The role of the victim in the criminal justice system has evolved over the past 30 to 40 years. Historically, victims of a crime have held no special place in the criminal justice process other than as witnesses to the event. Thus, as witnesses they have not received any special treatment or rights by the courts. This process changed during the 1970s and 1980s with the creation of what is known as the victims’ rights movement, most notably the creation of the victim impact statement (VIS). The VIS provides an opportunity for the victim(s) or the family of the victim(s) to attest to the impact of the crime on their lives through written or oral (allocution) statements during the sentencing hearing. While each state and the federal government differ in whether VIS statements are allowed or when they are to be given, these statements are typically presented to the judge or jury, the probation officer (during the presentence investigation report), or to the parole board and include information regarding the psychological, emotional, physical, and/or financial harm of the crime. Additionally, many VISs include the victims’ concerns about the crime, the community/ societal harm, and the sentence they believe the offender should receive.
The first victim impact statement was introduced in 1976 by James Rowland, the chief probation officer in Fresno County, California. Following his initiative, all presentence investigation reports (PSIRs) in this Fresno County contained a VIS. Since their first inception in 1976, VISs have been utilized by many court systems throughout the United States at all governmental levels (local, state, and federal). In addition to a VIS being included in a PSIR, most states have allowed for some form of a VIS to be introduced during a prisoner’s parole hearing for early release.
During the 1970s and 1980s subgroups of the victims’ rights movement such as victims of sexual assault, Mothers Against Drunk Driving (MADD), mothers whose children were murdered, and survivors of other crimes began to collectively respond to the needs of victims and to advocate for compliance by the courts to uphold victims’ rights. Many states also began to enact victims’ bills of rights. Two collective elements of all victims’ bills of rights include provisions that the victim can be heard throughout the criminal justice process and that the offender makes restitution to the victim. Restitution ties into the VIS in that the VIS not only outlines the physical, emotional, and psychological damage impaired by the victim, but also introduces the amount of the victim’s financial losses.
In 1982, one of the most important aspects of the victim’s rights movement was introduced under the Ronald Reagan administration. Known as the President’s Task Force on Victims of Crime, 68 recommendations were made to guarantee that victims have a place in the U.S. criminal justice system. Two of these recommendations called for VISs and restitution to be made mandatory to the victim(s) of crime(s). The Federal Victims Act of 1984 gave federal incentives to states to pass laws to aid victims of crimes. The Crime Victim Rights Act of 2004 further gave victims in federal court the right to be heard at proceedings involving sentencing and parole. In addition, many victims’ bills of rights have been amended into state constitutions.
Two Types of Victim Impact Statements
Victim impact statements may be provided in one of two forms: oral or written. Bruce Arrigo and Christopher R. Williams discuss the differences between these forms and how they may impact the decision-making process. The written form of a VIS is usually included in the PSIR and/or given to a parole board, whereas the oral VIS (allocution) is presented in person either before the sentencing body or the parole board. Research suggests the latter of the two has been shown to prejudice the opinion of the court during sentencing because one will see and hear the emotional impact of the crime upon the victim. All 50 states and the District of Columbia allow for either a written or oral VIS to be given at a parole hearing; however, only 17 states require the victim to be notified of the upcoming parole hearing unless otherwise requested by the victim, which increases to 32 states that require victim notification. In addition, all 50 states and D.C. allow for some form of a VIS to be presented at the original sentencing hearing, and 36 states allow victims to give oral VISs during sentencing.
U.S. Supreme Court and Victim Impact Statements
Over the years, the U.S. Supreme Court has expressed mixed opinions concerning the use of victim interests in criminal proceedings. First, in Linda R. S. v. Richard D. (1973), the Supreme Court concluded that victims should have no position in criminal justice proceedings. Then, in Morris v. Slappy (1983), the Supreme Court began to side with the victim and ruled that in the place of a third trial, the victim should not have “to relive a humiliating and traumatic experience.” However, there are two Supreme Court cases in which the court ruled specifically on victim impact statements and their influence in capital cases.
First, in Booth v. Maryland (1987) the high court ruled in favor of the defendant, stating that using VISs during sentencing will hinder sentencing to make it “arbitrary and capricious.” Some researchers extend the Supreme Court’s viewpoint, stating that in Booth v. Maryland, using a VIS during the sentencing phase was a violation of the defendant’s Eighth Amendment rights against cruel and unusual punishment. However, four years later the Supreme Court retreated from the Booth ruling. In Payne v. Tennessee (1991) the majority ruled that the allowance of a VIS during the sentencing phase of a capital case was not unconstitutional.
International View on Victims and Victim Impact Statement
In many European countries the implementation of victims’ rights has allowed the victim to be informed throughout the various phases of the criminal justice system. One of the most important international organizations in the victims’ rights movement has been the World Society of Victimology. Its goal has been to establish guidelines for victims that the United Nations would integrate into policy. Two essential obligations of this group are to allow the victim to be heard in the different criminal justice systems around the world and to gain restitution for the victim. In 1985 the General Assembly of the United Nations adopted the Declaration on Basic Principles for Justice for Victims and Abuse of Power. This was in large part a result of the effort put forth by the World Society of Victimology.
