The Role of Victims in the Sentencing Process in English Law - Research Paper Example

The Role of Victims in the Sentencing Process in English Law: An Analysis of Current Trends and Dominant Debates Table of Contents Background..........................................................................................3 Introduction..........................................................................................4 Historical Context of Victim Impact Statements.................................4 Victim Impact Statement and Victim Personal Statements.................7 Punitive V Restorative …....................................................................10 Emotionality of Victim Impact Evidence............................................11 Conclusion...........................................................................................11 References............................................................................................13 Background In criminal law, people are punished for an unlawful act which causes some consequences for victims or the wider society (Hunt, 2004 p58). In criminal cases, there are three main elements: the victim, defendants and the public. The victim is the person who suffers directly from the act committed by the defendant. Although the concept of 'public' appears to be abstract, it is vital because criminal cases are structured to cause the defendant to face the state. Whilst the defendant is summoned to court, the state is represented by the Prosecuting Authorities, which tends to be the Crown Prosecution Service (CPS) in the United Kingdom. Procedurally, a criminal case involves the defendant and the prosecutor. Victims often act as some kind of witnesses whose submissions play a role in the verdict and in the sentencing. In contrast with civil cases, the victim plays a passive role in criminal cases. This means that there is a bit of a limit in how much a victim can partake in the trial. However, the Criminal Justice Act, 2003 section 142 states that the aims of sentencing in criminal cases are to: 1. Punish offenders 2. Reduce crime 3. Reform and rehabilitate offenders 4. Protect the public 5. Ensure reparation by offenders to persons affected by the offence. In all these cases, it appears that the role of the victim is undeniable. This is because the victim felt the actual impact of the offence, as such, it is not practical for any form of punishment, deterrence, reform or protection to occur if the victim does not take an active part in the whole legal process that involves the trial of a criminal case. Introduction Arguments continue as to whether victims should participate or influence the sentencing process. Ashworth (1993: 2000) has argued that victim participation in the adversarial legal process would undermine the rights of the defendant. Others hold that it is logical for victims to take a significant part in the sentencing process. Juries face a unique burden as they as they need to pass an opinion about the circumstances based on the facts that are presented before them. This is done by weighing defendant’s uniqueness as an individual against the nature of his or her crimes. Tensions often exist between balancing the rights of the defendant and ensuring that victims are given adequate voice in sentencing proceedings (Hunt, 2004 p81). In most Common Law jurisdictions, victims present a Victims Impact Statement after the verdict but before the sentencing (Roberts and Erez, 2010 p232). This is quite problematic because it is likely to influence the sentencing and create a serious issue and influence the decisions which could prove to be unfair to the defendant (Burchell and Milton, 2005). This research examines the role of victims in the criminal justice process. It examines the dominant debates involved in this situation and how it can potentially influence the discharge of justice throughout the British Commonwealth. This is done by examining the political and historical contexts of victims' involvement in the justice system. Victim Impact Statements Victim Impact Statements are gaining grounds around the British Commonwealth (Burchell and Milton, 2005). In South Africa, the Criminal Procedure Act, section 274 (1) guarantees some involvement of victims prior to sentencing via the Victim Impact Statement. Also, Section 772 of the Canadian Criminal Code guarantees some involvement of victims in the criminal process prior to sentencing. Elsewhere in the world, victim impact statements may be introduced by the state in order to highlight the uniqueness of the victim and to convey information concerning the resultant harm experienced by the victim’s family and friends. Empirical evidence demonstrates that VIS may lead to affective as opposed to rational decision making (Ashworth, 2000). This is because there is a high probability that the Victim Impact Statement will affect the judge in taking a decision when it comes to sentencing. Although judges are required to remain unbiased, they are also human beings and there is a major tendency that they would become swayed by the victim impact statements. The defence may present several types of mitigating evidence, some of which is intended to humanise the defendant. Counsel can use various types of mitigating evidence to close the “empathic divide” that exists between the judge and the defendant – a divide that is likely to be increased by the presence of a Victim Impact Statement. On the other