Is a Bad Idea: Practical Experiences from Crime Victims, 68 U. Cin. L. Rev. 357, 379 (2000).} That divergence means that facilitating victim involvement can be a zero-sum game. These problems are particularly vexing in death penalty cases,^{³⁷⁵See Logan, supra note 18, at 750.} where prisoners will often have lengthy death row stays.^{³⁷⁶See supra notes 217–218 and accompanying text.} Moving those prisoners forward in an execution queue will often depend on family-member preferences, and different members often develop different preferences over time.^{³⁷⁷See King, supra note 374, at 370.}

I don’t dwell on this recommendation too much because the recommendation itself is mercifully simple. In dead-victim cases, states should eliminate most rights to influence and involvement that now redound to assignees and secondary harm bearers.

C. Recovery Against the State

One of the most surprising features of victims’ rights law is, when rubber hits road, the degree to which American jurisdictions shirk meaningful state accountability for victim caretaking. One major obstacle to meaningful state accountability is that the state would be accountable for too much. Shrinking the rights available to secondary victims would, ironically, help close the accountability deficit. So, in conjunction with the recommendations in Sections V.A and V.B, American jurisdictions should permit remedies against the state when they fail to honor the victims’ rights they enumerate.

To understand the issue, look no further than the CVRA, which bars recovery against the state for victims’ rights violations:

Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages.^{³⁷⁸18 U.S.C. § 3771(c)(6).}

Similar safeguards are present throughout state statutes.^{³⁷⁹See, e.g., Ala. Const. art. I, § 6.01(b) (“Nothing in this amendment or in any enabling statute adopted pursuant to this amendment shall be construed as creating a cause of action against the state or any of its agencies, officials, employees, or political subdivisions.”); Ill. Const. art. 1, § 8.1(d) (“Nothing in this Section or any law enacted under this Section creates a cause of action in equity or at law for compensation, attorney’s fees, or damages against the State, a political subdivision of the State, an officer, employee, or agent of the State or of any political subdivision of the State, or an officer or employee of the court.”); see also infra Appendix, sec. F.} They might refute duties, bar causes of action, or preclude damages liability. Whatever the specific combination, however, the point is always to make the state unaccountable for its nominal rights guarantees.

These provisions are morally dubious for at least two reasons. First, and more obviously, if a state is going to create rights against itself, it shouldn’t categorically bar legal accountability for its own failure to honor them; there should be at least some enforcement. Second, these provisions reflect a strange understanding of victimization. It is an understanding of victimization that blinds itself to the social and economic constraints on a victimizer’s choices. If criminal victimization has structural causes, then the state should have more accountability for its institutional response, not less.^{³⁸⁰This observation, of course, has broader implications for the way we funnel social responses to victimhood through criminal process—not just in dead-victim cases. If victimhood is environmentally caused, at least in part, then there is extra normative urgency behind the more public, socialized response of victim compensation. I nonetheless forego this line of argument because it works the same way, at least largely, in living-victim cases.}

Surely, one impediment to such accountability is the breadth of rights for which the state must account. The smaller the scale of rights ownership, the less intimidating the specter of morally desirable enforcement. Because dead-victim cases award the whole victims’ rights menu to a large and poorly marked set of harm bearers, accountability comes at an especially large cost. Paring down rights in dead-victim cases therefore produces a counterintuitive outcome: It gets easier to hold the state’s feet to the fire.

Conclusion

If criminal punishment is to be a public encounter between the state and an offender, then modern levels of victim influence are already an awkward fit. Familiar justifications for these victims’ rights practices collapse in dead-victim cases. Deontologically speaking, secondary harm bearers cannot “assume” dead-victim interests in expression and confrontation, their participation does not calibrate systemic responses to retributively significant harm, and the inevitable influence of social status undermines commitments to victim equality. From a consequentialist perspective, there is no (plausible) causal story in which secondary victim involvement promotes deterrence or incapacitation, and there can be no legitimacy dividend when the law sensitizes punishment to the social worth of victims.

For these reasons, the victims’ rights practices and their justifications are mismatched when the primary bearers of interpersonal harm are dead. This mismatch persists because American jurisdictions continue to assign the same bundle of rights to anyone formally denominated as a victim, even if those victims are not the primary bearers of interpersonal harm. The response is straightforward: Victims’ rights should be tiered. Living victims should have one bundle, and those asserting rights in dead-victim cases another. The latter’s bundle should turn on their first-party interests, and not on some third-party theory of rights that belong to decedents.

