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August 14, 2008

Do victims care more about the sentencing process or sentencing results?

I always find interesting the debate over victims' rights at sentencing, and this local story from Illinois highlights that some crime victims may care a lot more about speaking out than about sentencing outcomes:

As the court proceedings against former police officer Jeff Pelo ended Tuesday, the women he was convicted of assaulting and stalking had the last word in statements expressing the impact the crimes have had on their lives. But victims expressed frustration with the limitations placed on their remarks during Tuesday’s sentencing hearing in which Pelo received 440 years in prison.

A woman who was stalked for more than a year criticized Pelo’s defense lawyer, Michael Rosenblat, for asking that portions of victims’ statement be removed.  “I am so outraged Pelo and his lawyer chose to rob the victims of our opportunity to say our peace in court that I decided to make my statement public. I refuse to let him silence me,” said Jonelle Galuska, the stalking victim.

All but one of the victims in the Pelo case have asked the news media to use their names....

Associate Judge Robert Freitag explained in his ruling Tuesday that victim impact statements should contain information about how the offense has affected the victim. Remarks about how the community was victimized by Pelo and opinions on sentencing laws were among the things Freitag barred from the hearing.

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August 14, 2008 at 07:29 AM | Permalink


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It would truly be a perversion of justice to convert a sentencing hearing into some kind of bully pulpit for these folks. They are free to speak to the media, start a blog, or even sue the defendant.

Quite frankly, because the defendant was a cop, these victims are lucky charges were even brought in the first place. Some police departments would have arrested her and she would be the one on trial and this defendant would be making a victim impact statement against her if she was convicted.

Posted by: S.cotus | Aug 14, 2008 8:19:07 AM

S.cotus writes, "It would truly be a perversion of justice to convert a sentencing hearing into some kind of bully pulpit for these folks."

Uh ... precisely what else is the purpose of a victim impact statement issued AFTER the sentence is rendered?

As for the question posed in the headline, many concepts behind restorative justice approaches to violent crime operate on the assumption that victims need to talk about what happened to them and participate in deciding what should be done, viewing such engagement as an important part of their own healing process. So it doesn't surprise that me some victims are more concerned about being heard, even, than securing super-long sentences. The system is not designed to meet that particular victim need and the impact statements after a decision is rendered are a shabby substitute for more overtly restorative processes.

Posted by: Gritsforbreakfast | Aug 14, 2008 9:48:12 AM

A victim's remedy for their pain is civil. Other than to provide information or testimony concerning the facts of the case, victims should play no part whatsoever in the criminal process.

Posted by: anon | Aug 14, 2008 10:13:39 AM

Anon, attitudes like that justify vigilantism.

Posted by: federalist | Aug 14, 2008 10:35:09 AM

"Anon, attitudes like that justify vigilantism."

It may lead to vigilantism, in which case the perpetrator of the vigilantism would then become a criminal and so should be arrested. But it does not justify vigilantism. If enough vigilantes are arrested, then vigilantism will descrease and people will learn to allow the criminal process to deal with criminals.

Posted by: anon | Aug 14, 2008 10:59:35 AM

They only care about the results, but they still feel they are entitled to have an unlimited opportunity to bitch, whine, scream, point, and feign tears at a sentencing hearing.

Federalist: Anon is absolutely correct. Victims should have NO process in a criminal case beyond testifying as fact witnesses. Their "opinions" about the seriousness of the crime and how the crime has affected them are factors already taken into account by the legislature when the offense was created and given a degree of seriousness. A first degree felony assumes more harm to victims than a third degree felony. It may not always be the case, but victim's tesimony is per se biased and tainted and offers NOTHING substantively informative to the sentencing process. It's entirely about providing an emotional outlet at the most inappropriate of places.

I'll pose a question I've posed once here before. Imagine two twin brothers, both with no criminal histories, each rape someone, and both rapes are equally severe. Both twins are charged with rape and convicted (separate trials). Both are looking at the same statutory sentencing range.

One victim testifies at the sentencing hearing of twin Brother 1 that the rape has destroyed her life, cries and sobs, says things will never be the same, and says the only justice would be the maximum sentence, that the defendant should be locked away for life.

The second victim testifies at the sentencing hearing of twin Brother 2 that even though the rape was a horrible experience, because she's a Christian, she's forgiven the defendant of the crime and she will leave it up to the court to provide the appropriate sentence.

Should Brother 2 receive a lesser sentence than Brother 1? If so, then you have the ultimate form of random sentence disparity. If not, then you're conceding the victim should have a substantive say in what the defendant's sentence should be.

What's the right answer? Neither of their statements should make a difference, and ideally they should both get the same sentence. That's why victim impact statemens should not be permitted. Yes, I concede that most christian victims will not ask "WWJD" and forgive the defendant, but it does happen occasionally. My point being some victims will give more empassioned speaches than others. Should we base a defendants sentence on the volume of tears produced by the victim(s) at the sentencing hearing? 10 years for each gram of tears?

