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Victim Impact Statements

Articles on the opportunity for victims to make a statement at sentencing.

Select committee urged to avoid courtroom 'Oprahfication'
from the article on Rethinking Crime and Punishment agrees that victims should be able to provide information to the court about the effects of offending; and the harm they have suffered. However, it does not believe that the presentation of a victim impact statement in the Court, was the best way to achieve it.
Victim Impact Statements
Analogous to the demonization of an offender in the public mind, is the pathologization of the victim in the public mind. The pathologization of the [...]
Victim impact statements: Some concerns about current practice and proposed changes
from the article by Chris Marshall in Rethinking Crime and Punishment: Currently victims have the right to submit a VIS in a variety of ways, though it is usually in writing, and to request the opportunity to present the statement in open court. The judge has the discretion to deny this request and to edit the statement if there are concerns about its length or content. Under the new proposal, victims will have the right to use their own words in the VIS and “to address the offender so that the offender may better perceive the impact of the offence on the victim”. For serious offences (s.29 of the Victims Rights Act), victims will have an automatic right to present their VIS in court, though the judge retains the right to manage the process.
Church arsonist doubts God will forgive him
from Alexandra Zabjek's article in the Edmonton Journal: A man who torched two Wetaskiwin churches in what a judge described as a "totally senseless wanton act of destruction" was sentenced Thursday to four years in prison. But he was offered hope by one of the ministers whose church was destroyed. "We have not been abandoned and we don't want you, Peter Terence Jones, to feel abandoned," Wetaskiwin First United Church minister Ruth Lumax told the 24-year-old arsonist in her victim impact statement, which was read in court.
Submission of Victims' Rights
A response prepared by the Restorative Justice Centre at AUT University in New Zealand to the Ministry of Justice's discussion document, "A Focus on Victims of Crime: A Review of Victims' Rights."
Restorative Justice Centre's submission to Ministry of Justice on victims' rights
The Restorative Justice Centre at AUT University in New Zealand has responded to a discussion draft titled "A Focus on Victims of Crime: A Review of Victims' Rights" on how the government might better address the needs of crime victims. Following are excerpts from RJC's response: 9. The central justice needs of victims are submitted to be accountability, vindication, empowerment, information, truth-telling and future safety. Only the first and last of these are addressed (to some degree) by the current legal process, and then only when the offender is convicted. Thus in crimes that go largely unreported, such as sexual offences, there can be no feeling of accountability in the absence of alternative processes, and victims remain unsafe. 10. The remaining four central justice needs are those which Dr Howard Zehr, known to and used by MoJ as a consultant in restorative justice, has said are “especially neglected”. They are next mentioned separately. However they overlap with needs identified by other writers.
Edgar, Allen and Roberts, Julian V. Victim Impact Statements at Sentencing: Perceptions of the Judiciary in Canada
The use of victim impact statements (VIS) at sentencing continues to generate controversy, even in countries such as Canada, where VIS have been in use for many years. While a great deal of research has addressed the use of these statements at sentencing, very little is known about the experience and perceptions of the professional for whom these statements are written: the judge. In this article, we report the findings from a survey of judges in Canada regarding their use of victim impact statements. Some critics of VIS have argued that these statements add nothing to the sentencing process, and simply raise false expectations among victims. The findings from this survey demonstrate that judges find victim impact statements to be a useful source of information at sentencing. Many judges reported that the VIS provided information that was unavailable from any other source. That said, many issues remain to be addressed with respect to victim impact statements in Canada. These findings will be of particular interest to jurisdictions contemplating the introduction of victim impact statements at the sentencing stage of the criminal process. (authors abstract)
Williams, Christopher and Arrigo, Bruce A. Victim Vices, Victim Voices, and Impact Statements: On the Place of Emotion and the Role of Restorative Justice in Capital Sentencing
Victim impact statements are thought of as offering a voice to victims of crime who have been unwilling participants in the process of criminal justice. However, the efficacy and legitimacy of these statements during the penalty phase of capital cases has been questioned. Some argue that the emotional quality of VIS undermines the offender’s chance for a fair and impartial sentence. It has also been argued that such emotionally laden statements undermine a meaningful and restorative justice experience for victims. In order to examine the efficacy and legitimacy of including VIS during the sentencing phase of capital cases, the authors outline the principles of critical restorative justice and explore the legal and empirical limits of VIS. Society’s urge to punish offenders is contrasted to the compassion and forgiveness that are important dimensions of the sentencing process. The authors offer several policy considerations that are consistent with critical restorative justice and that address the need to give voice to victim experiences. Abstract courtesy of National Criminal Justice Reference Service,
Long, Katie. Community Input at Sentencing: Victim's Right or Victim's Revenge?