Appendix

A. Sources of Law for Victims’ Rights

State	Source of Law for Victims’ Rights	Constitutional Provisions Establishing Victims’ Rights	Statutory Law Establishing Victims’ Rights
Alabama	statute & constitution	Ala. Const. art. I, § 6.01	Ala. Code § 15-23 (2025)
Alaska	statute & constitution	Alaska Const. art. I, § 24	Alaska Stat. Ann. § 12.61 (West 2025)
Arizona	statute & constitution	Ariz. Const. art. II, § 2.1	Ariz. Rev. Stat. Ann. §§ 13-4401 to -4443 (2025)
Arkansas	statute	N/A	Ark. Code Ann. §§ 16- 90-301 to -311; -701 to 720; -1101 to 1116 (2025)
California	statute & constitution	Cal. Const. art. I, § 28	Cal. Penal Code § 679 (West 2025)
Colorado	statute & constitution	Colo. Const. art. II, § 16(a)	Colo. Rev. Stat. Ann. § 24-4.1 (West 2025)
Connecticut	statute & constitution	Conn. Const. art. I, § 8(b)	Conn. Gen. Stat. Ann. § 54–201 to –239 (West 2025)
Delaware	statute	N/A	Del. Code Ann. tit. 11, § 9401-20 (2025)
Florida	statute & constitution	Fla. Const. art. I, § 16(b)	Fla. Stat. § 960.001-298 (2025)
Georgia	statute & constitution	Ga. Const. art. I, § 1, para. XXX	Ga. Code Ann. §§ 17-17-1 to -16> (West 2025)
Hawaii	statute	N/A	Haw. Rev. Stat. Ann. § 801D-4 (West 2025)
Idaho	statute & constitution	Idaho Const. art. I, § 22	Idaho Code Ann. § 19-5306 (West 2025)
Illinois	statute & constitution	Ill. Const. art. I, § 8.1	725 Ill. Comp. Stat. Ann. 120 (West 2025)
Indiana	statute & constitution	Ind. Const. art. I, § 13(b)	Ind. Code § 35-40 (2024)
Iowa	statute	N/A	Iowa Code § 915 (2025)
Kansas	statute & constitution	Kan. Const. art. XV, § 15	Kan. Stat. Ann. § 74-7333 (West 2025)
Kentucky	statute & constitution	Ky. Const. § 26A	Ky. Rev. Stat. Ann. § 421.500 (West 2025)
Louisiana	statute & constitution	La. Const. art. I, § 25	La. Stat. Ann. § 46:21-B (2025)
Maine	constitution	N/A	Me. Rev. Stat. Ann. tit. 17-A, § 75 (West 2025)
Maryland	statute & constitution	Md. Const. declaration of rights, art. XLVII	Md. Code Ann., Crim. Proc. § 11 (West 2025)
Massachusetts	statute	N/A	Mass. Gen. Laws Ann. ch. 258B (West 2025)
Michigan	statute & constitution	Mich. Const. art. 1, § 24(1)	Mich. Comp. Laws Ann. § 780 (West 2025)
Minnesota	statute	N/A	Minn. Stat. § 611A (2024)
Mississippi	statute & constitution	Miss. Const. art. 1, § 26(a)	Miss. Code Ann. § 99-43 (West 2025)
Missouri	statute & constitution	Mo. Const. art. I, § 32	Mo. Ann. Stat. § 595.209 (West 2025)
Montana	statute	N/A	Mont. Code Ann. 46-24-106 (2023)
Nebraska	statute & constitution	Neb. Const. art. I, § 28	Neb. Rev. Stat. Ann. § 81-1848 (West 2025)
Nevada	statute & constitution	Nev. Const. art. I, § 8A	Nev. Rev. Stat. § 176.015 (2024)
New Hampshire	statute	N/A	N.H. Rev. Stat. Ann. § 21-M:8-k (2025)
New Jersey	statute & constitution	N.J. Const. art. I, para. 22	N.J. Stat. Ann. § 52:4B-36 (West 2025)
New Mexico	statute & constitution	N.M. Const. art. II, § 24	N.M. Stat. Ann. § 31-26-4 (2025)
New York	statute	N/A	N.Y. Exec. Law §§ 640-649 (McKinney 2025)
North Carolina	statute & constitution	N.C. Const. art. I, § 37	N.C. Gen. Stat. Ann. § 15A-830.5 (West 2025)
North Dakota	statute & constitution	N.D. Const. art. I, § 25	N.D. Cent. Code Ann. § 12.1-34-02 (West 2025)
Ohio	statute & constitution	Ohio Const. art. I, § 10a	Ohio Rev. Code Ann. §§ 2930.01-2930.20 (West 2025)
Oklahoma	statute & constitution	Okla. Const. art. II, § 34	Okla. Stat. tit. 21, § 142A-1(1) (2024)
Oregon	statute & constitution	Or. Const. art. I, § 42-43	Or. Rev. Stat. Ann. §§ 147.405-147.438 (West 2025)
Pennsylvania	statute	N/A	18 Pa. Stat. and Cons. Stat. § 11.201 (West 2025)
Rhode Island	statute & constitution	R.I. Const. art. I, § 23	12 R.I. Gen. Laws Ann. § 12-28-3 (West 2025)
South Carolina	statute & constitution	S.C. Const. Ann. art. I, § 24	S.C. Code Ann. §§ 16-3- 1505 to -1565 (2025)
South Dakota	statute	N/A	S.D. Codified Laws § 23A-28C-1 (2025)
Tennessee	statute & constitution	Tenn. Const. art. I, § 35	Tenn. Code Ann. § 40-38-103 (2025)
Texas	statute & constitution	Tex. Const. art. I, § 30	Tex. Crim. Proc. Code Ann. § 56A.051 (West 2025)
Utah	statute & constitution	Utah Const. art. I, § 28	Utah Code Ann. § 77-37-3 (West 2024)
Vermont	statute	N/A	Vt. Stat. Ann. tit. 13, §§ 5301-5322 (2018)
Virginia	statute & constitution	Va. Const. art. I, § 8-A	Va. Code Ann. § 19.2-11.01 (West 2025)
Washington	statute & constitution	Wash. Const. art. I, § 35	Wash. Rev. Code Ann. § 7.69.030 (West 2025)
West Virginia	none	N/A	W. Va. Code Ann. § 61-11A-1 (West 2025)
Wisconsin	statute & constitution	Wis. Const. art. I, § 9m(2)	Wis. Stat. § 950.04 (2025)
Wyoming	statute	N/A	Wyo. Stat. Ann. § 1-40-203 (2025)

