Jessie K. Liu


Part I of this paper examines the theoretical tension between using the total harm caused by a convicted defendant to determine the proper punishment and limiting the categories of harm for which punishment can be imposed. This is the equivalent in the criminal context of the problem discussed in the classic tort case of Palsgraf v Long Island Railroad. How should a legal regime limit the universe of victims? Part II provides a brief overview of pre-Guidelines decisions defining the term "victim" for sentencing purposes, focusing in particular on constitutional decisions about victim participation. Although the Sentencing Guidelines have made such cases of largely academic interest in the past, they might have renewed importance in a postGuidelines world. Part III reviews how the courts have interpreted the term "victim" under the Sentencing Guidelines. It concludes that the judiciary has tended to expand the definition of "victim" in the context of the departure Guidelines, but the courts have not arrived at a suitable definition for either the purpose of the Guidelines themselves or for other purposes. Part IV argues that the current situation leads to confusion and proposes a standard by which judges should take into account harm suffered by a broad range of victims.

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