The Voice of a Victim: The Current State of Victim Impact Statements

Miliaikeala Heen*


 

Abstract

The role and rights of victims in our criminal justice system have evolved significantly in many respects, including the creation and use of victim impact statements. Although highly controversial, victim impact statements are presented during the sentencing phase of capital trials and convey the harm the victim or victim’s family experienced as a result of the crime. This paper will explore the progression of these statements through the victims’ rights movement and the Supreme Court decisions on the use and content of victim impact statements. Recent research conducted on the statements will also be presented, and the paper will conclude with policy implications, proposals for future use, and future research avenues regarding victim impact statements.


 

Introduction

Victims of crime have made tremendous strides over the last thirty years as a result of the Victims Rights Movement of the 1970s and the legislature that was passed in the 1980s and early 1990s. These efforts have finally provided victims with a face and a voice in our criminal justice system, and have generated services such as: “rape crisis centers, victim and witness advocacy programs, hotlines and shelters for battered women, restitution programs, and community notification laws” (Schuster & Propen, 2010, p. 75). An integral part of the rights of victims is the role they play in our criminal justice proceedings. Although highly controversial, victims are now given the opportunity to testify in both capital and noncapital cases through the use of a victim impact statement (VIS) (Myers & Greene, 2004). The statement is commonly presented in the sentencing phase of a trial. This paper will explore the progression of the use of victim impact statements, various research studies that have been conducted on these statements, arguments of both critics and supporters of VIS, and in conclusion the implications, proposals, and future directions of VIS research.

Evolution of Victim Impact Statements

After a Supreme Court decision in 1972 (Linda R.S. v. Richard D.) that made it clear that individuals who were victims of crime were no more than a witness or piece of evidence with no legal grounds, advocates of the victims’ rights movement began to voice their frustrations and dissatisfactions with the current state of the criminal justice system. Public dissatisfaction of the system’s treatment of victims, prosecutors’ beliefs on the benefits of securing convictions through victim cooperation, and the desire of politicians to portray themselves as sympathetic towards victims and tough on criminals led to the creation of a task force from the highest office in the United States (Myers & Greene, 2004). President Ronald Regan’s 1982 Executive Order to conduct a nationwide study to assess the treatment of victims of crime gave birth to the President’s Task Force on Victims of Crime (Hook & Seymour, 2004). The Task Force interviewed victims around the country to learn and understand their needs, concerns, and experiences with the criminal justice system. Upon completion of victim interviews, the Task Force found an overwhelming imbalance in our system, poor treatment of victims, and a recurring victimization experienced by crime victims. In a statement by Lois Height Herrington, the chairman of the committee:

Victims who do survive their attack, and are brave enough to come forward, turn to their government expecting it to do what a good government should – protect the innocent. The American criminal justice system is absolutely dependent on these victims to cooperate. Without the cooperation of victims and witnesses in reporting and testifying about crime, it is impossible in a free society to hold criminals accountable. When victims come forward to perform this vital service, they find little protection. They discover instead that they will be treated as appendages of a system appallingly out of balance. They learn that somewhere along the way the system has lost track of the simple truth that it is supposed to be fair and to protect those who obey the law while punishing those who break it. Somewhere along the way, the system began to serve lawyers and judges and defendants, treating the victim with institutionalized disinterest (p. 6).

 

The findings by the Task Force were published in a document called Final Report that included 68 recommendations for the Federal Government. Of the many recommendations set forth for prosecutors, it was recommended that “victims should be allowed to inform the person preparing the presentence report of the circumstances and consequences of the crime” and to also “be allowed to speak at the time of sentencing” (President’s Task Force on Victims of Crime, 1982, p. 77). This “recommendation was implemented when the 1982 Omnibus Victim and Witness Protection Act became law; it mandated that victim impact statements be provided at sentencing in federal cases” (Davis & Smith, 1994, p. 454). The legislation permits the victim or the victim’s family members to describe the effect the crime has had through written or oral statements.

Each VIS is different and the content and requirements of each vary from each jurisdiction.  Typically, all VIS contain information that identifies the victim of the particular offense, lists any financial losses suffered by the victim as a result of the offense, identifies any physical injuries suffered by the victim including the seriousness and permanence of the injury, describes any changes in the victim’s personal welfare or familial relationships, describes any psychological services requested by the victim or the victim’s family and any other information related to the impact of the offense on the victim or the victim’s family (Booth vs. Maryland, 1987).

Court Rulings on Victim Impact Statements

Although there is widespread use of VIS in the sentencing phase of our criminal process, the constitutionality of these statements has been called into question on numerous occasions. The use of victim impact statements at sentencing has been met with equal amounts of criticism and support from public and courtroom individuals alike. The U.S. Supreme Court has ruled directly on this issue in three separate court decisions: Booth v. Maryland (1987), South Carolina v. Gathers (1989), and Payne v. Tennessee (1991). In all three cases, the concern was that gains for victims will result in costs for defendants (Davis & Smith, 1994).

