Wednesday, September 23, 2015

Criminal Punishment: Victim Impact Statements or Based on the Crime

Criminal Punishment: Victim Impact Statements or Based on the Crime

The question “Should the damage or problems caused to the victim be included in the punishment or should the punishment simply be based on the crime committed?” is of particular interest to those who work in civil rights advocacy and the criminal justice field. On one hand we have advocates for accused and the other hand we have advocates for the victim. Advocates for the victim argue that victim impact statement should be considered because for justice to be served to the victim the punishment should fit the crime. Advocates for the accused argue that victim impact statements should not be considered at sentencing because it can add unfair additional time to the prisoner’s sentence. Perhaps most importantly, we also have to consider the purpose of the criminal justice system.

The founding concept behind the US government is that “human beings begin as individuals in a state of nature” but co-exist as a “society” that, when governed by a social contract that maintains harmony, can provide mutual benefits for the individual such as "mutual protection, division of labor, and economies of scale”. To ensure the maintenance of social order governments establish, maintain and uphold laws of the social contract enacted by the people. Laws ensure that the fundamental human rights of the individual are not violated by establishing proper “use of force” by both the government and individual. A right, on the other hand, is a “moral principal” that dictates and sanctions "a man's freedom of action in a social context" ( cited by Landauer & Rowlands, 2001). In this regard, the purpose the government is to establish and maintain the common social contract for citizens that both protects the individual’s human rights and creates social order in society. The laws are the established rules of the social contract that maintains harmony in society by protecting an individuals established freedoms and liberties within the social context. And to maintain this delicate balance means the government must establish law that balances the rights of the individual [and/or victim] against the accused [and/or criminal defendant] and provide equal justice for both under the law (Schmalleger, 2014).  In order to provide equal justice under the law the government has provided the accused and the victim rights of law.

When you are accused of a crime the police must investigate, have reasonable suspicion, find probable cause, obtain a warrant for search and/or seizure before an arrest can be made. Once arrested there are many laws that ensure due process of the law. The rights of the accused are defined by amendments in both the Constitution and the Bill of Rights and national mandates including (Mott, 2015).

 The Fifth and Fourteenth Amendments which mandate “no one shall be deprived of life, liberty, or property, without due process of law” and several more specific mandates that provide measures to ensure fair trial (Mott, 2015). This includes the “The Writ of Habeas Corpus” which mandates the law provide justification for arrest and probable cause (Mott, 2015). The accused also has the right to a trial by jury where he or she may confront accusers and “compel favorable witnesses” to testify in their behalf (Mott, 2015). Other rights include the right to free from: unreasonable search and seizure of person or property, self-incrimination, trail for the same crime twice, and excessive force, cruel or unusual fines or punishments (Mott, 2015).

On the other hand, when there is a crime committed against you, you go to the police make a statement, the police may make the arrest for you and/or have the court serve a summons, and the state prosecutes for you. But you are considered as ONLY a witness of the state. Eventually you get to testify for the state about what happened to you (or what you saw), then the accused’s attorney gets to cross examine you, question your credibility, rip apart your use of words in your police statement. However, because you are the victim/witness of the state (instead of the plaintiff who initiated a law suit) and depending on state law you might be excused from the court room while the defendant calls witness to speak for his character. You don't get to hear that they say about you, you don't get to rebuttal, and you don't get to call your own witness to speak on behalf of your character. Those are reserved for the rights of the accused.

The “rights of the victim” are pretty new, starting in 1975 forward, and vary from jurisdiction, but include (NCVRW, 2013):

Victims have the right “to Be Treated with Dignity, Respect, and Sensitivity” throughout the criminal proceedings (NCVRW, 2013).  Victims are also entitled to the right to protection, this includes the right to be informed about the “arrest and arraignment, bail and pretrial proceedings, dismissal of charges, any plea negotiations, trial, sentencing, appeals, probation or parole hearings and the release or escape of the offender” (NCVRW, 2013). All states allow victim impact statements at some point during the proceedings, including in some cases at sentencing and also parole hearings (NCVRW, 2013). Victim’s also have a right to apply for compensation and, in some states, expect restitution for lost wages, property loss, or insurance deductible, as well as expect the prompt return of personal property. The victim has the “Right to a Speedy Trial” and is entitled to the Enforcement of the above mentioned “Victims' Rights” (NCVRW, 2013).

Victim rights are finely tuned amendments of constitutional rights tailored to people who happen be victims of crimes. []

Being treated with Dignity, Respect is at the core of human rights- adding sensitivity just makes treatment contextual to the situation.  Still, please consider the term “unsympathetic witness” before you think that all victim/witness are treated with Dignity, Respect and Sensitivity.

