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April 14, 2011

"Reverberations of the Victim's 'Voice': Victim Impact Statements and the Cultural Project of Punishment"

The title of this post is the title of this new article by Erin Leigh Sheley, which is now available via SSRN.  Here is the abstract:

This article will argue that the current debate on the victim’s participation in the criminal sentencing process ignores how the complexity of a victim narrative effectively conveys the social experience of harm, without which the criminal justice system loses its legitimacy as a penal authority. In other words, we cannot only consider "the victim," "the defendant," and "the state" as three separate entities vying for narrative control over accounts of harm in determining punishment.

Rather, the stories of the victims and defendants already circulate through society outside of the courtroom and the function of "the state" in the trial context is to vindicate the interests of this society.  Notions about criminal "harm" enter the culture through the experiences of individuals, as well as through political rhetoric and media representations, and, once there, shape social norms about the assignment of blame.  Therefore, if the sentencing process cannot accommodate the stories of actual harm to individual victims it runs the risk of either coming to be viewed as illegitimate to a society guided by these norms or allowing free reign for generic representations of criminal harm produced by political and media actors to take the place of individuated victim accounts in the mind of a fact-finder.

April 14, 2011 at 10:19 AM | Permalink


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Testimony without cross examination or physical verification, violating the Sixth Amendment Confrontation Clause. Trivial and self-evident that people are upset by being crime victims. Designed to inflame and in violation of the Rules of Evidence.

So why is this a movement one with momentum? Why are we getting repeated references to it?

Because the judicial system is so complex and painful, anyone entering it should have benefit of counsel. Victims will get the right to representation. This will generate more government sinecures, and hammer the tax payer with the need to hold the hand of millions of crime victims a year.

Posted by: Supremacy Claus | Apr 14, 2011 3:07:56 PM

Erin is a friend of mine and a wonderfully thoughtful person. I hope readers will have the opportunity to take a look at her article.

Posted by: Bill Otis | Apr 14, 2011 3:27:44 PM

Half the victims are drunk, and involved, known to the defendant. Most asked for it by their proximity to criminality, and their own criminal lifestyles. So, if cross examination were ever allowed, the victim impact may backfire and lessen the punishment. It is very rare that a normal person is assailed by someone randomly leaping from a bush. Most of them recover well, psychologically. It is the rare victim, with a preexisting mental condition that suffers long term effects of victimization. This private information may become fair game as defense lawyers realize the violation of the rules by this testimony.

Posted by: Supremacy Claus | Apr 14, 2011 3:29:41 PM

One has to express outrage. We are having drama, Broadway in court. Meanwhile 90% of the 25 million victims of major crime a year have to fend for themselves. The lawyer will expend energy and treasure to enhance the Broadway play, and care not a wit for the 25 million victims out there.

Why? These Broadway cast members will generate the rent.

Posted by: Supremacy Claus | Apr 14, 2011 3:43:34 PM

This is clearer after some reading of the article. She is with the retributionists. If Medieval methods are reprehensible, this atavism is from the tribes of Iraq and Biblical times. It is an immature and wasteful use of the law, although it generates dram and lawyer fees. It violates the Establishment Clause coming from the Old Testament. None of those problems is addressed because the indoctrination of the lawyer makes them beyond denial.

The government should provide security for the present and future. Prior criminal acts are of use in identifying people who will hurt other in the future.

Posted by: Supremacy Claus | Apr 14, 2011 5:49:36 PM

I usually try to ignore Supremacy Claus, but sometimes he/she makes it so hard to do. There are so many things that I want to say in response, but I'll leave it at this: the Supreme Court has held that the Confrontation Clause does not apply at sentencing hearings, and neither do the Federal Rules of Evidence. But you probably know that already. What's the point in responding to you? Again, as I've said before, it is such a shame that comments by Supremacy Clause degrade this otherwise exceptional blog run by Prof. Berman.

Posted by: Domino | Apr 14, 2011 8:32:22 PM

Domino: What is so offensive about the above, except for its loving criticism of the lawyer profession? Why should there be an assumption of acceptance of current business methods? Do you mean, the retribution aim of the criminal law does not originate from Iraqi tribal culture, via the Bible. placing that religious thinking at the center of the goal?

Try taking on my high school education sometimes. It may edify the public. There is some chance I am wrong. I will gladly retract, apologize, and mean it.

The Supreme Court also ended the Missouri Compromise and signed the death warrant on millions of innocent viable babies. There is a presumption that any Supreme Court is wrong headed until proven beneficial empirically. Science entered into their own decision in only one or two decisions in all of history. So, please, use and justify your own judgment. Also, think a little about fairness. Man kills wife. Family shows videos of her as a little girl. There are videos of her as a violent crack whore, attacking the police on police car cam. One set is shown. One is not. What if society is 1000 times better off with the victim dead due to the massive damage done by the victim? What if the society is 1000 better off with the murderer free, paying $10 million in taxes a year, and not consuming $100,000 on death row? Should those analyses be allowed? What should be the limit on the parties allowed to discuss impact? Is it OK for the abuse victims of the murder victim to express their great relief and how great their lives have become after his being murdered?

As you know, the plaintiff is the public in the criminal law. Why can't that plaintiff testify about both the murderer and about the victim? I am a neighbor of the murder victim. I want to testify, that since his murder, the value of my home has skyrocketed by $500,000, because, as a live neighbor his antics made my house unsellable at any price. Why not?

But dispute this bottom line, if you can. Whether I was hurt by the crime, profited from the crime, am related, lived next door, or am a stranger doing economic analysis, the court is so difficult to access, in violation of many State constitutions, I will need a lawyer.

Posted by: Supremacy Claus | Apr 14, 2011 11:25:41 PM

Has any defendant sought a victim impact statement saying, the death of the victim was of great benefit to all those around him? If that can be found, should the victim impact statement result in a lighter sentence? Both types of statement of victim impact will require lawyer representation, so the lawyer should not oppose such positive statements.

Posted by: Supremacy Claus | Apr 15, 2011 8:43:37 AM

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