First, making the victim whole through restitution ceases to be a primary concern of the law. Second, the legal code comes to be increasingly populated by victimless crimes, understood as crimes for which there is no complaining victim. Third, government has a perverse incentive to multiply statutes and ordinances because fines for offenses are an additional revenue stream.

Medieval Iceland illustrates an actual and well-documented historical example of how a stateless legal order can work and it provides insights as to how we might create a more just and efficient society today. A good explanation can be found at: http://mises.org/daily/1121#_ftn8

In restorative justice, crime is seen as something done against victims and the community, not just a violation against the state or government. It is time to reverse the trend of crimes being violations against the King’s peace and revert to the philosophy that crimes are injurious to real people.

This post was mentioned on Twitter by V3@E News Feed: Should crime victims have the right to be heard on Federal Sentencing Guidelines issues? (Volokh Conspiracy blog) http://bit.ly/1fcIQJ...

1) The victim is sympathetic to the criminal, but the criminal doesn’t believe the victim will actually help them, perhaps because they’re unstable or their emotional appeal seems more likely to cause a backlash from the judge. In this case, should the criminal and the State together be forced to allow in the testimony?

2) The victim is going to ask for the max, but the State believes that’s inappropriate. Perhaps this victim has an exaggerated and crazily passionate feeling about how they particularly were victimized. The State believes this testimony is appropriate. In this case, should the testimony be allowed in anyway?

And it won’t really do anything. Everyone will expect the victim to ask for the max. And if it does anything other than make the victim feel good, there will have to be lighter sentences when the victim doesn’t do that. Is that really what anybody wants?

Sorry, I can’t see how this makes any sense.

In my testimony, found here, I offered a specific example of a crime victim who, remarkably, was not allowed to be heard at sentencing on the nature of his own injuries from an assault! There is no good policy argument for preventing a victim from providing such information to the trial judge and giving the judge highly useful information for crafting the appropriate sentence.

Consider that allowing victims to “be heard at sentencing” only imposes a substantive change when neither party has chosen to call the victim to testify at sentencing. There are many potential reasons for this: for example, the victim may already have testified to the extent of their injuries at trial, or the victim may (in the judgment of the parties) not be a credible witness. The victim’s right to present evidence at sentencing thus only changes matters in those cases where neither side believes the evidence is worth presenting.

I am at a loss as to what public policy purpose is served by allowing a third party to present of evidence against the judgment of both the prosecution and the defense. Do prosecutors suffer from a systemic unwillingness to present nonduplicative, credible, and significant victim testimony at sentencing? Extraordinary claims require extraordinary evidence.

Wow.Could all you statists just back off for a few moments?

Rule of law != statism. Wow, indeed.

The problem is not that any of this affects the sentence. Rather, it clogs up the system by requiring court to hear these meaningless victim impact statements. Five minute hearings become thirty minute hearings. Or cases drag on because victim notification has to be given for even the most perfunctory hearings. Things like routine bail hearings end up taking two or three hearings when they should only take one.

Ironically, the aggregate effect of all this is to make life easier for the criminals by adding more delay and cost to an already overburdened system. Victim’s rights are something that any experienced judge or proseuctor knows need to be rethought. The defense bar obviously has its own valid critique of victim’s rights. But what politician is going to come out against “victim’s rights”

Either victim impact statements only ever have a very minor impact on sentencing, in which case they are just a waste of resources as they don’t change anything, or what the victim says makes a substantial difference in the sentence handed down. But, if the victims have this kind of power over the defendant’s punishment the defendent’s friends and family will be tempted to affect the victim’s statement through either bribes or threats. Unlike prosecutors, judges and jury members who usually have a certain distance from the community where the crime occured the victim is likely in much closer contact and lacks the protections and professional ethics that make pressuring agents of the court ineffective. I mean if someone assaulted you and their friend offered you $20,000 you really needed to give a different impact statement might you not convince yourself that it wasn’t really wrong since you were the victim?