Booth v. Maryland (1987)

In the case of Booth v. Maryland (1987), a defendant had been found guilty of two counts of first-degree murder, two counts of robbery, and conspiracy to commit robbery. John Booth entered the home of 78 year old Irvin Bronstein and his 75 year old wife Rose “for the apparent purpose of stealing money to buy heroin” – the “victims were bound and gagged, and then stabbed repeatedly in the chest with a kitchen knife” (Booth v. Maryland, 1987). Abiding by a Maryland statute that states all pre-sentence reports must include a victim impact statement, the State Division of Parole and Probation prepared a VIS with information supplied by interviews with the victims’ family.

The prosecutor read the VIS during the sentence hearing which described individual characteristics of the victims, the emotional and psychological effects on the surviving members of the victims’ family, and the family members’ opinions and characterizations of the crime and the defendant (Myers & Greene, 2004). The VIS contained interviewees’ feelings on the “outstanding personal qualities” of the victims’ and “described the emotional and personal problems the family members had faced as a result of the crimes” (Booth v. Maryland, 1987). Also in the statement, the surviving family members told of the lack of sleep and depression they had been going through, the feeling that their parents were “butchered like animals”, the feelings of distrust and fear they went through each day, and the effect the crime had on a family member’s wedding (Booth v. Maryland, 1987). The official who conducted the interviews with the family members ended the VIS by stating:

            It became increasingly apparent to the writer as she talked to the family members that the murder of Mr. and Mrs. Bronstein is still such a shocking, painful, and devastating memory to them that it permeates every aspect of their daily lives. It is doubtful that they will ever be able to fully recover from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered and taken away from them (Booth v. Maryland, 1987).

The defense counsel attempted to suppress the VIS calling it inflammatory and irrelevant to the sentencing judgments. The motion was denied and Booth was sentenced to death (Myers & Greene, 2004).

The defendant’s sentence was automatically appealed as he argued the VIS introduced information that was arbitrary to the sentencing decision. The Maryland Court of Appeals rejected his claim as it had previously ruled (Lodowski v. State) that victim impact statements were an important aspect as they revealed the full extent of harm that was caused by the crime. However, the U.S. Supreme Court granted certiorari and concluded in a 5-4 decision that ruled “victim impact statement testimony creates an impermissible risk that factors unrelated to the blameworthiness of the defendant will be considered when determining if the defendant is to receive the death penalty” (McGowan & Myers, 2004, p. 358). The rejection of testimony in capital cases was founded on the grounds that: “VIS inappropriately diverts the sentencer’s attention away from the defendant’s culpability to the character and reputation of the victim, VIS depends on the presence of someone to speak for the victim or more problematically how eloquent he or she is in articulating his or her grief and loss, and VIS would be difficult for the defense to rebut” (Paternoster & Deise, 2011, p. 132). As a result, the introduction of a VIS during sentencing of a capital trial violated the Eighth Amendment as it created a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner because of its irrelevant and inflammatory characteristics (Booth vs. Maryland, 1987). The court found that the focus of victim impact statements is essentially not on the defendant and therefore was not relevant to capital sentencing decisions; however its application would be tried again two years later.

South Carolina v. Gathers (1989)

In the case of South Carolina v. Gathers (1989) Demetrius Gathers was convicted of first-degree murder of Richard Haynes, a mentally handicapped man he encountered at a park and was consequently sentenced to death. Gathers and three companions assaulted the victim by beating and kicking him severely, smashing a bottle over his head, and inserting an umbrella into the victim’s anus (South Carolina v. Gathers¸1989). During the sentencing hearing, the prosecutor revealed that the victim had a voter registration card and a religious tract in his pocket during the commission of the crime. In his closing arguments he referred to the tract and voter card at length and inferred personal characteristics from the two items (Mansur, 1993). His statement is as follows:

We know from the proof that Reverend Minister Haynes was a religious person. He had his religious items out there. This defendant strewed them across the bike path, thinking nothing of that. Among the many cards that Reverend Haynes had among his belongings was this card. It’s in evidence. Think about it when you go back there. He had these religious items, his beads. He had a plastic angel. Of course, he is now with the angles now, but this defendant Demetrius Gathers could care little about the fact that he is a religious person. Cared little of the pain and agony he inflicted upon a person who is trying to enjoy one of our public parks (South Carolina v. Gathers, 1989). 

Like in Booth v. Maryland (1987) the Supreme Court granted certiorari and in a 5-4 decision concluded that the “prosecutor’s characterization of the victim as a religious man and registered voter was not relevant to the circumstances of the crime” (Mansur, 1993, p. 721). The decision in this case reiterated the judgment in Booth v. Maryland (1987) in that VIS has little relation to sentencing, whether it was presented by a prosecutor, a victim, or a witness. By allowing the jury to use this information in a sentencing decision, the result could be a sentence of death based on factors the defendant was unaware of and were irrelevant in his decision to commit the crime. The decision was held that the Eighth Amendment prevents a prosecutor from providing any commentary on the personal characteristics of a victim during the sentencing phase of a capital trial.

