VICTIMS AND JUDGES
Judges are supposed to act as referees within the adversary system. Defendants often consider them to be partisans representing the state and favoring the prosecution. Angry victims, however, fre- quently see judges as guardians of the rights of the accused rather than protectors of injured parties. Victims who have been mistreated by the offender, police officers, the prosecutor, and the defense attorney expect that the judge will finally accord them the evenhanded justice they seek. But con- flicts between victims and judges can erupt over bail decisions and sentencing.
Granting Bail
Police officers often resent the granting of bail as a repudiation of their hard work and the risks they took to apprehend perpetrators. To them, releasing defendants on bail is tantamount to turning danger- ous criminals loose. Victims also can be outraged by judges’ decisions to grant bail to defendants whom they consider to be the culprits who harmed them and who may come back to get even with them for informing the police.
The Eighth Amendment to the Constitution prohibits the setting of excessive bail. Whether it establishes a chance to be bailed out as an affirmative
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right, however, is a subject of scholarly debate and considerable public concern. State and federal courts routinely deny bail to defendants accused of first- degree murder. In noncapital cases, bail can be denied to jailed suspects who have a history of flight to avoid prosecution or who have tried to interfere with the administration of justice by intimidating a witness or a juror. Otherwise, defendants generally are given the chance to raise money or post bond to guarantee that they will show up at their hearings and trials.
The amount of bail is usually determined by the judge and is set according to the nature of the offense and the record of the defendant. The pros- ecutor usually recommends a high figure while the defense attorney argues for a sum that is within the defendant’s reach. Making bail is a major problem for defendants who are poor and have no prosper- ous friends or relatives. Across the country, houses of detention are crammed with people unable to raise a few hundred dollars to purchase their free- dom until their cases are resolved. Nationwide, a little more than half of all victims of violent crimes faced the prospect that the person accused of harm- ing them would be let out on bail in the 75 largest counties in 2009 (Reaves, 2013).
The question of bail versus jail raises a number of troubling issues. When accused people are denied bail and subjected to preventive detention, or are unable to raise the necessary amount, they are sent to jail and thereby immediately undergo punishment before conviction. The living conditions in houses of detention are usually far worse than in prisons, which hold convicted felons. Yet the release of a defendant who is genuinely guilty and may strike again poses an immediate danger to the entire community and a direct threat to the complainant who will serve as a witness for the state. A possible solution to this dilemma is for the judge to impose and strictly enforce as a condition of bail that the defendant must avoid all contact with the complainant and other prosecution witnesses or else forfeit the privi- lege of pretrial release.
Statutes in California, Oregon, Texas, Missouri, and Mississippi specifically instruct judges to take the victim’s safety into account
when determining the conditions of an arrestee’s pre-trial release. In cases with unusual dangers and high rates of repeat offenses, such as accusations of domestic violence, child abuse, stalking, sex offenses, and violations of orders of protection, defendants might be denied pre-trial release in many states. Victims have a right to attend and speak out at bail hearings in Alaska, Arizona, California, Missouri, Oregon, South Carolina, Tennessee, Utah, and Washington. Electronic monitoring devices that are activated if the defendant approaches can be provided to victims in Arkansas, Connecticut, Illinois, Louisiana, Michigan, Mississippi. Oklahoma, Tennessee, and Texas (NCSL, 2013).
Sentencing Offenders
After a defendant is convicted—by an admission of guilt as part of a negotiated plea or by a jury verdict after a trial—the judge has the responsibility of imposing an appropriate sentence. Judges can exer- cise a considerable amount of discretion when pro- nouncing sentences unless there are mandatory minimums or explicit guidelines. Sentences can involve incarceration, fines, enrollment in treat- ment programs, community service, and obligations to repay victims. The particular objectives that guide sentencing are specific deterrence, general deterrence, incapacitation, retribution, rehabilita- tion, and restitution.
The substantial variation among judges in the severity of punishment they mete out in comparable cases is termed sentence disparity. Civil libertarians find great disparities troubling because judges might be expressing their social prejudices, to the extent that they deal more harshly with certain groups of offenders. Convicts might view sentence disparities as a sign of unjustifiable arbitrariness. Crime control advocates consider wide ranges as evidence that judges on the low end are too soft or lenient toward offenders. Activists in the victims’ rights movement find the spectrum of possible punishments as a motivation to press for greater input in sentencing.
Historically, excluding victims from the sentenc- ing process has been justified on several grounds.