One of the main advantages of having the state punish criminal offenses is that it avoids the cycle of violence and revenge private settling of disputes creates. If people start seeing the victim’s statement as causing heavy sentences we are back in the same medieval morass.

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Kirk Parker: Wow.Could all you statists just back off for a few moments? Yes, we try crimes in the name of the state.Yes, this is a very useful thing in terms of preventing anarchy and endless revenge.But no, it’s not actually true in reality that society is hurt more than the specific victim is.The above concessions are all a polite fiction in service of a useful end, but to say to the victim “what has this got to do with you?” is mind-bogglingly obtuse from an ethical point of view.

It’s not about who was hurt. It’s about who has a valid (deserving of consideration) interest in the outcome of the criminal case. In criminal cases the state has an interest in the punishment applied so as to deter future crimes and diminish overall lawlessness. While the victim was the one harmed that’s an event in the past that can’t be undone and in most criminal cases (domestic violence excepted) the choice of sentence makes little more difference to the victim’s future safety than it does to a random member of the public. Moreover, those victims who fear attack from this particular defendent are likely going to be the most reluctant to anger the defendant.

wolfefan: I am leery of a system where the punishment is dependent in any way on the politics/religon/ethics of the victim.

And well you should be. What if the victim can’t sway a Judge due to lack of resources, education, or ability to communicate effectively? Are crimes less important when committed against a person who has difficulty inspiring that kind of sympathy?

Kirk Parker:The above concessions are all a polite fiction in service of a useful end, but to say to the victim “what has this got to do with you?” is mind-bogglingly obtuse from an ethical point of view.

False choice fallacy. It is not the case that the only alternative to giving victims a seat at the sentencing table is to kick them to the curb. They already have limited input in the form of testimony, both live during the trial and they also testify as to the impact the crime had on them.

That’s enough. More is just pandering to emotion without the slightest concern for real-world outcomes.

Would you consider responding to some of the points raised above, either here or in a separate post? In the past, you’ve also argued that victims of a crime have a right to be heard even when it is shown that no crime occurred; IANAL, but this seems nonsensical to me. In every example of yours that I read, you seem to imply that victims are kept from seeking stronger punishments, but in the one capital case in which I know a crime victim, she was threatened with sanctions if she sought a more lenient punishment. I am leery of a system where the punishment is dependent in any way on the politics/religon/ethics of the victim.

Perhaps you laid out the framework of your position before I began reading this blog. Would you be willing to briefly re-state it in layman’s terms?

Based on the headline I thought this was about crime victims testifying in front of the body that sets the guidelines, which is the normal way politics work. Crime victims should testify in front of Congress when it passes laws, and to the sentencing commission when it issues guidelines.

However, except as witnesses to the crime, crime victims simply don’t belong in legal decisions regarding the criminal. Not only do they not have rational information to convey, they also have an emotional stake in the outcome.

Why should the criminal whose victim is sweet, attractive, and well-spoken be subject to a greater penalty than the one whose victim is unattractive, grumpy, and ill-spoken?

Restitution is very commonly ordered in the meting out of federal sentences – indeed, it is often mandatory, and it is also to be considered pursuant to the guidelines (thus making it a “factor important to the sentencing determination” I assume). And often times, the extent of the victim’s harm, or the responsibility of an individual defendant for proximately causing that harm, or both, are reasonably in dispute. Should a victim be able to “present information to the court” regarding the amount of restitution that should be ordered? Surely the financial self-interest of the victim at leases raises some concerns that might not be otherwise present. I fear that some victims might be able to bypass the elements of a civil suit recovery, most especially proximate causation, by this approach.

By way of example, look to the recent (and exploding) trend of victims of child pornography seeking restitution for damages incurred as a result of the downloading of pictures by end-users. The statutory section addressing restitution for victims of child sex crimes is exceptionally broad, and the victims’ theory that they are “victimized anew” every time the picture containing their image is traded is generally accepted. But there are serious causation issues that come to mind as to individual defendants’ conduct as related to the harm that is undoubtedly suffered by the victims. And with the victims seeking joint and several liability recoveries (see a recent case in the N.D. Fla. where the perhaps rare child porn-downloading defendant who apparently had substantial assets was hit with a $3 million + judgment on a J&S liability theory), causation becomes even more critical.

