The Untouchables

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.

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.
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:

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.

8 comments on “The Untouchables

  1. Jim Majkowski

    There is a rationale for victim impact statements: to respond to community outrage and satisfy the mob’s demand for retribution. This response is to reduce the urge to resort to vigilantism. I didn’t say I find that rationale compelling, or even persuasive, but only rational, at least as that term is used by, say, Sam Alito. One person’s “pandering to the mob” is another’s “responding to concerns of the community.”

    Incidentally, victim impact statements affect not only the court’s sentence, but can also affect subsequent decisions on place and conditions of custody and subsequent parole decisions. Perhaps even more pernicious than victim’s statements are the way in which pre-sentence investigation reports are written from the point of view of the preparer, some of whom often put the nastiest possible spin on the event descriptions in their reports. Experienced practitioners know how receptive most trial judges are to objections to such reports.

  2. Pete

    I never really thought about impact statements like this before. As a generally well-behaved layperson, I was aware of them and I think probably in favor of them to some slight degree.

    But now that I’ve been exposed to the seedy underside of the CDL lifestyle and workstyle, via you and several others…

    Consider your opening statement a moment, and let me riff off it. Imagine a defendant facing sentence for a crime of which his actual guilt is indeterminate. He has plead not guilty and his counsel has employed nearly the best defense possible with the tools and information available.

    Wouldn’t a victim impact statement violate some constitutional protections? Aren’t you guaranteed the right to face your accusers in open court; to address what they say and either demolish it with facts introduced as evidence, or with counter-theories, etc?

    Victim impact statements seem like another well-intentioned method to do an end-run around actual justice.

    It reminds me of that prosecutor who sand happy birthday to the little girl murder victim, complete with cake and candles. (I have no link, but likely you remember what I’m referring to.)

    We don’t need theatrics like this in court. At least, I don’t think so. Probably I’m naive.

  3. Lurker

    Again, I’d like to note that there is an alternative that satisfies both the victim’s rights and the defendant’s right to an adversary proceeding: allow the victim a seat in the actual trial.

    In Finland, a victim is the third party of the trial. He has the right to bring charges independently of the prosecutor. (In practice, this means that plea-deals, unallowed in Finland, are also practically impossible: the victim could ruin an under-the-table deal offered by the prosecutor.) The victim has the right to bring witnesses and perform cross-examination. Third, the victim can raise the civil damages charge in the criminal proceeding.

    Of course, most victims do not want to avail themselves of these rights. This is because the prosecutor is, by law, required to advance also the civil charges that the victim wishes to bring.

    Of course, such system is not perfect. However, it avoids such sentencing-phase hearing difficulties. (In Finland, there is no sentencing phase. The court convicts and sentences in a single proceeding.)

  4. SHG

    So we can eliminate the victim at sentence problem but making the victim an equal player in the process from the outset?  So the solution to bad is worse.  Pass.

  5. Pete

    This would *never* fly here, and the primary opponents would be government prosecutors, in all their wily and various forms.

    If they had to actually try every case they were involved with, the backlog on the courts would extend to decades, I imagine, and it would force a scrutiny of exactly what is going on. Oh, you found your girlfriend in bed with your good friend, and ‘snapped’ and punched him once in the head, which kind of irritated him and embarrassed him? That’s home invasion and super mega aggravated assault with intent to kill and/or maim unto nine generations, but we’re having a sale today, since you have no attorney – we’ll let you plea to assault of a high and aggravated nature, which isn’t even a misdemeanor in this state! It’s common-law! Imagine that, you get off without a felony, without a misdemeanor, and the only catch is five years probation – and only two of those monitored by a parole officer. It’s a steal of a deal!

    No, prosecutors don’t want to actually have to *prosecute* their trumped up bullshit in a real court of law. They love the plea deal – all the benefit of racking up marks in that ‘win’ column without any of the actual drudgework or time required to argue a case.

    Never gonna happen.

  6. Mike

    “Victims rights” would be palpable if there were responsibilities. In ancient Rome, victims would act as prosecutors. If they lost, their foreheads were branded with the letter, “K,” for calumniator:

    (3) He who does not prove what he alleges is not immediately considered to be a calumniator, for the investigation of the offence is left to the judge, having jurisdiction of the case; who, if the defendant is acquitted, begins to inquire into the intention of the accuser, and why he was induced to bring the accusation; and if he finds this was due to a just mistake, he must discharge him. If, however, he should ascertain that he evidently has been guilty of calumny, he must inflict upon him the penalty of the law.

    Today, alleged victims have all of the power of the state. They suffer no consequences even when their complaints are discredited.

  7. David Schwartz

    Surely you mean the “purported victim”, not the “victim”. Until you have a conviction, all you have is a guy who claims he was the victim of something.

  8. SHG

    Not if they give him a seat at the table before conviction, with officially conferred victim status before there’s any finding that a crime occurred.  Let’s not be a slave to sequence.

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