B. “Victim” Definitions

State	Constitutional Definition of Victim	Statutory Definition of Victim
Alabama	N/A	Ala. Code § 15-23-60(19) (2025)
Alaska	N/A	Alaska Stat. Ann. § 12.55.185(19) (West 2025)
Arizona	Ariz. Const. art. II, § 2.1(C)	Ariz. Rev. Stat. Ann. § 13-4401(19) (2025)
Arkansas	N/A	Ark. Code Ann. § 16-90-703(2) (2025)
California	Cal. Const. art. I, § 28(e)	Cal. Penal Code § 679.01(b) (West 2025)
Colorado	N/A	Colo. Rev. Stat. Ann. § 24-4.1-302(5) (2025)
Connecticut	N/A	Conn. Gen. Stat. § 54-201(1) (2025)
Delaware	N/A	Del. Code. Ann. tit. 11, § 9401(7) (2025)
Florida	Fla. Const. art. I, § 16(e)	N/A
Georgia	Ga. Const. art. I, § 1, para. XXX(a)	Ga. Code Ann. § 17-17-3(11) (West 2025)
Hawaii	N/A	Haw. Rev. Stat. Ann. § 801D-2 (West 2025)
Idaho	N/A	Idaho Code Ann. § 19-5306(5)(a) (West 2025)
Illinois	N/A	725 Ill. Comp. Stat. Ann. 120/3(a) (West 2025)
Indiana	N/A	Ind. Code § 35-40-4-8 (2024)
Iowa	N/A	Iowa Code § 915.10(3) (2025)
Kansas	N/A	Kan. Stat. Ann. § 74-7333(b) (West 2025)
Kentucky	N/A	Ky. Rev. Stat. Ann. § 421.500(1)(a) (West 2025)
Louisiana	N/A	La. Stat. Ann. § 46:1842(15) (2025)
Maine	N/A	Me. Rev. Stat. Ann. tit. 17-A, § 2101(2) (West 2025)
Maryland	N/A	No chapter-wide definition. Different definitions apply in different statutory provisions. Ex. “ ‘Victim’ means a person who is the victim of a crime or delinquent act” for the purposes of the right to be present at trial (Md. Code Ann., Crim. Proc. § 11-302(a)(3) (West 2025)) v. “ ‘Victim’ means a person who suffers direct or threatened physical, emotional, or financial harm as a direct result of a crime or delinquent act” for the purposes of postsentencing procedures (Md. Code Ann., Crim. Proc. § 11-501(b) (West 2025)).
Massachusetts	N/A	Mass. Gen. Laws Ann. ch. 258B, § 1 (West 2025)
Michigan	N/A	Mich. Comp. Laws Ann. § 780.752(1)(m) (West 2025)
Minnesota	N/A	Minn. Stat. § 611A.01(b) (2024)
Mississippi	N/A	Miss. Code Ann. § 99-43-3(t) (West 2025)
Missouri	N/A	Mo. Ann. Stat. § 595.200(6) (West 2025)
Montana	N/A	Mont. Code Ann. 46-24-106(5) (2023)
Nebraska	N/A	Neb. Rev. Stat. Ann. § 29-119(2)(a)-(2)(b) (West 2025)
Nevada	Nev. Const. art. I, § 8A(7)	Nev. Rev. Stat. § 176.015(5)(d) (2024)
New Hampshire	N/A	N.H. Rev. Stat. Ann. § 21-M:8-k(I)(a) (2025)
New Jersey	N.J. Const. art. I, § 22	N.J. Stat. Ann. § 52:4B-37 (West 2025)
New Mexico	N/A	N.M. Stat. Ann. § 31-26-3(F) (2025)
New York	N/A	N.Y. Exec. Law § 642(1) (McKinney 2025)
North Carolina	N/A	N.C. Gen. Stat. Ann. § 15A-830(a)(7)-(a)(7)(b) (West 2025)
North Dakota	N.D. Const. art. I, § 25(4)	N.D. Cent. Code. Ann. § 12.1-34-01(10) (West 2025)
Ohio	Ohio Const. art. I, § 10a(D)	Ohio Rev. Code Ann. § 2930.01(H) (West 2025)
Oklahoma	Okla. Const. art. II, § 34(C)	Okla. Stat. tit. 21, § 142A-1(1) (2024)
Oregon	Or. Const. art. I, § 42(6)(c)	Or. Rev. Stat. Ann. § 131.007 (West 2025)
Pennsylvania	N/A	18 Pa. Stat. and Cons. Stat. § 11.103 (West 2025)
Rhode Island	N/A	12 R.I. Gen. Laws Ann. § 12-28-4(b) (West 2025)
South Carolina	S.C. Const. art. I, § 24(C)(2)	S.C. Code Ann. § 16-3-1510(1) (2025)
South Dakota	N/A	S.D. Codified Laws § 23A-28C-4 (2025)
Tennessee	N/A	Tenn. Code Ann. § 40-38-302(4)(A) (2025)
Texas	N/A	Tex. Crim. Proc. Code Ann. art. 56A.001(7) (West 2025)
Utah	N/A	Utah Code Ann. § 77-37-2(7) (West 2024)
Vermont	N/A	Vt. Stat. Ann. tit. 13, § 5301(4) (West 2025)
Virginia	N/A	Va. Code. Ann. § 19.2-11.01(B) (West 2025)
Washington	N/A	Wash. Rev. Code Ann. § 7.69.020(3) (West 2025)
West Virginia	N/A	N/A
Wisconsin	Wis. Const. art. I, § 9m(1)	Wis. Stat. § 950.02(4)(a) (2025)
Wyoming	N/A	Wyo. Stat. Ann. § 1-40-202(a)(ii) (2025)