Posted by: bruce | Aug 14, 2008 11:01:04 AM

There is a third option, allow the victim to speak their mind if they feel it will help bring closure etc... but have the court ignore everything they say when considering sentencing. If the victim statement helps the victim, a few minutes of the court's time is worth it.

Posted by: Monty | Aug 14, 2008 12:20:27 PM

If the victim statement helps the victim, a few minutes of the court's time is worth it.

No. The Court is there to punish the guilty. There are ample mental health opportunities to help these victims over whatever stress they're going through.

I'm so tired of hearing from these professional victims who piss and moan about how their life will never be the same again. Yeah. We know. That's why this guy is going to jail. Many of these "victims" have a variety of mental health issues and should seek professional help. They actually define their lives as being a victim and once the legal process is over, they don't know what to do with themselves. They're nolonger in the spotlight as a "victim", and it sucks, because they really really liked the spotlight.

It's similar to civil clients who get addicted to lawsuits. They may have a valid claim initially, but once that's over and adjudicated, they look for more lawsuits where they can claim they were wronged because it keeps them in the spotlight as a victim.

Posted by: babalu | Aug 14, 2008 12:35:43 PM

Bruce. In logic I agree with you but I think you are missing an important point. One of the key reasons that we have judges at all is because while the legislature can set broad policy outlines, such broad policy outlines do a poor job of judging individual cases. A trial by definition offers an intimacy with the legal process that the mere policy guidelines set forth by the legislature can never offer. Abstract justice may satisfy intellectually but it offers no emotional satisfaction whatsoever.

The most fundamental basis of the law is that punishment should be proportional to the crime committed. Why does this have to be a purely abstract intellectual concept? Using your example of the twins, if one victim suffers less emotional wounds than the other, how does a lesser sentence in that case violate the principle I just enunciated? While the sentence might not be consistent with other sentences for the same crime, so long as it fits within the generic policy outlines set by the legislature and adequately reflects the harm done to that specific individual, how does that create "random" justice? It seem perfectly non-random to me.

I have absolutely no problem with victim impact statements and no problem with those statements influencing a judge's ultimate sentence, so long as that sentence is consistent with the policy guidelines set by the legislature and offers due recognition for the individualized harm committed by the crime.

Posted by: Daneil | Aug 14, 2008 12:47:37 PM

“Anon, attitudes like that justify vigilantism.”
Perhaps. Then those vigilantes will be put in jail and do hard time. Maybe they should never be let out. They are a threat to the public. There is no justification for crime. Is there no end to you liberals support of criminals?

At some level, there IS a role for impact statements. However, there is no reason that a prosecutor can’t introduce them as a witness so that they can give sworn statement and be subject to cross-examination. It may well be that these so-called “victims” are lying, and vigorous cross-examination by trained counsel may be necessary to ensure that the court’s truth-gathering function is preserved.

Posted by: S.cute.us | Aug 14, 2008 1:57:40 PM

It may well be that these so-called “victims” are lying, and vigorous cross-examination by trained counsel may be necessary to ensure that the court’s truth-gathering function is preserved.

You are soooo right. Not that these people weren't victimized, but this happens more than any of us would like to believe, especially among white collar trials. The victims tend to blame the defendant for every little thing that has gone wrong in their life. Their own poor decisions never are at fault.

Any minor harm caused by swearing them in is grossly disproportionate to the grievous harm they can cause by not being cross-examined.

Posted by: babalu | Aug 14, 2008 3:28:18 PM

Daniel: that's what sentencing hearings and presentence investigations/reports are for. We can all presume crime victims are upset and angry at the person who harmed them or their property. So why do we need them to come into court and validate that presumption?

But it sounds like you really do believe the punishment should be tied to the amount of tears of the victim.

And of course this all begs the question. Are we talking about victim impact statements made BEFORE the pronouncement of sentence, or AFTER a sentence is handed down? The first type is obviously insidious, the second type is completely pointless and is nothing more than providing them a pulput to whine from at the expense of judicial time and resources... and not even a "bully" pulput as mentioned before, because the decision has already been made, so there's nothing to influence. I think we need to clear up which type of victim impact statement we're talking about - pre or post sentence.

The other thing I often wonder is who a "victim" truly is. In some cases (rape) it's obvious. In some cases (murder, DWI with victim in a coma) it's obvious but the victim is not available to testify. Where do we draw the line? Parents, spouses, siblings ... okay I can accept those. BFFs? Drinking buddies? Store owner where real victim was frequent customer? If we allow spouses, then we get into a whole debate about gay rights insofar as homosexuals are not permitted to marry. Or do we just open up the courthouse doors and let anyone who knew the (real) victim come in and testify about how the crime has affected them? What's the line on "victim"?

