In civil law cases, an offender is being sued by a victim and must pay damages or otherwise make right the harm done; the plaintiff must prove the defendant liable on the balance of probabilities based on the evidence. The underlying harmful act is the same in criminal and tort cases, so why are the two treated differently? The answer most often given is that civil cases are concerned with violating individual rights, while criminal cases are
concerned with societal rights; criminal cases should not be initiated by victims since vindication of public policy should not depend on an individual victim's decision to
institute legal proceedings. Excluding victims' interests from criminal cases does not repair the damage caused by crime.
Randy Barnett and John Hagel, restitution advocates, argue for replacing criminal law with the civil law of torts. They argue that a specific action is defined as criminal only if it violates the right of one or more identifiable victims to person and property. Only the victims, not the State, acquire the right to demand restitution from the criminal. This does not deny the fact that criminal acts have harmful effects on other individuals besides the victims. It does deny that a harmful effect may vest rights in a third party. Barnett and Hagel define crime by examining not the offender's behaviour but the victim's rights: “the fundamental right of all individuals to be free in their person and property from the initiated use of force by others.” They find that settling the private dispute will “vindicate the rights of the aggrieved party and thereby vindicate the rights of all persons. There can be no victimless crimes.”Vindicating the rights of victims alone, however, does not vindicate the rights of all other persons: secondary victims in the community are also injured by crime: “[C]rime imposes three distinct kinds of costs on its indirect victims. There are, first, the avoidance costs that are incurred by
anyone who takes steps to minimize his chances of becoming the direct victim of crime. Installing locks and burglar alarms, avoiding unsafe areas, and paying for police protection,
whether private or public, all fall into this category. Indirect victims may also have to pay insurance costs- costs that increase as the rate of crime in an area increases. And, finally, as
crime gives rise to fear, apprehension, insecurity, and social divisiveness, indirect victims are forced to bear the attitudinal costs of crime.”
Criminal law also deals with the accused for intolerable social behaviour. In Retributive Hatred, Jeffrie Murphy finds that crime arouses “feelings of anger, resentment, and even hatred [..] toward wrongdoers.”. He argues that criminal justice should restrain these feelings.
“Rational and moral beings... want a world not utterly free of retributive hatred, but one where this passion is both respected and seen as potentially dangerous, as in great need of reflective and institutional restraint."
There are advantages to criminal cases prosecuted by the government. The victim lacks the expertise, financial resources, and time to prosecute. The goals of consistency, fairness, and efficiency can best be pursued by public prosecutors who weigh decisions against policies.
Prosecutors are less influenced than victims by the wish for revenge. However, prosecution by the government comes with its own set of administrative, political, investigative, and adjudicative limitations, which often lead prosecutors to focus less on a just resolution and more on the effective use of limited resources. Moreover, political forces may lead prosecutors to cater to, rather than restrain, retributive impulses in the community.
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