NCPA - National Center for Policy Analysis

Victims' Right To Prosecute

May 15, 2000

Crime victims and their families are dependent on the willingness of a local district attorney to prosecute a crime in order to receive justice. And unless the victim is successful in a civil suit (such as for wrongful death), they receive little or no compensation from the criminal. In the United States, the perceived injustice of this situation has led to victim compensation laws and even a proposal to add a "Victims' Rights" amendment to the U.S. Constitution.

But under English common law victims used to pursue their own remedies. In fact, most crimes in pre-modern societies were prosecuted privately by the victim or a relative seeking monetary compensation, writes researcher Daniel Klerman of the University of Southern California Law School.

Why did the remedy of private prosecution fall into disuse? In English legal history, Klerman says, it had to do with the unwillnessing of courts to shield the criminal from further prosecution if he settled with the victim.

  • In thirteenth-century England, the rate of private prosecution fell by fifty percent between 1200 and the 1220's.
  • Private prosecutions climbed back to turn-of-the-century levels by the 1240's.
  • They then swiftly dropped by two-thirds and remained at a low level through the end of the century.

In the late twelfth and early thirteenth centuries, settlement almost always protected the defendant. But at various times in the thirteenth century, judges sent defendants to trial even though the prosecutor was no longer interested in the case. Such anti-settlement policies can account for most of the changing frequency with which private prosecutions were brought, Klerman says.

Source: Daniel Klerman, "Settlement and the Decline of Private Prosecution in Thirteenth-Century England," USC Law School Olin Working Paper No. 99-12, Law and History Review, University of Illinois, Vol. 19, No. 1, 2001 (forthcoming).

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