Likelihood of Success

Ron Coleman’s pretty good blog

Against victim impact statements

Posted by Ron Coleman on April 1, 2008

Walter Olson at Overlawyered:

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.

He has a very interesting perspective on the issue.

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8 Responses to “Against victim impact statements”

  1. Can anyone think these are a good idea? It pulls the pursuit of justice down into the gutter; turning instead into a quest vengeance. Much of our system has this effect, perhaps justice is not something we wish to achieve?

  2. Jack said

    I completely agree.

    By the time of sentencing the victims have already had their fun.
    Enough is enough.

    They got to enjoy the crime, or their surviving friends and family got to enjoy the fruits thereof, and assuming the victims or their relatives survived the initial knife in the ribs and punctured burst a’giggles from a deflated lung then they also got to enjoy the entire court process. Which is just sauce for the gander.

    You can’t have Justice being about victims.

    It has to be about far more important matters, like people who get to view the aftermath safely in the courtroom, lawyers (and who could ever really be overlawyered in the pursuit of Justice?) who can properly digest the matter so it can be understood by those without lawbook learnin’ or any real personal interest in justice, and judges who can interpret both the law and justice as it ought to be interpreted, that is in the interest of the theory of justice, just for itself. And of course don’t forget the convicted, who really need to get on with their lives by this point in the game. When justice becomes an inconvenient truth, then the truth is, who needs that kinda bother?

    You don’t ever want to confuse any of the indirect aims of Justice as serving any of the ends of those who have directly suffered injustice. That’s just a totally f**ked up way a lookin at the world if you ask anyone sophisticated enough to know what he’s talking about. Thank God justice ain’t got nothing to do with victims in this nation. That just wouldn’t be fair to anyone.

  3. pennywit said

    Can’t say I’ve ever liked victim impact statements. As my first-year crim professor pointed out, one of the points of our criminal justice system is that the case isn’t about “victim” vs. “defendant,” but rather “the state” or “the people” vs. “defendant.” Victim impact statements blur that line overmuch, I think.

    I strongly oppose so-called “victims’ bills of rights” for much the same reason.

    –|PW|–

  4. Jack said

    Yes, it’s always extremely unfortunate when we personalize victims in this ole world.

    The state suffers a lot of unnecessary rapings, stabbings, murders, robberies, abductions, child killings, and other such torments. I’m sure you’re crim professor has too, as a theoretical master of classroom justice.

    And of course the defendant is never a serial rapist, murderer, armed robber, or arsonist. He’s just a guy who is defending himself against the bookish, scholarly, and effete notion that the evidence says he orally and anally raped a eight year girl over seven weeks with a blunt and meaty object, then slow strangled her with a wire ligature when he got bored on Saturday night, and cut her body into pieces for easy and clever disposal.

    The real point of the matter is that when the state suffers such atrocities then the state is the one with the legitimate interest in the matter. You know, so the state can assure the state never suffers that kinda hassle and trouble again.

    So you never want to think of the victim as a real person. Or suffering as real pain. Or innocents as real innocents. Or criminals as real criminals.
    That’s just not what Justice has ever been about. And it sure as hell ain’t what a good course in criminology ought to be all about.

    It’s a shame anybody ever thinks differently as a purely empirical matter. I guess they’ve just never had a real education in the whole subject. They should maybe take a class sometime.

  5. pennywit said

    Actually, Jack, crimes are an offense against the state as well as against the victim. A criminal trial — “State of ___ vs. Defendant” is that state saying that an act was so wrong that it constitutes not just an offense against the victim, but also against society at large.

    The rest of your ill-informed argument flies in the face of “innocent until proven guilty.” If I follow your argument correctly, a defendant’s rights to counsel, a fair and speedy trial, and other rights guaranteed by statute, common law, and Constitution, are immaterial. Instead, you argue, it is most important to invoke the strongest of passions in the service of prosecuting a case. Disgust and horror at the crime. Sympathy for the victim and survivors as they shed tears on the witness stand. And overall, the desire to punish somebody — nearly anybody — for an atrocity inflicted by one person on another.