Shouldn’t allowing victims to testify at sentencing as to the amount of harm incurred as it relates to restitution require a fair opportunity to cross examine or confront the witness? Or, in the example listed above, to challenge the damages calculation and have defense experts examine the data or, perhaps even the victim? And once you allow this, the sentencing hearing risks devolving into a full-blown civil trial.

Perhaps I’m wrong. And in many cases, like a bank embezzlement, the amount of restitution required will not be in dispute. But in the cases where it is in dispute, particularly in tough cases like the example cited above, I’m not sure this is the right approach. Perhaps clarifying that if any “enhancement” is in dispute…any involved victim shall be given the opportunity… would resolve my concerns.

Kirk Parker: So tell me: in your heart of hearts, do you really believe that’s what’s going on, rather than this, too, being a useful polite fiction?

I think the harm to society (represented here metaphorically by the King) done by a violation of the criminal laws is distinct from the harm done to an individual victim.

In order to give the victim reparation, we have the civil courts, who award damages to the extent necessary to offset the harm done to the individual plaintiff. If the civil tort system works as it is supposed to (which it does not, if for no other reason than that you cannot sue someone who has no money), the victim is no longer a “victim”; they are put back in the position where they would have been if no tort had been committed. So what (material) interest does the victim have in the criminal trial? Whatever injury in fact the victim has suffered is already remedied.

Instead, the criminal trial is held to defend the interest of society as a whole in keeping the peace, i.e. in defending those rules which it has decided are important enough to be punishable through the criminal justice system. (Not all torts are crimes, but I can’t, off the top of my head, think of any crime that isn’t a tort.) It is society’s injury in fact that gives it standing to pursue its claims, an injury which is remedied by giving society its pound of flesh.

So yes, I really do believe that that’s what’s going on.

The King sues to obtain a remedy for a breach of the King’s Peace

So tell me: in your heart of hearts, do you really believe that’s what’s going on, rather than this, too, being a useful polite fiction?

Kirk Parker: Wow. Could all you statists just back off for a few moments? Yes, we try crimes in the name of the state. Yes, this is a very useful thing in terms of preventing anarchy and endless revenge.
But no, it’s not actually true in reality that society is hurt more than the specific victim is. The above concessions are all a polite fiction in service of a useful end, but to say to the victim “what has this got to do with you?” is mind-bogglingly obtuse from an ethical point of view.

The King sues to obtain a remedy for a breach of the King’s Peace (i.e. a violation of the criminal laws). An individual who is wronged sues in civil court. I see no reason to blur the lines between the two. (Except in the practical sense: allowing criminal courts to also award civil damages in certain circumstances saves everybody a lot of trouble and expense.)

But no, it’s not actually true in reality that society is hurt more than the specific victim is. The above concessions are all a polite fiction in service of a useful end, but to say to the victim “what has this got to do with you?” is mind-bogglingly obtuse from an ethical point of view.

What’s the purpose of allowing such testimony if not this?

Prof. Cassell’s proposal:

“When any factor important to the sentencing determination is reasonably in dispute, the parties and any involved victim shall be given adequate opportunity to present information to the court regarding that factor. . . .”

Allowed to present such without the convict’s ability to cross-examine or bring other witnesses to refute the claims? Wow. That sure seems fair.

If a “factor important in sentencing” is at issue, it should be tried in the constitutionally appropriate manner as any other matter of fact … and if you want greater or lesser punishment, you ought to pass laws that make such distinctions as to the heinousness of the various levels ["negligent, "aggravated", "with wanton disregard for human life", etc.] of crimes themselves, so as to ensure that whether such “factors” exist is tried appropriately and fully.

To repeat: It is no greater crime to kill a wealthy banker than a homeless alcoholic [albeit you might even find some nowadays arguing the opposite].