The term unsympathetic is applied to victims and suspects who, by nature of previous crimes or circumstance, would not gain the sympathy of the jury (Perin, 2013). An example of an unsympathetic witness would be if woman was beaten and sodomized against will while prostituting. Although it is incredibly unfair, the fact that she was selling sex could make people unsympathetic to her victimization. It is indicated that those deemed “unsympathetic " are often done so by aspects of the victims/suspects character or other case circumstances and are less likely get justice for crimes committed against them (Perin, 2013).

Essentially the right to protection and information about the case is vital to ensure the victim isn’t killed or harmed before or after they serve as a witness for the state. This is important because it encourages victims to come forward without fear. However, while it directly helps the victim through prosecution and after--- it also is vital to maintain the “due process” in the criminal justice system. For if no one felt safe to report crime than the criminal justice system would have no witnesses to bear testimony against the accused and fewer convictions. And if the witness doesn’t show because he or she doesn’t know when to show they are unable to testify by default, regardless of desire or intent, they are denied ‘due process” and justice, and as a result public safety can be jeopardized.

They also have a right to apply for compensation and, in most states, expect restitution for lost wages, property loss, or insurance deductible, as well as expect the prompt return of personal property (NCVRW, 2013). Though this is dependent on a guilty verdict, ability to prove your losses are related to the crime, and/or your right to property or loss before the defendant will be held liable.  It would seem only natural course that a person convicted of a crime against another that causes losses would follow with a punishment that mandated the victim be paid back, losses recovered, and any property returned. But, doesn’t that seem more like that is just part of the punishment for the criminal --rather than a right of the victim.

Victim/witness impact at sentencing is the “big” next step to considering the victim in the proceedings and helping them obtain justice (National Center for Victims of Crime, 2013). The victim impact statement, which describes the impact that the crime has had on the victim, can be considered at both sentencing and later parole boards. However, at least in some capacity the judge is governed by the law pertaining to the criminal circumstances for the case in his hand. Albeit the judge is allowed some discretion, but many states have minimum and maximums for specific crimes, especially grievous crimes such those against people. Though they seemingly have a positive impact on healing and closure for the victim, the actually impact statements have on the sentencing of a criminal is hard to directly quantify (National Center for Victims of Crime, 2013).

While the witness also has a “Right to a Speedy Trial’, the accused is already going to get the speedy trail and the victim is only getting that by default. Finally, the victim is entitled to the enforcement of the above mentioned “Victims' Rights” could also be said as : the individual (victim) has the right to due process including the enforcement of laws that protect his or her person and property, right to life, liberty and justice- which is just our constitutional right anyway.

In closing, the enforcement of “Victim Rights” is to protect the victim’s person and property rights as well as his or her right to life, liberty and justice. The accused has many rights that are equal to, if not better than, the victims that ensures him or her due process as well as his or her right to life, liberty and justice. As the governments interest is in equality it would follow that victims’ rights would advance as the rights of the accused has. It would seem only the natural course of the law that a person convicted of a crime against another must pay the victim back, recover losses, return property loss caused by the crime, as well as, be punished for the criminal activity itself. Though, in part, some form of victim impact statement has been necessary for the compensation and restitution law that were the very first victim rights establish in 1975. Nevertheless, in recent years victim impact statements have been heard at sentencing and parole boards as well. Because of state laws that mandate specific punishment for certain crimes the victim impact statement may or may not impact the sentence of the criminal as much as one thinks. Though it may have considerable more impact at parole hearings where the board has more discretion, perhaps the discretion is necessary to ensure public safety and justice for all. But most importantly, because it impacts the healing and sense of justice felt by the victim/witness I feel including the damage or problems caused to the victim in the punishment was a good addition to the criminal justice system.


Constitution.Org. (2007). The Social Contract and Constitutional Republics. Constitution Society. Retrieved from

Landauer, J. & Rowlands, J. (2001).The Necessity of Government. The Importance of Philosophy. Retrieved from

Mott, J. (2015). Rights of the Accused. American Government and Politics Online. This Nation. Retrieved from

NCVRW. (2013). Crime Victims’ Rights in America: An Historical Overview. VictimsOfCrime.Org Retrieved from

National Center for Victims of Crime. (2013). Victims' Rights. VictimsOfCrime.Org Retrieved from'-rights

Perin, M. (2013). Defining Victim. Officer.Com. Retrieved from

Schmalleger, F. J. (01/2014). Criminal Justice Today: An Introductory Text for the 21st Century, 13th Edition. [VitalSource Bookshelf Online]. Retrieved from