Victim Input at Sentencing Research Paper

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This research paper surveys victim rights at sentencing in adversarial justice systems and explores the continuing debate surrounding victims’ claim to have a voice in the sentencing of “their” offender. Although victims claim input at various stages of the criminal process – from bail to parole – the sentencing process is of most significance to victims. At the same time, victim input at sentencing generates the most opposition among scholars and practitioners, making the topic of continuing significance to criminal justice professionals as well as victims and their advocates. The essay reviews the arguments for and against victim input at sentencing and the empirical research which has explored the effects of victim-related reforms in the area of sentencing.

Introduction

Within the adversarial model of justice, a criminal trial is construed as a conflict between two theoretically equal adversaries – the state and the defendant – played out before an impartial adjudicator – the judge. According to this model, the victim is a passive participant who may be called to testify and respond to questions in direct and cross-examination, if necessary. In jurisdictions which employ an adversarial legal system, the crime victim serves as the principal witness for the prosecution and, having served this function, has no further role to play in criminal proceedings.

Over the past three decades, the role of the victim has been transformed from passive witness to active participant, with rights for input into proceedings. While still lacking full “standing” as a party to the proceedings, victims in adversarial systems such as those in USA, Canada, England, or Australia are consulted, informed, and provided input into proceedings more than ever before. To some, this evolution represents a threat to core values of the adversarial model. Victims’ rights advocates, on the other hand, view the new privileges and powers of the victim as evidence of progress toward the goal of full participation in the criminal process.

Currently, most countries with adversarial justice systems provide victims with the right to receive information about the status of the case in which they are involved (in the USA, referred to as victim notification laws), the right to apply for and receive financial and psychological assistance, and input rights throughout the criminal process (such as in bail, sentencing, and parole hearings). Although most of these rights and benefits have been generally accepted, the right to provide input into sentencing decisions has proved controversial and continues to be the subject of heated debate. Controversies revolve around the extent and forms of victim input and its impact on the principles and outcomes of criminal justice proceedings. Underlying this debate is the continuous struggle for the “ownership of the conflict”: many prosecutors and other court workgroup members still consider victims as outsiders, or at best symbolic participants, while victims and their advocates, particularly in serious crimes, view themselves as interested parties and thus demand input into court proceedings (Englebrecht 2011). Some victims’ advocates have even proposed providing crime victims with “Parallel Justice” – a system that mirrors in its scope and importance the rights accorded to offenders (see Herman 2011). These debates have also emerged at the international level, where the international community pursues justice in special courts established to address mass victimization involved in crimes against humanity, genocide, and war crimes (Zappala 2010).

In the USA, victims’ input rights have also assumed a constitutional dimension. The Victims’ Right Amendment is a proposed constitutional amendment that would establish various participatory rights for crime victims nationwide, with remedies in cases of noncompliance. These rights include the right to speak during the course of legal proceedings, including pretrial release, plea bargains, sentencing, and parole. To date, despite campaigns for its passage and joint resolutions presented in congress, the proposed Victims’ Rights Amendment has failed to gain the necessary number of states in support. The principal argument against its passage has been that victim participation and input can be accomplished by enforcing existing laws found in state constitutional amendments or statutes (Beloof et al. 2010).

The Emergence Of Victim Input Rights

The role of victims in a criminal prosecution has changed drastically over the centuries in common law countries – from a system in which victims were expected to deal with their offenders directly, through a system in which the monarch assumed the duty of imposing punishment, to the present system in which the state prosecutes a defendant on behalf of the surrogate victim who is relegated to a role of (at best) lead witness. For most victims, even their role as witness never materializes. Because of the high case attrition in the criminal process, most cases do not result in arrest, much less prosecution. Even when charges are laid, many are subsequently stayed or withdrawn by the prosecutor acting in the public interest or because there is no reasonable prospect of a conviction. Further, in the overwhelming majority of cases, the offender enters a guilty plea, often following negotiations with the prosecutor. The victim’s principal role in most cases is as a backup – a threat waiting in the wings if plea bargaining breaks down. If the defendant pleads guilty, there is no need for a trial, and the victim has no opportunity to testify. Unlike continental legal systems, which provide victims with party rights, the adversarial system accords victims no formal standing in the prosecution of their offenders and no input rights in the disposition of “their” offender.