Payne v. Tennessee (1991)          

Finally, in Payne v. Tennessee (1991), a defendant was convicted on two counts of first-degree murder of a mother, her two-year old daughter, and one count of assault with intent to commit murder in the first degree of her three-year old son. While waiting for his girlfriend to return to her apartment, Pervis Payne entered the apartment of Charisse Christopher and began to make sexual advances. After the mother resisted, the defendant became violent, and a neighbor made a call to the police after hearing screaming from the apartment. The police arrived to find a horrific and bloody scene: the mother, Charisse, “had sustained 42 direct knife wounds and 42 defensive wounds on her arms and hands from a butcher knife; the two-year old daughter had suffered stab wounds to the chest, abdomen, back and head” (Payne v. Tennessee, 1991). The three-year old son had several wounds but was still breathing when police arrived.

The State presented testimony from Charisse’s mother that included her response on a question of how the three-year old boy had been affected after the crime:

He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandma, do you miss my Lacie. And I tell him yes. He says, I’m worried about my Lacie (Payne v. Tennessee, 1991).

 

During closing arguments, the prosecutors advocated for a death penalty sentence and brought up the effects on the surviving three-year old son:

But we do know that Nicholas was alive. And Nicholas was in the same room. Nicholas was still conscious. His eyes were open. He responded to the paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and baby sister. There is nothing you can do to ease the pain of the families involved in this case…There is obviously nothing you can do for Charisse and Lacie Jo. But there is something that you can do for Nicholas (Payne v. Tennessee, 1991).

 

Payne was sentenced to death on each count of murder. In his appeal, he argued that the grandmother’s testimony and the prosecutor’s closing arguments violated his Eighth Amendment rights under the previous cases of Booth v. Maryland and South Carolina v. Gathers. In a 6-3 vote, “the Supreme Court ruled that VIS are not per se inadmissible during capital sentencing proceedings and that the prejudicial effects of such testimony must be determined on a case-by-case basis” (Myers & Greene, 2004, p. 496).

The judgment overturned both decisions in Booth v. Maryland and South Carolina v. Gathers in which victim impact statements are permissible because individuals in the courtroom become aware of the full amount of harm that was caused by the defendant. During capital trials mitigating evidence presented by the defense is ruled as relevant and admissible so it would be unfair to prevent aggravating evidence to be introduced as well. It was also agreed that “unforeseeable consequences of a criminal act are not irrelevant to the sentencing decision because an act of homicide always has foreseeable consequences; every defendant is aware that family members are left behind when a person is murdered” (Payne v. Tennessee, 1991). In dissenting opinions by Justice Marshall and Stevens, both concurred that the effect of VIS in the sentencing process is prejudicial and not relevant to the culpability of the defendant. In turn, jurors may base their sentencing on emotional responses to testimony from victim impact statements instead of remaining completely objective.

In the first case discussed, Booth v. Maryland, the court ruled that there were two types of VIS that were inadmissible: the first is any statements made during sentencing that describe the personal characteristics of the victim or emotional impact of surviving family members; the second is any statements that include family members’ opinions and characterizations of the crimes of the defendant (Schneider, 1987). When the Supreme Court overturned their rulings of Booth and Gathers, in Payne v. Tennessee, the ruling only applied to the first type of information. The second type of content relating to VIS regarding opinions and characterizations by the victim’s family is still prohibited under the U.S. Constitution under decisions in Booth and Gathers (Schneider, 1987). Currently of the 32 states that permit the death penalty, 28 of them allow victim impact statements as admissible, two have limited admissibility, and three states are undecided (Blume, 2003). The next section will provide a brief summary of four research studies that have recently been conducted on the use of victim impact statements in capital sentencing.

Research on Victim Impact Statements

            The following research studies provide insight on different contextual factors that could have a possible influence on VIS during sentencing in capital cases. The first study will address the effect VIS has on sentencing through testimony and emotions jurors experience; the second will address the influence of presenter attributes of the individual reading the victim impact statement; the third study manipulates crime heinousness with a test of a the emotional threshold of jurors after hearing VIS; the fourth will study whether VIS specific instructions provide a moderating effect on sentence recommendations; the last describes the results of conversations with judges and courtroom observations on emotions embedded within victim impact statements.

Effect of VIS on Sentencing and Emotional Arousal of Jurors

Paternoster and Deise (2011) designed a research study to test whether victim impact statements increase the risk of a death sentence being given and whether there is a relationship between VIS and the emotional states of those who experience it. Their study was based off of previous research that showed identifiable victims arouse strong emotions in jury members, which causes them to want to help the victimized. They inferred it was a “possibility that VIS might influence jurors to behave more punitively because it personalizes both the victim and the offender,” and essentially both gives them a face in the courtroom (Paternoster & Deise, 2011, p. 139). Nothing identifies and personalizes the victim more during a trial than a victim impact statement. After hearing the VIS, jurors may feel they can help the victim by imposing a death sentence to the defendant.

