After Pervis Payne was convicted in the 1987 double murder of Chrisse Christopher and her daughter, Lacie, the judge allowed Christopher’s mother, Mary Zvolanek, to tell the sentencing jury about the emotional impact of the crime on the victim’s family. Zvolanek described how her grandson, Nicholas, had been affected by the murders of his mother and sister:
He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister, Lacie. He comes to me many times during the week and asks me, “Grandmama, do you miss my Lacie.” And I tell him, “Yes.” He says, “I’m worried about my Lacie.”
The jury sentenced Payne to death.
In a 5-to-4 decision, the U.S. Supreme Court ruled in Payne v. Tennessee that victim-impact statements delivered by crime victims’ family members are admissible at capital sentencing hearings, reversing its own decision of just two years earlier in Booth v. Maryland. The Booth decision had barred the statements, viewing them as emotionally charged testimony that would divert the jury’s attention from the defendant’s responsibility for the crime and focus it on the character and identity of the victim. The Payne decision not only dismissed this concern; it found that the statements were valuable precisely because they remind sentencing juries and judges “that the victim is an individual whose death represents a unique loss to society and in particular to his family.” It rejected the argument that the statements would influence sentencing based on irrelevant factors, such as the victim’s attractiveness, respectability, social class, or race.
Since Payne was decided, the right to give a victim-impact statement has been recognized in every U.S. state and by the federal government, as well as in Canada, the United Kingdom, Australia, and New Zealand. The statements are now widely used not only in murder cases but across the spectrum of criminal cases. But what exactly have victims won? And at what cost?
This quarter-century milestone is an opportune time to evaluate these questions, for two reasons. First, there is substantial confusion in the criminal-justice community about the purpose the statements are meant to serve. Are they information for the sentencing body? A therapeutic tool for victims and their families? Or an opportunity to confront the defendant? Without some clarity about what the statements are for, it’s hard to determine whether they are succeeding and, if not, what can be improved.
Second, researchers have done substantial investigation on how the statements work in practice, although much more is needed. Evidence increasingly suggests that hearing the statements makes capital juries less careful in their decisions. Judges hearing statements from crime victims are uncertain about what function the statements serve and how to react to them. For victims, the takeaway is more complicated: There is evidence that the statements may reinforce harmful stereotypes and encourage judgments about “worthy” and “unworthy” victims.
The Supreme Court viewed victim-impact statements as information that gives juries a fuller understanding of a case. Since that information is largely about the grief and pain the crime leaves in its wake, it is not surprising that the statements often incite or amplify jurors’ anger toward the defendant. The problem with anger, studies show, is that it can interfere with careful decision-making. In fact, as law professor Janice Nadler and sociologist Mary Rose found, victim-impact statements can make jurors so eager to punish that they search for evidence to validate their anger and ignore evidence in the defendant’s favor.
A 2011 study from the criminologists Raymond Paternoster and Jerome Deise found that hearing the statements not only makes jurors angry at defendants; it makes them eager to help victims—just not all victims. These researchers and others have found that victim-impact statements make jurors and judges feel more sympathetic toward some victims than to others. This happens even in murder cases, according to a study relying on data from the Capital Jury Project. A murder victim who met her assailant in a biker bar, for example, is valued less than a murder victim attacked while withdrawing money from an ATM machine.
In addition, the Skidmore sociologist David Karp and his coauthor found that jurors who heard victim-impact statements considered black families’ losses and grief less important than the feelings of white families. This finding fuels concern that victim-impact statements will exaggerate an effect already amply documented in capital cases generally: Jurors have a tendency to value the lives of white victims over those of black victims
In rape cases, judicial reactions to victim-impact statements too often discredit or punish the victims themselves. A study of Minnesota judges published in 2010 reported that they had very strong ideas about what rape victims “ought” to feel. These judges found angry rape victims less credible and less sympathetic than victims who expressed compassion and understanding for their attackers. They also had less sympathy for victims who had been drinking or dating their attackers.
Prosecutors tend to reinforce these notions of “worthy” victims. A Canadian study published in 2013 found that prosecutors refrained from seeking victim-impact statements at all in cases where the prosecutors did not regard the rape as especially egregious or the victim as a “true victim”—for example, when the victim and defendant knew each other. Although the statements are meant to give victims a chance to express their feelings, prosecutors too often strive to showcase the so-called “good” victims and edit or silence those who don’t fit their script.