The demand by crime victims to have a voice in the criminal justice system has been recognized by many national committees established to study victims in the criminal justice process. The President’s Task Force on Victims of Crime (1982) was a particularly important undertaking which explored victims’ experiences and revealed the extent of their secondary victimization as a result of their treatment by the criminal justice system. The international community has also recognized the need to integrate victims into the criminal justice process in the 1985 United Nations Seventh Congress on the Prevention of Crime and Treatment of the Offender, which adopted a declaration that required that victims be allowed to present their views and concerns at appropriate stages of the criminal justice process (UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power).

Following these demands and pressures to integrate victims in proceedings, many countries with adversarial legal systems initiated legal reforms that aimed at providing victims with input rights. In the United States, following the recommendation of the President’s Task Force on Victims of Crime (1982) that the Sixth Amendment be amended to guarantee victims a right to be present and to be heard at all critical stages of a judicial proceeding, most states adopted laws that address victims’ right to be present in proceedings by excluding victims from sequestration requirements or otherwise accommodating their wish to participate. Many states have enacted victims’ bills of rights which vary in their scope from mandating that criminal justice officials show respect toward victims, to establishing a victim’s right to be present and heard, to allowing victims to sit at the prosecutor’s table during trial. In several states, victims’ rights legislation is by specific statute. A substantial number of states have adopted constitutional amendments to give victims’ rights greater permanence and visibility.

Victim Impact Statements In Major Adversarial Legal Systems

In the USA, the states and the federal government allow for victim participation in sentencing hearings. The mechanism for providing victim input in the USA and many other countries is the victim impact statement (VIS) or victim personal statement as it is known in England and Wales. The VIS is commonly administered by either victim assistance team within the prosecutor office or probation departments within the court. Using the VIS victims can provide details on the physical, psychological, social, and economic harm they and their significant others have suffered as a result of the crime. In some states victims may make specific sentence recommendations in their victim impact statements. Elsewhere, in other common law jurisdictions such as England and Wales and Canada and New Zealand, victims are instructed not to make sentence recommendations. In these countries the purpose of the statement is to allow the victim to describe the harm created by the crime and not to influence the court in any particular direction with respect to the sentence that should be imposed.

The victim impact statement can be presented in writing and by video and some states allow for victim allocution, according to which victims can also present their VIS orally during sentencing. States also provide for victim input in plea bargaining and at parole hearings. For example, crime victims in Arizona have the right to be consulted with respect to any potential plea agreement. Furthermore, prosecutors are required to demonstrate that they have complied with victims’ rights legislation. While some victims are hesitant or unwilling to partake in the arrest and prosecution of their violators (e.g., battered women who fear retaliation, are economically or emotionally dependent on their abusers, or are concerned with issues of privacy (e.g., Dichter et al. 2011)), most crime victims, particularly of serious offenses, welcome the opportunity to provide input into sentencing. The suffering endured by parties other than the direct victim, whether it consists of physical, psychological, or financial lasting impact, is known as “ancillary harm” (Roberts and Manikis 2010), and there is growing evidence that courts recognize such harm in sentencing (Cassell and Erez 2011). Most American jurisdiction do not provide for cross-examination of victims about their VIS.

It should be noted, however, that when input rights are provided, most US jurisdictions construe them as courtesies to be extended or withheld at the discretion of the police or prosecutor, without guaranteed remedies for nonenforcement (Tobolowsky et al. 2010), although the trend is to recognize the importance of providing legally enforceable rights with remedies, particularly at the federal level (Crime Victims’ Rights Act, 2004), and a few states (e.g., Arizona) provide victims with remedies when their rights for input are breached (Beloof et al. 2010).