For their study, they believed “subjects who viewed VIS are more likely to feel negative emotions, have positive emotions towards the victim and the victim’s family, have favorable perceptions of the victim and victim’s family, and unfavorable perceptions of the offender” (Paternoster & Deise, 2011, p. 141). This would translate into higher rates of death sentences given to defendants who heard a VIS, compared to those who had not. They also hypothesized that emotional arousal and perceiving victims and the victim’s family in a favorable light would lead to more death penalty sentences. Participants of the study watched a video of an actual penalty phase in a trial that either included VIS or did not. After viewing the video, each participant completed a written questionnaire that asked them about the emotions they were experiencing, their attitudes toward the defendant, victim, and victims’ family, and what sentence they would give (Paternoster & Deise, 2011).

The results of their experiment were extremely close to their original hypotheses. Participants who viewed VIS were “significantly more likely to feel sympathy toward the victim, were more likely to feel empathy, saw the victim and family in a more favorable light, and saw the offender in a less favorable light” (Paternoster & Deise, 2011, p. 148). As a result those who experienced the victim impact statement disproportionately voted to give the defendant the death penalty in comparison to those who did not view the VIS. Responses on the written questionnaire revealed that by giving a death sentence, participants felt it “would help the victim’s family find closure or help them recover from their loss” (Paternoster & Deise, 2011, p. 154).  Paternoster and Deise concluded that when jurors hear VIS during the sentencing phase of a trial, favorable feelings toward the victim or victim’s family motivate them to help the victim in any way they can, particularly by imposing a death sentence.

Paternoster and Deise (2011) recognized that although their study had extremely interesting results, there were many factors and components of their research that need to be further explored. Like many studies, participants did not deliberate like an actual jury. Jury deliberation could lead to different results in a real courtroom situation in terms of sentencing recommendation. However, they do believe that this type of evidence can, in some situations, be highly inflammatory and focus on the victim’s family and their ability to cope and recover from the crime rather than the culpability of the defendant (Paternoster & Deise, 2011).

Effect of Bystander VIS on Juror Decision Making

            In another study, McGowan and Myers (2004) studied the issue of who presents the victim impact statement at sentencing, and if the individual speaking ultimately influences the sentencing decision. There is currently no legislation that defines who may present a VIS at sentencing and “each state decides for themselves who fits the definition of a ‘crime victim’ and how this definition applies to the use of victim impact statements in their jurisdiction” (McGowan & Myers, 2004, p. 360). As a result, bystanders of a crime can be seen as victims and have been allowed to give a VIS during sentencing. Individuals such as co-workers, friends, and emergency service personnel could be seen as such. Like much debate over VIS, “allowing bystanders to testify during sentencing hearings has been criticized on the grounds that it is inconsistent with one of the chief goals of victim impact statements” which is to give victims of crime a voice in the courtroom (McGowan & Myers, 2004, p. 360).

The argument lies in that bystander’s VIS may be more influential and damaging if the testimony is emotional and severe. Jurors may already have an expectation that a family member’s VIS will be emotional and show extreme amounts of grief, which could lead to that particular statement being less persuasive. Testimony read by a “non-relative may be more persuasive in this context because it is less expected than testimony by a relative” and therefore could possibly influence a sentencing decision (McGowan & Myers, 2004, p. 361). This same idea can be seen with bystander VIS that is read by an individual in a position of authority such as a firefighter or policeman. Jurors may see these statements as more credible, which could affect them in their decision-making.

McGowan and Myers (2004) investigated the impact of victim impact statements read by three different individuals, two of which were bystander victims. Of the three conditions in their study, a close relative read one VIS, a coworker read another VIS, and an emergency response personnel read the last VIS. In total, they measured mock juror’s responses on sentences, perceptions of victim suffering, emotionality of testimony, credibility of testimony, and the perceptions of professional bystander victimization. They found “with the exception of the VIS coming from a nonprofessional bystander, there was little evidence to suggest that victim impact statements had an appreciable effect on sentencing judgments” (McGowan & Myers, 2004, p. 365).  However, significantly more death penalty sentences were given when a VIS was read by a nonprofessional bystander victim (coworker). Provided explanations for the difference in sentencing comes from the idea that jurors have a degree of expectedness for family members and emergency service professionals to be victims. Jurors may see these types of secondary or bystander victims as having an anticipated and expected degree of harm coming from the crime, whereas a nonprofessional bystander, such as a fellow coworker, has a level of unexpected harm. This finding could provide reason for the minimal impact of a VIS read by one type of individual versus a statement read by a different type of individual as being very impactful.

Another interesting outcome of their study was the perceived suffering of the victim on mock juror’s sentencing decisions. McGowan and Myers (2004) found that “victim suffering ratings varied according to the identity of the victim” with the “family member victim suffering the most and the professional bystander suffering the least” (p. 367). This however did not translate into a disproportionate amount of death penalty sentences given in each condition. From this, the two authors concluded that although the link may be questionable, VIS does not impact juror-sentencing judgments based on perceived victim suffering through testimony. Overall, the results of their research were inconsistent with previous research done on VIS but from the data they did provide it is worth noting that differences in presenter attributes of VIS may have an impact on jurors.

