Scottish Justice Goes Oprah
I may be the only one out there who does, but I think that this is a terrible idea. According to The Scotsman, victims of crime are to be given the chance to make a statement in court prior to sentencing.
[Kenny MacAskill, the justice secretary] said that, for too long, victims had been treated as “baggage” by the system, but the statement would give them the chance to say how the crime had impacted on their lives, whether emotionally, physically or financially. In murder cases, the family of the victim would have the right to provide a statement.
In all instances, the statement would have to be taken into account by the sheriff or the judge, and it could result in a longer sentence.
Basically the criminal justice system only works because it does not do this. It is supposed to be dispassionate, objective and detached because this is the best way to ensure equal treatment for all – divorce the process from emotion and evaluate the facts. I know that emotional damage is one of the facts that must be evaluated, but sentences based more heavily on pity, anger or vengeance is the only thing this will achieve. There is a reason judges are experts in the law and not supposed to have any sort of interest in the outcome of a case – if you let people with direct involvement become too involved then they will just be looking to exact revenge which is absolutely, squarely not what criminal justice is about.
Criminal justice is about one thing: deterrence. In a social animal there are several ways to subvert the common social contract and perpetuate one’s genes by undesirable methods and the credible threat of punishment is the way in which we prevent it. So a criminal justice system must be forceful, objective as possible and not so severe that its mistakes destroy its validity to the social group it is there to police. Human beings are basically evolutionary animals and we have to understand the role of punishment and social rules in governing our instinctive behaviours.
MacAskill also said the following:
“We have to put victims at the heart of the criminal justice system”
No, Kenny, we don’t. In fact I suspect that is exactly the opposite of what we should be doing. Does their victim status have to depend on the vagaries of the criminal justice system? Surely victim support should be an unconditional right of all victims of crime, irrespective of whether or not there is someone there to prosecute. Victims should be at the heart of the victim support system, criminals should be at the heart of the criminal justice system.
The courtroom is not the place for support group-style psychotherapy in the form of cathartic confessions. I understand that people may want this, I’m saying that they shouldn’t get it. This sort of emotional minefield needs to be dealt with by professionals somewhere else. The courtroom is for prosecuting criminals and the only thing that should matter should surely be what they did and whether or not it is legal, not how anyone feels about it. Otherwise we take another hugely unwelcome step towards a Jerry Springer style lynch mob justice system.
I may be completely wrong about this, so please do set me straight if you think so, but this whole idea seems deeply suspect to me.
Bob Dylan – Who Killed Davey Moore? (Live 1964)
The Detroit Cobras – Cry On
The Nips – Vengeance Shane MacGowan’s band before The Pogues.
The Doug Anthony All Stars – Oprah
An interesting issue, and you make some very thoughtful points. I’m a lawyer here in the States, and it always amazes me how different the US legal system has become from that in the UK. Over here, victim impact evidence of this kind is always crucial to sentencing decisions, which are often made by juries rather than judges. I think you’re right that emotional appeals of this kind inure very much to the detriment of the defendant and result in longer sentences, but in the States that’s almost universally considered a good thing. The notion you express that criminal justice is only about deterrence is totally foreign to the American viewpoint, which places deterrence approximately third on the list of the reasons why we punish, behind retribution and incapacitation. Americans get wound up about crime in a very personal way, and there’s this sense I think that if the legal system does not embody the retributive impulse in some substantial way you’ll get vigilantism. Many of us have guns you know. Folks in Scotland should definitely think very hard before they start to go down our road. Other changes could follow.
Well I am not insisting that I am right, unusually, just saying some things.
Basically, from a purely biological point of view, a social animal needs a social contract, and that social contract must have strong disincentives for breaking it, yet ones which are not crazily harsh.
I get the impression that anything after that is actually a completely different process – more akin to therapy.
You don’t let the parents of a murdered child get involved in the prosecution, surely, because guilty or not they’d just want to tear any defendant to pieces. Human beings are quite good at empathising with other people’s pain, so we’d pick that up from them.
I’d always thought the role of dispassionate, uninvolved judges was crucial to the justice system as the best way of maintaining consistency of judgement. Because predictability of ‘the rules’ is enormously valuable to people in general, even if the rules are bad.
Incidentally, C&B, isn’t the whole point of defining certain things as criminal to stop them happening? So deterrence, presumably?
After all, after the fact is too late to make it better, so surely the point is to stop it happening in the first place.
I’m not saying the dominant American viewpoint is in any way better or more sensible than the one you express. Quite the contrary, I think. Because we focus on retribution so much more than deterrence, we have a truly shocking culture of crime and violence in this country that you really don’t have. The point of my comment was that people elsewhere should be very reluctant to make their criminal justice system more like the US, at least in this particular way.
