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September 2, 2013

"Restoration, Retribution, or Revenge? Time Shifting Victim Impact Statements in American Judicial Process"

The title of this post is the title of this intriguing looking new paper by Tracy Hresko Pearl now available via SSRN. Here is the abstract:

Courts currently permit victims to offer victim impact statement in criminal proceedings in all 50 states and federal jurisdictions. However, victim impact statements introduce serious constitutional problems into criminal cases by (1) creating inconsistencies in sentencing, (2) injecting bias and prejudice into formal courtroom proceedings, (3) giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments, and (4) leaving defendants with little opportunity to mitigate their impact on decision-makers. Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States.

In this article, I take a decidedly different position and argue instead that victim impact statements are, in fact, salvageable. Specifically, I look to lessons from the restorative justice movement and propose a solution that relies on time shifting victim impact statements to the close of criminal proceedings. By removing victim impact statements from trials and sentencing and requiring that they be offered afterwards, their constitutional deficiencies can be virtually eliminated and their numerous benefits preserved.

September 2, 2013 at 12:36 PM | Permalink

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Comments

None of the above. Just more lawyer bs, to generate lawyer jobs, helping victims navigate the complicated legal system. They do not care about victims, or they would end crime by getting rid of the criminals at a young age. The Supreme Court has ruled these are not ex parte testimony, when they sure are, inflammatory rhetoric without cross examination. Why is the Court so stupid? It isn't when it comes to lawyer jobs.

Posted by: Supremacy Claus | Sep 2, 2013 1:23:26 PM

Here. Forgot to give the citation. Link to the opinion from the article. This decision overturned two others, to show, even with conservative Justices, rent seeking trumps all other values.

http://en.wikipedia.org/wiki/Payne_v._Tennessee

Posted by: Supremacy Claus | Sep 2, 2013 1:28:47 PM

The vile feminist lawyer and its male running dogs use this method against mostly male defendants. It is not testimony, but an attestation. What is an attestation?

Attestation. The act of attending the execution of a document and bearing witness to its authenticity, by signing one's name to it to affirm that it is genuine.

I would really appreciate any vile feminist lawyer's explaining how that is not testimony, like one found in an interrogatory, an affidavit, the record of a deposition, or any other utterance under oath.

Posted by: Supremacy Claus | Sep 2, 2013 2:46:07 PM

"...giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments...."

Thereby violating the defendant's right to ineffective opposition of prosecutor? Allowing aggravating evidence to be weighed against the defendant's proffered mitigation is exactly what we should do in a fair proceeding.

"Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States."

Demonstrating how absurdly out of touch academia is today. Going back to the preposterously unfair situation we had in capital cases between Booth and Payne -- where the defendant can introduce everything including the kitchen sink while the victims sit muzzled -- is completely out of the question.

Posted by: Kent Scheidegger | Sep 2, 2013 3:27:00 PM

Kent --

The point, of course, is to have victim impact statements as long as they don't have any impact.

This pro-criminal academic baloney reminds me of another academic proposal we saw here: That, as a "compromise" between death penalty backers and abolitionists supporting LWOP, we should have a sentence called "death in prison."

To no one's surprise, this "compromise" turns out to be the 100% abolitionist choice (LWOP under a different name).

The academic hothouse continues to seethe with people who want to further belittle, marginalize and trivialize crime victims, but pretend to be care about them. Snake oil salesmen were honest by comparison.

Posted by: Bill Otis | Sep 2, 2013 4:14:18 PM

We have boohooing females now who cannot be cross examined. Is that fair? Victims are upset. That is self evident. All jurors know that already. What additional facts are added, if not emotional reaction, "Daddy, when will Mommy come home? She is not coming, son. She is with Grandpa in heaven." Does that display even allow the victims any dignity?

Why is cross examination of the victim not permissible? Why can't the defense show how annoying and unbearable the victim was, including drunk and violent.

And also why do these witnesses need representation, where others do note even get police protection.

The sole explanation is that this part of the feminist witch hunt, and a means to increasing lawyer make work jobs.

Posted by: Supremacy Claus | Sep 2, 2013 4:19:10 PM

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