With all due respect, a phrase used by lawyers to preface any and all insults, former Judge turned lawprof Paul Cassell is running on empty in his quest to elevate the “rights” of victims to the status of a third party in the criminal courtroom.
Via Doug Berman, this is Judge Cassell’s official abstract of his lecture for National Crime Victims Rights Week:
In the last two decades, the criminal justice systems of every state and the federal government have protected the right of crime victims to deliver a victim impact statement at sentencing. Yet while these reforms have proven popular with the public and politicians, legal academics remain skeptical. These critics have argued that victim impact statements have no proper role to play at sentencing and that they unduly inject emotion into what should be an objective decision about the appropriate sentence for a defendant. On this important issue, the critics are wrong and the public is right. Crime victims have a vital role to play throughout the criminal justice process, particularly at sentencing where judges need a wide range of information to determine the proper sentence for an already-convicted criminal. Moreover, criminal sentencing can never be a completely emotionless process. Even though victim impact statements may be emotional, crime victims provide vital information to judges about the harm caused by a defendant — a critical component of the sentencing decision. By delivering victim impact statements, victims also regain some of the dignity that was taken from them by criminal offenders. Victim impact statements at sentencing are therefore a proper part of our nation’s approach to criminal justice.
Let’s follow that trail of logic:
Problem: they unduly inject emotion into what should be an objective decision about the appropriate sentence for a defendant.
Response 1: the critics are wrong and the public is right.
Response 2: Crime victims have a vital role to play throughout the criminal justice process, particularly at sentencing where judges need a wide range of information to determine the proper sentence for an already-convicted criminal.
Response 3: criminal sentencing can never be a completely emotionless process. Even though victim impact statements may be emotional, crime victims provide vital information to judges about the harm caused by a defendant — a critical component of the sentencing decision.
Response 4: victims also regain some of the dignity that was taken from them by criminal offenders.
Conclusion: Victim impact statements at sentencing are therefore a proper part of our nation’s approach to criminal justice.
Well. okay then. If someone as smart as Judge Cassell can’t come up with a better argument than that, then it appears that the entirety of the victims’ rights movement has but one real basis: Because they want to. Nothing in this statement shows a basis for the inclusion of victim impact in the sentencing decision, but rather a diatribe about why it would be good for victims to be able to have a catharsis. I don’t disagree that victims have been emotionally hurt, and that a catharsis would be good for them, but that isn’t a reason to include them in the sentencing process.
Contrast a few thoughts, not intended to be exhaustive. Does the murder of a person without family not count? Does the sentence rest on one victim’s ability to express anger better than another? Crimes are against society, not individuals. This merely fudges the line by an appeal to sympathy. We can be sympathetic, but that is not a reason to fundamentally alter the nature of criminal prosecution. The reason certain conduct is criminal is because it causes harm. This is already covered by the fact of prosecution.
Check out the comment by S.cotus to Doug’s post. He does a great job debunking Judge Cassell’s argument.
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A simple question, Scott:
If a victim of a crime of your client wanted to testify at a sentencing hearing to advocate a sentence LOWER than recommended by applicable sentencing guidelines and urged by the prosecutor, would you refuse to seek to have that victim testify at sentencing?
In short, I surmise your hostility to victim rights at sentencing is based on the false and problematic assumption that victims often want tough sentences. This assumption is likely based on the fact that prosecutors often support only the efforts of “tough” victims and not “softer” ones. To his credit, Paul Cassell appears eager to support the rights of all victims. I thus ask my question to see if you consistently discount the rights of all victims, even those who might serve a defendant’s interests.
That’s a compound question Doug. I would use anything I had available to zealously represent my client, as is my obligation. If a victim advocated a lower sentence, of course I would seek to use it to help my client. But I would do so not because I believe a victim should have a “right” to become a third party in a criminal proceeding, but because it was in my client’s interest to do so.
Note that I do not argue that Judge Cassell is hypocritical, but that I disagree that crime victims have a “right” to become a third party in a criminal prosecution. Do you think Judge Cassell’s argument is persausiave?