Citing examples of community response to decisions in the criminal justice system, Katie Long asserts that communities are seeking greater influence over the process of criminal justice. One emerging focal point of community activism is criminal sentencing. Across the United States, citizens are pursuing grassroots efforts to affect sentencing policies and practices. Long explores all of this by looking at the expansion of community input in criminal sentencing. In particular she examines community-impact statements at the time of sentencing and the implications of such statements. This involves consideration of the practical and constitutional problems with occasionally allowing or institutionalizing community participation at sentencing. Long’s perspective is that the widespread use of community-impact statements would produce an unacceptable skewing of the criminal justice process in favor of victims.
Burr, Richard. Litigating with victim impact testimony: the serendipity that has come from Payne v. Tennessee.
A lawyer experienced in representing accused individuals facing the death penalty, Richard Burr makes these two observations about victim impact testimony in capital cases: (a) it usually serves the prosecution’s goal of procuring a death sentence; and (b) it does little to address most of the needs of survivors of murder. At best, such testimony provides a momentary opportunity for survivors to voice their loss, thus being heard and felling less isolated. At worst, it exploits the immense pain suffered by survivors to serve as a lever to produce a death sentence. With all of this in mind, he considers the situation in the wake of Payne v. Tennessee (501 U.S. 808 [1991]), a case that made it virtually impossible for defense counsel to exclude or limit victim impact testimony. Now, he argues, defense lawyers must reach out to survivors with genuine compassion. They must learn from survivors which needs can be met within the criminal justice process; and they must do what they can do, consistent with representing the interests of their clients, to ensure that those needs are adequately addresses. Defense lawyers must work for respectful inclusion of survivors in the criminal justice process and not be complicit in exploiting and excluding them.
van der Hoven, Anna. The value of victim impact statements in court
Victim impact statements constitute one of the ways in which victims of crime are participating more significantly in the criminal justice system in recent years. The purpose of a victim impact statement is to present the victim’s perspective to the sentencing authority as part of the sentencing process. In this paper, Anna van der Hoven discusses the status of victim impact statements in the South African criminal justice system. She writes that the use of such statements is still in its infancy and seldom are they submitted. To highlight the situation in South Africa as well as the value of impact statements, she summarizes a particular case in which she assisted a crime victim in preparing and presenting a victim impact statement.
. Giving victims a voice: On the problems of introducing victim impact statements in German criminal procedure.
Over the course of the last decade, however, scholars, including Wemmers, have started to address the absence of VIS schemes in inquisitorial criminal justice systems and begun to contemplate whether they could be beneficial to victims in these systems.9 In the context of Germany's inquisitorial system, Marlene Hanloser has suggested the introduction of VIS schemes in criminal trials in order to grant all victims the right to be heard by making statements on how the crime has affected them.10 Against the backdrop of this scholarly debate, this paper analyzes whether and for whom the introduction of VIS schemes in Germany could be valuable. In assessing the suitability of VIS schemes in the German context, this paper focuses on the alleged benefits for victims and the potential risks for defendants' rights. The remainder of this paper is structured into four parts. Part B analyzes how VIS schemes operate in Australian jurisdictions. This part subsequently considers the possibilities for victim participation in the structures of the adversarial criminal justice system in general and contends that victim participation in adversarial systems without the violation of defendants' rights is possible only to a limited extent. Part C determines that the structure of the German inquisitorial system generally permits victim participation at trial to a greater extent than the structure of the adversarial system. This part subsequently identifies that while some victims have been granted ample opportunities to present views and concerns in German criminal trials, other victims have no explicit right to do so. These victims could potentially benefit from the introduction of VIS schemes enabling them to present information to the court about how the crime has affected them if they so desire. (excerpt)
Victims Support Agency. A victim's voice: Victim impact statements in Victoria.
