Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements1
| Date | 01 January 2004 |
| Published date | 01 January 2004 |
| Author | Julian V. Roberts,Edna Erez |
| DOI | 10.1177/026975800401000302 |
International
Review
ofVictimology,
2004,
Vol.lO,
pp.223-244
0269-7580104
$10
© A B
Academic
Publishers
-Printed
in
Great
Britain
COMMUNICATION
IN
SENTENCING:
EXPLORING
THE
EXPRESSIVE
FUNCTION
OF
VICTIM
IMPACT
STATEMENTS
1
JULIAN
V.
ROBEIUS"'
and
EDNA
ERFZt
•
Department
of
Criminology,
University
of
Ottawa,
25
University
St.,
P.O.
Box
450,
Station
'A',
Ottawa,
Ontario,
Canada,
KIN
6NS
t
Department
of
Justice
Studies,
Kent
State
University,
Ohio,
44242,
USA
ABSTRACT
The
role
of
the
victim
in
the
sentencing
process
continues
to
generate
controversy
among
scholars
and
practitioners
across
many
jurisdictions.
In
this
article
we
address
some
of
the
persistent
objections
to
allowing
victim
input
into
sentencing.
By
placing
the
debate
on
victim
input
within
its
historical
context,
we
suggest
that
the
movement
to
provide
victims
with
a
voice
has
been
derailed,
as
the
communicative
model
of
victim
input
-
originally
envisioned
by
the
reform
movement
as
its
justification
-
was
replaced
by
a
model
that
stresses
the
impact
of
VIS
on
sentencing.
We
argue
that
much
of
the
lingering
opposition
to
victim
input
rights
has
been
animated
by
this
'impact'
model,
which
we
argue
is
theoretically
misconceived,
empirically
unsupported
and
at
odds
with
major
sentencing
aims.
We
reintroduce
the
communicative
model,
which
reflects
the
original
intent
and
purpose
of
the
victim
reform
concerning
input,
elaborating
on
its
advantages
for
victims
and
offenders.
We
then
provide
two
examples
from
the
field
to
illustrate
the
therapeutic
benefits
of
the
model
for
both
victims
and
offenders.
We
conclude
with
a
call
to
reassess
current
theory
and
practice
regarding
victim
integration
in
sentencing
and
offer
some
policy
recommen-
dations
regarding
the
optimal
way
to
integrate
the
voice
of
the
victim
at
sentencing.
INTRODUCTION
The
role
of
the
victim
in
the
sentencing
process
continues
to
generate
controver-
sy
among
scholars
and
practitioners
across
many
jurisdictions.
The
debate
has
focused
on
the
propriety
of
allowing
victims
input
into
the
sentencing
process
in
an
adversariallegal
system,
as
well
as
the
specific
ways
in
which
this
input
should
be
structured.
In
particular,
legal
professionals
(e.g.,
Office
of
Victims
of
Crime,
1998:
99)
arid
scholars
(e.g.,
Ashworth,
1993;
2000)
have
argued
that
victim
input
may
undermine
the
foundation
of adversariallegal
systems,
adver-
sely
affect
court
schedules
and
outcomes,
and
erode
the
rights
of
defendants
(Erez,
1994).
Despite
the
misgivings
of
some
scholars
and
legal
professionals,
victim
participation
of
some
kind
is
now
a
requirement
of
legal
proceedings
at
many
stages
of
the
criminal
process.
Victims'
rights
were
enunciated
by
several
national
and
international
organizations:
the
United
Nations
(Declaration
of
Basic
Principles
of
Justice
for
Victims
of
Crime
and
Abuse
of
Power
[
1985]),
the
Council
of
Europe
Recommendation
for
Victims
of
Crime
(R
[85]
11)
and
more
224
recently,
the
Council
Framework
Decision
of
the
European
Union
(20011220/HA).
The
latter
is
a
binding
decision
that
obliges
signatory
states
to
ensure
that
victims
play
a
significant
role
in
the
criminal
legal
system
(Art.
2)
and
to
ensure
that
victims
are
heard
during
proceedings
(Art.
3).
In
the
adversariallegal
systems
of
some
countries
(such
as
the
U.S.),
victims
were
given
the
right
to
provide
input
into
the
sentencing
process
as
early
as
the
1980s,
when
most
jurisdictions
introduced
Victim
Impact
Statements
(hereafter
VIS)
at
sentencing.
In
Canada,
impact
statements
at
sentencing
received
statu-
tory
recognition
with
Criminal Code
amendments
in
1988.
In
England
and
Wales,
the
right
of
crime
victims
to
provide
input
into
sentencing
was
placed
on
a
statutory
footing
in
2000.
Although
opposition
to
such
input
into
sentencing
still
exists
(e.g.,
Ashworth,
2000;
Sanders
et al.,
2001)
there
is
recognition
among
opponents
that
'victim
participation
of
some
kind
is
here
to
stay.'
(San-
ders
et al.,
2001:
448).
Opposition
to
the
use
of
VIS
is
based
primarily
on
divergent
views
about
the
purpose,
function
and
consequences
of
using
such
statements
in
sentencing:
whether
VIS
exist
to
have
an
impact
on
sentencing
patterns,
or
to
serve
an
expressive
function.
In
this
article
we
first
discuss
the
conceptions
of
victim
impact
statements
that
have
emerged
over
the
last
two
decades.
Then,
by
placing
the
debate
on
victim
input
in
its
historical
context,
we
demonstrate
how
the
movement
to
provide
victims
with
a
voice
has
been
derailed,
as
the
expressive
or
communicative
conception
of
victim
input
-
originally
envisioned
by
the
reform
movement
as
its
justification-
was
replaced
by
a
model
that
stressed
the
impact
of
victim
input
on
the
sentence
irnposed
2•
We
argue
that
the
focus
on
impact
is
misplaced;
it
fails
to
reflect
the
true
purpose
of a
victim
statement
at
sentencing-
its
expressive
and
communicative
aims
(see
also
Young,
1993;
Erez,
1999).
Furthermore,
the
impact
model
ignores
the
possible
therapeutic
or
restorative
benefits
associated
with
communication
involving
other
participants
in
the
court
proceedings.
The
article
attempts
to
show
that
much
of
the
lingering
opposition
to
victim
input
rights
has
been
animated
by
the
impact
model,
which
we
argue
is
theoretically
misconceived,
empirically
unsupported
and
at
odds
with
major
sentencing
aims.
Having
reintroduced
the
communicative
model,
which
reflects
the
original
intent
and
purpose
of
the
victim
reform
with
respect
to
concerning
input,
we
elaborate
on
its
communicative
potential
and
then
provide
two
examples
from
the
field
to
illustrate
the
therapeutic
effects
of
the
model
for
both
victims
and
offenders.
We
conclude
with
a
call
to
reassess
current
theory
and
practice
regarding
victim
input
into
sentencing
and
offer
some
policy
recommendations
regarding
the
optimal
way
to
provide
victims
with
a
voice
in
sentencing.
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