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If the purpose of punishing offenders is to deter others from committing the same acts, then sanctions must be swift, sure, and predictable, and not subject to uncertainty and modification by injured parties. If the objective is retribution, then lawbreakers must receive the punishments they deserve and not the penalties their victims request. If the goal of sentenc- ing is to rehabilitate offenders, then the punitive urges of the people they harmed cannot be allowed to interfere with the length and type of treatment prescribed by experts (McDonald, 1979).
The potential impact of victims’ desires on sentencing is limited because so many other parties already shape those decisions. Victims who want to help determine their offenders’ sentences have to compete for influence with other individuals and groups that routinely affect judicial discretion. State legislatures pass laws that set maximum and minimum limits for periods of confinement and for fines. Prosecutors make recommendations based on deals arrived at during plea negotiations and draw upon the courtroom work group’s mutual understandings about appropriate penalties for specific crimes in that jurisdiction at that time (the going rate). Defense attorneys use whatever leverage they have on behalf of their clients. Defendants determine their own sentences to some degree by their demeanor, degree of remorse, prior record of convictions, and other mitigating or aggravating personal characteristics and circumstances. Probation officers conduct background investigations and make recommen- dations to guide judges. Parole boards determine the actual time served when they release convicted felons from prison ahead of schedule or keep them confined until their maximum sentences expire. Corrections officers influence whether or not con- victs earn “good-time” reductions and parole by filing reports about cooperative or troublesome behavior. The news media can shape case out- comes by their coverage or lack of it. The public’s reactions also can affect the handling of cases, prompting harshness or leniency. And ultimately, state governors can shorten terms of imprisonment and even stop executions by issuing pardons or commuting sentences. Therefore, the victim’s
notion of what would be an appropriate sentence is just one of many.
If victims want to compete against this con- stellation of forces and play a role in shaping sen- tences, they can make their wishes known in two ways: by conveying their requests to judges in writing or by expressing their views orally (allo- cution) at sentencing hearings. Written victim impact statements enable judges to learn about the actual physical, emotional, and financial effects of the offense on the injured parties and their families. Questionnaires ask (under the threat of penalties for perjury) about wounds, medical bills, counseling costs, other expenses, insurance reimbursements, and lifestyle changes resulting from the crime. Statements of opinion ask victims what they would consider to be fair and just. In most jurisdictions, the victim impact statement is incorporated into the presentence investigation report (PSIR) prepared by a pro- bation officer.
Allocution enables injured parties to directly convey to the judge (and the public) the extent of their suffering and their beliefs about what an appropriate sentence might be. Whereas written impact statements are permitted in all 50 states and the District of Columbia, allocution at sen- tencing hearings is allowed at the judge’s discre- tion. Because of allocution’s highly subjective and emotional content, civil libertarians feared that direct appeals to judges could undermine the judi- ciary’s professional objectivity by injecting inflam- matory considerations into the proceedings that could jeopardize a convict’s Eighth Amendment rights to be spared from cruel and unusual punish- ments (see Frey, 2009). But victims now have the right to speak at sentencing in most states, and what they say if often highly emotional, as this case reveals:
An 11-year-old girl is kidnapped and held for nearly two decades by a middle-aged married couple with demented religious beliefs. She is repeatedly raped and gives birth to two children, when she is 13 and again at age 16. At the couple’s sentencing hearing, her statement is read: “There is no God
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in the universe who would condone your actions. You stole my life and that of my family… But, you do not matter any more.” The kidnapped girl’s mother rises and speaks of her own suffering, “I thought I was going insane, my baby was gone. It was you … that broke my heart. I hate you both.” The judge sentences the man to 431 years, and his wife to 36 years to life. The wife tells the judge, “I deserve every moment of it.” (McKinley, 2011)
The invention and adoption of impact state- ments and the granting of the allocution privilege were important victories for the victims’ rights movement. Prior to their acceptance and imple- mentation, injured parties had to rely on prosecu- tors to present their views and to fully describe their wounds and losses. But advocates argued that the situation was unbalanced. Convicted per- sons did not have to depend solely on their lawyers to speak for them. They were permitted to directly address the court before their sentences were handed down. Yet two lives—the injured party’s as well as the wrongdoer’s—were profoundly shaped by the sentence, which represented an official evaluation of the degree of harm inflicted. Judges couldn’t make informed decisions if they heard from only one side: the defendants them- selves and their lawyers, families, friends, and other character witnesses. Notions of fairness dic- tated that individuals who were harmed also be allowed to write or speak about their experiences before sentences were determined (President’s Task Force, 1982).