What seems to me most obviously wrong in Judge Cassell’s outline is his point #4, about how impact statements restore to victims “some of the dignity that was taken from them by criminal offenders”. Every day these procedures induce family members to stand up in court and read aloud “rot in hell, you’ve destroyed our family” statements which are then reported in the local press. I can’t be the only one who sees these statements as a grievous surrender of victim families’ dignity. And family members who might prefer silence as the more dignified course must often feel intense pressure to make a statement, the more demonstrative the better, for fear of appearing in others’ eyes as insufficiently loving or appreciative of the victimized member. (The figure of Cordelia comes to mind.)
I have no idea what effect victim impact statements have on the guilty person being sentenced; I think they are worth opposing because of their barbarous effect on the innocent.
I do not think victims have a “right” to anything. But I agree with Judge Cassell that a sound (and more just) sentencing could and should include the input of ALL victims, not only the victims that the prosecution and defense lawyers want to put forward.
My sense is that Judge Cassell’s view of victims “rights” is akin to the view of many in the restorative justice movement. In addition, since women and children are often the victims of crimes committed by men, I think giving victims special enforceable tools in the modern criminal justice system can and should help give power to women and kids in a very male-oriented legal system.
That’s a very interesting, somewhat counterintuitive, observation. We assume that victims want the catharsis, but for those who prefer to maintain their dignity, they would be pressured to behave the way people think victims are supposed to behave. Thanks Walter.
Why does input from victims (forget for the moment how one would define a victim) produce a sound (and more just) sentencing? Is the problem that prosecutors ignore victims, or are unable to adequately express their views?
If victims shouldn’t have “rights”, what “enforceable tools” should be given victims, and all victims or just women and children?
Victims can/should provide useful information about the reasons for and impact of many crimes crime AND about how a various punishments might further impact persons effected by the crime.
The problem with the current abuse of victims by the criminal justice system is multi-dimensional: (1) prosecutors ignore victims who won’t be tough, and encourage even the tough to be tougher; (2) defense attorneys tend to ignore all victim and only rarely realize they can sometimes help victims while also helping their clients (e.g., perhaps through creative alternative sentences all would prefer to traditional incarceration).
ALL victims should have lots and lots of opportunities (rather than rights) for getting help from the state and the parties from the time of the crime and throughout the criminal justice process. And if we treated all victims better, we might not spend so much time worrying about victimless crimes like minor drug crimes.
Moreover, the key is not to require victims to do anything, but rather to empower victims to feel they can — but do not have to — play a positive role in post-crime legal developments.
You are right, of course, that defining who is a “victim” creates challenges, but these are challenges that arise in a lot of settings.
Judge Cassell Offers The Rationale Behind Victims&…
Bookmarked your post over at Blog Bookmarker.com!
Against victim impact statements
I’ve never liked this innovation in the criminal justice system and explain why in this comment left at Scott Greenfield’s: What seems to me most obviously wrong in Judge Cassell’s outline [a lecture by lawprof,…
Volokh, broke comment silence to come on the thread of this subject. He expelled me and blocked my IP address a second time on this subject. I pointed out this criminal lover, rent seeking lawyer was generating lawyer jobs. There are 23 million crime victims a year. They generate no lawyer fees, and may rot. Cassell wants more parties for lawyers to represent, at tax payer expense.
If he cared about preventing crime victimization, he would strongly advocate that criminals be executed at the earliest age our nation could tolerate. The average criminal commits 400 FBI Index felony crimes a year, each year of life. The deceased have zero recidivism. The criminal justice system is nearly irrelevant, punishing 1 in 100. Minorities bear a hideously disparate impact of these millions of crimes, especially murder. Minorities just have almost no justice system protection from the client of the criminal lover lawyer. Their murder rate is 6 times that of whites.
http://www.ojp.usdoj.gov/bjs/homicide/race.htm
Criminal law under the leadership of the criminal lover lawyer is in utter failure in its four stated goals.
Cassell is just another lawyer running his con. His clients are mostly white people. Cassell has yet to return to Volokh. He has yet to reply to these criticisms.
If victim impact statements can affect sentencing, if judges use the information to “determine the proper sentence”, then shouldn’t they be subject to cross examination and rebuttal?
That would certainly make a great deal of sense for many reasons.
Judge Cassell’s Latest Modest Proposal
One might argue that there can be no “victim” until a crime is proven.
Judge Cassell’s Latest Modest Proposal
One might argue that there can be no “victim” until a crime is proven.