Relationship between VIS, Crime Heinousness, and Emotional Threshold on Juror Decision Making

Myers, Roop, Kalnen and Kehn (2011) explored whether the context of the criminal act, in relation to victim impact statements, had any influence on jurors during the sentencing phase. More specifically, they were interested in the idea that the heinousness and immorality of a crime may in and of itself cause jurors to reach an emotional threshold. Emotional testimony presented in a VIS would then have little to no effect on juror decision-making (Myers, et al., 2011). They hypothesized that “the effect of VISs on sentencing will be strongest when the heinousness of the crime is minimal, and VISs will have minimal effects on sentencing when heinousness is extreme” – they termed this as the saturation hypothesis (Myers, et al., 2011, p. 130). The interest for the study came from the concurring opinion of Justice O’Connor in the Payne v. Tennessee, 1991 decision. She believed that although the jurors were likely moved by the Grandmother’s testimony during the trial, the attack was brutal and heinous enough that the VIS did not inflame the jury beyond moral reason.

Previous research has studied the effect of VIS on juror decision-making and crime heinousness on juror decision-making, but little literature exists on the possible relationship between the two. For the study, participants were all given different trial scenarios along with post-trial questionnaires. All cases were murder trials, and the information provided and wording was identical across all four of the conditions – the only variable manipulated was the heinousness of the murder. Crime heinousness ranged from less-heinous, heart penetrated by a single bullet wound, to more-heinous, initial bullet fired, victim tried to run away, defendant then fired bullets into victim’s kneecaps which caused them to shatter, the defendant then used the gun to pistol-whip victim, and a total of 14 shots were fired into the victim (Myers, et al., 2011). After reading the trial scenario, participants read the penalty phase of the trial that either did or did not include VIS. They then completed a questionnaire that asked them to deliver a sentence to the defendant.

The results of the study showed “little support for the notion that the effects of VISs on sentencing judgments covaries with the level of heinousness of the crime” as well as failing to provide evidence “that as the level of heinousness of the crime increases, the impact of VIS diminished” (Myers, et al., 2011, p. 137). Although the results did not coincide with the original saturation hypothesis, the researchers concluded more extensive research needs to be done in this area, particularly since there is no empirical evidence for Supreme Court justices to base their opinions on like Justice O’Connor’s in Payne v. Tennessee, 1991. Like the previous study, jurors also did not deliberate like they would in a real court scenario. This could provide for the lack of support for the original hypothesis. Regardless, there is “little empirical support for the belief that when the heinousness of the crime is extensive, the impact of the VIS is diminished” (Myers, et al., 2011, p. 140).

Effect of VIS Specific Instructions on Juror Decision Making

Another contextual factor to consider when evaluating the effects of victim impact statements is the judge’s instructions to jury members regarding use the testimony. Platania and Berman (2006) sought to test whether specific instructions given to jurors regarding VIS would have a moderating effect on death penalty sentences. One way that the courts have safeguarded defendants in capital trials from being sentenced through an arbitrary and capricious manner is through judicial instructions (Platania & Berman, 2006). Instructions commonly tell jurors to weigh the aggravating and mitigating factors of the case, but the specifics on the weight vary from state to state. As some research has shown that fluctuation in death sentence recommendations increases or decreases with the presence of VIS, studies have also shown that a manipulation of juror instructions also has an effect on death penalty sentences. It has often been argued (Haney & Lynch, 1994; Luginbuhl & Howe, 1995) that jurors lack a general understanding of instructions that are given to them regarding the use of the death penalty as a sentence – having no specific instructions regarding the use of VIS could have unduly consequences  (as cited in Platania & Berman, 2006).

If VIS instructions are specific and correctly guide jurors on the weight of such testimony, the instructions can provide a safeguard for defendants in that the testimony will not be the deciding factor for a sentence. An example of effective juror instructions can be seen in Turner v. State, 1997:

…This evidence is simply another method of informing you about the harm caused by the crime in question. To the extent that you find that this evidence reflects on the defendant’s culpability, you may consider it, but you may not use it as a substitute for proof beyond a reasonable doubt of the existence of a statutory aggravating circumstance and limit the score of the evidence presented (As cited in Platania & Berman, 2006, p. 89).

To test the effectiveness of such instructions on juror decision-making, Platania & Berman (2006) hypothesized that specific VIS instructions would moderate the relation between the testimony and the eventual death penalty sentence. They also predicted “a moderating effect of the specific instructions on participants’ perceptions of the victim impact statement” and “examined differences in sentencing recommendations as a function of attitudes toward the victim and defendant” (Platania & Berman, 2006, p. 89).

            In the study, participants watched a videotaped trial that included a summary of the guilt phase, VIS, closing arguments by both the prosecutor and defense attorney, and judges’ instructions (Platania & Berman, 2006). The judge in the video informed participants they would hear a VIS from the victim’s mother. There were two conditions that participants were assigned to: high emotion (mother sobbing while reading VIS) or low emotion (mother read VIS in a calm manner). In the control condition, participants viewed the trial only and did not hear any VIS testimony. In VIS groups, participants either received standard judge’s instructions with specific VIS instructions or only standard instructions. VIS specific instructions stated “inter alia, victim impact statements can never serve as the basis for making a defendant eligible for the death penalty” (Platania & Berman, 2006, p. 91). Finally, participants responded to a questionnaire on “whether or not they agreed that sympathy for the victim, victim’s family and defendant should be taken into consideration when deciding a sentence, whether their views of the death penalty impaired their ability to follow the judge’s instructions, and a sentence recommendation (life imprisonment or death by legal injection)” (Platania & Berman, 2006, p. 91). 