Other countries with adversarial legal systems have also adopted victims’ right for input into sentencing, although not to the degree found in the United States. Australian states provide victims with input rights that are comparable to the rights accorded American victims. The purpose of the VIS in Australia is assisting the court in determining an appropriate sentence. VIS can be made by the primary victim in all of the Australian jurisdictions, and there are also provisions allowing for others to make VISs on behalf of themselves or, in certain circumstances, on behalf of the primary victim. Some jurisdictions, such as South Australia, allow a VIS to include recommendations as to the quantum of sentence, while others, such as Western Australia, expressly disallow the inclusion of sentencing recommendations. In all Australian jurisdictions, it is possible for a victim to orally present their VIS to the court. In Canada, victims have a statutory right to submit a victim impact statement at sentencing and to deliver the statement orally if they so desire. In addition, there is an obligation on courts to inquire of the prosecutor whether the victim has been apprised of her right to submit a statement. If no VIS is present, the prosecutor or the victim may ask for a remand of the case in order for the victim to be able to submit a statement. These provisions go further toward meeting the needs of crime victims than those found in many other countries.

A number of countries have adopted “Victims’ Charters,” which create expectations that the system will conform to certain standards without actually conferring legal rights upon crime victims. For example, in 2001, England and Wales implemented a victim impact scheme, known as the victim personal statement (VPS). This is a statement expressing the physical, emotional, and financial consequences of the incident. The policy was supposed to be a unique policy, crafted with the US practices as the backdrop and was intended to differ from them in several ways: obtaining the victim’s statement early in the process (during the police report, with a right to update it when necessary), presenting this information as a written statement (as opposed to an oral statement), and notably, specifying that victims were not to comment on what sentencing options they prefer for the accused. Finally, the importance of victim participatory rights is apparent from Article 68 of the Rome Statute of the International Criminal Court (ICC) which recognizes the security interests and participatory rights of victims and witnesses and allows victims to provide input into sentencing decisions.

Debates Surrounding Victim Impact Statements At Sentencing

Arguments For Victim Input

Advocates of victims’ rights to participate in the criminal justice process have advanced various moral, penological, and practical arguments in support of victim input into sentencing. The right for input recognizes victims’ wishes to be treated as a party to the proceeding and with dignity. It reminds judges, juries, and prosecutors that behind the “state,” there is an individual with an interest in how the case is resolved. Some argue that sentencing outcomes will be more proportionate if victims provide accurate information about the impact of the crime (Cassell 2009). Without hearing from the crime victim, a judge bases his or her sentence on the description of the crime provided by the prosecution – an indirect account of the crime. By deposing a victim impact statement, the victim provides the court with a more comprehensive picture of the consequences of the crime. Victim input may also promote psychological healing by helping victims who express their harm to recover from the emotional trauma associated with their victimization and court experiences. Finally, there may also be benefits in terms of the offender. Hearing from the crime victim may sensitize the offender to the consequences of his actions in a way that is not possible if the victim does not provide input. This sensitization in turn may promote the offender’s rehabilitation and strengthen his intention to refrain from further offending.

Arguments Against Victim Input

The objections to victim input into sentencing range from assumptions that vengeful justice will result to predictions that the system will grind to a halt as a result of the additional time needed to process cases if victims provide input (Erez 1994). Critics argue that a victim’s input into sentencing is “irrelevant to any legitimate sentencing factor, lacks probative value in a system of public prosecution, and is likely to be highly prejudicial” (Hellerstein 1989, p. 429). Permission to deliver a VIS in person – exercising victim allocution right – has been regarded as particularly objectionable, as an oral delivery in a very serious crime may be emotionally moving for the judge or jury; this may increase sentence severity or sentencing disparity (Bandes 2009). Critics argued that similar cases might end up being disposed of differently depending on whether a VIS is available and the persuasiveness of the victim. Legal professionals and scholars also argued that victim input violates the fundamental principles of the adversarial legal system, which, as previously noted, do not recognize the victim as a party to proceedings. Including victims would transform the trial between the state and the defendant into a tripartite court proceeding (state – victim – offender). Such practices, it was argued, belong only in continental legal systems with adhesive prosecution or partie civile procedures, or to restorative justice schemes, but not in adversarial legal systems (see Ashworth 2002).

