Against victim impact statements

I’ve never liked this innovation in the criminal justice system and explain why in this comment left at Scott Greenfield’s:

What seems to me most obviously wrong in Judge Cassell’s outline [a lecture by lawprof, formerly judge, Paul Cassell, for National Crime Victims Rights Week] is his point #4, about how impact statements restore to victims “some of the dignity that was taken from them by criminal offenders”. Every day these procedures induce family members to stand up in court and read aloud “rot in hell, you’ve destroyed our family” statements which are then reported in the local press. I can’t be the only one who sees these statements as a grievous surrender of victim families’ dignity. And family members who might prefer silence as the more dignified course must often feel intense pressure to make a statement, the more demonstrative the better, for fear of appearing in others’ eyes as insufficiently loving or appreciative of the victimized member. (The figure of Cordelia comes to mind.)

I have no idea what effect victim impact statements have on the guilty person being sentenced; I think they are worth opposing because of their barbarous effect on the innocent.

14 Comments

  • Before sentencing, a convicted criminal has the right to stand up in front of judge and plead for mercy. His lawyer will espouse to the judge events in the past that shaped the criminal’s life and how that should mitigate the sentence. The criminal’s family will appear in the court to sway the judge as to the content of the criminal’s character. The criminal will not appear in his day to day clothes or appearance at the time of the crime, but will have been “cleaned up” and dressed “professionally” to try and sway first the emotions of the jury, and then the emotions of the judge.

    I wonder if the criminal’s family wants to be there. Aren’t they “innocents” as well? When a bereaved mother pleads for mercy, should her statement be excluded simply because her “dignity” has been somehow tarnished?

    Allowing victim’s impact statements means the scales of justice can be balanced. The emotion that the criminal and his family brings in front of the court is balanced by the emotion of the victim or the victim’s family.

    I think they are worth opposing because of their barbarous effect on the innocent.

    While I understand your point, the “barbarous effect” that may be visited upon the innocents is not because of the statement from the victim or the victim’s family.

    The barbarous effect is there because of the criminal.

    No one asks to be murdered, raped, battered, robbed or whatever crime you choose. To say that the victim or their family must remian silent as the to effect the crime had on them is unconscienciable, in my opinion.

  • those who are left behind after murder are the only voice left to speak for the deceased. They must at least have the right to choose, and if they choose not to speak, any one would understand how difficult it is.

  • The problem with impact statements is that punishment is affected by the character of the victim. The same is true of hate crime laws. My son is neither black nor gay. If he was dragged to death, or beaten to death, the killers should be as hardly punished as the killers of Mr. Byrd and Mr. Shepard. Is the murder of an old woman with lots of grandchildren worse than the murder of an old maid?

    The character of the convicted is a different matter as the state has to balance the cost of punishment against the need to protect the public and to punish adequately.

  • The problem with impact statements is that punishment is affected by the character of the victim.

    Yet I think it can be said that the character of the victim reflects on the character of the criminal. While the murder of anyone is horrific and should be punished, if the criminal chose to murder a grandmother for her food stamps as opposed to murdering a 6’4″ drug dealer, his choice of victims reflects on his character.

    That choice should be used to balance the “choirboy” image the defense wishes to paint.

    The character of the convicted is a different matter as the state has to balance the cost of punishment against the need to protect the public and to punish adequately.

    I would counter that part of the cost of punishment is the effect the crime has had on society. That impact can be partially ascertained by victim impact statements.

    Lady Justice has one set of scales in her hand. One side of the scale can be for the charater of the criminal, but for true justice to be melted out, the other side of the scale must be given some weight. That weight can be victim impact statements.

  • gitarcarver,

    What if the 6’4″ drug dealer was a basketball player who sold a few joints to friends?

    Impact statements inform us to some extent of the cost of a crime, not of the cost of the punishment. Is it really desirable to punish the murders of grandmothers more harshly than the murders of old maids when the murders are the result of an armed robbery gone wrong? On the other hand, if the get-away driver for the robbery was a kid looking for adventure, some mercy may be warranted if only to save some of the cost of incarceration.

  • Impact statements inform us to some extent of the cost of a crime, not of the cost of the punishment.

    Absolutely. If you want to remove all “cost of the crime” from the law, then let’s remove the distinction between stealing something valued at less than $300 and something valued at more than $300. We look at the impact and the cost of the crime to the victim in other cases and should therefore allow impact statements.

    On the other hand, if the get-away driver for the robbery was a kid looking for adventure, some mercy may be warranted if only to save some of the cost of incarceration.

    Some mercy may be warranted. I don’t ever recall saying otherwise. Yet mercy needs to be tempered with justice. Justuce can never be truly given until the full cost of the crime is determined.

    Once again, when the criminal presents his statements of his character and the impact his criminal actions have had on his family, the victims and their families should have the same right to inform the court how the criminal has impacted them and their family.

    The solution has to be either allow the crimianl and victim to make statements on character and impact, or let don’t let either side make statements. To allow one side and not the other is not balancing justice.

