International House of Dan: The Role of Victims' Families in Criminal Justice

Tuesday, February 22, 2005

The Role of Victims' Families in Criminal Justice

This is another Odyssey-inspired post, about the discussion I was listening to in the car earlier. The subject was the growing role of victims' families in our criminal justice system, tracing historical trends and the issues involved. I, for one, think that they should have none. I'm against victims testifying at sentencing, I'm against the submission of Victim Impact Statements, and I'm certainly against their appearance at parole hearings. Here's why:

I believe that families of victims have a means for redress through the civil system, and that in the case of criminal prosecutions, the entity exacting punishment and the entity wronged, is the state. The murder defendant is charged with violating a statute prohibiting murder, regardless of the identity of the victim, and a prosecution will follow where the evidence supports it regardless of the victim's survivors. I feel that this view is consistent with the notion of justice as being blind, that it has before it only evidence and laws, and that decisions should not be influenced by the likeability of either the victim or the defendant.

In criminal prosecution, the victim's family may testify about factors relevant to the crime, but it should not matter how the crime affected them personally, or are we to say that one who kills someone who was dearly loved should be punished more harshly than the killer of one who was not? Should robbing someone rich merit an acquittal if the loss didn't financially impact the victim? I think not. I think civil suits, brought by the victims and not the state, are the proper venue for venting about the impact of the harm caused by the crime. I think that if the purpose of the crime was actually the effect it had on the victim's family, rather than the crime itself, then there is usually a separate offense which can be charged on those grounds. This second offense would increase a sentence, but it would do so based on separate legal grounds.

Victims' families should be heard, as they have been recently, at the legislative level, so that lawmakers will take their concerns into consideration as they draft the penal codes. If it is appropriate in the eyes of lawmakers to incorporate elements relating to victim impact into the crime itself, then so be it, but unless such additions are made it is inappropriate to consider that impact at trial. Should the defense be allowed to mitigate against suffering victims by pointing out forthcoming life insurance payments, for instance? It would seem only fair that if the well-being of the victim's family is an issue at sentencing, such factors should be considered as well. Should added years based upon a widower's grief be rescinded if the widower is later found to be happily remarried? The suffering of families of victims is inherent in the crime itself, the state is aware of it when it makes things illegal, it has already been considered as a factor in drafting the statute and the corresponding sentence, and to allow it at trial is redundant. An exception might exist where families plea for clemency in a death penalty case, because in that case they are rebutting the legislature's presumption that it would be their wish to see the criminal executed. Then again, I suppose I might just be trying to reconcile conflicting views because of my own ideology.

In all judicial systems that I'm aware of, judges wear some sort of a disguise. In some "primitive" cultures (though how primitive can a culture be that has a judicial system?) they wear masks, in others they wear wigs, in the U.S. they wear black robes. The common thread in these examples is that if only for symbolic purposes, these systems acknowledge a need to clarify that it is a neutral, anonymous entity, the judge, who is passing sentence, and not the actual individual wielding the gavel. This suggests to me a desire to sterilize the system, which seems to be consistent with the ideas of fairness and justice. The elements of the crime, if proven by the evidence, should be determinative of the sentence, not the victim's wife, sobbing on the stand more convincingly than the defendant's wife.

A clarification is appropriate at this time, because it sounds like I would favor mandatory sentencing guidelines, which I do not. The judge or jury may consider factors relevant to the nature of the crime, but not the way they were perceived by the victim or her family. In other words, evidence that murder was carried out in a particularly cruel manner would certainly merit more serious punishment, but that is because of the cruel nature of the murder, because of society's interest in preventing such types of murder in particular, regardless of the victim.

I would deny victims' families access to parole hearings because their purpose there is purely inflammatory. How survivors feel about the criminal has no bearing on such a hearing, the issues before the board pertain to rehabilitation, and if families disagree with the availability of parole at a certain time, then they should get the state to appeal the decision to grant it. This is especially so where they have already been allowed to testify at sentencing about the meaning of their loss. If after hearing their pleas for vengeance, the judge or jury still deemed parole appropriate, then allowing them to make their case against parole before the board at a later date is tantamount to double jeopardy for the defendant.

It is the role of criminal courts to apply penal codes to facts. Their narrow mandate prevents the admissibility of factors that matter to parties, but not to the crime at bar. We are willing to exclude evidence from both sides on procedural, admissibility, and relevance grounds, so why do we allow what is nothing more than prejudicial evidence of grieving we are already aware of? Do we worry that a jury won't know that the widow is unhappy? Prosecutors know the effect families have at sentencing, and they make strategic decisions based on the character and appeal of the victims and their families. This is another argument in favor of allowing clemency testimony, that it is not subject to the calculations of the state's attorney. If we really care about adding years based on family testimony, then I'd better not hear of a DA denying such testimony because it would reflect unfavorably on the case, because the widower might show up high and say the wrong things.

We have provisions in place to prevent undue prejudice against defendants at trial. Why do we encourage it to be carried out at sentencing? Defense attorneys can't question grieving widows effectively, they can't challenge the credibility of weeping orphans effectively, and putting them on the stand to demand revenge is redundant, exploitative, and unfair.


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