    The course you advocate is not justice. It is vengeance. And that course, if followed, leads to the greatest travesty of all: disregarding not merely a defendant’s rights, but also his guilt or innocence.

    But it’s all good, isn’t it? As long as the defendant’s trial is a therapy session for a victim’s family, the judge is a black-robed Dr. Phil, and above all, there is “closure.”

    –|PW|–

  6. Jack said

    “The rest of your ill-informed argument flies in the face of “innocent until proven guilty.””

    Actually, in every case I’ve ever witnessed the victim impact statement comes at the sentencing phase after the verdict has been rendered. If innocent then victims don’t make a statement in the courtroom, cause you can’t make a statement of real grievance against the innocent without evidence, that’s just hearsay, and if already found guilty then it’s a moot point. The guilty are guilty.

    So much for ill-informed on the internet.

    “Instead, you argue, it is most important to invoke the strongest of passions in the service of prosecuting a case. Disgust and horror at the crime. Sympathy for the victim and survivors as they shed tears on the witness stand. And overall, the desire to punish somebody — nearly anybody — for an atrocity inflicted by one person on another.”

    You know one thing that really amuses me about modern folks? Well, a lot of things amuse me about modern folks, but one thing of many things in particular that amuses me in a somewhat deeply ironic fashion is this kinda thing.

    Some simpleminded sonnofab*tch like me comes along and pokes a sharp letter-knife in their pet theory about their larger grand theory of how crime ain’t really a matter of suffering and murder or rape or basic injustice or whatnot, and is instead a matter of intellect and circumstance.

    You give a convicted criminal a good tongue lashing at sentencing, or maybe a good long stretch of biding his time til his next parole hearing for the destruction he’s wrought by choice and intentional action and that’s some kinda inexcusable internet crime against civilization and high decorum. Not to mention a real blow to the rather fragile ego of those who think crimes and murder and rapings and robberies and kidnappings are subjects best addressed from the oratorical and metaphorical podium of grand and noble erudition on all matters of especial sophistication. After all, words really hurt when you’re the sensitive type.

    But you stick an 8 inch hunting knife between the rib-cage of some women after she’s been bottle raped till bloody, blow the skull off a convenience store clerk about 0530 right before he’s headed home to see his three year old daughter off to school, or slit the throat of some little boy that was just gang banged and beat into a coma at the waterpark so he won’t be talking to the authorities and you can’t quite get some folks real worked up on scenarios like that. So words really stick in their craw, offends em something god-awful, gnaws at the edges of their heartstrings and bothers ’em real fierce and fiery. Works extra hard on their conscious I guess, or failing that at least on their intellectual sense of justice and fairplay. In a more or less theoretical fashion of course. It’s a travesty and an atrocity alright, hard to imagine something much more horrific than sharp words aimed at the vulnerable and lily-white soul of the guilty axman.

    But real and actual murder and mayhem, now that’s far less of a burdensome beast pragmatically speaking to those best educated in what’s most important. Real crime is more like a theory discussed on the internet in an abstract and humane way so as to have something interesting to say when the deep well of politics runs dry, but not in a way that might offend the easily offended. Cause real crime ain’t about strong passions serving the worst instincts of the criminals, it’s more all about how the victim is best served by the wisdom of stoic indifference in the courtyard of blind injustice. I guess it’s all just a matter of having the right priorities as modern societies evolve and get ever more civilized. The more civil a society becomes the more it should naturally and inevitably be willing to allow the uncivilized portions the grace of general good manners when they do naughty and unpleasant things to the helpless and harmless. If for no other reason than as a matter of self-preservation and to demonstrate proper breeding and classy education. So why, oh why, swim against such a pleasant and agreeable tide, you’re probably asking yourself? Why side with the innocent and the victims and advocate their travesties of justice Jack, when the guilty so much more deserve your energies and ceaseless dedication? Why for Duncan when MacBeth needs you now?

    Must be something in-bred I suppose, or maybe I was a love-spurned, vengeance obsessed Aztec princess in a former life, or maybe I’ve just personally seen one too many old men tied to chairs and beaten to death with golf clubs for their spare change in my spare time, but as for me, “no thanks cowpoke,” as the old saying goes. I’ll ride range with victims anyday as opposed to the lawless and their pretty posses of theory herds and vacant turds a’floatin in the wind.