When I was a student I worked for the “victim witness coordinator” in a rural county prosecutor’s office here in Virginia and we had a grisly murder case involving a man who had raped and killed his 12-year-old niece in particularly nasty ways. The parents of the victim (one of whom was also a sibling of the accused), were very much involved in the prosecution and were consulted along the way, although decisions about trial strategy, etc., were ultimately made by the lawyers. The parents testified before the jury during the sentencing phase of the trial and the accused received a sentence to life in prison, but the prosecution was seeking the death penalty.
What you say about deterrence is perfectly sensible, but I suppose the assumption over here is that a retibutive justice system will have deterrence as a byproduct. It doesn’t seem to turn out that way most of the time, but there it is. What you say about it being too late to make it better after the fact remainds me of the sentiments expressed by some of the relatives of the victims of the Oklahoma City bombing, who wanted Timothy McVeigh to be spared the death penalty. Their view, which they had come to after several years of grieving for their loved ones, was that killing McVeigh would do nothing to ease their loss and would merely spread the misery still further to other blameless people, like McVeigh’s parents. Nevertheless he was executed.
i’m not fully informed to speak to this issue, but apparently that won’t stop me from chiming in!
i think the value of having the victims speak in court–aside from during testimony–is that it gives them the chance to face the person who committed the crime against them and allows the criminal to be made aware of the impact of his/her actions. i’m not sure when else the victim would have that opportunity, and i think it might be important for them to be able to have their say and for the criminal to have to hear it.
which leads to an uncommon but i think in the long term better idea, that of restorative justice. there’s a nice write-up about it in wikipedia if you want to check it out. it’s not primarily about retribution or deterrence but about the criminal taking responsibility for the crime and restoring things to rights as much as possible. interesting theory, as it doesn’t feed so much into the retributive or vigilante aspects folks tend to get carried away with. in fact, it’s actually more concerned with real justice than probably either of the other approaches.
and that’s my two cents. p.s. oprah looks real fat in that picture. : )
Hmm, restorative justice is indeed an idea I sort of like, in the sense that it makes the criminal in question presumably less likely to commit more crimes. But the idea of turning courtrooms into a great big group therapy love-in makes me nervous.
Incorporating aspects of restorative justice into sentencing and punishment does make instinctive sense to me, without having given it too much thought, but I still think that the rule of law should be administered as dispassionately and in a sense as coldly as possibly as I see this as the best way of maintaining the best levels of consistency we can manage.
That said, causing harm to other people is a pretty fundamental part of what makes a crime a crime, so ignoring altogether is obviously daft.
But there are so many legal disasters brewing in terms of comically frivolous litigation based on ‘emotional distress’ and all sorts of half-arsed attempts to criminalise ‘causing religious offence’ due to offending someone’s religious sensibilities of all things, that I think people’s emotions and the courtroom should be kept as far apart as possible.
Incorporate it into the sentence, definitely, but the idea of shoehorning it into the actual criminal legal process just rings a lot of alarm bells with me.
The system already includes some elements of the restorative justice concept, although it’s most commonly seen in the context of economic crimes, where restitution to victims is a required component of most sentences. As for permitting victims or their loved ones to confront the accused during trial, I think the trickiest part is that the whole purpose of the trial is supposed to be to determine whether the accused really is the offender in the first place. It’s therefore quite prejudicial to have the victim confront the accused, particularly before the jury. It puts the cart before the horse so to speak. During sentencing, yes, I think it’s appropriate, or perhaps it makes sense to have such a confrontation be a component of the sentence itself.
Some really interesting points here from Mr. Toad and other contributors. I think you are right, that hard as it may be to do, the alleged victim should not be put at the heart of the criminal justice system. Far too many miscarriages of justice have taken place -in many countries, not just the UK-when people allow their emotions to get in the way of the facts. Of course people’s emotions are affected, it’s what makes us human, but far too often, that gets in the way of people’s ability to make rational judgements.
I only have a half cent to add to this but I too think emotions/impact statements and the like should be left out of the court proceedings; both by the prosecution and the defense. I have sat in a courtroom and listened to a defendant apologize and, basically, kiss ass before he was sentenced. At no other time did he apologize or accept responsibility to the families he affected.
As well, my friend’s aunt has been instrumental in developing Restorative Justice within the Canadian legal system. Her daughter was murdered 23 years ago and the killer was just caught (cold case being looked into this many years on). Not surprisingly she has had to step back and re-evaluate her thoughts on justice once again. I think this route is a better way to go about letting the survivors express the things they need to.
I think, Just A Girl, what you think when it directly involves you is so different from what you might think were you not involved at all, that it makes it very hard to actually be reasonable. Which may be the point, I suppose.