C. Primary Victimhood Rules

State	Family Members as Primary Victims	Statutory or Constitutional Site of Primary Victimhood Rule	Primary Victimhood Rule
Alabama	Sometimes	Ala. Code § 15-23-60(19) (2025) (statute)	Family members are primary victims only in cases where the victim is deceased or incapacitated.
Alaska	Sometimes	Alaska Stat. Ann. § 12.55.185(19) (West 2025) (statute)	Spouses or family members are primary victims only in cases of a deceased, incapacitated, incompetent, or minor victim.
Arizona	Sometimes	Ariz. Const. art. II, § 2.1(C) (constitution) & Ariz. Rev. Stat. Ann. § 13-4401(19) (2025) (statute)	Both rules include family members as primary victims only in cases where the victim is deceased or incapacitated.
Arkansas	Yes	Ark. Code Ann. §§ 16-90-703 (11)(B)(i)-(ii) (2025) (2025) (statute)	The children of victims are always included as primary victims, but other immediate family members are included in cases where the victim is a minor and/or instances of homicide or sexual assault.
California	Sometimes	Cal. Const. art. I, § 28(e) (constitution)	Family members are primary victims only in cases where the victim is deceased, incapacitated, or a minor.
Colorado	Sometimes	Conn. Gen. Stat. Ann. §§ 24-4.1-302(5)-(6) (2025) (statute)	Family members are primary victims only in cases where the victim is deceased or incapacitated.
Connecticut	No	N/A	N/A
Delaware	Sometimes	Del. Code Ann. § 9401(7) (2025) (statute)	Family members are primary victims only in cases where the victim is deceased or incapacitated.
Florida	Sometimes	Fla. Const. art. I, § 16(e) (constitution)	Next of kin are primary victims in cases of homicide, as are the parents or guardian of minor, and the lawful representative of any victim.
Georgia	Sometimes	Ga. Code Ann. § 17-17-3(11)(B)—(C) (West 2025) (statute)	Family members are primary victims only in cases where the victim is deceased, incapacitated, or a minor.
Hawaii	Sometimes	Haw. Rev. Stat. Ann. § 801D-4(a) (West 2025) (statute)	“[S]urviving immediate family members,” in cases of homicide, hold the majority of enumerated victims’ rights under § 801D-4.
Idaho	Sometimes	Idaho Code Ann. § 19-5306(3) (West 2025) (statute)	Family members are primary victims only in cases where the victim is deceased, incapacitated, or a minor.
Illinois	Sometimes	725 Ill. Comp. Stat. Ann. 120/3(a)(3) (West 2025) (statute)	In cases of a deceased victim, up to two representatives, who may be family members or members of the victim’s estate, retain the victim’s rights.
Indiana	Unclear	Ind. Code § 35-40-4-8 (2024) (statute)	It appears the family members are sometimes primary victims, but this status is offense-specific and/or right-specific. For example, under Ind. Code Ann. § 35-37-6-3(2)(B), family members may be considered primary victims in sexual assault cases. As another example, the immediate family of deceased victims have a right to an electronic transcript for appeals purposes under § 35-40-5-8.5(b)(2).
Iowa	Sometimes	Iowa Code § 915.10(3) (2025) (statute)	Family members are primary victims only in cases where the victim is deceased, incapacitated, or a minor.
Kansas	No	Kan. Stat. Ann. § 74-7333(b) (West 2025) (statute)	N/A
Kentucky	Sometimes	Ky. Rev. Stat. Ann. § 421.500(1)(a) (West 2025) (statute)	Family members are primary victims only in cases where the victim is deceased, incapacitated, or a minor.
Louisiana	Sometimes	La. Stat. Ann. § 46:1842(5) (2025) (statute)	A “[d]esignated family member” is a primary victim only in homicide cases, cases where the victim is a minor, or when the victim has a serious disability.
Maine	Sometimes	Me. Rev. Stat. Ann. tit. 17-A, § 2101(2)(B) (West 2025) (statute)	“Immediate family” can be primary victims when the “underlying crime is one of domestic violence or sexual assault or one in which the family suffered serious physical trauma or serious financial loss” or “Due to death, age, physical or mental disease, disorder or defect, the victim is unable to participate as allowed under this chapter.”
Maryland	Unclear	N/A	Different definitions apply in different statutory provisions, but most statutory provisions in this chapter afford rights to the “victim or victim’s representative.” “Victim’s representative” definitions changes slightly section-to-section, but this is a common variation: “ ‘Victim’s representative’ includes a family member or guardian of a victim who is: (1) a minor; (ii) deceased; or (iii) disabled.” Md. Code Ann., Crim. Proc. § 11-104(a)(5).
Massachusetts	Sometimes	Mass. Gen. Laws Ann. ch. 258B, § 1 (West 2025) (statute)	Family members are primary victims only in cases where the victim is deceased, incapacitated, or a minor.
Michigan	Sometimes	Mich. Comp. Laws Ann. § 780.752(1)(m)(ii-v) (West 2025) (statute)	Family members are primary victims only in cases where the victim is deceased, incapacitated, or a minor.
Minnesota	Sometimes	Minn. Stat. Ann. § 611A.01(b) (2024) (statute)	A surviving family member (spouse or next of kin) is a primary victim when the victim is deceased.
Mississippi	Sometimes	Miss. Code Ann. § 99-43-5 (West 2025) (statute)	Family members are primary victims if they are a designated representative in the following circumstances: (1) “If a victim is physically or emotionally unable to exercise any right established by this chapter, but is able to designate in writing a lawful representative;” (2) “If a victim is incompetent, deceased or otherwise incapable of designating another person to act in his or her behalf, the court may appoint a lawful representative;” or (3) if the victim is a minor.
