Recently, I  posted about New York’s new efforts to reform its sentencing scheme.  Naturally, one of the points raised was increasing input from victims in the process, because this is one of the latest cool fads that shows people how our system of criminal justice involves them.  Everybody feels for victims.  Nobody wants to learn about how the system already works.  Hey, if politicians had to explain how things we worked, nobody would ever vote for them.

So what’s wrong with victims telling sentencing judges about the impact of a crime on their lives and the lives of their families?  Well, nothing per se.  The problem is that the impact on victims is already encompassed in sentencing schemes and always has been, making a victim impact statement cumulative, or piling on if you will.  Further, the offense committed is made neither better nor worse because of fortuitous subsequent events.  The offense is wrong when committed, not more wrong because of outcome.

Consider this example.  Defendant Moe intends to use a handgun to shoot victim Curley.  His intention is to kill Curley because Curley is funnier than Moe.  Moe aims his glock at Curley and pulls the trigger.  The gun fires and the bullet projects from the barrel of the gun.  It flies through the air at great velocity . . . and misses Curley.  It seems that Moe is a lousy shot.

Just then, the police rush in, grab Moe and tackle him to the ground.  They taser him a few times for fun (I just threw this in; it has nothing to do with the example).  Moe is arrested and prosecuted for attempted murder in the second degree (this is happening in New York, naturally).  The minimum sentence range for attempted murder in the second degree, an A-2 felony, is 3 to life.  We’ll use minimum sentences to compare apples to apples.

Alternatively, defendant Larry does the same, but if a much better shot than Moe and nails Curley right between the eyes.  Larry is charged with murder in the second degree, carrying a minimum sentence of 15 years to life.

Moe and Larry engaged in precisely the same conduct with precisely the same intent.  They are equally venal and culpable.  Their involvement in the crime was completed upon pulling the trigger of the gun.  Should they not, then receive exactly the same sentence?

The law answers the question “no”.  Larry has Curley’s dead body on his hands, while Moe does not.  The only reason is that Moe is a lousy shot while Larry nailed his target.  But this has nothing whatsoever to do with the nature of the crime committed.  It is solely based upon the impact to the victim.  As a result of victim impact, Larry will be punished 5 times more harshly than Moe for the same conduct.  The State Legislature already figured victim impact into the equation, long before victim impact statements became fashionable.

Built into the system is the consequence of criminal conduct.  As much as the pain caused to victims and their families by crime is enormously personal, the anticipated outcome of crime is not a surprise.  That’s why it’s a crime to begin with.  We can expect victims to explain the personal impact with detail and emotion, but should victims have an independent right to push a court to use the statutory sentence as a baseline and increase the sentence based upon the desire and ability of victims to express their personal anguish?

The true nature of victim impact statements is to give victims the impression of having a role to play in the punishment of the perpetrators of crimes against them.  It is cathartic, and helps victims to release the anger, frustration and even hatred so that they can move forward.  This is a worthy purpose, and I have no argument against a defendant being forced to stand their and be confronted by their victim, taking whatever the victim wishes to give. 

In fact, I could envision a procedure where victims (of certain crimes) get to harangue defendants daily for 30 days for as long as they want, and defendants are chained to a bench and forced to sit there, silently and take it.  Victims are entitled to vent, to release their feelings and do make it as painfully clear as possible to defendants what they have done.  But this is separate from the sentence imposed.  The impact on victims is already in there.  The point is not to be disingenuous toward victims of crime, but to recognize that the cathartic opportunity has no role to play in the sentencing decision, even though it would make the decisions of judges and politicians more palatable to the public.