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October 5, 2016

"Victim Impact Statements and Expressive Punishment in the Age of Social Media"

The title of this post is the title of this new paper available via SSRN and authored by Erin Sheley. Here is the abstract:

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body.  Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds.

This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications.  I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

October 5, 2016 at 09:48 PM | Permalink


I question the use of victim impact statements before criminal sentencing.

They can be provided -- the statement in the Stanford case was powerful -- to show how the victim was harmed. But, especially in a capital case (the specific case covered in the US Supreme Court), it might be problematic in criminal sentencing contexts for the reasons stated in Booth v. Maryland, S.C. v. Gathers & the dissents in Payne v. Tennessee.

Plus, they can be used in civil contexts, including to address the victims of crimes such as restitution and so on. The article does provide enough to suggest it's not a clear-cut thing & I can see reasonable disagreement on it. Though this might be seen as wishy-washy.

Posted by: Joe | Oct 7, 2016 12:36:10 PM

From a lay person's point of view the problem that I see with victim impact statements is that it changes sentencing based on the victim's writing and "storytelling" skills. The punishment for a crime should be the same regardless of how good a victim is at describing the impact to them. It should not be lessened because a victim cannot express themselves well. And it should not be lessened because some victims are less sympathetic than others. A victim is a victim.

Also, a victim's impact statement can easily include things which are not facts and sentencing should be based on proven facts.

Sentencing should be objective. There are no victims less than other victims.

P.S. F all nanny big governments that have S*x Offender Registries and ALL people who support them. They are my mortal enemies.

Posted by: FRegistryTerrorists | Oct 8, 2016 12:53:14 PM

I appreciate the second comment but the first part in some fashion will arise either way, if thru the prism of prosecutors and to some extent judges. Behind the scenes, e.g., victims will still discuss what happened and some will be more sympathetic than others. This will affect prosecutions. I think the paper in effect touches open this.

Posted by: Joe | Oct 11, 2016 12:25:30 PM

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