Cheers,

I offered a specific example of a crime victim who, remarkably, was not allowed to be heard at sentencing on the nature of his own injuries from an assault! There is no good policy argument for preventing a victim from providing such information to the trial judge and giving the judge highly useful information for crafting the appropriate sentence.

What if the prosecutor thinks that the victim’s evidence isn’t credible? It would be very wasteful of judicial resources, not to mention upsetting to the victim who may sincerely believe his or her evidence, to require that this evidence be heard and then discredited through cross-examination or other witnesses.

Aaron: I thought the whole purpose of criminal trials is to take the issue of punishment out of the hands of those whose judgment is likely to be clouded by ideas of vengeance.

Yes. And that’s the whole purpose of having a Sentencing Commission to establish appropriate sentences based on OBJECTIVE factors. When I was a prosecutor I noticed that most (all?) crime victims wanted the sentence to be 500 lashes with a cat-o-nine-tails personally administered by the victim or their designee. They wanted to HURT the perpetrator just as they had been hurt. VENGEANCE was the #1 objective.

The victim doesn’t have perspective of the justice system as a whole. And that’s not a criticism. Of course the victim will be most concerned with his individual injury and the effect it has on him. But as a justice system, we’re supposed to be looking at the impact both the crime and the punishment have on society. A horrific domestic violence case shouldn’t have a lesser punishment just because the defendant has terrified the victim into asking for leniency, and a run of the mill theft shouldn’t result in life in prison just because the victim feels really upset and betrayed. I’m all for prosecutors staying very involved with victims and making sure they feel like they are a part of the process. But the prosecutors should still have the official role, not the victims, or we might as well just make all crimes civil cases.

I’ve never heard a victim statement that added anything to the rational aspects of sentencing. It’s all about emotion (the victim hurts, a fact which is already known to the decision maker) and is designed (1) to be a catharsis for the victim and (2) to prejudice the decision maker (who has already heard the facts of the crime). Neither are good reasons for allowing an emotional diatribe. The victim can tell the prosecutor all they want. The prosecutor can relate the relevant information to the judge.

I was around in the late 80″s when the Victim Statement idea got going. The impetus was dissatisfaction with prosecutorial plea bargaining. The victims always want 100 years (because THEY place their victimization at the top of the list, naturally) but the prosecutor accepts a more realistic 3 years and 10 years probation (because he or she knows that this case is not the “worst” and they are maintaining some proportionality in sentencing).

I don’t see how three-way criminal litigation can be stable. Obviously the defendant will always be the defendant, but is the plaintiff the state or the victim? We have long rejected private prosecution because it is the interests of the state in domestic order that can justify incarcerating a person, never a single individual’s desire for retribution. Ultimately one party’s interests must take precedence over the other’s; either the victim determines what position the anti-defendant side takes, or the prosecutor does. While I am strongly in favor of victim input in prosecution and find helping victims or their survivors the most fulfilling part of my job, victims as a class do not have the perspective of the criminal justice system as a whole. If they’re in the driver’s seat, expect existing problems – disparities in treatment between similarly-situated defendants and inefficient allocation of resources spring to mind – to get worse.

I also foresee a major divide between victims who can afford to litigate, or who at least have the knowledge to push their interests in ways the system will respond to, and those victims who are poor, uneducated, and lack understanding of how to pressure the government. The resources of prosecutorial offices are already tilted toward the well-being of the powerful. If those powerful can actually tie the offices up in litigation on a regular basis to get their way, that’s just less prosecutor time available to work on other cases. If victim can, as a rule, spike a plea deal because he doesn’t like the resolution, then the number of crimes prosecuted will drop dramatically unless (a) prosecutorial resources are substantially increased or (b) the number of crimes decreased, perhaps by decriminalizing victimless conduct (the latter is not such a bad outcome).