            The results of Platania and Berman’s (2006) study did not find that VIS specific instructions reduced the likelihood of emotion being used in sentence recommendations. However, they did find a moderating effect of the instructions on the perceptions of the testimony. In the high emotion condition, participants who read the instructions rated the statements as “significantly less important in reaching their sentencing decision” compared to individuals who heard standard judge’s instructions (Platania & Berman, 2006, p. 95). The level of emotion of the individual reading the VIS had no influence on the sentence recommendation by the mock jurors. In addition, participants who read the victim impact statement showed an increase in life imprisonment recommendations over death penalty sentences. The researchers both agree that although the results of their study match their original hypothesis, more research needs to be conducted on other potential safeguards on this highly debated topic. In conclusion, Platania & Berman’s study found that instructions on victim impact statements can potentially minimize the risk of an emotional VIS on juror decision-making and eventual sentence recommendation, but more research still needs to be conducted. Next will be a discussion on the arguments both for and against the implementation and use of victim impact statements in capital cases.

Support and Criticism for Use of Victim Impact Statements

Although a majority of states today allow the presentation of victim impact statements during capital sentencing, the use has been a highly controversial topic met with much criticism and support. This section will explore both the arguments for and against the use of VIS.

Support for VIS

Original support for VIS stemmed from the early notions that victims felt discounted, neglected, and even shunned by the criminal justice system (Green, Koehring, & Quiat, 1998). These sentiments brought about the victims’ rights movement and the initial implementation of legislation that gave victims a role in the criminal justice process. Erez (1990) coined this progression as a renewed interest in the “forgotten persons” of criminal justice and individuals were given the right to finally be heard concerning the impact the crime had on their lives. Two main arguments emerge from the literature supporting the use of VIS: victims will have improved attitudes with the criminal justice system as a whole through the use of VIS and the idea that the statements expose the full amount of harm caused by the crime.

Advocates of VIS believe the statements promote positive attitudes of the criminal justice system - by increasing the levels of participation of victims with case processing, victim satisfaction will increase and ultimately lead to more victim cooperation within the system (Garkawe, 2007). The criminal justice system can run more efficiently by having increased levels of cooperation on both sides of case processing. Many advocate that this increased participation is necessary to reduce the secondary victimization that occurs when victims become involved with the system. Secondary victimization occurs when “feelings of alienation develop as victims realize that their opinions and concerns are ignored and their requests for involvement are consistently denied” (Erez, 1990, p. 22). Courts hear from a wide variety of individuals during sentencing. Therefore it would be unfair to not allow the victims to have their opportunity to speak as well. Supporters believe victim involvement and cooperation speak to the basic fairness of the administration of justice.

VIS also has the potential to bring about psychological and therapeutic benefits. Roberts (2003) argues that the use of VIS is a form of therapy for victims because it allows them with an opportunity to ventilate their feelings (p. 371). Roberts & Erez (2004) note that “therapeutic jurisprudence literature provides support to the proposition that having a voice may improve victims’ mental condition and welfare” which can be provided by the testimony presented in victim impact statements (p. 223). Participation and input by the victim provides them with a degree of healing and prevents feelings of helplessness and powerlessness that could ultimately add more trauma (Garkawe, 2007). This point also speaks to the use of VIS by surviving members of a victim’s family who are dealing and processing the loss of a loved one. This leads into the second argument for the use of these statements.

Major support for the use of victim impact statements in sentencing is the argument that VIS offer victims the opportunity to reveal the harm done to them which reveals the full extent of harm the crime has caused (Davis & Smith, 1994). This exposes the human costs of crime and the subsequent harm the defendant caused by committing the crime. In capital cases, the victim of the crime is usually absent but the surviving members remain and can portray the amount of harm that the crime has caused on them. It is possible the full impact or implications of a crime are not obvious to the judge or jury.

Criticisms of VIS

Proponents reason that harm to the victim is directly relevant in gauging the severity of the crime and must be communicated to the jury and judge to help weigh their decision in sentencing options (Green, Koehring, & Quiat, 1998, p. 146). Informing and reminding the individuals in the courtroom that a real individual has been harmed and affected by the crime should be a relevant factor because without the victim, it is possible the crime would have never been reported or been able to be processed. This argument falls in line with the majority opinion in Payne v. Tennessee (1991) that stated VIS is permissible because it provides relevant information about the full amount of harm that the defendant caused and that the harm a criminal act produces is a central ingredient in culpability (Paternoster & Deise, 2011). The decision in Payne allows survivors to find a voice in the legal process to express their pain and outrage but many question whether this brings more emotion in the courtroom rather than reason (Schuster & Propen, 2010). As with any debate, arguments for the use of VIS have been met with much criticism especially from legal scholars on the grounds that the introduction of this testimony at sentencing will produce subjective and prejudicial sentencing decisions on behalf of the jury.

