The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999

2. History and Theory (cont'd)

2. History and Theory (cont'd)

2.2 Discussion (cont'd)

2.2.1 Historical Origins of Contemporary Criminal (cont'd)

On the other hand, opinion polls indicate that the majority of Canadians believe that sentences are insufficiently harsh

[A. Reid, 1992], and this leads us naturally to assume that members of the public who have been victimized would demand harsher sentences if they are given greater input into the process. However, more detailed and controlled studies (Roberts & Doob, 1989) demonstrate that public perceptions of leniency are unduly influenced by media misrepresentations, and that when people are given greater information about a case their punitive response becomes muted:

The lesson to be drawn from the research is clear: public reactions to actual sentencing decisions are not as uniformly negative as one might expect… In fact, there was evidence that in some cases the public may be less, not more, punitive than judges. (Roberts & Doob, 1989:501)

The 1989 Roberts and Doob study compared official incarceration rates with the rate of incarceration that would have resulted had members of the public acted as sentencing judges. The study demonstrated that while the sentencing decisions of the public would have resulted in 81,863 admissions to prison, judges actually sent 92,415 offenders from the same offender group to prison.

The literature suggests that victim satisfaction is more related to process than to outcome. The consequence of this is that victims may not be advocating disproportionately punitive sentences. Being treated with dignity and respect is more important than seeing that the offender is punished as severely as legally possible. As Professor Fattah has noted:

At the outcome stage, again, it appeared that process was more important than the actual result of the case. Perhaps surprisingly in our study, victims were often quite happy if the police did not catch the offenders, provided that they felt that the police had been interested and had kept them informed. They wanted, however, to be told the outcome clearly and fully — to know that enquiries were no longer continuing. Victims were, again, not particularly punitive either in the sentence that they would wish their offender to get or in their reactions to the sentence that those offenders who were convicted finally received. Their suggested sentences seemed to be very much within current English sentencing practice. (Fattah, 1986:214)

Once again, the assumption that victims will be unjustifiably punitive is based upon a lack of appreciation of the historical and political evolution of criminal justice. In a comprehensive study of the history of penal practices, Graeme Newman (1985) concludes that there are two models of punishment: the reciprocity model and the obedience model. The former describes the proportionate responses of victims of wrongdoing and the latter describes the repressive response of a state undertaking the difficult exercise of social control through legal regulation. The most barbaric punishments are found in attempts by the state to compel legal obedience through the use of deterrent sanctions. By 1820 there were over 250 capital offences (mostly for property crimes) and it is clear that execution for property offences served state interests and was not dictated by the interests of victims.

One need not rely exclusively on the historical record of beheading, disemboweling and public execution for collective crimes (i.e., crimes such as treason or heresy that challenge the public order or the administration of justice) to prove that the state is responsible for the most vindictive and punitive responses to crime. In contemporary times, we can see that a ‘victimless’ crime (e.g., a narcotics offence) attracts the severest penalties next to homicide, or that judicial sentencing tariffs commonly are increased on the basis of furthering state interest in general deterrence. Tariff sentencing for robbery was created in the 1980s in Alberta and Nova Scotia and this punitive approach was premised upon the abstract notion of general deterrence and not on the concrete demands of actual victims.

It is not entirely true that the state is the fearsome, vindictive player and that the victim will always be moderate and forgiving. The important point to understand is simply that individual victims do not clamor for immoderate and disproportionate responses to crime. On occasion, an individual victim will be motivated by unbridled vengeance; however, the historical record convincingly demonstrates that sentencing excess is more often than not a product of state terror or mob violence. Mob or group violence is characteristically motivated by racial, ethnic or religious fervor. Individual victims who are not overwhelmed by group membership do not generally advocate lawless lynch-mob justice. It is fear of mob violence, not individual vindictive responses, which led to the creation of an impersonal and professional system of justice:

Maintaining the boundary between the courtroom and ordinary life is a central part of what legal process is all about. Distinctive legal rules of procedure, jurisdiction, and evidence insist upon and define law’s autonomous character — indeed constitute the very basis of a court’s authority. The mob may have their faces pressed hard against the courthouse windows, but the achievement of the trial is to keep those forces at bay, or at least to transmute their energy into a stylized formal ritual of proof and judgment. (Gerwitz, 1996:863)

In the early 1990s popular media reported on a phenomena related to the victims’ rights movement. Community representatives sought standing to provide community impact evidence at sentencing hearings of prostitutes and drug dealers who worked the streets of the community. Surprisingly, this novel sentencing development has not attracted academic attention. In the one article chronicling the rise of community involvement in sentencing, the author expresses the concern that "enlarging its [the community’s] role at sentencing only further tips the scales in favor of vigilante justice and against the criminal defendant" (Long, 1995:229).