VIS legislation has been in operation since 1994 and it is timely to consider whether the legislative aims are being realised. The Attorney-General, the Honourable Rob Hulls MP, directed the Victims Support Agency (VSA), Department of Justice (DOJ) to undertake research to assess the effectiveness of VISs. In particular, whether VISs: are the appropriate tool to inform the court about the impact of the crime; assist the court in determining sentence; increase victims’ levels of satisfaction and; therefore participation in the criminal justice system. In order to explore these issues in Victoria, the VSA conducted extensive consultations with key stakeholders involved in the VIS process including police, prosecutors, defence counsel, the judiciary and magistracy, victims’ service agencies, witness assistance services and victims of crime. The Report A Victim’s Voice: Victim Impact Statements in Victoria (‘the Report’) discusses key findings in relation to VIS legislation in Victoria. (excerpt)
Sheley, Erin. Reverberations of the victim's "voice": Victim impact statements and the cultural project of punishment.
This article will proceed in four parts. Part I will summarize the legal history of victim impact statements and the existing debate over their appropriateness in the sentencing context. I will argue that much of the literature focuses on a tripartite competition between victim, defendant, and state, which has the tendency to ignore the capacity for a victim impact statement to externalize and convey the social harm of a criminal act. In Part II, through textual analysis of how a group of actual victim impact statements convey individual suffering to an institutional audience, I will demonstrate the unique complexity of the harm they narrate. I will show that while critics’ concerns over the capacity of subjective narratives to yield undifferentiated antipathy and lapses into trope language of “victimhood” are in fact justified by reality, other features allow these narratives to get at the nuanced truth of suffered harm and its context in the social world protected by the criminal justice system. The model that emerges from this analysis reveals a deep tension between narrative authorities in the structure of victim impact testimony. On the one hand, the victim has the potential to overcome the monopoly on narrative previously held by the trial attorneys, as well as some of the signification problems identified in the theoretical literature, to develop uniquely subjective accounts of harm through some of the techniques I identify. On the other, the victims’ sheer consciousness of their own bodies and identities as potentially transformed by the defendant, and the continuing consciousness of the court’s authority to assign meaning to these transformations, has the tendency to subvert the victims’ authority as subjective authors of their own experiences. (author's abstract)
"In this article, I contend that victim impact statements move the juvenile court too far away from its original mission and ignore the child’s often diminished culpability in delinquent behavior. I also argue that victim impact statements delivered in the highly charged environment of the courtroom are unlikely to achieve the satisfaction and catharsis victims seek after crime. To better serve the needs of the victim and the offender, I propose that victim impact statements be excluded from the juvenile disposition hearing and incorporated into the child’s long-term treatment plan. Interactive victim awareness programs, such as victim-offender mediation and victim impact panels that take place after disposition, allow victims to express pain and fear to the offender, foster greater empathy and remorse from the child, and encourage forgiveness and reconciliation by the victim. Delaying victim impact statements until after the child’s disposition also preserves the child’s due process rights at sentencing and allows the court to focus on the child’s need for rehabilitation." (Excerpt from Author)
Booth, Tracey. Homicide, family victims and sentencing: continuing the debate about Victim Impact Statements.
In October 2003, I attended a conference in Canberra -- Innovation: Promising Practices for Victims and Witnesses in the Criminal Justice System organised by the ACT Office of the Victim of Crime Coordinator. Participants addressed a number of issues including therapeutic justice and problem-solving courts, restorative justice (particularly in the context of sexual assault offenses), circle sentencing, criminal injuries compensation and victim involvement at various stages of the criminal justice system. My paper addressed the issue of victim involvement in the process of sentencing and, more specifically, the relevance of victim impact statements (VISs) from family victims in the context of homicide offences. I expressed the view that it is time to shift the debate from a consideration of the VISs as factors in the sentencing equation to a broader perspective of the role of VISs in the process of sentencing in homicide matters. (excerpt)
Cassell, Paul G.. In defense of victim impact statements.