    While Mr Olson argues the victim impact statements affect the innocent family members, I argue that they were already affected by the criminal’s actions. To deny them a voice in the courtroom – to deny that they were impacted – is what is barbaric.

  • Victim impact statements should be suppressed. First, it is very difficult for the defense to challenge these statements; most are emotional outpourings of grief. How do you challenge that? But much more important: Suppose the victim, say, deceased, has no family? Why is her life less worthy than someone with a wailing family? This creates a two-tier system of justice which is manifestly unfair.

  • How do you challenge that?

    How does the state challange the grief stricken statement from a parent whose son has been convicted?

    Suppose the victim, say, deceased, has no family? Why is her life less worthy than someone with a wailing family? This creates a two-tier system of justice which is manifestly unfair.

    Her life is not worth more or less than someone with a wailing family. What should be taken into account is the impact of the crime on people and society. A crime against a person with no family may not have the same impact on society as the crime against someone who does have a family. Failure to realize that is the reason impact statements must be allowed.

    In an above statement, Mr Nuesslein argues that statements on the character of the criminal should be allowed as the “state has to balance the cost of punishment against the need to protect the public and to punish adequately.

    How can the state “punish adequately” without knowing the “cost” of the crime and its impact on society?

    If you want to argue that no statements – either from the criminal or the family – should be allowed, I’ll go with that. Let’s take the emotional aspect out of every sentence. Of course, in doing so, you’d have to take out the emotion of the judge, which means nothing mut mandatory sentences.

    Either allow all the emotion in, or none. I am happy with either solution.

  • I am also a little uncomfortable with the victim impact statement, having covered a few as a reporter before going to law school. But I’m by no means soft on crime. The “victim impact statement” should come from the jury and judge, through their finding of guilt and sentence. We switched from the blood feud to the king’s justice a long time ago, and one of the salutary effects has been to make vengeance the province of the state, not the individual. That has, on the whole, been a good thing.

    Feel-goodism, even of the supposedly conservative variety, should be eschewed by our legal system.

  • What’s the principle here from the criminal’s point of view? “If you’re going to murder someone, make sure he has no family. If necessary, kill them all.”

  • So this one is personal for me: My son was murdered 12/30/07 and the killers are now heading to trial (State of California v Bush and Madrigal, I don’t have the docket number yet). At some point, the defendants will try to claim that there are extenuating circumstances, like their upbringing. Why should I not be allowed to claim equally that Sean was a perfect person until he fell into their hands? Mr Nusselin? Markm? Please address this, don’t just restate your claim.

  • Mr. Beaty,

    If your son were like mine, neither black nor gay, then his murder would be less heinous according to our current cultural beliefs. Is that fair?

    Would your loss be less if your son Sean was less than perfect? Would the loss be less if you were not available? Would the loss be less if you were less articulate.

    One sense of justice would allow you to take the life of your son’s killer. But our rules give the state the sole right to punish, and such punishment is based upon general principles including the insult to public order. To me, the separation by legal procedure of punishment from raw revenge is a good thing.

    I feel very sorry for your loss.

  • Mr Nusslein,

    Thanks for your condolences. I still think that there is an inequality if the victim’s family is unable to make a statement vs the perpetrators. It is this imbalance that both gitarcarver and I are objecting to. remove them both, or allow them both.

    Sean was a wonderful person, but no-one would have ever described him as perfect. But when the killers can stand before the jury and claim that their circumstances should be taken into account, it feels wrong that Sean’s mother and I should not.

    That there is no perfect way to balance the 2 sides is not the issue: there is already a substantial potential difference soley based upon access to counsel. No-one that I’ve heard is arguing for perfect equality, but SOME is a good idea, IMO.

    As far as revenge goes, I gave up on that when I didn’t take the law into my hands. But punishment as retribution for insult to public order should include ALL the public order available. If there is no further information (no family, for example) then that is how it is. Many crimes are not prosecuted for lack of witnesses. That doesn’t stop us from prosecuting the ones we can.

  • Mr. beaty,

    Court TV carried the trial some years ago of a young man who killed a 12 year old boy in a restroom in a park. The young man confessed to the crime in a taped interview which clearly showed the killing was for a thrill. The young man took the stand and said that he had no regret, and that he would do it again if possible. I felt sorry for his lawyer. The young man correctly claimed that he was evil and should be executed. The jury agreed.

    The impact statements were crushing. The victim was not just any 12 year old; he was the best in his class and loved by all. His aunt who waited outside the restroom was the one who eventually found the boy’s body. Good God!

    Then I asked myself if the killer would have been less evil had the boy not been perfect? Of course not. In my mind the young man should be sentenced as a thrill killer only. The character of his victim should be lauded in another venue.

    As to fairness. Your son’s killer will likely live. That is a basic unfairness that we accept as part of the rule of law.

    I doubt if my words could ever overcome your feelings. My mother was lost to me through cancer. She was just 32 years old and I was just 13. She was a wonderful person. I truly feel sorrow for your loss.