In Favor of Restorative Justice: A Look at Victim Impact Evidence

“I am here to face you Larry, so you can see I’ve regained my strength, that I’m no longer a victim, I am a survivor,” said Olympian Aly Raisman in the courtroom as she confronted her abuser, Larry Nassar, who sexually abused her throughout her gymnastics career.

Encounters like these allow victims the chance to express their grief and suffering face-to-face with their offenders, who are then forced to reckon with the devastations they caused. These interactions let the offender know exactly why they are being punished in graspable terms. The cause for punishment is understood, not just in abstract legal terminology, but in real human consequences which affected someone with complex emotions and experiences. Raisman’s victim impact statement toward Nassar is chillingly indicative of this: “You are so sick I can’t even comprehend how angry I feel when I think of you. You lied to me and manipulated me… All these brave women have power and we will use our voices to make sure you get what you deserve — a life of suffering spent replaying the words delivered by this powerful army of survivors.”[1]

Aly Raisman speaks at the sentencing hearing for Larry Nassar, a former team USA Gymnastics doctor who pleaded guilty in November 2017 to sexual assault charges. REUTERS/Brendan McDermid

Although moral blameworthiness is presumably proportionate to an offender’s responsibility for committing the wrong, the criminal justice system often fails to recognize that victims incur vastly different physical and mental devastation from crimes than the blameworthiness equation can capture.[2] The criminal justice system ought to reflect the intrinsically personal nature of injustice by taking into account the various ways in which victims are harmed, both mentally and physically. Restorative justice principles should serve as the foundation for this correction. The primary consideration should be not just how to punish the offender, but also how to repair the harm and make things right overall. Moreover, it should offer an opportunity for victim and offender to make amends, thereby also encouraging both parties to reintegrate into their respective communities. Victim impact statements (VIS) are an example of a restorative justice approach that aims to ameliorate the marginalization of victims in the justice process.

In 1987, Justice Powell, who authored the majority decision in Booth v. Maryland, declared victim-impact evidence to be unrelated to the offender’s culpability and “constitutionally unacceptable.” According to Justice Powell, it violated the Eighth Amendment in capital trials by bringing in factors deemed irrelevant to an offender’s moral blameworthiness in a way that might result in a cruel and unusual punishment.[3] Yet four years later, the Supreme Court overturned the Booth v. Maryland ruling in Payne v. Tennessee, declaring VIS to be appropriate during the sentencing of a capital murder trial. The court stated: “assessment of the harm caused by the defendant has long been an important factor in determining the appropriate punishment, and victim impact evidence is simply another method of informing the sentencing authority about such harm.”[4] The Payne ruling, here, agrees with the argument(s) made in this article; victim impact evidence provides a valuable tool in determining the effects of the crime on the victim and ought to be utilized. This article goes a step further when it argues that restorative justice principles should underpin the justice process when applicable. For example, there should be a focus on repairing the harm within the community, encouraging offenders to take responsibility, reintegrating offenders and victims into their respective communities, and satisfying needs of victims for restitution, support and vindication.[5] This will make the process more humane and effective in restoring justice.

One of the primary setbacks to restorative justice in the current legal system is the framing of crimes as offenses against the state. As philosopher Tamler Sommers writes in Why Honor Matters, “[o]nce an offense crosses the largely arbitrary line from civil to criminal trial, the conflict changes from one between a plaintiff and a defendant to one between the offender and ‘people.’ The victim is removed from the equation.”[6] Crimes involving a victim ought to be characterized only secondarily as a wrongdoing against the state. First and foremost, in a case like that of Raisman’s, the locus of the wrongdoing should be placed primarily in the acts committed by the offender toward the victim. Crime between a victim and an offender can still be characterized as transgressions against the state, but should be principally viewed as transgressions against the rights of the victim. As such, there should be laws or policies instituted to ameliorate the impersonal nature of characterizing crimes as against the state. The utilization of VIS allows victims to express both their suffering and their preferred disposition of the offender’s sentence. Another benefit of restorative justices approaches such as VIS, is that offenders must reckon with the harm caused by their actions. As Sommers writes, “[r]estorative justice treats offenders as people rather than cases, as members of the moral community” with an opportunity to make amends with both the victim and society at large.[7] While restorative justice approaches provide this benefit, there is also the added benefit of humanizing the parties involved. They are no longer just treated as another court case, but instead, as individuals with unique experiences that cannot be adequately captured in abstract, general legal terminology. The Supreme Court in Payne recognizes this: “[victim impact evidence] is designed to show . . . each victim’s uniqueness as an individual human being,” to ensure each victim is not treated as just another victim in another case.[8]

To be clear, this is not a proposition that victims initiate criminal trials like in civil trials. As mentioned before, all crime (victimless or not) should be characterized as a wrongdoing against the state at the bare minimum. As a society, matters of justice are delegated to the state in order to prevent additional/unnecessary harm and to ensure domestic tranquility. This provides sufficient (and practical) justification for the state to carry out prosecution.

Restorative justice principles should underpin the justice process when applicable. Naturally, not all crime will fit within a restorative justice framework, but restorative justice approaches should always be considered. Since we generally conceive of injustice as an imposition of harm by an offender on a victim, the justice system ought to focus on repairing the harm in a way that leaves the victim satisfied instead of fixating on the punishment of the offender. As Professor Lynne N. Henderson notes, “…sentencing may signal the end of public concern with the crime, it surely cannot be expected to signal the end of the victim’s recovery process.”[9] Our primary concern, as a society, should be “how can we repair the harm?” not “how can we punish the offender?” The justice system must reflect that concern.

[1] Park, Alice. “Olympic Gymnast Aly Raisman Confronts Larry Nassar in Court.” Time, 19 Jan. 2018. Available at: https://time.com/5110121/aly-raisman-larry-nassar-court/.

[2] Sommers, Tamler. “Honorable Justice.” Why Honor Matters, Basic Books, 2018,159.

[3] “Booth v. Maryland, 482 U.S. 496 (1987).” Justia Law. Available at: supreme.justia.com/cases/federal/us/482/496/#tab-opinion-1957178.

[4] “Payne v. Tennessee, 501 U.S. 808 (1991).” Justia Law. Available at: supreme.justia.com/cases/federal/us/501/808/.

[5] “Principles of Restorative Justice.” Government of Canada, Department of Justice, Electronic Communications, 18 Dec. 2017, http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rest.html.

[6] Sommers, Tamler. “Honorable Justice.” Why Honor Matters, Basic Books, 2018, 156.

[7] Sommers, Tamler. “Honorable Justice.” Why Honor Matters, Basic Books, 2018, 174.

[8] “Payne v. Tennessee, 501 U.S. 808 (1991).” Justia Law. Available at: supreme.justia.com/cases/federal/us/501/808/.

[9] Henderson, Lynne N. “The Wrongs of Victim’s Rights.” Stanford Law Review, vol. 37, no. 4, 1985, p. 999., doi:10.2307/1228587.

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