Research On Victim Input Into Sentencing

Research provides answers to some of the issues raised in the debate about victim input into sentencing (see Roberts (2009) for a review of research findings). Findings from this research sustain the following conclusions: (a) levels of victim input vary across jurisdictions and are influenced by personal reasons as well as by jurisdictions’ communal and organizational contexts; (b) victim input does not generally delay the criminal justice system by increasing the time taken to arrive at an adjudication; (c) victim input does not necessarily result in harsher punishment of offenders because courts are able to use victim impact statements appropriately; (d) victim input has the potential to increase victim satisfaction with the judicial system, although victim exposure through participation to the working of the criminal justice may also lead to disappointment; and (e) the implementation of victim input laws is still problematic, and many victims do not exercise their rights or benefit from these reforms.

Levels Of VIS Submission

Research has revealed various impediments to the implementation of VIS programs (the term “VIS” is used as generic to describe VIS or VPS or other forms of victim input into sentencing). Many victim-related reforms such as the VIS in practice never reach victims. Victims are sometimes unaware of their rights to provide input, elect not to exercise them, or are confused about the nature and purpose of VIS. When VIS laws were first introduced, victims either did not know what VIS is or claimed that they did not fill out such statements when, in fact, they had done so. Being questioned by a seemingly endless array of people may have caused victims confusion about the purpose of particular interviews. More recently, as jurisdictions have improved their notification schemes and increased outreach and attention to victims’ welfare, victims have become more of aware of their rights (Erez et al. 2011b).

One observation applicable to victim impact schemes in all common law jurisdictions is that only a minority of all victims submit a VIS. In England and Wales, a national survey of crime victims found that less than half of all victims interviewed recalled having been informed of the opportunity to submit a statement. Of those who had been informed, only approximately half actually submitted a statement (Roberts and Manikis 2011). Similarly, judges in surveys conducted in Canada reported seeing a VIS on average in 11 % of cases proceeding for sentencing (Roberts 2009).

The decision to submit a VIS is largely determined by personal considerations, but communal and social factors also play a role. Contextual factors such as the availability of victim resources, the outcomes victims receive, the procedures used to determine those outcomes, the manner in which victims were treated, and the information available to victims have all been shown to influence levels of participation (Haynes 2011). The social context in which the victimization occurred and was processed likewise affected participation. Higher levels of victim participation have been documented in urban areas, where anonymity often helps victims to avoid the discomfort or embarrassment associated with involvement with police and the courts (Haynes 2011).

Reasons For Submitting A Victim Statement At Sentencing

The reasons why victim choose to submit VIS or VPS vary across victimization types and jurisdictions. In the survey of crime victims in South Australia, Erez et al. (1994) report that the main reason that victims cited for providing a VIS was to ensure that justice was done (cited by more than two thirds of the respondents), with other reasons ranging from a wish to convey the harm to the offender, to considering the harm in sentencing. Research in other counties has found that victims are more likely to want the court to understand the effect of crime than to influence the sentence imposed. Other reasons cited by victims for submitting a statement include communicating the impact of the crime to the offender and in order to discharge a civic duty. Some studies have found that VIS also provides a platform for victims to convey their concerns, feelings, or views about the crime to the community at large or to authorities who were negligent in protecting victims or preventing the victimization (Cassell and Erez 2011). In some instances victims also wished to correct misconceptions the media created about them or the reasons for their victimization. Lastly, victims commonly do not consider their input, sentencing outcomes, or even capital penalty imposed on an offender as leading to “closure” (Bandes 2009) but rather describe participation in justice as allowing three interrelated benefits: empowerment, validation, and “moving on” (Erez et al. 2011). Clearly, there are many reasons why victims participate or submit an impact statement.

The Effect Of Victim Input On Criminal Justice Administration

Researchers have evaluated the effects of victim input at sentencing in many ways, through the analysis of criminal justice statistics as well as surveys of criminal justice professionals such as prosecutors and judges. Research in jurisdictions that allow victim participation indicates that including victims in the criminal justice process does not cause delays or additional expense and that very few court officials believe that victim input creates or exacerbates problems or slows down the proceedings (Hillenbrand and Smith 1989). Court officials (prosecutors, defense attorneys) even in very busy jurisdictions generally view victim input positively.