Much of the criticism surrounding the use of victim impact statements in capital sentencing hearings echoes the arguments presented in Booth v. Maryland (1987) and South Carolina v. Gathers (1989): victim impact testimony may be prejudicial because it takes the jury’s attention away from the facts and hard evidence of the case and directs their attention to aggravating factors that should not be considered like victim harm (Myers & Greene, 2004). Critics argue that the testimony presented in VIS are embedded with too much emotion and as a result takes away from the defendant’s culpability. The blameworthiness of the defendant is the matter at hand - not the negative consequences suffered by the victim or the victim’s family. The emotions that are evoked in this testimony are inappropriate in the context of criminal sentencing and take away from the humanity of the defendant (Bandes, 1996). Many believe testimony by surviving family member’s, that portrays the harm and impact of the crime is essentially irrelevant and has the potential to be so emotional moving that it creates a risk the jury will impose a sentence that is arbitrary and prejudicial. Specifically speaking on the emotional content, it has been argued that the emotionally laden content fuels vengeance, anger, and hatred, and thereby undermines the potential for a fair and impartial sentence for the defendant (Arrigo & Williams, 2003). Along with these general disagreements on the use of VIS is the notion of whether attributes or characteristics of the victim were included in the defendant’s decision to commit the crime.

A criticism of VIS that parallels the opinion in South Carolina v. Gathers (1989), is whether the information presented in VIS was made aware or taken into consideration by the defendant during the commission of the crime. Sebba (1994) brings up the question of whether the information of which the offender was not specifically aware at the time of the crime, like the respectability or religion of the victim, should be taken into account in determining the appropriate punishment (p. 145). By presenting factors that characterize the victim, there is a possibility of an arbitrary sentence being imposed that is based on factors the defendant was not aware of before, during, or after the commission of the crime. Critics argue that these factors are completely unrelated to the culpability of the defendant. Bandes’ (1996) stance on VIS is that “when society is choosing which heinous murders to kill and which to spare, its gaze ought to be carefully fixed on the harm they have caused and their moral culpability for that harm, not on irrelevant fortuities such as the social position, articulateness, and race of the victims and their victims’ families” (p. 398). Sentencing in capital trials need to be based solely on factors relating the defendant and evidence at hand that will result in an objective and judicial response by the jury. VIS is criticized on the grounds that it may serve to prejudice the jury against the defendant by: inflaming the passions of jurors and lead to capricious judgments that reflect the anger of the jury rather than the blameworthiness of the defendant, divert the attention of jurors from matters of greater relevance to sentencing, and produce arbitrary sentencing judgments that may vary as a function of irrelevant factors (McGowan & Myers, 2004). In conclusion, continued research needs to be conducted to see what the realistic and legal outcomes VIS has on sentencing in capital cases. The last section provides the implications, proposals, and future directions for VIS from the literature that has been reviewed.

Implications, Proposals, and Future Research

The literature from previous research studies and case law reviews reveals a need for continued study of victim impact statements. With as many opposing views that are found on the use of VIS, it warrants further discussion and a call for a continuing body of research to find what effects the testimony has on capital sentencing decisions. There needs to be a continued balance within our system which would allow for a balance between the rights of victims and offenders in the complicated system of criminal justice. With the possibility of life or death on the line, it is extremely important that all sentencing decisions are made in a objective and reasoned manner that will continue a balanced administration of justice.

Agreement among critics is not to completely disregard and disallow the input of victims but instead to modify when it is presented. Arrigo and Williams (2003) argue that the voices of those injured by crime must be heard and attended to; however, this should not occur at the expense of the administration of justice, particularly during the sentencing phase of a capital case (p. 605). VIS are narratives that need to be told but not in the context of capital sentencing because they have the potential for blocking the jury’s ability to hear the story of the one on trial (Bandes, 1996). The emotions, pains, grieving, and suffering of the surviving victims can still be heard and expressed to the offender but should be presented after sentencing. Sebba (1994) suggests the introduction of a post-sentence stage which would turn focus to the victim where the objectives would be to: allow the victim to settle outstanding accounts with the offender, consider the state’s obligations towards the victim, and to ensure that the victim were to have ‘his (her) day in court’ (p. 160). The proposal needs further investigation but is a starting point if revision of the use of VIS is needed. Myers and Greene (2004) also offer recommendations such as limiting the scope of VIS, giving jurors more guidance about the purposes and functions of VIS when it is admitted, and the continuance of research to understand how VIS is received, understood, and used by capital jurors.

As the topic has proven to be difficult to study, VIS must continued to be researched and investigated since its use could have extreme implications for the administration of justice. There is overreaching support for the continuance of research on VIS to find what the role of the testimony is in capital sentencing and if its presentation has an effect on sentencing judgments. There are multiple variables that not only need repeated manipulation but that have yet to be studied. More studies need to be conducted on VIS specific instructions given to jurors, bystander witnesses and victims and their presentation of impact statements, respectability of the victim and defendant, crime heinousness, and demographic variables of both victims and defendants. It would also be beneficial to study the proportion of victims that want to participate in the justice process and exactly how they want to participate (Davis & Smith, 1994). Much of the previous research has been conducted using mock jurors who may not be deliberating like an actual capital trial jury would which could provide for the divide between empirical research and real courtroom settings.

