Restoration, Retribution, or Revenge? Time Shifting Victim Impact Statements in American Judicial Process




Pearl, Tracy Hresko

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Courts currently permit victims to offer victim impact statements in criminal proceedings in all fifty states and federal jurisdictions. However, victim impact statements introduce serious constitutional problems into criminal cases by (1) creating inconsistencies in sentencing, (2) injecting bias and prejudice into formal courtroom proceedings, (3) giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments, and (4) leaving defendants with little opportunity to mitigate their impact on decision-makers. Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States. In this article, I take a decidedly different position and argue instead that victim impact statements are, in fact, salvageable. Specifically, I look to lessons from the restorative justice movement and propose a solution that relies on time shifting victim impact statements to the close of criminal proceedings. By removing victim impact statements from trials and sentencing and requiring that they be offered afterwards, their constitutional deficiencies can be virtually eliminated and their numerous benefits preserved.



Victims' Rights Movement, restorative justice, retributive system, Fifth Amendment, criminal proceedings, Eighth Amendment


50 Crim Law Bulletin 4 (2014)