Perceptions Of The Judiciary

The views of judges are particularly relevant to the debate, as they are best placed to know whether victim impact statements contain relevant or extraneous information. One of the criticisms of victim impact statements is that they add little or nothing to the court record and may actually detract from the process by introducing irrelevant assertions about the offender. Surveys of the judiciary demonstrate that most judges see a benefit in receiving crime impact information directly from the victim by means of a victim impact statement. Although much of the information in VIS should already be reflected in evidence adduced at trial or prosecutorial submissions at sentencing, at times VIS may provide additional information useful to the judge who is determining sentence.

One high-profile example of judges’ appreciation of the VIS can be found in the case of Bernard Madoff who ran a “Ponzi” fraud scheme involving the lost of many billions of dollars, devastating the lives of large numbers of victims. In his sentencing remarks, the judge referred to the content of many VIS and listed what they revealed as one of the factors in his decision for a commensurate sentence (Cassell and Erez 2011). Surveys of judges in Canada and Australia found that most judges acknowledge that VIS contains information that is relevant to the purposes of sentencing (Erez and Rogers 1999; Roberts 2009). In short, the most important constituency at this stage of the criminal process – sentencing judges – perceives considerable utility in VIS. This is particularly true for crimes in which the impact on the victim was disproportionate or unusual or involved a large number of victims, violence, sex offenses, or crimes in which property was stolen, damaged, or misappropriated by deception.

Accuracy And Meaning Of VIS

Although defense lawyers occasionally express concern that victim statements are inaccurate or express victim vindictiveness, research indicates that, in fact, victim statements seldom include inflammatory or prejudicial material (Roberts 2009). If this occurs, the prosecution can edit the statement to prevent the offending phrases from coming to the attention of the court. Another unfounded criticism of the VIS is that victims often exaggerate the level of harm that they sustained. This appears to happen only rarely, and when it does, judges and prosecutors report that these exaggerations involve financial matters, not emotional or mental suffering (Erez and Rogers 1999). In general, victims express feelings that others who have not been in their shoes or have prior experience with listening to victims may not consider valid or believable (Erez and Rogers 1999). Judges have also rejected the claim that the VIS serves as a platform for victims’ vindictiveness or that similar statements by multiple victims suggest “mob vengeance” (Cassell and Erez 2011).

The Impact Of Victim Input On Sentencing Practices

A major criticism of VIS is that its submission, and particularly its content, will tip the scales against the defendant, resulting in harsher sentencing patterns. Research largely refutes assumptions that victim input results in harsher sentences for defendants. Studies suggest that sentences are determined predominantly on the basis of legal considerations such as the seriousness of the offense and the offender’s criminal record. As a practical matter, VIS will have limited relevance in the US federal system or in jurisdictions that employ a determinate sentencing scheme. Judges and prosecutors in one study (Erez and Rogers 1999) reported that VIS results in harsher sentences in some cases (e.g., when the intended harm was particularly serious or the crime was especially heinous) and in less severe sentences in other cases (e.g., when no harm occurred or when the harm was much less than would be expected). This may in part explain why aggregate studies (e.g., Erez and Tontodonato 1990) do not find any effect of victims’ participation on sentencing trends. With respect to other jurisdictions such as Canada and England and Wales, the trends seem consistent; sentencing patterns did not get harsher after the introduction of victim impact schemes (Roberts 2009).

The Effect Of VIS Submission On Victims’ Welfare And Satisfaction With Justice

Findings on the effect of providing input into sentencing or participation in proceedings are inconsistent with respect to the issue of victim welfare, distress, and satisfaction with justice. At best, research has shown modest impact for certain types of victims or victimization. The evidence, however, may simply reflect a problematic implementation of the law, variations of the impact on different type of victims, or the use of different research methods and measures to study the impact. One study found that filing VIS usually results in increased satisfaction with the outcome (Erez and Tontodonato 1992), and studies of domestic violence victims (Cattaneo and Goodman 2010) have found that victim participation generally increases victims’ satisfaction. Studies that examined victims in general, even with random assignment to various treatments, have found that VIS had no effect on victims’ satisfaction with the criminal justice process or its outcome (Davis and Smith 1994).