Missouri	Sometimes	Mo. Ann. Stat. § 595.200(6) (West 2025) (statute)	Family members are primary victims only regarding minor victims, incompetent victims, or homicide victims.
Montana	Sometimes	Mont. Code Ann. 46-24-106(5)(b) (2023) (statute)	Immediate family members are primary victims only in homicide case.
Nebraska	Sometimes	Neb. Rev. Stat. Ann. § 81-1848(2)(k) (West 2025) (statute)	All family members of homicide victims are primary victims.
Nevada	Yes	Nev. Rev. Stat. § 176.015(d)(3) (2024) (statute)	N/A
New Hampshire	Sometimes	N.H. Rev. Stat. Ann. § 21-M:8-k(I)(a) (2025) (statute)	The immediate family of minor victims, incompetent victims, and homicide victims are primary victims.
New Jersey	Sometimes	N.J. Stat. Ann. § 52:4B-37 (West 2025) (statute)	A spouse, parent, legal guardian, grandparent, child, sibling, domestic partner or civil union partner of a homicide victim is considered a primary victim.
New Mexico	Sometimes	N.M. Stat. Ann. § 31-26-3(F) (2025) (statute)	A family member, limited to a spouse, sibling, child, parent, or grandparent, or a victim representative, is considered a primary victim in a homicide case.
New York	Unclear	N.Y. Exec. Law § 642(1) (McKinney 2025) (statute)	The statute instructs the district attorney to consult the family in the case of a minor victim or a homicide victim.
North Carolina	Sometimes	N.C. Gen. Stat. Ann. § 15A-830(b) (West 2025) (statute)	For a minor or incapacitated victim, a parent, guardian, or legal custodian has primary victim rights. For a deceased victim, a family member retains primary victim rights with some limitations.
North Dakota	Sometimes	N.D. Cent. Code Ann. § 12.1-34-02(22) (West 2025) (statute)	For a minor, incapacitated, incompetent, or deceased victim, a family member or someone with a substantially similar relationship may exercise a victim’s rights.
Ohio	Sometimes	Ohio Rev. Code § 2930.02 (2025) (statute)	For a minor, incapacitated, incompetent, or deceased victim, a family member or victim advocate can exercise primary victim rights. If no one comes forward, then the court can designate someone as the victim representative.
Oklahoma	Sometimes	Okla. Stat. tit. 21, § 142A-1(1) (2024) (statute)	Only in homicide cases are family members, including stepsiblings and stepparents, included as primary victims.
Oregon	Sometimes	Or. Rev. Stat. Ann. § 131.007 (West 2025) (statute); Or. Const. art. I, § 42(6)(C) (constitution)	Family members are not explicitly primary victims in the constitution, but if they are found to have suffered direct harm as a result of the crime then they may be. The statute makes immediate family members primary victims in homicide and abuse of corpse cases.
Pennsylvania	Sometimes	18 Pa. Stat. and Cons. Stat. § 11.103 (West 2025) (statute)	In minor victim cases, family members are the primary victims, and in homicide cases, family members—including stepsiblings, stepparents, and fiancés—are considered primary victims.
Rhode Island	Sometimes	12 R.I. Gen. Laws Ann. § 12-28-4(b) (West 2025) (statute)	Only in homicide cases are immediate family members considered primary victims.
South Carolina	Sometimes	S.C. Code Ann. § 16-3-1510(1) (2025) (statute); S.C. Const. art. I, § 24(C)(2) (constitution)	The provisions are identical and state that anyone who suffers direct or threatened harm retains primary victim rights. In the case of a minor, incapacitated, deceased, or incompetent victim, the direct family retains victim rights.
South Dakota	Sometimes	S.D. Codified Laws § 23A-28C-4 (2025) (statute)	In cases where the victim does not survive, is a minor, or is incompetent, the family is considered the primary victim.
Tennessee	Sometimes	Tenn. Code Ann. §§ 40-38-302(4)(A)(ii)-(iii) (2025) (statute)	In cases where the victim is a minor, a parent or guardian retains primary victim rights. In cases of death or inability to assert rights, a family member or someone residing with the victim retains primary victim rights.
Texas	No	N/A	N/A
Utah	No	N/A	N/A
Vermont	Sometimes	Vt. Stat. Ann. tit. 13, § 5301(4) (West 2025) (statute)	Anyone who sustains physical, emotional, or financial injury is considered a primary victim. Additionally, if the victim is a minor, found to be incompetent, or deceased, then the immediate family is considered the primary victim.
Virginia	Sometimes	Va. Code Ann. § 19.2-11.01(B) (West 2025) (statute)	Anyone who sustains physical, emotional, or financial injury is considered a primary victim. In the case of a homicide in which the victim is incompetent or a minor, the immediate family is considered the primary victim including, in most circumstances, foster parents or someone with custody for six months or more.
Washington	Unclear	Wash. Rev. Code Ann. § 7.69.020(3) (West 2025) (statute)	The representative of a person against whom the crime was committed appears to receive primary victim rights. It also appears that under subsection (2) survivors of a crime include the primary victim’s family.
West Virginia	No	N/A	N/A
Wisconsin	Sometimes	Wis. Stat. § 950.02(4)(a) (2025) (statute); Wis. Const. art. I, § 9m(1) (constitution)	In the case of a minor victim, deceased victim, or a victim unable to assert their rights, an immediate family member is afforded primary victim rights. Additionally, in deceased victim cases, a person who resided with the victim may assert rights.
Wyoming	Sometimes	Wyo. Stat. Ann. § 1-40-202(a)(ii) (2025) (statute)	Anyone who sustains physical, emotional, or financial injury is considered a primary victim. In the case of a minor or incompetent victim, a family member may be considered a primary victim. And in the case of a homicide victim, a surviving family member is considered a primary victim.

