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September 3, 2020

Thoughts about a sentencing system that gives crime victims the chance to set forth a "presumptive" sentence?

As briefly mentioned in class, there have been waves of "victims' rights" movements that have sought to ensure crime victims have a more prominent role in the criminal justice process.  The latest wave has come in the form of a ballot initiative known as Marsy's Law, which has been approved by voters in 14 states.  In November 2017, Ohio voters passed Marsy's Law which enshines in our state constitution that victims have, inter alia, the right "to speak in public proceedings involving the accused’s release, plea, sentencing, disposition or parole."   Moreover, the modern restorative justice movement has often be motivated by and grounded in a view that victims are often poorly served by traditional adjudicatory and sentencing processes.  See, e.g., Lara Bazelon & Bruce A. Green, Victims’ Rights from a Restorative Perspective, 17 Ohio State Journal of Criminal Law 293 (2020)  And lots of restorative justice models are very "victim-centric."

So, with an eye to giving victims not just a voice but also a vote in the sentencing process, what would you think of a proposal that victims get a chance to set forth a "presumptive" sentence for consideration by a judge at sentencing?  Procedurally, this might be operationalized by giving a victim (perhaps with the help of a probation officer) a chance to prepare for the sentencing judge a "victim sentencing report" (VSR) --- which would be submitted to the judge before sentencing and be in addition to a traditional presentencing sentencing report --- and then instructing a judge that they can and should sentence in accord with that report's recommendation unless they can provide a reasonable basis based in punishment theory for giving a different sentence. 

September 3, 2020 in Who decides | Permalink


My initial reaction is that I don't think victims should have a formal part to play in sentencing. Depending on the crime, I'm not sure victims would be in the correct mental state to think clearly about the situation. They may end up regretting their decision as being too lenient or too harsh at a later date. I would also be afraid of outside influences on the victim, both from and who and what perspective.

Posted by: Chris Wald | Sep 5, 2020 3:07:47 PM

Thanks for the comment, Chris, which I find very interesting and want to engage/challenge a bit:

1. Might you explain more what you mean by the "correct mental state to think clearly about the situation"? Victims generally know more about the impact of a crime than anyone, and often they might know more about the offender in cases involving intra-family violence or intra-business fraud than would a judge or prosecutor or probation officer. Are you suggesting that this "insider" experience/knowledge might be more distorting than helpful at achieving a just and effective sentence?

2. The regret point is an interesting one, but also one that could (a) apply to other sentencing decision-makers, and (b) be addressed by giving victims a chance/voice in sentencing modification(s).

3. Might you explain more what you mean by "outside influences" that you think problematic? Right now prosecutors and defense attorneys (and others) seek to sway sentencing judges. Are you suggesting it would be harmful if these folks tried to sway victims?

4. With apologies for all the questions, I will conclude by wondering if your concerns with victims setting a presumptive sentence would extended to victims voicing any opinions at sentencing.

Posted by: Doug B. | Sep 5, 2020 4:14:27 PM

The problem I have with this is the discrepancies it could create in sentencing. These discrepancies already exist based on number of other factors, and I feel like giving victims this much of an active role adds another variable to the equation that would make sentencing even more of a crapshoot.

Posted by: Samantha Pugh | Sep 6, 2020 6:50:26 PM

I think that this idea is generally a good one, and certainly believe that victims should have their voices heard throughout the judicial process. I can see where a detailed victim sentencing report could guide judges to a more just sentence, but I take a little bit of issue with an instruction that the victim's wishes should be seemingly the default.

Although a "reasonable basis based in punishment theory" seems like a low standard, I worry about how it might be interpreted. This might produce a similar outcome/really just be a semantic issue/be just how I'm reading it - but I think framing the instruction as an encouragement to strongly consider the victim's preferences while weighing the totality of the circumstances would be a better standard. Under the current suggested instruction, if a victim could make a cognizable argument that the judge's basis was "unreasonable" would they have any recourse? More flexibility could protect discretion in an overall helpful way.

Especially regarding offenses involving complex familial or romantic relationships, placing too much emphasis on the victim's wishes could simply reward the most effective abusers - if they have substantial control over the victim, this instruction might just give them a "get out of jail free card" for as long as they can maintain that control. I would also like to note (though I would be interested to hear evidence to the contrary) that in my experience, generally, prosecutors and judges do already strongly consider what the victim and their family want in sentencing decisions. Not to say that codifying this in some way wouldn't be helpful.

Posted by: Rachel Riestenberg | Sep 7, 2020 12:17:21 PM

I'd love to explain a bit more!

1. Correct mental state - When I originally wrote this I had in mind a victim of some type of violent intentional crime, e.g. gun violence, assault, battery, rape, something along those lines. In the context of those types of crimes, what is the mental state of the victim 30 days after the act? 180 days? What type of mental rehabilitation does the victim need to get back to their pre-crime mental state? I am not sure those individuals need the additional mental strain of being forced to participate even more so in the system. In the context of other non-violent or white collar crimes, I am more undecided as I had not thought about that situation.