hand, these statements could be justified. In that if crime is meant to have some compensatory and protective element, then sentencing should be in sync with what the accused person had actually done. The doctrine of proportionality requires judges to use force that is commensurate with the actions of the accused. As such, it is important and vital for the impact of the defendant's act to be brought to the notice of the judges. Otherwise, the case will be judged in a very abstract context and some persons who deserve to be punished could be set free. Historical Context of Victim Impact Statements Historically, the state has taken the responsibility of representing the voice of victims in the legislative system while actual victims play a background role in criminal justice proceedings. Victim advocacy groups contended that the criminal justice system placed such a strong emphasis upon the preservation of the defendant’s rights at the expense of the rights of victims, thus sparking cries for legal reforms in order to rectify the imbalance. In the United States of America in 1990, the Federal Victim’s Rights and Protection Act clearly laid out a Victim’s Bill of Rights which focused heavily upon ensuring that victims were notified about all stages of trial proceedings and that they could not be excluded from the process. Since this time, victim rights have seen greater expansion at the state and Federal level (Violent Crime Control and Law Enforcement Act, Jacob Wetterling Crimes Against Children Act, Megan’s Law, Justice For All Act of 2004) with victims now having access to a variety of information and programs in order to increase their involvement and ultimately their satisfaction with the process. Evidence suggests that we are now faced with yet another imbalance as we must ask ourselves whether the rights of the defendant are compromised by the expansion of the rights of the victim. One of the more controversial changes stemming from advances in the victim’s rights in the United States was the Supreme Court’s ruling in Payne v. Tennessee (1991), which made it constitutional for the state to introduce Victim Impact Statement in the penalty phase of capital trials. Through victim impact evidence, victims as well as their family and friends are now permitted to give evidence in both capital and non-capital trials about the harm experienced as a result of the crime. In England and Wales the Council of Europe Recommendation for Victims of Crime (R[85]11) and the Council Framework Decision of the European Union placed a statutory emphasis on member states to ensure victims played a vital part in criminal proceedings and that they had a voice. The legal systems in England and Wales were somewhat slower than the United States of America in introducing rights to victims and statutory rights were confirmed in 2000 despite on-going opposition. The Home Office introduced the Victim’s Charter on European Victim’s Day on 22 February 1990. The Victim’s charter established an integrated framework of good practice in areas across the criminal justice system placing an emphasis on Community Safety Partnerships to reduce and prevent crimes locally. Victim Impact Statements and Victim Personal Statements The purpose of a Victim Impact Statement in a trial is to describe the impact of the victim’s death on survivors, including physical, psychological and financial harm. A Victim Impact Statement might also include the victim’s opinions regarding the crime and the defendant, and in some cases it may include recommendations for sentencing. Even though it would appear that victims may not consider this right as important as others (i.e. notification of arrest, being involved in decision to drop the case, being informed of a defendant’s release), this is the one right they are most frequently choosing to exercise. It is said that victim impact evidence focused too much attention on the victim’s character and communicated to jurors that defendants found guilty of murdering victims of a high social standings deserved more punishment than victims of a lower social standing. Additionally, the majority held that victims’ opinions about the crime or defendant were an irrelevant form of evidence that did little else than inflame emotions and overshadow rationality. The dissenting opinion focused upon the use of victim impact evidence as a tool to establish balance between mitigating evidence and the uniqueness of the victim, and that consideration of the harm experienced is an integral component in the determination of punishment. A victim who is allowed to testify may serve to re-victimise individuals and could detract from the ostensible purpose of the Victim Impact Statement: giving voice to victims. In addition to arguments concerning the relevancy of victim impact evidence, opponents argue that such emotional information may unduly bias the jury in favour of a harsher sentence. One of the primary purposes of victim impact evidence is to communicate the resultant harm stemming from the defendant’s crime. Nevertheless, such information is affective in nature and dependent on the victim’s ability to articulate the harm they have experienced. In terms of how this influences juror decision making, Nadler and Rose (2003) argue that jurors may use harm as a heuristic cue for determining culpability and draw on the emotional forecasting literature to demonstrate that people tend to be inaccurate in their predictions of how they will