@dstark: I do care which judges hear my cases and am happy to bounce judges I think are particularly bad. (California allows parties to do this once per side.) I don’t see what that has to do with notions of punishment or vengeance.
@greenwitch: There are many notable differences between victim impact statements and character references.
First is that the victim usually testifies because the victim is the complainant. The time for the victim to explain the impact of the crime is on the stand. Trials do not exist for the catharsis of victims. They do not, and are not supposed to, give people closure or emotional satisfaction. They are supposed to adjudicate the narrow question of whether a defendant has behaved in a manner punishable by law. To the extent the impact on the victim is part of the sentencing regime, that needs to be discovered in a way that gives the defendant a way to respond.
Second, is a practical problem in that the victim’s harms are already alleged and are the basis for the suit. There are due process implications to allegations of new harms coming in at the end, after trial and after opportunity for cross-examination.
The third problem is a justice issue: impact to victims is already built into the sentencing scheme. Allowing enhancements based on emotive victim statements essentially doubles without basis the penalty for a crime. Not to mention, this is a great way to import bias into the proceeding as favored victims get special treatment.
Character statements, on the other hand, address something that really can’t come up in the trial. In fact, character evidence is almost always barred from admission into evidence. Character statements really go to the rehabilitation prong of sentencing. They’re occasionally somewhat useful for determining how well a defendant integrates into society.
@Demosthenes49, different judges have different views on what the appropriate punishments are. The fact that you and every attorney I have ever talked to cares who the judge is at their trials tells me what I want to know.
@Demosthenes49, I think you told me you are a defense attorney for criminal cases. Is that right?
@dstark: No, I almost exclusively handle civil work. I have done a bit of state criminal defense work and a bit of federal criminal defense work, but I am by no means a criminal attorney.
The DA from another county was on a news piece last night (same laws apply, and same sentencing guide lines), and he said that if people don’t want probation for this level of crime, the state legislature needs to act to change the law. This would be a change that would need a budget study, because sentencing people to longer prison terms costs more money.
The judge followed the recommendation of the probation (pre-sentencing) report. Judges don’t have unlimited power to sentence anyone to anything.
It is not as if this guy is going to be walking around town all day. Those on work/school release have to be processed out of jail every day, go to a place that is preapproved (school or office) and then be back to the jail by the designated time and be processed back in. If he doesn’t already have a job, it will be hard to get one. Work release is not easy. I’ll guess that he probably will be held in Boulder county jail (usually sentences of more than 1 year serve it in a prison, not county jail), he will serve 1 year and be released for good behavior, and then be on a more traditional probation for 20+ years.
@Demosthenes49 isn’t the right to give a Victim Impact Statement now written into the California Constitution? And while I acknowledge the issues raised in your post #60, didn’t the Supreme Court reverse itself and deal with some if not all of those issues in the Payne case?
I thought Payne specifically addressed the right of a victim to give a statement pre-sentencing. And** in practice** I thought the result was that the statement would not raise due process concerns if the victim restricted the statement to how the crime impacted his/her life and did not delve into new issues or address issues already raised at trial.
I am working from memory here so this is just my recollection.
@HarvestMoon1: Yes, it’s part of the crime victim’s bill of rights. The wisdom of California’s constitutional amendment process I will leave unstated.
Payne, as I recall, dealt with arguments under the 8th amendment. I’m more concerned with the 5/6/14th. You’re right that there would not be due process/confrontation issues to the extent the victim constrains themselves to issues already raised at trial. The potential for other issues to slip in is nevertheless concerning.
I had to look up Payne again to see if it addressed my other concerns. To some extent it does, though I find the reasoning utterly unpersuasive. For example, the Court deals with the bias concern by noting that impact statements are generally “not offered to encourage comparative judgments of this kind.” Even assuming that’s true–which I doubt–how does the intent behind admission change the effect on the jury? The Court doesn’t address the cumulative effect of impact statements at all.
@Demosthenes, well sure I can certainly think of a couple of US Supreme Court decisions that I find “utterly unpersuasive” as well. But that’s not going to get either of us too far is it? It’s pretty much the law of the land.
When you look at Payne coupled with the Crime Victims Rights Act (a federal law] and state law, we have to conclude that it is now pretty much universal in the US that crime victims can deliver an impact statement at sentencing. I think almost all states guarantee victims that right in some form or another and 32 states have it written into their constitution.
Now there are most likely parameters on what that statement can contain and maybe they differ from state to state - I am not entirely sure. But generally from the little I have read on the subject it is appropriate to address the psychological, social, financial and medical effects of the crime on the victim.
I actually think the statement can be very valuable to a defendant. It can help him/her understand and more fully appreciate how his/her actions negatively impacted the victim. I think that is essential if the defendant is to feel any empathy towards the victim and it may serve as a vital first step toward rehabilitation.
@HarvestMoon1: I agree VIS are the law. @greenwitch wanted to know why I found the reasoning behind impact statements dubious. I was explaining my personal position, not the state of the law.
I have no idea if VIS are helpful towards rehabilitation. They certainly might be. Sounds like a good topic for some criminology student to go research. Even if they are helpful though, I don’t think that’s a good reason to include them in sentencing.