In short, the fears of the Court that decided Booth were well founded. And the brave new world of video-based victim-impact testimony may make this problem even worse. The Supreme Court recently turned down the chance to rule on two video montages. One included a soundtrack by Enya and Celine Dion; the other contained 118 photographs of the adult victims, beginning in early childhood and concluding with a photo of their graves. The informational value of these offerings is increasingly hard to pinpoint, and the emotional manipulation is increasingly hard to ignore—along with the danger of cultivating selective empathy for those victims who live “respectable lives.”
Although the Supreme Court upheld victim-impact statements as information for judges and juries, over the past 25 years it has become accepted wisdom that the statements are a therapeutic tool for victims and their families. Mothers Against Drunk Driving, a major proponent of the statements, says in its handbook: “Many victims/survivors say that having the opportunity to make a victim impact statement can be a very important part of their healing journey, allowing them to write down and share what they have gone through.” Prosecutors’ offices routinely advise victims that the statements “may help the process of healing.” Even the U.S. Department of Justice says that many victims find giving a statement “helps provide some measure of closure to the ordeal the crime has caused.”
The purpose of the statements matters. In the trial of Dzhokhar Tsarnaev for the Boston Marathon bombing, victims were allowed to give additional statements after the jury sentenced Tsarnaev to death. This makes no sense if the statement is meant to aid the sentencing decision. But it might make sense if having the opportunity to give a formal statement in court helps victims heal. The question then becomes: If victim-impact statements are meant to help victims heal, are the criminal courts the best venue for making that happen?
What’s more, evidence about whether the statements actually do help victims is mixed. But one thing is certain: Victims are not a monolithic group. Their responses to harm are varied and complex, and victim-impact statements may not allow for such complexity. For example, victims are routinely instructed not to express anger or blame. Victims generally draft statements with the help of the prosecutor’s office, whose goals are not always the victim’s goals. The conflict between the victim and the prosecution is especially acute for murder victims’ families who don’t support the death penalty. The prosecution often asks the jury to return a death sentence on the families’ behalf. Those who wish to give victim-impact statements but don’t want the death penalty imposed in their name are faced with a quandary.
No evidence conclusively shows whether the statements help victims of violent crimes, or even how they are meant to help victims or their families. Some victims may benefit just from having the opportunity to deliver a statement in a formal courtroom setting. But victims may also hope for a reaction from their audience—more than silence and a neutral stare. At times, victims receive the response they need. One rape victim discussed in the 2013 Canadian study spoke movingly of the judge’s assurance that she was not to blame and his recognition of her pain. “Because of what the judge said, it was so easy just to walk out of that court and start my life,” she said. But this kind of reaction can’t be counted on. Judges in the Minnesota study admitted that they often didn’t know how to react to victim-impact statements or were afraid of losing their authority if they did step out of their impassive role. In rape cases, victims giving harrowing statements are often met with no reaction. In murder cases, family members who are promised that giving a statement will help them heal or find closure may experience additional pain when the hoped-for relief doesn’t materialize.
The statements may help victims, or even defendants, by permitting victims to confront defendants with the suffering they’ve caused. Rebekah Gregory, who lost a leg in the Boston Marathon bombing, wrote to Tsarnaev that it helped her to give testimony, even though he never looked at her while she spoke. “I realized that sitting across from you was somehow the crazy kind of step forward that I needed all along,” she said. Some victims may want more from the defendant—an acknowledgement of their pain, an expression of remorse. Whether or not this occurs is not in the court’s control. For example, many watched in horror as Ariel Castro responded to the victim-impact statement of Michelle Knight, whom he had held captive, raped, and tortured for 11 years, with a mixture of denial, excuses, and victim-blaming.
The courtroom is not well suited to assist with the healing process, particularly compared with victim-offender mediation, in which mediators are trained to deal with the emotions involved and carefully screen and prepare the participants. In a courtroom, judges have no such training, nobody ensures defendants will respond appropriately, and victims are aided by prosecutors, whose agendas don’t always align with what victims need.
Victim services are essential to the well-being of victims and their families, but they should not be tied to participation in the criminal-justice system. Nor should victims’ power to educate the public be tied to the criminal courtroom. In a promising initiative, MADD has recently inaugurated victim-impact panels, with the goal of educating young drivers about the potentially tragic effects of driving while intoxicated. Victims should not feel required to give a statement in court or pressured to shape their statements to help advance the prosecution’s agenda. The verdict is not yet in on whether the criminal courtroom is capable of serving a therapeutic purpose. But ultimately, the criminal-justice system needs to ensure it can meet its primary obligation: to do justice equally and fairly.
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