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Lady Liberty

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Friday, March 18, 2005

"I just want to thank the defendant for murdering our child. The insurance payoff helped immensely with the bills."
posted by Tom

Next to the concept of "hate crimes" (the killers of James Byrd were given the death penalty, but should also have attended racial sensitivity classes), victim impact statements during the sentencing phase of a murder trial have got to be the stupidest thing in our criminal justice system. Historically, a "victim impact statement" involved the actual, legally defined "victim" of an offense cataloguing for the court his financial losses, in the case of an economic crime, or his physical suffering, in the case of a violent crime, for the purpose of restitution. Within the past two decades or so, such statements are permitted during the sentencing portion of homicide trials, and were we not a culture in which victimization of one kind or another is the basis for individual identity, we would laugh at the asinine misnomer in this context: The victim of a homicide is dead and (try not to be too shocked) therefore not present in court to make any statement as to what he lost at the hands of the perpetrator. Alas, our contemporary pop-psych, Dr Phil culture has invaded the courts, and there are other "victims" of the crime - emotional victims - who are now permitted to catalogue for the court the tears they've shed as a result of the murder. Were they not so pathetic, some of the instances in which these statements have been given would be funny.

Take the case of the cannibal Jeffrey Dahmer. Here's a guy convicted of something like 30 or so counts of murder one after police discovered severed body parts of his victims throughout his Wisconsin apartment, including in his refrigerator. Tell me a court, not to mention the society it represents, before it could come up with a punishment to fit the crime(s), really needed the relatives of Dahmer's victims to tell it how horrible it was for them that their sons and brothers were murdered, dismembered, and eaten by the defendant.

All right, I'll admit I've held this low opinion of VISs for quite some time, but I was compelled to write this piece expressing my disdain after reading and watching the numerous reports of Sharon Rocha's so-called testimony concerning the emotional impact of her daughter Laci's and unborn grandson Connor's murders at the hands of her son-in-law, Scott Peterson. Actually, I expressed this opinion to my good (virtual) friend and owner of this site, Bathus, almost immediately after Mrs. Rocha had apparently "convinced" the Court that Scott deserved the penalty the jury handed down over two months ago. He wasted no time in putting me in my place:

At the risk of offending your callousness (or should I say your "sensitivity"?) about excessive and misplaced sensitivity for "victims" (both real and imagined), I must strongly disagree with your assertion that "'victim impact statements at murder trials have got to be the stupidest thing in our criminal justice system." If you think hard for about five seconds you surely will easily recollect, in addition to "hate crime" laws, a multitude of other laws and practices in the criminal justice system that are far more stupid than victim impact statements, which are at worst harmless. The effect on a family of losing a loved one to violent crime is absolutely devastating, and most families never really recover from the nightmare. Yes, the family members are real victims, in some senses moreso than the dead, who has not to cope with the aftermathof his own death. It's just not the same as losing someone to illness or even to accident. So, yes, I believe it is a healthy thing for judges and lawyers and other criminal justice bureuacrats (who tend to get so wrapped up in process that they forget about the flesh and blood human beings) to be forced to pause and see for just a few moments what the families will have to cope with for the rest of their lives. Yes, it is an awkward, uncomfortable, and even ugly thing to see surviving family members clumsily and inarticulately vent their grief and anger with words that cannot but fail to miss the mark. Such primal statements offend the rarified dignity of the judicial process. But the fact is, justice ain't pretty.

In these sentimentalist times it is highly unfashionable to express this thought: Until the day that human beings become angels, retribution ("getting even," so to speak) will remain a goal of every healthy system of justice - much more than rehabilitation or deterence. Allowing surviving victims to express how they have been harmed, while perhaps it should not influence the outcome of a particular case, nevertheless contributes to the general understanding of just how much it would take to really "get even," in the light of which calculous, stiff sentences for brutal criminals begin to appear less harsh and more clearly just.

Not so strangely, my wife, who has spent menna-menna years in courtrooms, including a decade in criminal court (which includes homicide) agrees with my buddy. She believes the survivors' statements go beyond convincing the court of their grief, but satisfy what she thinks is their "right" (which she grants you can't find in the Constitution, but who has that ever stopped?) to confront the defendant directly and punish him with their emotional outbursts as compensation for not being allowed to pull the switch (or administer the lethal injection as the case may be) themselves.

My friend (and my wife through his argument) and I are arguing from flip sides of the same cultural coin:

“In these sentimentalist times it is highly unfashionable to express this thought: Until the day that human beings become angels, retribution ("getting even," so to speak) will remain a goal of every healthy system of justice - much more than rehabilitation or deterence.”
I believe victim impact statements in murder trials, dripping as they do with expressions of revenge that would make Old Testament authors cringe, are not a defiant retort to our “sentimentalist times”, as his statement implies to me, but an echo of them. They reflect the court’s surrender to the cultural need that everyone not only perceive themselves as victims, but that they must be afforded a stage upon which to emote. This was reinforced for me the day of Rocha's statement as I listened to the comments of Jeffrey Feiger on MSNBC's Abrams Report (and a question to anyone who saw the same show: When did sociopaths like Peterson become so distasteful to the defender of Jack Kevorkian?), where he used the dramatic terms “catharsis” and “performance” to describe Rocha’s long harangue. Apparently, it’s not enough that lawyers themselves (and sometimes judges) often turn a courtroom into third-rate dinner theater without the meal throughout the actual trial, we also need a parade of other actors once the evidence has been decided after months – sometimes years - to drag out what is already a protracted process by telling us what we know to be true already: To have a loved one murdered is devastating.