D. Assignment Rules

State	Assignment Rule	Statutory or Constitutional Site of Assignment Rule	Explanation of Assignment Rule
Alabama	Yes	Ala. Code § 15-23-60(19) (2025) (statute)	N/A
Alaska	Yes	Alaska Stat. Ann. § 12.55.185(19)(C) (West 2025) (statute)	N/A
Arizona	Yes	Ariz. Const. art. II, § 2.1(C) (constitution) & Ariz. Rev. Stat. Ann. § 13-4401(19) (2025) (statute)	N/A
Arkansas	Yes	Ark. Code Ann. § 16-90-703(3)(A) (2025) (statute)	N/A
California	Yes	Cal. Const. art. I, § 28(e) (constitution)	N/A
Colorado	Yes	Colo. Rev. Stat. Ann. § 24-4.1-102(5) (2025) (statute)	N/A
Connecticut	No	N/A	N/A
Delaware	Yes	Del. Code Ann. tit. 11, § 9401(7) (2025) (statute)	N/A
Florida	Yes	Fla. Const. art. I, § 16(e) (constitution)	N/A
Georgia	Yes	Ga. Code Ann. §§ 17-17-3(11)(B)–(C) (2025) (statute)	N/A
Hawaii	Yes	Haw. Rev. Stat. Ann. § 801D-4(a) (West 2025) (statute)	N/A
Idaho	Yes	Idaho Code Ann. § 19-5306(3) (West 2025) (statute)	N/A
Illinois	Yes	725 Ill. Comp. Stat. Ann. 120/3(a)(3) (West 2025) (statute)	N/A
Indiana	No	N/A	N/A
Iowa	Yes	Iowa Code § 915.10(3) (2025) (statute)	N/A
Kansas	No	N/A	N/A
Kentucky	Yes	Ky. Rev. Stat. Ann. § 421.500(1)(a) (West 2025) (statute)	N/A
Louisiana	Yes	La. Stat. Ann. § 46:1842(5) (2025) (statute)	N/A
Maine	Yes	Me. Rev. Stat. Ann. tit. 17-A, § 2101(2)(B) (2025) (statute)	N/A
Maryland	No	N/A	N/A
Massachusetts	Yes	Mass. Gen. Laws Ann. ch. 258B, § 1 (West 2025) (statute)	N/A
Michigan	Yes	Mich. Comp. Laws Ann. § 780.752(1)(m) (West 2025) (statute)	N/A
Minnesota	Yes	Minn. Stat. § 611A.01(b) (2024) (statute)	N/A
Mississippi	Yes	Miss. Code Ann. § 99-43-3(t) (West 2025) (statute)	N/A
Missouri	Yes	Mo. Ann. Stat. § 595.200(6) (West 2025) (statute)	N/A
Montana	Yes	Mont. Code Ann. § 46-24-106(5)(b) (2023) (statute)	N/A
Nebraska	Yes	Neb. Rev. Stat. Ann. § 81-1848(2)(k) (West 2025) (statute)	N/A
Nevada	Yes	Nev. Rev. Stat. § 217.070(1)(k) (2024) (statute)	N/A
New Hampshire	Yes	N.H. Rev. Stat. Ann. § 21-M:8-k(I)(a) (2025) (statute)	N/A
New Jersey	Yes	N.J. Stat. Ann. § 52:4B-37 (West 2025) (statute)	N/A
New Mexico	Yes	N.M. Stat. Ann. § 31-26-3(F) (2025) (statute)	N/A
New York	No	N/A	N/A
North Carolina	Yes	N.C. Gen. Stat. Ann. § 15A-830(7)(b) (West 2025) (statute)	N/A
North Dakota	Yes	N.D. Cent. Code Ann. § 12.1-34-02(22) (West 2025) (statute)	N/A
Ohio	Yes	Ohio Rev. Code Ann. § 2930.02 (West 2025) (statute)	N/A
Oklahoma	Yes	Okla. Stat. tit. 21, § 142A-1(1) (2024) (statute)	N/A
Oregon	Yes	Or. Rev. Stat. Ann. § 131.007 (West 2025) (statute)	N/A
Pennsylvania	Yes	18 Pa. Stat. and Cons. Stat. § 11.103 (West 2025) (statute)	N/A
Rhode Island	Yes	12 R.I. Gen. Laws Ann. § 12-28-4 (West 2025) (statute)	N/A
South Carolina	Yes	S.C. Code Ann. § 16-3-1510(1) (2025) (statute); S.C. Const. art. I, § 24(C)(2) (constitution)	N/A
South Dakota	Yes	S.D. Codified Laws § 23A-28C-4 (2025) (statute)	N/A
Tennessee	Yes	Tenn. Code Ann. §§ 40-38-302(4)(A)(ii)–(iii) (2025) (statute)	N/A
Texas	No	N/A	N/A
Utah	No	N/A	N/A
Vermont	Yes	Vt. Stat. Ann. tit. 13, § 5301(4) (West 2025) (statute); Vt. Stat. Ann. tit. 13, § 5318 (West 2025) (statute)	N/A
Virginia	Yes	Va. Code Ann. § 19.2-11.01(B) (West 2025) (statute)	N/A
Washington	Unclear	Wash. Rev. Code Ann. § 7.69.030(3) (West 2025) (statute); Wash. Const. art. I, § 35 (constitution)	The representative of a person against whom the crime was committed appears to receive primary victim rights. It also appears that under subsection (2) survivors of a crime include the primary victim’s family. The constitution creates a carveout for deceased, incompetent, or unavailable victim’s, or a minor to have a representative.
West Virginia	No	N/A	N/A
Wisconsin	Yes	Wis. Stat. § 950.02(4)(a) (2025) (statute); Wis. Const. art. I, § 9m(1) (constitution)	N/A
Wyoming	Yes	Wyo. Stat. Ann. § 1-40-202(a)(ii) (2025) (statute)	N/A