Do you do this on purpose? I’m so beyond tired of rape apologists and judges who care more about the freaking RAPIST than the victim and potential victims around her.
I agree with everything @Demosthenes49 said, though I think there’s more to say on this:
“Trials do not exist for the catharsis of victims. They do not, and are not supposed to, give people closure or emotional satisfaction.”
I would say trials are not DESIGNED to give people closure or emotional satisfaction. I would not say that they aren’t supposed to. They do sometimes achieve those goals. Giving people the subjective sense that justice was served is a legitimate aspiration for a tribunal system. It just has to be balanced against the other aspirations, which is why victim impact statements can be problematic. One rapist shouldn’t get a longer sentence than another due to the youth, beauty, race, class, persuasiveness, etc. of the victim.
On an unrelated note, comparing crimes/sentences across state lines tells you very little. These aren’t federal crimes. Within broad norms, the states are wholly independent when it comes to how they define and punish violent crime.
The best you can hope for from the justice system is fairness. In addition, correct me if I am wrong, the focus should be on rehabilitation, if possible, as well as punishment. For certain crimes there may not be the goal of rehabilitation because the crime is so severe the perp can’t be expected to “fix it” so to speak (e.g. murder).
I understand the amount of anger that can build up if people think sexual assaults are not taken seriously but if that leads to mob justice it isn’t a good thing. Should the Colorado or Stanford kid be punished for all sexual assaults or just the crimes they committed? Over the top posts, there are a few on this thread, don’t care about the specifics of these crimes they want these guys to pay for ALL sexual assaults which doesn’t really sound fair.
I hope someone doesn’t read this and think it means I want either of these guys to go unpunished. Baloney. That is not what I am saying. I’m just not a huge fan of mob justice.
I’m not seeing anyone suggesting mob justice on this thread . What I am seeing is people frustrated when rape is diminished and not considered a serious crime. What I am seeing is there are differences in what one sees as a "fair punishment " and what others view as fair. Definitely differences of opinion, everyone is entitled to their own. The dismissiveness that these boys were essentially good kids that made a mistake. Upon further investigation of the Stanford case, he was not as squeaky clean as first thought. I agree that every case should be viewed individually . The frustration that I have is when the sentences are minimal and the risk of further offenses are trivialized.
Of course catharsis is not the point, and youth and beauty should not affect sentencing. But the victim impact statement can and should let the court know how the crime has changed the life of an innocent person. Far too often it seems that the judicial system is concerned with the future well being of the criminal and the destruction and cost to the victims are treated with less concern.
I forgot what crime it was. I think it was a mass shooting at a church. A son of one of the victim’s forgave the shooter/murderer. He said love was stronger than hate. That had nothing to do with the criminal justice system but, in my opinion, what he did is very powerful because he is not allowing himself to be a victim for the rest of his life. I hope that makes sense. The son wasn’t forgiving the crime but he wasn’t going to let it ruin him either.
If the judge would have decided on a prison sentence instead of jail, the term would have been 2-4years, and it is likely he would have served one. The difference in the sentence he got is location. I’m sure the Boulder County jail is nicer, and safer, than the prison. The judge decidedthis person could be better rehabilitated in the jail program.
I’ve not seen any information o where the guy was from. If he’s from Boulder/Denver area, the judge may have felt he’d get more family support in the area than by being sent to CanyonCity or another prison.
I think there are three parts to sentencing. One is punishment and that’s where the victim’s statement comes in. The second is as a deterrent to others, as we don’t want everyone thinking it is no big deal to commit a crime. The third is rehabilitation. Some courts and sentences are bigger on the punishment and less on the rehab. Bernie Madoff was mostly about being a deterrent to others as he’s not being rehabbed.
@GoNoles85 My post was not directed at you specifically. When I’m addressing you, I’ve always tagged you out of courtesy. In terms of the church shootings, I am very familiar with the case. It happened in my state. And yes , the families forgave Roof , for themselves , to move on. That said, they are also expecting the court system to do their job, evaluate the circumstances around the mass murders, and hand down a punishment fitting of the crime. In case you weren’t aware, the death penalty is on the table and many of the victims’ families are in support of it. I also don’t believe that it is unreasonable for a young woman who has been violated to expect a reasonable punishment. That does not mean that she plans to remain a victim for the rest of her life.
@twoinanddone Just a question. Is it common to provide work release at the beginning of a sentence or is it something that is usually given after someone has served some portion of jail time ?I’m not arguing , just curious.
“I’m sure the Boulder County jail is nicer, and safer, than the prison.”
I would not be sure of that. I know nothing about these institutions. The Cook County jail is a hundred times worse than the Illinois prisons. It’s more overcrowded; it’s less safe because the changing population leads to power struggles; it lacks even the crummy resources (like education and 12-step programs) that some of the prisons have. People who can’t make bail and whose trials are delayed may plead guilty in order to get out of Cook County. They’d rather spend the time in prison.
There may well be places in the US where this calculation is reversed.
I have always seen work release begin right away…presumably so the person can keep their job and return to normal life still employed. I would guess school release would follow the school year so no school no release during the day. One is unlikely to “land” a job from jail unemployed. We have work crews in our area but that is something all prisoners do…landscaping, cleaning beaches and roadways, snow removal etc.