Additional studies need to be conducted involving the sentiments of judges on VIS to help explain if these statements have an effect on sentencing. Davis and Smith (1994) interviewed officials such as judges and prosecutors on their thoughts on VIS, and concluded that the charge itself may convey enough information on harm the crime caused to meet the purposes of sentencing rather than the information related in the impact statement. In another study, it was found that judges’ are able to decipher emotion in statements and decide objectively the weight of such statements in sentencing (Schuster & Propen, 2010). Even still, the attitudes and beliefs of courtroom officials should be further researched.

Any and all safeguards that can be researched and consequently imposed in capital cases to create a balanced system of justice need to be warranted. Davis and Smith (1994) argue that if the statements do not give victims a meaningful voice, what gains have victims in the U.S. and other countries actually made over the past 20 years in regards to their concerns of being represented in court (p. 468). Although most states have some legislature allowing the use of VIS, it is highly unregulated on the specifics on what can and cannot be presented, and it also varies from each jurisdiction. It is likely that the use of VIS will continue in courtrooms involving capital cases much into the future but it is important to “attempt or regulate or balance the evidence provided by both the victim’s and the offender’s family” alike (Paternoster & Deise, 2011, p. 156). We need to give a great deal of thought and research to the divide that exists between our current legal standards and the information that juror’s believe is important and useful when it comes to sentencing. Sullivan (1998) finds just the right balance for the subject of victim impact statements: “a means must be developed for granting the victim a voice that does not capitalize on inflammatory and emotional factors or unduly sway the jury with wrenching tales of sorrow and pain” (as cited in Myers & Green, 2004, p. 511).

 References

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Bandes, S. (1996). Empathy, narrative, and victim impact statements. University of Chicago Law Review, 63, 361.

Booth v. Maryland. 482 U.S. 496. (1987).

Davis, R. C., & Smith, B. E. (1994). The effects of victim impact statements on sentencing decisions: A test in an urban setting. Justice Quarterly, 11(3), 453-469.

Erez, E. (1990). Victim participation in sentencing: Rhetoric and reality. Journal of  Criminal Justice, 18(1), 19-31.

Garkawe, S. (2007). Victim impact statements and sentencing. Monash University Law Review 33, 90.

Greene, E., Koehring, H., & Quiat, M. (1998). Victim Impact Evidence in Capital Cases: Does the Victim's Character Matter? Journal of Applied Social Psychology, 28(2), 145-156.

Herrington, L. H. (1982). President's task force on victims of crime - final report: Statement of the chairman. Washington D.C.: Office for Victims of Crime.

Herrington, L. H., Bobo, G., Carrington, F., Damos, J. P., Dolan, D. L., Eikenberry, K. O. and Samenow, S. E. (1982). President's task force on victims of crime - final report: Proposed action for criminal justice system agencies. Washington D.C.: Office for Victims of Crime.

Hook, M., & Seymour, A. (2004). A retrospective of the 1982 president's task force on victims of crime. (No. 1).Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice.

Mansur, C. (1992). Payne v. Tennessee: The effect of victim harm at capital sentencing trials and the resurgence of victim impact statements. New England Law Review, 27, 713.

McGowan, M. G., & Myers, B. (2004). Who is the victim anyway? the effects of bystander victim impact statements on mock juror sentencing decisions. Violence and Victims, 19(3), 357. 

Myers, B., & Greene, E. (2004). The prejudicial nature of victim impact statements: Implications for capital sentencing policy. Psychology, Public Policy, and Law, 10(4), 492-515. 

Paternoster, R., & Deise, J. (2011). A heavy thumb on the scale: The effect of victim impact evidence on capital decision making. Criminology, 49(1), 129-161.

Payne v. Tennessee. 501 U.S. 808. (1991).

Platania, J., & Berman, G. (2006). The moderating effect of judge’s instructions on victim impact testimony in capital cases.  Applied Psychology in Criminal Justice, 2(2), 84-101.

Roberts, J. V. (2002). Victim impact statements and the sentencing process: recent developments and research findings. Criminal Law Quarterly 47, 365. 

Roberts, J. V., & Erez, E. (2004). Communication in sentencing: Exploring the expressive function of victim impact statements. International review of Victimology, 10(3), 223-244.

Schneider, G. B. (1992). Victim impact statement: A victim's steam valve. Criminal Justice Journal 14, 407.  

Schuster, M. L., & Propen, A. (2010). Degrees of emotion: Judicial responses to victim impact statements. Law, Culture, and the Humanities, 6, 75-104.  

Sebba, L. (1994). Sentencing and the victim: The aftermath of Payne. International Review of Victimology, 3(1-2), 141-165. 

South Carolina v. Gathers. 490 U.S. 805. (1989).

 

 

* Miliaikeala Heen is a graduate student in the Criminal Justice Department at UNLV.  This paper was an assignment for a graduate course called Seminar on the Administration of Justice.