Letting the victims have their say

The US criminal justice system was never meant to serve victims. This may seem harsh, but it’s the reality. After all, look at the names of criminal cases: People of the State of California v. Smith. United States v. Jones. Criminal law is a battle between the government and the defendant. The government is, at least in theory, representing the residents of that jurisdiction who have allegedly been harmed by the defendant’s actions.

I know what you’re thinking. The residents have been harmed? What about the victims?

The main answer is that the civil law system is for victims. If someone is injured by a criminal act, the victim can almost always bring a civil lawsuit against the offender, whether or not that offender has been criminally convicted. The standard of proof will be easier to meet in a civil case than in a criminal case, which means that even when a defendant is found not guilty on criminal charges, he can still be held liable in a civil case (as happened, famously, to both OJ Simpson and Robert Blake). Furthermore, if the defendant was convicted, that conviction can be used as evidence in the civil lawsuit.

But victims might not want to get involved in a civil suit for various reasons. And even if they win, the most they can get is an award for money damages—which isn’t going to do them much good if the bad guy’s broke or sitting in prison.

Victims often do take part in criminal cases as witnesses, but whether they testify and what questions they answer are completely within the lawyers’ discretion and intended to serve the lawyers’ needs. By the time cross-examination is over, some (but certainly not all) victims may feel even further traumatized by the process.

Some years ago, a new way for victims to participate in the criminal justice process arose: victim impact statements. These come after defendants are convicted and before they are sentenced. They allow the victims to address the court directly—without being questioned by attorneys—and talk about the impact of the crime on them. The statements are usually prepared ahead of time and read in court, although some jurisdictions allow some or all of the statement to be video recorded.

Victim advocates say that these statements are a powerful tool, allowing victims the psychological satisfaction of having had their say and also, perhaps, informing the court on an appropriate sentence. But the statements are controversial. Critics say they introduce unnecessary bias and emotion. Critics also claim that those who attack powerful or well-loved victims are more likely to receive harsher punishment than those whose victims were already marginalized. If a homeless man is murdered, for instance, who will appear in court to talk about the effects of his death? But does that mean his life is less valuable than, say, a wealthy person with a large family?

What the sentencer (usually the judge) does with the victim impact statement is entirely discretionary. The sentencer might ignore it. Or the sentencer might take it to heart and award the maximum allowable punishment.

Incidentally, from an author’s perspective, a victim impact statement could make for a wonderfully emotional scene. It might also be a good way to allow otherwise silent characters to talk about their lives and feelings, so it could serve as an expository device.