E. Restitution Rules

State	Restitution Rule	Statutory or Constitutional Site of Restitution Rule	Explanation of Restitution Rule
Alabama	Yes	Ala. Code § 15-18-78(a) (2025) (statute)	N/A
Alaska	Yes	Alaska Const. art. 1, § 24 (constitution)	N/A
Arizona	Yes	Ariz. Rev. Stat. Ann. § 13-4438 (2025) (statute)	N/A
Arkansas	Yes	Ark. Code Ann. § 16-90-301 (2025) (statute)	N/A
California	Yes	Cal. Const. art. I, § 28(b)(13) (constitution)	N/A
Colorado	Yes	Colo. Rev. Stat. Ann. § 24-4.1-302.5(1)(h) (West 2025) (statute)	N/A
Connecticut	Yes	Conn. Const. art. I, § 8(b) (constitution)	N/A
Delaware	No	N/A	N/A
Florida	Yes	Fla. Stat. §§ 775.089(1)(a), (c) (2025) (statute)	N/A
Georgia	Yes	Ga. Code. Ann. § 17-14-3 (West 2025) (statute)	N/A
Hawaii	Partial	Haw. Rev. Stat. Ann. § 801D-4(d) (West 2025) (statute)	Restitution to the victim or surviving family members is a precondition for release on parole in certain circumstances.
Idaho	Yes	Idaho Code Ann. § 19-5304 (West 2025) (statute)	N/A
Illinois	Yes	725 Ill. Comp. Stat. Ann. 120/4(a)(10) (West 2025) (statute)	N/A
Indiana	Yes	Ind. Code § 35-40-5-7 (2024) (statute)	N/A
Iowa	Yes	Iowa Code § 915.13(1)(c) (2025) (statute)	N/A
Kansas	Yes	Kan. Stat. Ann. § 22-3424(d)(1) (West 2025) (statute)	N/A
Kentucky	Yes	Ky. Const. § 26A (constitution); Ky. Rev. Stat. Ann. § 532.032 (West 2025) (statute)	N/A
Louisiana	Yes	La. Const. art. I, § 25 (constitution)	N/A
Maine	No	N/A	N/A
Maryland	Yes	Md. Code Ann., Crim. Proc. § 11-603 (West 2025) (statute)	N/A
Massachusetts	Yes	Mass. Gen. Laws Ann. ch. 258B, § 3(o) (West 2025) (statute)	N/A
Michigan	Yes	Mich. Comp. Laws Ann. § 780.766 (West 2025) (statute)	N/A
Minnesota	Yes	Minn. Stat. § 611A.04 (2024) (statute)	N/A
Mississippi	Partial	Miss. Code Ann. § 99-37-1 (West 2025) (statute)	Statute allows but does not require courts to order restitution up to a cap.
Missouri	Yes	Mo. Ann. Stat. § 595.209(1)(11) (West 2025) (statute); Mo. Const. art. I, § 32(4) (constitution)	N/A
Montana	Yes	Mont. Code Ann. § 46-18-241 (2023) (statute)	N/A
Nebraska	Partial	Neb. Rev. Stat. Ann. § 29-2282 (West 2025) (statute)	The statute specifies that the court “may” require payment to the estate of the victim for medical care prior to death, funeral expenses, and burial expenses.
Nevada	Yes	Nev. Const. art. I, § 8A(1)(l) (constitution)	N/A
New Hampshire	Yes	N.H. Rev. Stat. Ann. § 21-M:8-k(II)(j) (2025) (statute)	N/A
New Jersey	Yes	N.J. Stat. Ann. § 2C:43-3(e) (West 2025) (statute)	N/A
New Mexico	Yes	N.M. Stat. Ann. § 31-17-1(A) (2025) (statute); N.M. Const. art. 2, § 24(A)(8) (constitution)	N/A
New York	Yes	N.Y. Exec. Law § 641(3)(d) (McKinney 2025) (statute)	N/A
North Carolina	Yes	N.C. Gen. Stat. Ann. §§ 15A-830.5(b)(4) (West 2025) (statute); N.C. Const. art. I, § 37(1)(a), (c) (constitution)	N/A
North Dakota	Yes	N.D. Cent. Code. Ann. § 12.1-32-08 (West 2025) (statute); N.D. Const. art. I, § 25(1)(n) (constitution)	N/A
Ohio	Yes	Ohio Rev. Code Ann. §§ 2929.18(A)(1), (B)(8)–(9), (D)–(H) (West 2023) (statute); Ohio Const. art. I, § 10a(A)(7) (constitution)	N/A
Oklahoma	Yes	Okla. Const. art. II, § 34(A) (constitution)	N/A
Oregon	Yes	Or. Const. art. I, § 42(1)(d) (constitution)	N/A
Pennsylvania	Yes	18 Pa. Stat. and Cons. Stat. § 11.201(6) (West 2025) (statute)	N/A
Rhode Island	Partial	12 R.I. Gen. Laws Ann. § 12-28-3(a)(15) (West 2025) (statute); R.I. Const. art. I, § 23 (constitution)	Victims must request that restitution be an element of the disposition, but the constitution says victims are entitled to compensation.
South Carolina	Yes	S.C. Code Ann. § 16-3-1515(B) (2025) (statute); S.C. Const. art. I, § 24(A)(9) (constitution)	N/A
South Dakota	Yes	S.D. Codified Laws § 23A-28C-1(9) (2025) (statute)	N/A
Tennessee	Yes	Tenn. Const. art. I, § 35(7) (constitution)	N/A
Texas	Yes	Tex. Crim. Proc. Code Ann. § 42.037 (West 2025) (statute); Tex. Const. art. I, § 30(b)(4) (constitution)	N/A
Utah	Partial	Utah Code Ann. § 77-37-3(1)(e) (West 2024) (statute)	Victims may seek restitution under the Crime Victims Restitution Act.
Vermont	Partial	Vt. Stat. Ann. tit. 13, §§ 7043(a)(1)–(2) (West 2025) (statute)	Victims may be eligible for specific restitution is they are found to have suffered material loss.
Virginia	Yes	Va. Code Ann. § 19.2-11.01(A)(2)(c) (West 2025) (statute); Va. Const. art. I, § 8-A (constitution)	N/A
Washington	Partial	Wash. Rev. Code Ann. § 7.69.030(1)(q) (West 2025) (statute); Wash. Rev. Code Ann. § 9.94A.750 (West 2025) (statute); Wash. Rev. Code Ann. § 9.94A.753 (West 2025) (statute)	Felony victims are guaranteed restitution. There are two additional provisions that govern offenses committed before and after July 1, 1985.
West Virginia	Yes	W. Va. Code Ann. § 61-11A-4(a) (West 2025) (statute)	N/A
Wisconsin	Yes	Wis. Stat. § 950.04(1v)(q) (2025) (statute); Wis. Const. art. I, § 9m(2)(m) (constitution)	N/A
Wyoming	Yes	Wyo. Stat. Ann. § 1-40-203(b)(ii) (2025) (statute)	N/A

