Imagine a defendant facing sentence for a crime to which he’s acknowledged guilt, shown remorse, recognized the error of his ways and stood prepared to face the consequences. And then a voice from the back of the courtroom is heard, alleging harm and injuries never before mentioned, asserting misery caused by the defendant never considered before.
And the defendant is precluded from challenging these allegations.
That’s the scenario proposed by former federal judge, not Utah lawprof, Paul Cassell in his new article with Edna Erez, Victim Impact Statements and Ancillary Harm: The American Perspective.
A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.What’s initially striking about this Orwellian “American perspective” on something so fundamentally unAmerican is its internal inconsistency. If he’s talking about “foreseeable harm,” then there’s no rational need for anyone to point it out. That’s the nature of foreseeability, that it’s known and recognized to flow from the defendant’s actions. In his Volokh Conspiracy post, Cassell states:
In this response, we bring an American perspective to bear on these issues, finding much in the American crime victims’ literature and court decisions to support the Robert-Manikis thesis. For example, at the recent sentencing of Bernie Madoff, the sentencing judge referenced ancillary harm as an important factor. A number of cases have reached similar conclusions. While not using the phrase “ancillary harm” to justify their actions, the court decisions make clear that foreseeable harm to others is an important consideration at sentencing. The American cases also support a crime victim having a right to deliver a victim impact statement not only in writing, but also orally at the sentencing hearing itself. Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.
It pulls together some interesting examples of the victim impact statements bringing to a judge’s attention the far reaching consequences of a crime that might not otherwise be apparent.
Which is it, foreseeable or “not otherwise apparent?” Or does he argue anything he can, internal inconsistency be damned, that will further the victim’s rights agenda?
The contention that defendants should be sentenced based not only on direct harm, but ancillary harm, is a particularly nefarious notion. It’s an invitation for the court to hear, consider and sentence based not upon foreseeable fact, but flights of fantasy. It opens the door to unbounded claims of misery and would hold the defendant accountable for both harm which could never be foreseen, but may not exist at all.
Consider, in a financial crime (since Cassell uses Bernie Madoff as his poster boy) that a victim argues that his grandchildren will never go to college and will live in desperate circumstances as a result of his loss because of the victim’s intention of using the monies lost to pay for their education. But the victim’s children are well educated, well-to-do, and fully capable of paying for a top education. Should the purported harm done the grandchildren be considered in the sentence, even though it’s a harm that will never happen?
Or, as raised in a comment to Cassell’s post, the allegation of a victim that because of the crime, he lost his business, when the reality is that he was a terrible businessman who had run his business into the ground independent of the crime, Yet, he can pass his faults off to the defendant, perhaps obtain restitution for it, and argue that the defendant’s sentence should be enhanced because of it.
Cassell then goes from bad to worse, arguing that not only should victims be entitled to allege “ancillary harm,” but should be immune from cross-examination.
Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.
This most bizarre twist not only inserts a third party, the victim, into the middle of criminal proceedings, but removes the primary party, the defendant. The defendant would be precluded from challenging the victim’s claims by the time-tested method of cross-examination, and would instead be left to pray that the court, left to its own devices, would test the reliability of the victim’s claims on its own. By what concept of the American system are defendants denied the right to due process, to challenge accusations against him, and relegated to hoping a judge will do his job for him?
Whether it’s a matter of the overly angry, unduly sensitive, blatantly deceitful or slightly crazy victim, the legitimate factors for sentencing lose all purpose when they go beyond the foreseeable consequences of a crime and into the morass of personal pain. Some victims will argue that no amount of prison will restore them to their prior position. Others will argue that no amount of prison is sufficient to punish the defendant. And some victims will have no one to speak for them, as if their life doesn’t matter.
Any way you twist it, the insertion of the victim into the sentence process is rife with impropriety. Given that criminal law isn’t about what a defendant did to an individual, but rather the vindication of societal interests in preventing and punishing crime, there is no countervailing rationale to go down this path at all, no less making the victim completely untouchable.
While there is some merit to allowing the victim a cathartic release at the time of sentence, it has no role in influencing the sentence. Perhaps the rational answer is to sentence the defendant first, let the victim harangue the defendant and get all the anger and poison out, and then leave the defendant to serve the sentence that is imposed based on reality, foreseeable consequences and the legitimate sentencing factors. If left to the victim’s rights advocates, it’s just a step away from handing the victim a gun and telling him to pull the trigger if he feels like it. It’s just plain nuts, and getting nuttier every day.