feel in the future thus presenting a risk of victims overestimating (and certainly in some cases underestimating) the harm they have experienced. Victim Impact Statements may influence prosecutorial strategy as counsel may attempt to capitalise on jurors’ similarity to the victim in an effort to foster empathy and sympathy while emphasising their dissimilarity from the defendant. Although some jurisdictions have attempted to limit the emotional content of impact evidence, defence barristers are left with little in the way of tactical strategy to respond to the Victim Impact Statement, as “a defendant who casts stones on his victim’s character cannot possibly ingratiate a jury” (Shanker, 1999). Thus the need exists to examine what the defendant can do to counter the inflammatory nature of victim impact evidence. Various factors such as the victim’s social status, the level of harm suffered by the friends and families of the victim, as well as personal qualities of the victim have all been shown to have an influence on perceptions of blame. Evidence suggests that there the fears expressed by opponents of victim impact evidence as the introduction of a Victim Impact Statements may create an anti-defendant bias and increase the punitive element. Nevertheless, there is limited evidence that the introduction of a Victim Impact Statements may have no influence on sentences in certain cases. The introduction of a VIS has the potential to cause judges’ to render harsher sentences nor did they appear to consider the degree of harm that victims reported as a result of the crime. The complicated nature of victim impact evidence allows us to infer that there may be more to the puzzle of how such evidence can influence decision making. Caution must be applied and jurors who hear a Victim Impact Statement about a highly respectable victim could render him/her as more likable, decent, and valuable. Additionally, the jurors could feel more compassion for the victim and render the crime as being more serious in nature. There is potential to manipulate the content of the Victim Impact Statement to include family members’ opinions of the defendant, and family members’ sentencing recommendations. Also personal qualities of the victim may have a significant impact on perceptions of the victim and the defendant. Influences such as social standing and perceived social value of the victim may portray the victim as having a greater social value. It would appear that impact of the Victim Impact Statement on perceptions of the victim and defendant is strongest when it includes information about multiple types of harm experienced by the family and friends of a victim. Additionally, the higher the social standing of the victim, the more detrimental the outcome could potentially be for the defendant. Punitive versus Restorative Kent Roach referred the “punitive model” when describing Victim Impact Statements and believed that the main emphasis was to ensure that victims have an influence in increasing the severity of sentencing. There is also the potential to use victims to achieve political gain and public sympathy. The non-punitive or restorative model concentrates on the interests of the victim from a restorative justice approach. Restorative justice is fast becoming a popular method of justice and supported heavily by government policy. The Home Office introduced Integrated Offender Management and placed a statutory duty on local Community Safety Partnerships to work together with statutory and voluntary partners such as Probation, Youth Offending Teams, Local Authorities, Police and Fire Services to manage offenders and commission scheme such as Community Payback. This type of scheme encourages public and victim referral of projects that can be witnessed in local areas. Offenders can be seen physically making amends for their crimes by the local community. Offenders are selected using a specific criteria and are supervised by Probation Services. Victims therefore cannot apply over emotional factors to referring offenders to this scheme. Emotionality of Victim Impact Evidence The following quote by the American psychologist William James “The emotions aren’t always immediately subject to reason, but they are always immediately subject to action” defines human ability to be influenced. One particular concern that has been raised in the context of Victim Impact Statements is that jurors may not be able to process information rationally as they are overwhelmed by emotion. A major factor is the delivery of Victim Impact Statements is the demeanour of the actor delivering the Victim Impact Statement. The level of harm described by the victims could be more influential in sentencing judgements than witness demeanour as jurors could be more punitive when harm was severe as compared to when it was mild. Witness demeanour and the interaction could significantly influence sentencing however could also be perceived to have a negative effect. Constructive Elements of Victim Impact and Forgiveness On the other hand, there could be a situation where defendants can plead for forgiveness and get some degree of leniency from the victims. Hough and Roberts conducted a survey which revealed that only 55% of victims favoured imprisonment and tough punishments (2010).On the other hand 53% of non-victims also favoured imprisonment and tough punishments. This means that victims' involvement is not always to seek strong punitive action against victims. In Buchanan (1980)1, the victim and his family wrote to the court and suggested a lenient sentence (Ashworth, 2009 p386). In Darvill (1987)2, the judge stated that “forgiveness can in many cases have an effect albeit indirect effect, on the task of the sentencing judge. It may reduce the possibility of reoffending, it may reduce the danger of public outrage which sometimes arises when a defendant has been released unexpectedly early...”