F. Damages Bars

State	Bar on Damages Against State	Statutory or Constitutional Site of Damages Bar	Explanation of Damages Bar
Alabama	Yes	Ala. Const. art. I, § 6.01(b) (constitution)	N/A
Alaska	Yes	Alaska Stat. Ann. § 12.61.010(b) (West 2025) (statute)	N/A
Arizona	No	N/A	N/A
Arkansas	No	N/A	N/A
California	Yes	Cal. Const. art. I, § 28(c)(2) (constitution)	N/A
Colorado	No	N/A	N/A
Connecticut	Partial	Conn. Gen. Stat. Ann. § 54-224 (West 2025) (statute)	Bar on damages for “(1) the failure to afford the victim of a crime any of the rights provided pursuant to any provision of the general statutes, or (2) the failure to provide the victim of a crime with any notice pursuant to any provision of the general statutes.”
Delaware	No	N/A	N/A
Florida	Yes	Fla. Const. art. I, § 16(d) (constitution)	N/A
Georgia	N/A	N/A	N/A
Hawaii	Partial	Haw. Rev. Stat. Ann. § 801D-4(e) (West 2025) (statute)	The State is immune from damages suits based on alleged violations of Haw. Rev. Stat. Ann. § 801D-4(c) and (d), but not (a) and (b).
Idaho	Yes	Idaho Const. art. I, § 22 (constitution)	N/A
Illinois	Yes	Ill. Const. art. I, § 8.1(d) (constitution)	N/A
Indiana	No	N/A	N/A
Iowa	Yes	Iowa Code § 915.2 (2025) (statute)	N/A
Kansas	Yes	Kan. Const. art. XV, § 15(b) (constitution)	N/A
Kentucky	Yes	Ky. Const. § 26A (constitution)	N/A
Louisiana	Yes	La. Const. art. I, § 25 (constitution) & La. Stat. Ann. § 46:1844(u) (2025) (statute)	N/A
Maine	No	N/A	N/A
Maryland	Yes	Md. Const. declaration of rights, art. 47(c) (constitution)	N/A
Massachusetts	Yes	Mass. Gen. Laws Ann. ch. 258B, § 10 (West 2025) (statute)	N/A
Michigan	Yes	Mich. Comp. Laws. Ann. § 780.773 (West 2025) (statute)	N/A
Minnesota	No	N/A	N/A
Mississippi	No	N/A	N/A
Missouri	No	N/A	N/A
Montana	Yes	Mont. Code Ann. § 46-24-105 (2023) (statute)	N/A
Nebraska	No	N/A	N/A
Nevada	No	N/A	N/A
New Hampshire	Yes	N.H. Rev. Stat. Ann. § 21-M:8-k(III) (2025) (statute)	N/A
New Jersey	No	N/A	N/A
New Mexico	Yes	N.M. Stat. Ann. § 31-26-13 (2025) (statute)	N/A
New York	Yes	N.Y. Exec. Law § 649 (McKinney 2025) (statute)	N/A
North Carolina	No	N/A	N/A
North Dakota	Yes	N.D. Cent. Code. Ann. § 12.1-34-05 (West 2025) (statute)	N/A
Ohio	Yes	Ohio Const. art. I, § 10a(C) (constitution)	N/A
Oklahoma	Yes	Okla. Const. art. II, § 34(B) (constitution)	N/A
Oregon	No	N/A	N/A
Pennsylvania	Partial	18 Pa. Stat. and Cons. Stat. § 11.5101 (West 2025) (statute)	The statute does not specify that the bar is against the state. Rather, the statute states that no one can create a cause of action or defense arising out of the relevant chapters.
Rhode Island	No	N/A	N/A
South Carolina	Yes	S.C. Code Ann. § 16-3-1565 (2025) (statute)	N/A
South Dakota	Partial	S.D. Codified Laws § 23A-28C-3 (2025) (statute)	The statute does not specify that the bar against damages is against the state. Rather, the statute states that no one can create a cause of action or defense arising out of the relevant chapters.
Tennessee	Yes	Tenn. Code Ann. § 40-38-108 (2025) (statute)	N/A
Texas	Yes	Tex. Code Crim. Proc. Ann. § 56A.053 (2025) (statute)	N/A
Utah	Yes	Utah Code Ann. § 77-38-11(8) (West 2024) (statute); Utah Const. art. I, § 28(2) (constitution)	N/A
Vermont	No	N/A	N/A
Virginia	Yes	Va. Code Ann. § 19.2-11.01(C) (West 2025) (statute)	N/A
Washington	Yes	Wash. Rev. Code Ann. § 7.69.050 (West 2025) (statute)	N/A
West Virginia	Yes	W. Va. Code Ann. § 61-11A-2a (West 2025) (statute)	N/A
Wisconsin	Yes	Wis. Stat. § 950.10 (2025) (statute)	N/A
Wyoming	Yes	Wyo. Stat. Ann. § 1-40-210(a) (West 2025) (statute)	N/A

* Bryant Smith Chair in Law and Co-Director, Capital Punishment Center, University of Texas School of Law. For the opportunity to present this paper, I am grateful for workshops at Cardozo School of Law and Duke University School of Law. For their generous attention to and input on my drafts, I thank Jonathan Abel, Chas Arnett, Nila Bala, Susan Bandes, Jeff Bellin, Richard Boldt, Michal Buchhandler-Raphael, Jacob Bronsther, Paul Cassell, Lauren Clatch, Doug Colbert, Sheldon Evans, Thomas Frampton, Brandon Garrett, Adam Gershowitz, Leigh Goodmark, Mark Graber, David Gray, Joe Kennedy, Guha Krishnamurthi, Corinna Lain, Ben Levin, Jeremy Levine, Kay Levine, Wayne Logan, Russell McClain, Mark Osler, Omavi Shukur, Chris Slobogin, Max Stearns, Madalyn Wasilczuk, Angie Weis Gammell, Ron Wright, and Quinn Yeargain. And for their outstanding research assistance, I thank Catherine Byrne and Makenna McGraw.