2. Regarding regret - I believe the "other sentencing decisions-makers" have to a degree a choice to be in their position. Judges and other individuals who chose employment in the criminal justice system mentally signed up to bear the burden of sentencing, whereas victims did not. You could also say that juries did not choose to bear that burden, but I would counter that they did make that choice because they chose to NOT get out of jury duty, as bad as that may sound).

3. Outside influences - these come in two types in my opinion, those that exist today in the criminal justice system, and those that do not yet exist, or are only minor players. Currently existing influencers would be those you mentioned, the prosecutor, DA, or other individuals within the system that exist today. What type of protections would the victim be afforded against the perhaps well intentioned advice of these indidivudals? Like we saw with Huffman, the prosecutor might say something along the lines of "well most of these crimes yield a range of 3-5 years" and so you are left with victims who jump on the band wagon, just like the judges, and use that point of reference to make their decisions. Outside influencers that do not exist now, but could in the future, would depend on what type of information about the victims is made public. Would organizations seek to influence individuals, either seeking harsher penalties, or more lenient ones, through advertising, direct communication, or other methods directed at the victims? I imagine this would be almost similar to a political campaign, where organizations would attempt to sway public opinion and thus victims on certain issues or sentencing trends.

4. I think a solid middle ground may be giving victims a choice to voice an opinion at sentencing. This would also depend on the length of time between sentencing and the crime. Does the system have to wait for the victim to form that opinion to move forward? What if that takes two years because the act was particularly scarring? Is that prioritized over a speedy trial?

Posted by: Chris Wald | Sep 7, 2020 12:39:58 PM

Astute comments, all, and I am glad we have collectively dug deeper into one of many topics full of interest and challenge in modern sentence law, policy and practice. As many of your comments suggest, like so many hard sentencing issues we will confront, the most satisfying answer seems full of important (and yet frustrating) nuance: give this "who" (or theory or factor) some weight in some cases, but let's not make it dominant in all cases.

For anyone interested in going deeper, here is a link to a good (pro-victim rights) five-minute video by the nation's leading advocate for victim's rights (along with links to lots of additional materials):

Posted by: Doug B. | Sep 7, 2020 1:01:31 PM

I too worry about creating a system where victims set forth a "presumptive" sentence for consideration by a judge. As was noted in another comment, I worry in particular about the sentencing discrepancies that would inevitably arise from a punishment system based solely on a victim's recommendation.

However, I do think giving victims more of a voice in the criminal justice process is a step in the right direction, as the traditional adjudicatory and sentencing system has certainly poorly served victims in the past, particularly those of sexually-based offenses. We talked about the USA Gymnastics case in class and the profound impact of those victims statements, but I would also mention Chanel Miller's victim impact statement in the Stanford assault case, which garnered a fair amount of media attention several years ago when she released it to BuzzFeed. The judge's light sentence in that case eventually led to his recall and also led the California legislature to require a prison sentence for certain sexual assaults. I don't think these changes would have happened without Chanel Miller's statement. I think giving victims more of a voice can promote democratic change when, based on something like the impact statement, the public feels like the process hasn't actually achieved "justice."

I like Rachel's suggestion of encouraging judges to strongly consider the victim's preferences while weighing the totality of the circumstances. If victims were given one of the many "votes" at sentencing, amidst the other "whos" who also get a vote--the prosecutor, defense attorney, judge, probation officer, etc., so that they are not the only influence on sentencing, that might alleviate some of the concerns discussed above.

Posted by: Clare M. | Sep 7, 2020 6:28:15 PM

I think it is a dangerous idea, in general, to have sentencing so heavily influenced by the peculiarities of victims. Specifically, I think giving victims a vote would open up yet another avenue for racial bias to create disparate sentencing outcomes. What is more, victims who have received civil settlements from wealthier defendants might be inclined to request more lenient sentencing.

I agree with Chris's concerns about the victim's mental state, but found his remarks on victim regret particularly compelling. I think there is something to be said about a judge, juror, or prosecutor assuming the duty of participating in the criminal justice system. As a non-willing participant, compelling or pressuring a victim to participate in sentencing could create further trauma.

Finally, I am not convinced that victim participation in criminal sentencing is the best way to serve their interests. I think their participation would largely be an empty gesture from a State that continues to ignore the root-cause of the harm done to them. I would posit that a victim's interest is best served by an enduring and positive change to their community and sentencing schemes designed to prevent future harm to future victim or re-victimization.

Posted by: Ellen Terry | Sep 8, 2020 11:29:27 AM

Interesting conversation, and I'm not quite sure yet where I stand on the issue of victims playing such a large role at the initial sentencing. But, while we're talking about victims rights I wanted to bring up one other interesting area: the victim's role in the parole hearing process. In a lot of states victims are allowed to speak at a parole board hearing. For a system with goals of rehabilitation (on some level) this seems bizarre. Why would victims still be involved when the board is weighing in to determine if, in fact, the individual has been rehabilitated? How would the victim know?

Posted by: Meg B. | Sep 8, 2020 1:32:05 PM

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