I also wonder about victims who tilt the other way. I prosecuted DV cases for awhile, and most of my convictions came over the very, very vocal objections of the victims. Society nevertheless had a strong interest in bringing their abusers to justice. Giving these victims more leverage to influence the prosecution would undermine the interests of the state. Sentencing factors would be a start, but – and again, please correct me if I’m wrong – your project in general seeks to give victims not so much a seat at the table as their own table, distinct from the prosecution or defense, as a recognized litigant in a criminal case.

Judge, I sincerely appreciate your efforts on behalf of victims’ rights. Victims were long underserved and mistreated by too many prosecutors. They deserve better. But I believe you are attempting to swing the pendulum too far in the other direction. A victim should be (and theoretically is, under the CVRA) treated as an important participant in the case – but not as a litigant. These efforts to give victims their own third table in the courtroom would lead to a radical departure from the ancient structure of criminal law in this country, and I don’t believe the system is anywhere near broken enough to justify such dramatic revision.

We shouldn’t give victims input (or deny it to them) because we have a vague intuition that they deserve the chance to give input (or don’t deserve it). Rather we should decide the issue by looking at the concrete costs and benefits of victim input.

For instance does victim input result in more effective use of resources by helping to separate those likely to reoffend from those who are not? Say by helping to distingush more serious/aggravated instances of the same offense. Or does the variation between victims mean victim input largely functions to add noise to the process? Does victim input consume significant legal resources and is that worth the benefits?

Even the effect of victim input on the victim isn’t something we can assume without study. Sure, the victims may want to be heard but does that make it easier or harder for them to deal with the aftermath of being victimized. It could well be that it’s healthier not to drudge the incident back up as one does when providing input to the court.

At the very least it seems incumbent on someone arguing for victim input to enumerate the beneficial consequences they think it has and the grounds they have for believing in them.

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There is no good policy argument for preventing a victim from providing such information to the trial judge

Ultimately this comes down to how you weigh the prejudicial effect of the testimony against it’s use.

I mean if judges are swayed by victim input but the primary determiner of the kind of victim input they get is the personality of the victim then it’s surely going to be more prejudicial than useful.

Isn’t that what the trial is for?

There is no good policy argument for preventing a victim from providing such information to the trial judge

Uh, the victim might be lying? Might be out for revenge? Is not subject to cross examination? Is not under oath? (I could be wrong about the latter two). I mean, wouldn’t a victime “providing information” that might lead the assaulter to spend more time in jail, be tempted to exaggerate about the extent of his/her injuries. “My back constantly hurts, my vision is blurry at times, I have nightmares, I’m afraid to go out alone, I thought I was going to be killed.” How can the criminal rebut any of these things?

I’m okay with letting crime victims address the court and explain the damage that was done to them, but I’m not for letting them argue on every sentencing factor.

Should the victim get a say in the criminal history calculation? Should the victim be allowed to argue for a larger sentence based on the factors in 3553(a)?

Moreover, that’s only on average. It raises the possibility that the victim isn’t capable of properly presenting a case. The result will be that the victim can’t increase the sentence and given the previous point, the sentence will be lighter than normal. In the end, all victims will be running harder just to stay in the same place and keep the sentences like they were before. It may even get to the point where victims have to go into special coaching sessions and learn how to convince judges, just so that the criminal gets an appropriate sentence.

The reference to the CVRA is totally irrelevant. You admit that the CVRA does not legally control this issue so you can’t be arguing crime victims should have the right to be heard as it would be illegal to deny them this right. All you’ve established is that congress has voted for some legislation whose moral reasoning seems to endorse giving crime victims a say in guidelines issues.

Congress has voted for plenty of bad laws as well as good laws with bad justifications so the fact that congress might have endorsed a similar view isn’t an argument at all. I mean I might as well say, “Some friends of mine previously said they didn’t think crime victims should be heard at sentencing so they probably disapprove of this too,” it would be just as compelling of an argument.

I realize you probably feel it’s simply obvious that it’s a good thing to give crime victims more of a say in sentencing. However, everyone who finds it obvious already agrees with you on this question so if you want to convince anyone you need to say something more.