Both the Netherlands and New South Wales, Australia, have incorporated laws that allow victim impact statements in their legal proceedings. In the Netherlands, VISs have been allowed since 2005 and may be either written or oral. In 1996, New South Wales established a charter to the Victims’ Rights Act, which gave victims more rights, and in 1999 instituted the Crime Act, which outlined the use of victim impact statements in criminal justice procedures.
Malta has also moved forward in pursuing victims’ rights. In 2002 the country’s first victim-oriented law was enacted, and two years later Victim Support Malta, a victims’ assistance organization, was established. As a result of these developments, victims of crimes are allowed to be present during the legal proceedings.
Restitution
The idea of restitution is not a new one. Its roots date back to biblical times when the Old Testament specified that restitution be paid for stealing and killing oxen or sheep and robbers and thieves pay restitution to their victims. Also, the Code of Hammurabi (circa late 18th century B.C.E.) mandated restitution be paid by offenders. In the 18th and 19th centuries restitution was considered a critical aspect of a just punishment and a move toward offender rehabilitation. In the United States between the 1920s and early 1980s restitution could be imposed only as a condition of probation. Currently, as a condition of parole almost all states empower correction officials to require restitution.
The use of restitution was specifically addressed in one of the 68 recommendations of the President’s Task Force of 1982, which asserted that if a court did not impose restitution, then the court must state why it refrained from requiring this punishment. However, it was not until the 1990s that Congress began passing legislation making restitution mandatory. An example of this development is the Violent Crime Control and Law Enforcement Act (1994), which makes restitution mandatory in sexual assault cases. Thirty-eight states allow for the presence of a crime’s financial impact as part of the VIS. However, the U.S. Supreme Court in Pennsylvania Dept. of Public Welfare v. Davenport (1989) ruled that if a felon declares bankruptcy, then he or she can forgo paying any restitution previously issued by a court. The responsibility to collect restitution usually is assumed by one of three entities: probation officers, restitution centers, or day reporting centers.
Arguments in Favor of Victim Impact Statements and Restitution
Allowing victim impact statements during the sentencing phase of a trial provides an end to the victims’ and their families’ long ordeal and aids in closure for the victims. Research further suggests that allowing VISs into court proceedings is highly therapeutic for the victim(s), increases consistency in sentencing, and does not jeopardize the rights of the defendant.
Similarly, while the increased use of restitution was intended to satisfy victims and to quench the desire for vengeance within the criminal justice system, an unintended benefit of enhancing the use of restitution for victims has been a rise in the likelihood of victim involvement and cooperation. Restitution can additionally help restore the victims’ financial condition. Finally, restitution may simultaneously meet the goals of punishment and rehabilitation.
Arguments Against Victim Impact Statements and Restitution
Along with the advantages of VIS and restitution are negative consequences of both. Research has found that when the victim(s) presented a highly emotional VIS, the sentencing body was more likely to seek a longer prison term for offenders. Some researchers have pointed out that by allowing VISs into the court proceedings, a conflict between criminal justice professionals and victims is created. Other research has found that victim impact statements played a significant role in the defendant receiving a sentence of death in capital cases compared to those instances when no VIS was presented. Research further suggests that the introduction of the VIS to juries allowed them to reach a decision based on “retributive emotion” and reduced the legitimacy of justice. W. H. Parsonage et al. described three controversies of allowing VISs into criminal justice proceedings: it allows the pursuit of vengeance; it takes the decision-making power away from the judge or parole board, who are trained to render just decisions; and the focus of criminal proceedings should be on the crime’s nature and not on the victim’s character.
Though most research does not find many adverse effects of granting restitution to the victim, one concern that does surface is that it will allow more financially fortunate offenders the opportunity to buy their way out a more just sentence. In this way, restitution would work in favor of the upper class. Thus, if an offender does not have the ability to pay, then courts do not have the power to send the defendant to prison for failure to pay. Likewise, the use of restitution is neither widespread nor consistent in its administration. For example, according to Leanne Fitfal Alarid, nationally “courts have ordered restitution in only 10 percent of felony convictions and
22 percent of misdemeanors”.
Conclusion
Victim impact statements are seen as giving rights back to the victim and allowing the victim to feel as if the criminal justice system is just. Often, a VIS gives the victim closure for the criminal act committed upon him or her. However, controversy still exists as to whether the U.S. criminal justice system should be concerned with the emotional vengeance of the victim or the nature of the crime itself. Over the years the U.S. Supreme Court has delivered mixed decisions as to whether or not VISs should be allowed in capital murder cases due to concerns that an emotional decision and not a rational choice may be rendered by the sentencing body. With the help of the World Society of Victimology, there has been an international recognition of victims’ rights. Most victims’ rights groups argue that both VISs and restitution should be implemented in order to right the wrongs of the perpetrator. Yet, restitution seems to benefit the rich, while making it difficult for the lower economic classes to meet the financial requirements imposed by the courts. One thing is certain: there has been an overall shift in the criminal justice system to give rights to the victim, while maintaining an unprejudiced criminal justice system.
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