Just because activists in the victims’ rights movement succeeded in securing the right to submit an impact statement or to speak in person at a sentencing hearing does not mean that these practices have become widespread and effective. On the contrary, studies have concluded that few victims took advantage of these opportunities, that when they did their participation had very little influence, and that they did not necessarily feel better after voicing their views at sentencing hearings (Villmoare and Neto, 1987; and Frey, 2009).
When a sentence is handed down, it is possible that the victim is misled into thinking that it is more severe than it actually is. Therefore, the victims’ rights movement has urged states to impose a truth-in-sentencing rule that would require judges to calculate and announce the earliest possi- ble date (actual time served) that a convict could be released from confinement, taking into account time off for good behavior behind bars and parole immediately upon eligibility (Associated Press, 1994b). For example, during the 1980s, felons sent to prison by state court judges across the coun- try served an estimated 38 percent of their maxi- mum sentences. A harsh federal truth-in-sentencing law, passed in 1987 and adopted since then in most states, requires felons to serve at least 85 percent of their court-imposed sentences (Langan, Perkins, and Chaiken, 1994). A study of more than 300 victims of felonies in eight jurisdictions across the country established that most of them were dissatis- fied with the sentences judges handed down in their cases. Eighty-six percent agreed with the state- ment that guilty offenders are not punished enough (Forst and Hernon, 1984). In 2012, the actual median time served by murderers was a little less than 13 years; robbers were kept behind bars for almost three years; and rapists were released on average after four years (Carson, 2014).
Studies of victims’ attitudes toward sentences and of actual time served raise a crucial question: Just how much punishment is enough? Victims might feel that the offenders convicted of harming them don’t stay in prison long enough. But no for- mula or equation exists to calculate the gravity of an offense and translate this rating into the proper amount of time a perpetrator should be incarcer- ated. Profound disagreements divide people over the issue of whether certain murders should carry the death penalty or life imprisonment without parole. Usually overlooked, however, are the dra- matic differences in maximum penalties from state to state for lesser crimes such as rape, robbery, or burglary. Clearly, legislators who have the authority to set the upper limits for penalties can’t agree on the maximum length of prison time that one person who harms another really deserves. It is impossible
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to conclude with any degree of objectivity that a particular offender “got off too lightly” when the maximum sentences differ so sharply from one jurisdiction to another (see Katz, 1980).
Victims do not always call for the judge to impose the toughest penalties permissible by law, as this unusual case underscores:
A carload of teenagers gleefully hurl a frozen turkey out the window and speed off unconcerned as it bashes the windshield of the vehicle behind them. The heavy object breaks every bone in the driver’s face, shatters her eye socket, and knocks her unconscious. After many operations and months of reconstructive surgery, she submits a victim impact statement. It urges the district attorney and the judge to sentence the apologetic and remorseful 19- year-old ringleader to the minimum punishment, six months in the county jail and five years of probation, and not the maximum possible sentence of 25 years in prison. She concludes, “God gave me a second chance at life, and I passed it on.” After she recovers, she spends much of her time speaking to teenagers about how a thoughtless decision can wreck their lives. (Finn, 2005; and Chang, 2006)
A bitter controversy rages over whether members of the immediate family of a murder victim should be permitted to try to influence the jury’s sentencing decision in bifurcated capital trials during the penalty phase (after the defendant has been convicted and faces the possi- bility of execution). The following case brought before the Supreme Court was at the core of the debate over the admissibility of highly emotional information from victim impact statements or via allocution.
In the midst of a drug-induced frenzy, a man stabs to death a mother and her two-year-old daughter. During the penalty phase of the trial, the grand- mother describes to the jury how the three-year-old boy who survived the attack still cries mournfully for his mother and little sister. The jury sentences the convict to die in the electric chair. (Clark and Block, 1992)
Victims’ rights groups and prosecutors’ orga- nizations argued that it was illogical to demand that a jury focus all of its attention on the defen- dant’s difficult circumstances and other mitigat- ing factors and then ignore the turmoil of those who were close to the deceased. But civil rights and civil liberties groups argued that the introduction of impact statements could be highly inflammatory and prejudicial in capital cases, diverting the jury’s attention toward the victim’s character (how much or how little the dead person would be missed and mourned) and away from its duty of evaluating the defen- dant’s blameworthiness and the circumstances of the crime. The first time the high court consid- ered a case that raised this issue, it voted to exclude impact statements. But when this issue came up for a second time, the majority of jus- tices ruled that close relatives could testify during the penalty phase of a capital case (Clark and Block, 1992).