My argument proceeds in four substantive parts. It begins in Part I by briefly tracing the crime victims' rights movement in this country, which, in recent years, has successfully argued for the right of victims to deliver an impact statement at sentencing. Part II then provides a real world example of a victim impact statement-a statement by Sue Antrobus regarding the criminal sale of the handgun used to murder her daughter. Looking at Sue Antrobus's statement will allow the reader to assess the desirability of victim statements with the knowledge of what such a statement actually looks like. Part III then lays out the four main justifications for victim impact statements. First, they provide information to the sentencing judge or jury about the true harm of the crime-information that the sentencer can use to craft an appropriate penalty. Second, they may have therapeutic aspects, helping crime victims recover from crimes committed against them. Third, they help to educate the defendant about the full consequences of his crime, perhaps leading to greater acceptance of responsibility and rehabilitation. And finally, they create a perception of fairness at sentencing, by ensuring that all relevant parties-the State, the defendant, and the victim-are heard. Part IV rebuts the objections that critics have raised to victim impact statements. The claim that victim impact statements do not relate to the purposes of punishment is refuted by the fact that they provide information about the severity of crimes, a salient consideration for judges at sentencing. The claim that the statements are so emotional that they will overwhelm sentencers is disproven by empirical evidence showing little effect from victim statements on sentence severity. The claim that victim impact statements lead to unfair inequality is invalid in view of the need to create fairness within criminal cases by allowing a victim response to allocution from criminal defendants and their families. And finally, the claim that a competition of victimhood arises in mass killing cases, even if true, provides no basis for abolishing the victim impact statements entirely. (excerpt)
Booth, Tracey. The restorative capacities of victim impact statements: Analysis of the victim – judge communication dyad in the sentencing of homicide offenders.
Victim impact statements (VISs) are said to introduce restorative elements into the sentencing hearing for the benefit of victims. Roberts and Erez (2004) argue that a key restorative feature of VISs is their potential to generate reciprocal communication between judge and victim: victims have the opportunity to speak about the impact of the crime and the court has the opportunity to acknowledge the harm suffered and validate victims' experiences. Drawing from the findings of a small qualitative study of VISs in homicide sentencing hearings in New South Wales (NSW), Australia, this paper examines the communicative potential of VISs. While the institutional context of VISs in common law jurisdictions constrains their communicative capacities, nonetheless oral VISs provide victims with a valuable opportunity to speak and be heard. Furthermore, while in the hearings studied there was little direct communication between judge and victim, this study reveals that VISs provide a context in which other, more indirect communications can occur.
. No Payne, no gain?: Revisiting victim impact statements after twenty years in effect.
Part I of this Comment revisits Booth and South Carolina v. Gathers,12 the Supreme Court decisions overruled by Payne, and draws particular attention to the conflicting philosophies among the Justices over the course of the three decisions. It focuses on how different Justices frame the issues surrounding victim impact testimony and the influence of victim impact testimony on juries. Part I also briefly looks at the rise of victims' rights as a socio-political movement, a movement which has often caused intense discord between state legislatures and courts in the sentencing phases of capital cases." This tension seemingly culminated with the Supreme Court twice ruling against the movement, only to overtum both decisions shortly thereafter in what is now the law of the land." Part II addresses the fallout from the Supreme Court's about-face in Payne by surveying the empirical research conducted in the wake of the Payne decision and examining the competing philosophical concerns in relation to the statistical findings. This Part also surveys how states that allow for the death penalty have reacted to Payne, and dwells primarily on the effects of victim impact statements ("VIS") on the rates of death sentences handed down in capital cases. (excerpt)
Fulkerson, Andrew. The Use of Victim Impact Panels in Domestic Violence Cases: A Restorative Justice Approach
The present article looks at the effectiveness of Victim Impact Panels for victims and offenders in domestic violence cases. A study was conducted in five court jurisdictions in the State of Arkansas that used Victim Impact Panels for helping victims and offenders heal from the effects of domestic violence. The feelings of victims and offenders toward the impact panels were measured, as was the effectiveness of the panels for reducing future incidents of violence. Victims reported some satisfaction in the process because they were given the opportunity to tell their stories, and offenders reported having a clearer sense of the effects of their actions on others. However, with respect to subsequent convictions for offenders for a domestic violence related offense, there was no difference between rates for the control and experimental groups. The study points to the restorative contribution that Victim Impact Panels can make but also to the need for additional and in-depth research on the nature of that contribution.

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