. This therefore means that the involvement of victims in the criminal justice process through victim impact statements and the like can sometimes be used to the advantage of the defendant if he manages to secure the forgiveness of the victim or the victim's family. This also complements the essence of sentencing which often includes preventing re-offending and promoting public peace and consistency in the legal system. Conclusion Through the years, laws have increased the involvement of victims in the criminal justice system in order to ensure that voice be given to those who have been directly or indirectly impacted by crime. Critics have argued that the presentation of a Victim Impact Statement tilts the scales in favour of the prosecution and places unwarranted attention upon extra-legal information, but it can be argued that such rights are essential in order to ensure that jurors are informed about the full extent of harm resultant from the crime. Scholars have attempted to examine the conditions under which a Victim Impact Statements may lead to inaccurate decision making in trials with convergent results indicating that the mere presence of this evidence can increase the likelihood of a stricter sentence, and that the cues conveyed via a Victim Impact Statement could lead to inaccurate decisions. Whether Victim Impact Statements are liked or not, victims will continue to have a long term influence in the sentencing process. Victims will continue for the foreseeable future to have a voice and be kept informed at all stages of the criminal process. Evidence suggests that public opinion is in favour of using Victim Impact Statements , however caution should be applied (Edwards 2001) that whilst public and political opinion is positively received and increases public confidence in the judicial system, they should not be seen as an alternative to effective communication between parties. Victim’s participation in the sentencing process of criminal cases is seen by some scholars as punitive and others as non-punitive. The Victim Impact Statements empower victims and are identified as vehicles to facilitate their involvement in the legal process. It is argued that whilst there are identified benefits in using Victim Impact Statements especially providing rehabilitative benefits, scholars maintain that affecting this process may overburden the judicial system in terms of processing times (Erez and Rogers 1999). To conclude, Victim Impact Statements provide a channel of communication between victim and judge and if used restoratively and non-punitively can provide an opportunity for the offender to understand how their crimes affected the victim. The sentencing process itself is official recognition that the victim has been wronged. The victim’s influence therefore on the sentencing process directly may lead to the offender repenting when they are made aware of the initial and on-going harm caused by their crime. Bibliography Ashworth, A. (1993a). “Victim impact statements and sentencing”. Criminal Law Review, 498-509. Ashworth, A. (1993b). “Plea, venue and discontinuance”. Criminal Law Review, 830-839. Ashworth, A. (2000). “Victims’ rights, defendant’s rights and criminal procedure”. In A.Crawford and J. Goodey (Eds) Integrating a Victim Perspective within Criminal Justice (pp. 185-204). Aldershot: Ashgate Ashworth, A. (2009) Sentencing and Criminal Justice Cambridge: Cambridge University Press. Burchell, J. M. and Milton, J. (2005) Principles of Criminal Law Cape Town: Juta Company ltd. Edwards, I. (2001). “Victim Participation in sentencing: the problems of incoherence”. Howard Journal of Criminal Justice, 40(1), 39-54. Erez, E. and Rogers, L. (1999). “Victim impact statements and sentencing outcomes and processes: the perspectives of legal professionals”. British Journal of Criminology, 39(2), 216-239 Hough, M and Roberts J. V. (2010) “Sentencing Trends in Britain” Punishment and Society Vol. 1 (1) pp11 – 25. Hunt, M. (2004) Criminal Law London: Sweet and Maxwell. Myers, B., Godwin, D., Latter, R., & Winstanley, S. (2004). “Victim impact statements and mock juror sentencing: The impact of dehumanizing language on a death qualified sample.” American Journal of Forensic Psychology, 22, 39–55. Nadler, J. and Rose, Mary, R. (2003). “Victim Impact Testimony and the Psychology of Punishment.” Cornell Law Review. Vol. 88 (pp. 419-456) Payne v. Tennessee, 111 S. Ct. 2597 (1991). Shanker, N. (1999). “Getting a grip on Payne and restricting the influence of victim impact statements in capital sentencing: The Timothy McVeigh case and various state approaches compared.” Hastings Constitutional Law Quarterly, 26, 711-740. Cases R V Buchanan [1980] 2 Cr App R (S) 13 R V Darvill [1987] 9 Cr App R (2) 225 Statutes Canadian Criminal Code, Section 772 Criminal Justice Act, 2003 Criminal Procedure Act, Section 274, South Africa Federal Victim’s Rights and Protection Act (1990), United States of America Violent Crime Control and Law Enforcement Act, (2004) United States of America Read More