Similarly, studies of the VIS programs in Canada and in Australia have revealed that victims who submit an impact statement are not necessarily more satisfied with the outcome or with the criminal justice system. The Australian study found that lack of impact of the input scheme may be related to the problematic implementation of the law; many victims did not realize that the purpose of the interview they had was to gather input that would be provided to the judge. In some cases, filing VIS heightens victims’ expectations that they will influence the outcome. When that does not happen, victims may be less satisfied than those who do not submit a statement. In contrast, a comparative study of victims in the continental criminal justice systems (which allow victims a party status and significant input into the proceedings) suggests that victims who participated as subsidiary prosecutors or acted as private prosecutors were more satisfied than victims who did not participate (Erez and Bienkowska 1993). These differences suggest that in jurisdictions in which victims have more input into proceedings, levels of satisfaction are higher.

The most compelling evidence to support the position that victims see a benefit in submitting a statement comes from responses to the question “Would you submit a statement again if you were victimized?” This question has been posed to crime victims in several countries including the USA, Canada, and the United Kingdom, and the result is consistent: most victims state that they would submit a statement in the event of future victimization (see Roberts and Manikis 2011).

Research has identified three major factors that increase victims’ overall satisfaction with the justice system and reduce their trauma. They include (a) procedural justice concerns such as whether the victim had the opportunity to be heard and whether he or she was treated with respect and informed of key developments in their cases (see Wemmers 1996), (b) the final decision of the court (e.g., whether the victims received financial compensation), and (c) whether there was an admission of guilt or request for forgiveness from the perpetrator. These variables were found to be more predictive of victim satisfaction than the severity of punishment imposed. This research suggests that victims’ interests or concerns relative to proceedings are not simply to generate a severe sentence but pertain to the court addressing a broad range of issues that are within its purview, issues that a well-implemented VIS program can facilitate. Recent research has confirmed that victim overall participation in justice is influenced not only by the outcomes victims received but also the procedures used to determine those outcomes, the manner in which victims were treated, and the information available to victims about their rights and benefits in the cases they were involved (Haynes 2011).

Finally, research with victims of violent crime in several countries has revealed that victims appreciate judicial recognition of the harm they sustained. Judicial acknowledgment may be expressed in a direct statement if the victim is present in court at sentencing, or it may be articulated in the reasons for sentence (see Cassell and Erez 2011). Judges appear aware of the importance of this validation of the harm: a survey of the judiciary found that most reported acknowledging victim harm directly by addressing the victim in court or indirectly by citing victim impact in their reasons for sentencing (Roberts 2009).

To summarize, the substantial research record on victim impact statements demonstrates that when input schemes are properly administered, most victims benefit from the experience. Unfortunately, VIS regimes around the world are only partially successful in reaching all crime victims. One consequence of this is that only a minority of all victims benefit from participating in the sentencing process.

Conclusion

Victim input into sentencing is now recognized as an important component of criminal justice proceedings in adversarial legal systems around the world. Reports from practitioners indicate that few administrative problems, serious defense challenges, longer trials, or higher incarceration rates result from victim input into sentencing. However, because victim input challenges traditions and established patterns within the criminal courts, the implementation of this right still encounters resistance. Legislative reforms typically lack remedies for noncompliance. Victims’ input at times depends on such fortuitous factors as whether a victim encounters criminal justice personnel who support victims’ rights and inform him or her what they are or the levels of resources that a jurisdiction allocates to victims (see Haynes 2011). At present then, the victim input schemes at sentencing which employ victim impact statements as the vehicle for victim input have achieved partial success. Although only a minority of victims depose impact statements, most who do report the experience as being a positive one. Moreover, the benefits to victims do not seem to disadvantage offenders. As noted, there is a compelling argument that hearing the victim describe the impact of the crime may be beneficial to offenders.

The road to incorporating a victim voice in adversarial proceedings has not been smooth (see U.S. Department of Justice 1998) nor has it overcome all the barriers to implementation. Yet victim input into sentencing is no longer questioned and is considered an integral part of sentencing in both adversarial and continental legal systems.

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