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September 2, 2015

"Share Your Grief But Not Your Anger: Victims and the Expression of Emotion in Criminal Justice"

The title of this post is the title of this notable new paper available via SSRN authored by Susan Bandes.  Here is the abstract:

In the recent capital trials of Dzhokhar Tsarnaev for the Boston Marathon bombings and James Holmes for the Colorado theater shootings, victims’ families were permitted to give testimony after the sentence had been announced.  Since victim impact testimony in capital cases was upheld by the Supreme Court on the ground that it provides important information to the sentencing jury, hearings after sentencing raise the question of what role the statements are meant to serve.

I argue that although victim impact testimony was originally justified as a means of providing information to sentencing juries, it is now regarded as having two additional purposes.  First, it is widely assumed that the statements serve a cathartic or therapeutic role for victims and their families; that they assist in obtaining “closure.”  Second, there is a growing tendency toward viewing the statements as a means of confronting the perpetrator in order to elicit remorse, or at least impress on him the gravity of the harm he has caused.  Each of these three rationales has different implications for the nature, scope and advisability of allowing victim impact statements.

In this chapter I examine what goals the statements are meant to serve, how those goals should affect the rules governing the statements, and whether the goals are practically achievable or normatively desirable.

September 2, 2015 at 12:44 PM | Permalink


Looking up Booth v. Maryland & Payne v. TN, the first purpose was referenced, perhaps since it offered a neutral means to show relevancy. But, I think the other two in some fashion was present from the beginning too.

Posted by: Joe | Sep 2, 2015 4:23:38 PM

"[W]hat role the statements are meant to serve"? I would hope that would be obvious but I would invite your consideration to the wisdom of a California appellate court on that topic:

"The Victims' Bill of Rights was obviously intended to ensure that victims of crime and/or their families and friends may participate in sentencing proceedings even if for no other reason than to the vent their anger and pain." People v. Mockel (1990) 226 Cal.App.3d 581, 588.

Posted by: Cal prosecutor | Sep 2, 2015 4:52:16 PM

"The courtroom has its own emotion rules and emotional dynamics, which make it unique in some regards. Context matters: the communicative role of emotion and its normative significance depend on the arena in which the emotions unfold. At the same time, the courtroom reflects the larger rules and assumptions of the society in which it is imbedded. Certain global aspects of emotional expression are particularly salient in the courtroom: its inherent dramaturgy; the way it is shaped by emotion cultures; the consequences of deviating from permitted or expected scripts . . . "

Doug, this is drivel.

Posted by: federalist | Sep 2, 2015 8:34:14 PM

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