Should victims have a say in sentencing?

Devika Katbamna

CRIME CONTROL

AND CRIMINAL JUSTICE

CRM020C075S

Should victims have a say in sentencing?

When someone has committed a crime, it is only fair that they are punished for it. However, we are brought forward with the question of who should decide the sentence for the offender?

The sentence is the test as to whether justice has been done, both to the victim and to the defendant. A sentence by any court involves doing harm to the defendant in some way: it might be as limited as the humiliation and stigma associated with a court appearance followed by an absolute discharge; it might involve financial penalties; it might be a partial reduction of personal liberty through working on a community punishment order; it might involve extreme restriction on liberty of movement and major interference with personal, social and economic relationships through an immediate custodial sentence.

With regard to public perception, it is possible to suggest that justice in sentencing involves the harm being distributed to the defendant having equivalence to that suffered by the victim.

Justifications are needed if it is claimed that victims have procedural rights in the criminal process. Should the victim have the right to be consulted on the decision whether or not to prosecute, on the bail/custody decision?

The answer to these questions depends on the proper purposes of the criminal process. The overall purpose might be described as ‘the restoration into safe communities of victims and offenders who have resolved their conflicts’. This places a form of mediation between victim and offender at the centre of criminal procedure, with compensation from offender to victim as a significant element.

Sentencing should be left to the judiciary, for they alone are able to weigh the facts of the case without worrying about public opinion and the numerous ‘moral panics’ which are further heightened by the sensationalist press.

Victims should never have a say in sentencing as their opinions can never be objective and can only be based, understandably on revenge. This is unacceptable in the criminal justice system because revenge has no place when it comes to the matter.

Individuals go to prison as punishment, not for punishment as the removal of one’s liberty is true punishment.

A lot ...

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Individuals go to prison as punishment, not for punishment as the removal of one’s liberty is true punishment.

A lot of research has suggested that prison does not work so why do we insist on more prolonged sentences?

The fact that politicians get involved in sentencing is a reflection on poor public perception of how this is done.

In principle, I believe that only judges should be allowed to give sentences and then they should be judged by other judges. This is a good idea as there is a second opinion coming into play by someone of the same stature. This, in effect, may satisfy the victim even though they did not get a say in the sentencing decision.

Even if judges were to include the victims in helping to set a sentence for the offender, it should be done in co-operation with both the victim and jury, based on all facts presented to them.

Giving the victims or juries the full power to set sentences would be a ridiculous idea, as it would result in prisons getting more and more overcrowded.

Victims are not elected officials of the criminal justice system, but the judges are. Therefore, the power delegated to them is beyond our control.

Arising from this issue is the fact of judges with regards to the education they went through in order to gain a position of power in order to issues sentences. If victims were given the opportunity to punish their aggressor then there would be no need to have a judge in the first place.

However, victims do not have the subsequent knowledge of making such vital decisions. Therefore, cannot be given such a huge responsibility of making a decision about another person’s life.

The Home Secretary is in a better position to reflect public opinion and so will try to ascribe a sentence that the public wants. This is more desirable to the public as they have a reciprocal understanding with somebody who has the ability to actually make an attempt to change things (i.e. Home Secretary).

However, this could lead to unfair sentencing reflecting any moral panics the country is experiencing at the time.

Also, the Home Secretary does not really have any formal legal training. Victims should never be included in sentencing as this will lead to bitter reprisals and a society bent on revenge.

Having said that, there is an alternative view where some would argue that the victim should have a say in sentencing because they generally feel they are being punished twice: once by the aggressor and once by the criminal justice system.

In effect, the victims in all cases are the ones let down by the judicial system.

Furthermore, it still would not be acceptable by the system to let the victim decide because it is inevitable that they will be ruthless and irrational when making the sentencing decision.

According to the International Crime Victim Survey, which has been carried out in more than sixty countries over the past ten years, it has revealed that there is widespread dissatisfaction among victims. More than 50% of victims around the world are unhappy about the way police treat them and many others end up severely traumatised by criminal justice systems.

Many crime victims complain that they are not allowed any say in key decisions made by the court, including those about sentencing and parole.

It was suggested that in some cases, victims would treat offenders more constructively than the courts, recommending community service and ‘restorative justice’ in place of prison sentences for some types of offences.

Often, victims are denied the right to tell the court in a ‘victim impact statement’ about any physical or emotional damage brought about by the offender which is not right.

While victim statements do not have the direct impact on the award of a sentence that both sentencing guidelines and pre-sentence reports may have, their existence does qualify for mention within a discussion of sentencing g and advice to those empowered with passing sentence.

The current position within this jurisdiction is that victim statements can be taken into account by a court prior to sentencing in so far as the effects of the crime relate on the victim qualify as ‘the circumstances of the offence’.

In practice, the courts have adopted a process whereby victim personal statements have operated as a tool for ‘compassion’ to be shown by the courts, rather than as a means of increasing a sentence.

In doing this, the courts have recognised both the importance of ensuring that a victim has some form of role in the trial process while at the same time balancing this against allowing such statements to become a form of vengeance.

The courts in England and Wales remain concerned about the need to determine sentences objectively according to the criteria contained currently within the Powers of
Criminal Courts (Sentencing) Act 2000.

Some may argue that the victim of a crime has a stake in the punishment of the criminal. The Victims’ Rights movement has emphasised that the victims should be given a voice.

In practice, the justice system has responded by introducing innovations that give the victim a role – for example, alternative modes of sentencing such as victim/offender mediation and sentencing (healing) circles.

Given the prominence of Victims’ Rights in the media and the criminal justice system’s agreement that victims have a point, it is absolutely surprising that the many and varied philosophical attempts to justify punishment have little or nothing to say about the victim’s role.

Most traditional theories set aside victims’ sentiments, unquestioningly classifying them as mere vengefulness, due to victims reacting with resentment if personally harmed or moral indignation if indirectly involved.

In conclusion, sentencing is a very vital process in determining what kind of life an offender will lead. Therefore, it is essential that someone who holds extreme power decides what punishment should be given to the criminal, as the victim will be anything but objective.