950 words; 4 minutes to read.
Audio summary by volunteer Gilliam Sherman.
Summary: Work by US scholar Susan Bandes raises important issues about the place of victim impact statements in criminal justice.
Victim impact statements (VIS) have become a fixture in the criminal justice process. These statements often feed our appetite for emotion related to crime, which is presumably a main reason they are so often reported in detail in the media. But do they contribute to a better justice system? A recent article by US law scholar Susan Bandes raises three important issues on this point.
First, what is their relevance to the court process? In what way are they supposed to assist in better sentencing?
Second, do VIS have a positive effect on victims, either by helping them feel ‘heard’ or by contributing to healing from the harms of a crime?
Third, do VIS help public education about the nature of crime?
On all 3 issues, the article raises serious questions, concluding that ‘…the emotional power of the statements cannot mask the lack of clarity about what the statements are intended to accomplish’
Effects on sentencing
It is hard to avoid the presumption that the purpose of VIS is to make sentences harsher. Why else would it be relevant to the court to hear about the victim’s suffering, except to make sure that the sentence matched the severity of the effects of the crime. Yet in Canada sentencing is not supposed to be based on emotion. And if such statements provide essential information to judges in determining a fit sentence, why are they voluntary?
Bandes notes that there is some evidence that who gives a VIS is not random. Prosecutors may look for victims who are particularly able to evoke the sympathy of the court. And that may involve considerations of the victim’s appearance, gender, articulateness, and other factors that would seem to have little to do with determining an appropriate sentence. ‘VIS may exacerbate the tendency, amply documented… to encourage invidious comparisons [of suffering] based on the race of the victim’
One might reasonably ask whether a more articulate victim, or a younger one, has suffered greater harm. Yet we know from much research that people do respond differentially to stories depending on who tells them.
A further question not posed by Bandes but sometimes raised is about who actually writes or prepares the statements. Are they done solely by victims? Are police, or prosecutors, or therapists involved in production of these statements? Might victims be advised as to how to craft a statement so that it has the greatest effect? And if so to what extent can they be taken as solely the ideas of the victim? Keep in mind that victims’ knowledge of the process comes entirely from police and lawyers.
There is ‘…still no good answer to the question of precisely what relevant information these statements impart and how that information should affect sentencing.’
Effects on victims
The VIS seems to imply that make a statement can be therapeutic for the victim. But there is no evidence as to whether this is so, and some grounds for being doubtful. ‘The victim’s voice is too often filtered through the harmful lens that assumes healing and ‘closure’ require the harshest punishment available.’
But victims cannot know whether their statements have any effect. If a sentence is not what they hoped, they can feel injured again, as if their suffering is being discounted. ‘…the danger is that the victim will be led to expect the sentence to reflect the value the judge assigns to her pain, and will feel unheard, dismissed and disrespected when the sentence fails to live up to her hopes.’ Under those circumstances participating in a VIS could undermine healing.
Moreover, Bandes writes, ‘The legal dialogue on healing and closure seems to proceed in a parallel universe, making little or no reference to the psychological literature on healing and trauma.’ The latter emphasizes careful listening and empathic feedback, but such behaviour by judges would contradict their impartial role.
Alternative settings for victims to be heard
There could well be better ways for victims to feel respected by the process. ‘I have argued that the statements…too often fail to convey the genuine needs of victims, particularly when those needs do not neatly coincide with the narrow set of solutions provided by our adversary system of criminal justice.’ In the court process there is little or no room for apologies, or for shared understandings of what has happened and how similar harms might be prevented in future.
It might be better to have a setting such as a restorative justice process where impact statements do not serve as a ‘referendum on the seriousness of their pain’.
VIS may also not help public understanding of crime, especially systemic issues. The criminal system necessarily focuses on one defendant’s personal responsibility. However a full understanding of crime often requires broader attention to institutional practices, public attitudes, mental health services and the like. This is especially the case for crimes that are rooted in institutional systems, such as abuse in care settings, or by police. The issues in residential schools or youth custody institutions, for example, are not going to be properly illuminated by trials of individuals, no matter how bad the behaviour of those individuals.
Surely more supports and services for victims of crime would be helpful. But ‘VIS were shoehorned into the adversary system with little attention to whether they improve the lot of victims, how they burden the rights of defendants, or what impact they have on the integrity of the criminal process.’ Because people crave emotion and love to hear stories, especially of suffering, it is hard to imagine these statements disappearing. Whether they contribute to a more just system remains an open question.
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