Posted by: bruce | Aug 14, 2008 3:35:54 PM

It is really a shame that there isn’t even a theoretical way that these so-called victims can be prosecuted for their perjury when their statements are not under oath.

Posted by: S.cute.us | Aug 14, 2008 3:44:08 PM

"he made me scared" and "he should be given the maximum sentence possible" are just pointless opinions already taken into consideration by the law... victim impact statements are typically so worthless that there's nothing factual even said, just worthless opinions everyone already assumes the victim holds. "He ruined my life" is somewhat closer to a factual statement, though. Is the person's life actually ruined? Or is it akin to "puffery" like "our tiramisu is the world's best!"? If it's puffery, then why the hell is there any debate over whether it should be permitted? If it's a true statement meant to be taken as truth, then yeah, it should be made under oath and subject to cross examination.

Especially if the statement is given before the sentence is handed down.

Posted by: bruce | Aug 14, 2008 3:54:11 PM

Bruce. I don't how see a VIS is any more insidious (or invidious, for that matter) than all the other things a judge takes into account before sentencing. The judge could be closet racist; that's very insidious. There are many people who post on this blog, including Doug, who think that acquitted conducted is insidious. My own perspective is that so long as the judge issues a sentence that is within the limitations set by statute I don't care what factors he or she uses to get here (with a few rare exceptions). To my mind, that's what discretion means.

"But it sounds like you really do believe the punishment should be tied to the amount of tears of the victim." "Tied" is too strong a word. I have no problem with it being a factor, however.

As for where you draw the line as to who the "victim" really is, again I would hold that this within the discretion of the judge.

Posted by: Daniel | Aug 14, 2008 4:59:13 PM

bruce writes: "We can all presume crime victims are upset and angry at the person who harmed them or their property. So why do we need them to come into court and validate that presumption?"

That's a silly line of argument. Why do we have witness come in and testify before the court? Why do we even have open court at all and not just secret trials?

(1) Because the public benefits from an open discourse that they can bear witness to at all phrases of the trial.

(2) So that people who are relying on their words can judge their demeanor, body language, and all the other non-verbal communication that goes on which is absent from the written word.

(3) Because it offers a more intimate and human forum than the abstractness of the written word.

In fact, given the huge benefits to the public, the burden of proof would be on those who wish to deny VIS in open court. I can't think of one persuavive reason not to allow VIS in open court.

Posted by: Daniel | Aug 14, 2008 5:07:33 PM

Whenever I hear of victims' impact statements, I think of Nancy Grace.

Did Nancy Grace, TV Crimebuster, Muddy Her Myth?

In that context, the definition of "impact" is also telling.

2 a: to have a direct effect or impact on : impinge on b: to strike forcefully; also : to cause to strike forcefully

Posted by: George | Aug 14, 2008 5:11:04 PM

Daniel, comparing FACT witnesses to emotional witnesses (insofar as a victim impact statement is given by someone in a "witness capacity") is simply not worthy of a detailed response. Obviously the victim may be the only FACT witness available in many crimes.

I'm not saying victims shouldn't be able to testify as FACT witnesses during the guilt/innocence phase of the trial. Is that what you think I'm saying? It sounds like it.

Letting that same person get up and speak to the sentencing body, after the defendant has been found guilty but before sentence has been imposed, to scream and cry and demand a harsh - the harshest - punishment does no service to providing an "open" system. Quite the opposite, it is a great injustice to the defendant, and it's redundant. The fact that the behavior in question was proscribed by a penal law, and made a crime of a certain degree of seriousness, presumes harm to whatever victim(s) there might have been.

Can't we just assume all victims are upset at the criminal who harmed them and want the harshest sentence possible? We all know that's a given. Sure the rare victim may forgive and forget, but insofar as this is a country of primarily Christians who act inapposite to the teachings of Jesus Christ, it's a rare thing indeed for a victim to forgive the criminal who harmed him.

Placating the victim is not justice. Making the victim feel better is not justice. In the end, society is the victim, and the sentence should represent that. Moreover, I believe we should sentence people, not crimes. Look at the defendant, his actions, and his history. That's the calculus for deriving a proper sentence. We all know the victim is pissed, and a defendant with a victim who is 10% more upset than another defendant doesn't deserve a 10% harsher sentence. The victim's feelings are irrelevant.

I have no problem with the defendant having to pay restitution to the victim, when appropriate. But the amount of restitution will be proved up during the case in chief, maybe even by testimony of the victim him/herself. So there's no need for the victim to sob about how much the defendant harmed him/her at sentencing. ESPECIALLY before the sentence is handed down. Again, we need to distinguish pre-sentence VIS from post-sentence VIS. One is insidious, the other is a pointless waste of time and judicial resources.

Posted by: bruce | Aug 14, 2008 9:36:34 PM

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