    Call it closure, vengeance, who mourns for Adonis, or anything else that tickles your personal fancy. Makes no nevermind to me.

    I reckon what I’m saying is, and I know it ain’t particularly sophisticated and all, at least as far as modern people count that mark, and who could doubt their doubtless wisdom in most anything really worth imagining, but if given a choice between the vapory vapidness of those who say that the guilty will wither like desert gravedust before the harsh and maybe even legitimate pronouncements of the victims, or at least the earnest cries of their surviving representatives, and those who have noticed that the innocent will sometimes get boned and butchered by the tender mercies of the muscularly guilty (who might not be as good at speaking and phrasifying as slaughtering and savagery, unfair as that might seem to us all) well then, all other things being equal, just count me as contrary and uneducated on these matters. And maybe even unashamedly so, modern sensibilities notwithstanding.

    I’m just funny that way I reckon.
    Everybody’s got to be amused by something.

  7. pennywit said

    True, the victim impact statements generally come after guilt has already been ascertained. But the larger issue here, and one invoked in our discussion, is the overall priorities and procedures of a justice system, not merely the sentencing phase.

    You enjoy citing, time after time, the most macabre crime you can imagine, then proclaim your own ignorance in matters as not merely a defense, but also a virtue. After all, you’re just a “good ol’ boy,” possibly “not a-meanin’ no harm,” to invoke a relatively ancient cliche. But I don’t buy your claim of ignorance. Your obvious writing skill belies that.

    But let’s not talk about ad hominems. Let’s look one more time at this justice system. Your priority, repeated again and again in faux-simple dialect, is to see to the victim. My priority, alluded to above, but perhaps not expounded upon until now, is to ensure that the right person, not merely a person is deprived of life or liberty after a crime has been committed.

    So far, you have accused me of cleaving to theory, rather than citing fact. Can you think of people wrongfully accused of crimes, then punished for them? I can think of a few. Nineteen men and women hanged for witchcraft on the testimony of hysterical children. Two hundred fifteen wrongfully accused exonerated by the innocence project. David Shephard, imprisoned for a rape he did not commit. Randall Dale Adams, imprisoned for a crime he did not commit. Or perhaps I could cite a group of lacrosse players, tried and convicted by the media, their school, and a politically ambitious prosecutor before they even got to their trial. The list goes on.

    With the exception of the Salem witchcraft trials, all of these convictions came under a system that errs even as it attempts to preserve some rights for the accused. Embrace the system you choose, and we increase the risk of those errors. Embrace the system you choose, and we increase the incentives for officials to misbehave.

    Hardly a system that meshes with our constitutional guarantees.

    –|PW|–

  8. Jack said

    “But let’s not talk about ad hominems. Let’s look one more time at this justice system. Your priority, repeated again and again in faux-simple dialect, is to see to the victim. My priority, alluded to above, but perhaps not expounded upon until now, is to ensure that the right person, not merely a person is deprived of life or liberty after a crime has been committed.”

    If you’re arguing to me that you hang the right fella, you’ll get no argument outta me.
    the right fella should always be hanged. If you don’t hang the right fella then the wrong fella is still running around doing the wrong thing, and there ain’t much right about that. For nobody. Innocent or guilty alike.

    Anything else but real justice is just imitation justice, plain and simple, and I want no part of that kinda thing. On that we agree with absolute precision.

    You hang the right fella, you free the innocent one.
    But none a that is the victim’s fault.

    The victim doesn’t determine what the evidence says, only what he says about what the evidence says. But if you get the right fella, and the evidence hangs him, true and sound, then I don’t care what the victim says about the really guilty man. Or the judge for that matter.

    If a man is tough enough to commit a real crime against his fellows, then I reckon he oughtta be tough enough to stand to a good dressing down from those he wronged. Evil is as evil has the courage to be, which, given my experience ain’t usually much in the way of courage, but evil oughtta at least be able to stand against a wordstorm if evil is really as impressive as it likes to act in the dark.

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