It is, in a word, gratuitous, particularly in light of a homicide trial that has already resulted in a guilty verdict and a sentence of death. If any judge requires relatives of the legal victim of a murder involving dismemberment and/or other patently heinous elements of the crime to tell him how devastated they are in order to decide or give his imprimatur to the penalty, then the law is truly, as Dickens said, a ass. Which, by the way, I think Bathus is saying is exactly why these statements are required. If so, then we have to place statements like Rocha's in the larger context of the entire process, from arrest, through conviction and sentencing, up to actual execution of the sentence. In this case, Peterson will likely sit on death row for a decade or more before he takes the needle – if he ever does. There's a chance he will outlive Laci's mother given the appellate process in California capital cases. So, again, what do these solo arias by survivors in these courtroom operas accomplish in the grand scheme of “justice” which, if I’m not mistakenly reading the caption sheets in criminal trials, is enacted on behalf of the people of a state, not the individuals related to a victim? They are added to what is supposed to be a legal process, but they are not based on any legal necessity, merely a contemporary cultural one: the surviving family members have a right to “feel better” by venting their spleens against a defendant whose crime – one proven beyond a reasonable doubt, let's not forget - anyone in his right mind knows is horrible.

What makes Rocha's statement even more gratuitous are the reports that Scott Peterson was not only stoic in the face of her courtroom diatribe (which is the stance most defendants assume during these statements), but that he completely ignored some parts of it: he bullshitted with his attorney, glanced absently around the courtroom, etc. His demeanor was one of total indifference. I invite anyone to give Mrs. Rocha a call or drop her a line asking her if she achieved “closure” or experienced a “catharsis” after her statement. Tell you what, save the quarter and go here, where you can read yet another statement the grieving mother was scheduled to give to the press after the sentencing, but canceled when she was reportedly too overwhelmed emotionally to go before the cameras. She tells you herself (though of course not in so many words) that the courtroom theatrics achieved nothing in terms of justice - for herself or the people of California. Was the Court, as it watched a convicted murderer like Peterson show what was very near contempt for Mrs. Rocha's pain, and given the fact it’s been proven beyond a reasonable doubt that he murdered his wife and unborn child for no other motive than he no longer wanted them around, going to be swayed toward a harsher penalty? Or, given the brutality of his crime, would a Peterson who listened to her with tears in his eyes sway a judge to give a lesser penalty? Should he be able to? (Set aside for the moment the absurd notion that Peterson's "lack of remorse" in the face of his mother-in-law's grief figures into this equation at all. Why absurd? Who in their right mind expects a defendant who claims he's innocent to show remorse for a crime he won't admit commiting?)

There are instances on record where a murder victim's parents have not gone apeshit and verbally attacked the convicted killer for whom a jury has recommended a death sentence, and instead expressed in the best tradition of Christian charity that they forgive the murderer, or have taken the opportunity to express in their VIS their oppostion to the death penalty. The rape and murder of a young Pennsylvania woman, Aimee Willard, in 1996 resulted in a sentence of death for her killer, Arthur Bomar. Willard's mother took the opportunity during her impact statement to argue against the sentence. The question is, should a court that represents the "people" of a state, draws 12 of them from a hat, and admonishes those jurors to maintain their objectivity throughout the trial and their deliberations, all of a sudden turn the process over to one person and allow him or her to determine the ultimate outcome?

What Bathus considers “harmless” about victim impact statements doesn’t make them any less gratuitous. Perhaps isolated statements like Rocha's are harmless in and of themselves, but in the aggregate and over time they could harm the justice system just as the obsession with “sensitivity” has harmed other systems in our society. The ideal is an objective justice system, but these subjective statements of the obvious, now deemed an integral part of the post-trial process, can over time easily be finagled into the trial itself. Hey, if we can extend the legal definition of a victim of crime to include everyone affected beyond the actual victim, why not extend the facts of the crime to include their feelings? Now in criminal trials the actual victims of non-capital felonies are asked how the crime has affected their lives. Why should such questions be restricted to them and why limit them to non-capital cases? During murder trials, we can have such questions posed by the prosecutor as, “And what would you say to the murderer of your (insert relative here) if he were in the courtroom today?” Far-fetched? Sure. Just as it was far-fetched a generation ago that sensitivity toward the feelings of a student would lead to semi-literate morons being churned out of public schools.

I do not lack empathy for the surviving relatives of victims of particularly heinous murders like the Rochas. It's the modern victim impact statement as a required part of the legal process in homicide trials that I object to; it is one more appendix to a process that has far too many already lacking any legal sense. Consider the flip side to the victim impact statement, the practice in many jurisdictions to allow a convicted defendant’s family to plead before the court prior to sentencing: "He was really a good boy, your honor. He didn’t mean to stab his victim 32 times. Please, please, give him another chance." This is not callousness toward parents that had a child go bad on them, probably through no fault of their own. If anything, having seen and heard it myself in courtrooms (as an observer – I don’t want any false impressions given here), my heart went out to parents and relatives that actually believed their son was "really a good boy” in light of the brutal crimes he committed. I won’t hold my breath waiting for conservatives to defend the usefulness of this “harmless” practice, which gives a voice to those who can also be called “victims” of the defendant’s acts, and as a matter of fact are deemed so by those despised liberal bleeding hearts.

My contention is that the statements contribute nothing to the justice system. With all due respect to my friend Bathus, that IS what is under discussion here - the system, “rarified” and all. Were the platonic ideal of “justice" really a concern in justifying the survivors' verbal attack on the defendant, then why stop with a mere impact statement? Why not argue the need to enact laws that permit relatives of murder victims to in fact be the ones who pull the switch or administer the lethal injection?

As it is, the argument is simply for more rhetoric in a system drowning in it already, and emotional rhetoric at that, predicated on our “sensitivity” toward “victims”.

It all sounds liberal with a capital L to me.

posted by Tom | 3/18/2005 06:52:00 AM
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