Victims' Rights in Sentencing

Victims' rights statutes provide victims with certain opportunities in criminal proceedings. Among them is the option of participating in the sentencing determination.

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In the past, victims of crime often had little to do with criminal prosecutions other than perhaps testifying at trial. This lack of involvement led many to conclude that the criminal system prioritized defendants over victims, the latter of whom generally lacked notice and information about criminal cases. But since the 1980s, all that has changed—states have enacted legislation to protect victims and give them rights in the criminal justice process.

All 50 states have enacted some sort of victim legislation, often called a crime victim’s Bill of Rights. These laws have provisions that effectively advocate for victims. For example, they typically require that victims receive notice of criminal proceedings that affect them and that they have the option of being present throughout the proceedings. One feature that all victims’ rights laws share has to do with punishment for offenders: Every state allows victims to participate in sentencing and make a victim impact statement.

Victim Impact Statements

In every state and in federal court, crime victims can present their feelings and experiences at sentencing. These statements are designed to give victims input once guilt has been determined. A victim impact statement describes the harm that the victim has suffered, whether it be physical, emotional, psychological, or financial. If a victim is unable to present this kind of statement, as in a homicide case, the family members of the victim can make the statement. It’s usually the only opportunity victims have to speak freely of the impact of the crime, rather than in response to questions from attorneys.

Presentence Reports

Most states require victim impact statements to be included in presentence reports—documents usually prepared by probation officers that describe the offender and offense while recommending a sentence. Not all convictions lead to presentence reports—for example, courts in some states don’t order them for low-level offenses. But for many crimes, probation officers prepare these reports during the period of time between conviction (either after a trial or plea) and sentencing hearing. In preparing these reports, probation officers generally consider the defendant’s record and interview involved parties, such as the victim.

Speaking Up

Victim impact statements can be oral or written, or even electronic (a video or audio recording). Although the victim almost always has the right to speak, judges have discretion to let others address the court, too. For example, a judge might allow a close family friend to talk about the crime—that the person isn’t listed in the relevant victims’ rights statute doesn’t matter.

“Throw Away the Key”

Many states allow the victim to express an opinion about the appropriate sentence, though that opinion doesn’t ever bind the judge. Some states expressly permit the judge to consider the victim’s opinion as to what the sentence should be. If, for example, the victim requests leniency because the defendant is a relative, the judge might impose a lesser sentence.

Limited Right

Courts have to balance victims’ rights against the constitutional and procedural protections given to criminal defendants. Since a criminal case is fundamentally about the defendant, if somewhere in the proceedings a judge doesn’t respect a victim’s rights, there often isn’t much of a remedy.

For example, a Michigan appellate court held that a trial judge improperly resentenced a defendant after the victim’s family missed the opportunity to speak at sentencing. The prosecutor didn’t inform the victim’s family of the date of the defendant’s sentencing for criminal sexual conduct. The trial judge resentenced the defendant because the Crime Victim’s Rights Act required that the family be able to make a statement at sentencing, but the appellate court held that resentencing was improper. (People v. Pfeiffer, 207 Mich.App. 151(1994).)

So, while victims’ rights legislation creates more protection and consideration for victims, it sometimes doesn’t affect the outcome of a case. After all, as far as sentencing goes, the judge has the final say.

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