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“A concern about victims does not produce an inescapable dynamic towards reliance on the criminal sanction and punishment. An alternative direction is away from the roller-coaster of relying on an inadequate criminal sanction and countering due-process claims and towards the prevention of crime and restorative justice once crime has occurred. ” To understand this alternative, we must put it in the tradition of legal process scholarship and restorative justice claims.
Legal Process Scholarship and Its Relevance to Criminal Process
Kent belongs to a long-lived tradition of legal scholarship, namely, legal process scholarship. This tradition, as was initially created by such scholarly giants like Professor Henry Hart and Professor Herbert Wechsler, is based on the belief that the particular result in a given case is far less important than the analytical tools used to justify the result . This thinking was a response to the problem of radical indeterminacy associated with the Legal Realist position set forth by leading academics in the 1920s and 1930s. In essence, Hart and Wechsler argued that it was much more important to focus on how judges reasoned to a result—the forms of authority cited, the rank order of authority, the "neutral" application of formal rules regarding the rank and order of authority across cases with disparate facts, and so forth—than to determine whether the judge had an Oedipal complex or belonged to the Ku Klux Klan as a youth.
It is highly unlikely that academics, the bench, and the practicing bar will ever reach broad agreement on a particular substantive end that would perforce legitimate the work of courts of law. For example, some have suggested that legitimate judicial decision-making should consistently maximize efficiency or consistently give voice to the disempowered. Realistically, it is also unlikely that we will ever agree on a process that produces legitimate or acceptable results in particular cases on a routine basis. Nevertheless, a project dedicated to defining how judges should go about their task has a better chance of securing broad-based consensus than a project dedicated to delimiting precisely what the ultimate substantive ends of judicial activity are or should be.
Except the intellectual effort to establish rationality in the democratic decision-making process, legal process scholarship is also characterized by its pragmatic orientation . As Kent has pointed out, the pragmatic methods suggested by the legal process scholars include:
(a). A pluralist perspective on problem-solving, which suggests us “to examine the problem from the perspectives of all the private decision makers, administrators, legislators, judges, and students of governance who encountered the problem.”
(b). Respect for local knowledge and custom as proper ways to resolve local problems.
(c). A method of practical reasoning, which encourage decision-makers to employ all available information and consider “the whole range of policy options open to those concerned with the ordering of human affairs.”
This tradition of pragmatic legal thinking is well embodied in Kent’s non-punitive model of victim’s rights. As he has suggested, any institutional efforts to address victims’ rights should be based on the following understandings:
1. Criminal justice system is not the only available resource to address the problem of crime. There exist a lot of alternatives, which include private police force (although not so desirable), neighbourhood watch as well as the self-policing of families and communities. Thus, a successful project on crime-control should be able to involve and coordinate these different resources. As Kent told us, “Most critics and defenders of due process have focused too much on the courts. The courts frequently did not have the last word, and media, legislative, and administrative responses to their rulings were not studied enough.”
2. The victims are the best judges of their own interests. When they choose not to report the crime, it is probably because that “they have found a better way to deal with their victimization that may draw upon strategies such as avoidance, shaming, apologies, and informal restitution”; “They may also judge the matter to be too minor or inconvenient to justify official intervention or prefer the privacy, time, and control of non-reporting.” Therefore, the decision-making process should invite the participation of victims.
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