It has also been suggested that victim input can lead to sentencing disparity, with crimes against worthy, high-status victims attracting severe sanctions and crimes against the disadvantaged and lower socio-economic class attracting lesser sanctions. This fear is well founded but is irrelevant to the issue of victim input. Sentencing disparity exists as a result of our reliance upon discretionary sentencing structures, and the solution to this problem lies not in the muzzling of victims but in a movement towards more determinate sentencing structures. In fact, in 1987 the Canadian Sentencing Commission recommended the establishment of sentencing guidelines to reduce disparity; however, the recommendation appears to have been ignored (Canadian Sentencing Commission, 1987). This recommendation should be revisited in the era of victim participation in sentencing because it has been found that victim impact statements have little effect upon sentences in American jurisdictions that have moved towards presumptive, determinate sentencing (Hellerstein, 1989; Hall, 1991).

If victim participation cannot influence sentencing practices then it may be argued that there is no point in wasting court time with this practice. This argument misses the point because it evaluates the value of victim input on instrumental grounds. The argument fails to recognize that victim participation is inherently valuable because of the due process value of fostering dignity through participation in a decision making process that has direct relevance to one’s welfare interests. It is clear that a "lack of personal participation causes alienation and a loss of that dignity and self-respect that society properly deems independently valuable" (Mashaw, 1976:49).

Participation is intrinsically valuable. The perception of some degree of control empowers and strengthens the individual. At a trivial level, studies have shown that dental patients can endure more pain when they are falsely advised that the mere press of a button will make the pain stop. On a more significant level, it is clear that providing an individual with some degree of control and autonomy is an important first step in the healing process. Victim participation is the first step in regaining self-esteem lost as a result of criminal victimization. Kilpatrick and Otto (1987) aptly outline the importance of participation in reducing crime-related psychological harm:

Finally, it should be noted that equity theory places heavy emphasis on the relative treatment of the victim and criminal. From this perspective, equity can be restored by improving victim treatment, increasing punishment of criminals, or some combination of the two. Thus, it is not necessary to compromise the rights of defendants in order to increase the rights of the victims. From the perspective of learned helplessness theory, ample reasons exist for predicting that criminal justice system treatment of the victims would affect the victims’ perceptions of control and helplessness and, thus, their psychological well-being. Specifically, a criminal justice system that provides no opportunity for victims to participate in proceedings would foster greater feelings of helplessness and lack of control than one that offers victims such rights. Since this theory emphasizes perceived rather than actual helplessness and control, offering victims an opportunity to participate, thereby giving them control over the choice of whether to participate, is more important psychologically than whether they actually participate. However, the theory also predicts that victim perceptions of helplessness and lack of control are maximized by raising the expectation that a right to participate exists, the victim electing to exercise that right, and then being denied that right. (Kilpatrick & Otto, 1987:19)

A recurring theme in the popular media in relation to victim dissatisfaction with the process revolves around personal tragedies wherein the victims did not agree with a plea resolution agreement and felt excluded from the plea bargaining process. Nonetheless, victim participation in plea bargaining has not generated a great deal of support and most government reports fall short of recommending mandatory victim input for plea bargaining. However, the commentators do recognize that plea bargaining is a serious problem for victims’ rights advocates:

The primary reason that impact-oriented reforms have faltered is that the great majority of criminal cases are disposed of through guilty pleas negotiated prior to trial. Plea negotiations are not public, and victims traditionally have been excluded from participation. Experimental attempts to involve crime victims in plea negotiations have been infrequent. Moreover, when attempted, these programs have tended to create a rubber-stamp procedure in which the victim essentially acquiesces to a bargain already negotiated by the prosecutor and the defense attorney. The programs have not given victims who participate any opportunity to influence the outcome of their cases.

Consequently, it is not surprising that victims do not consistently report that their participation in negotiations increased their satisfaction with the criminal justice system. (Kennard, 1989:418)

The disapproval of plea bargaining by victims groups even led California to ban plea bargaining in the lower courts; however, a study of this reform concluded that plea bargaining surfaced in other forms and in other forums (McCoy, 1993; Brown, 1994).

In analyzing the relationship between plea bargaining and a retributive approach to sentencing, it has been suggested that, divorced of mandatory victim input, plea bargaining is inconsistent with the theory of retributive sentencing:

Victims have been gaining many new rights in the criminal system. These gains have been attributed mainly to victims’ desires for revenge or retaliation. However, victim participation in the plea-bargaining process is appropriate under a just deserts theory of retribution. Victim participation in plea bargaining would protect a victim’s interest in both financial and psychic restitution without encroaching on the interests of the traditional plea bargain parties — judge, defendant, and prosecutor.

The present plea bargain system undermines the retributive theory of just deserts by excluding considerations of a victim. The defects in plea bargaining can be cured and reconciled with just deserts retribution by (1) requiring a prosecutor to provide a victim with a written statement setting forth a proposed plea offer and other information relevant to a victim’s case, (2) requiring a prosecutor to consult with victims before a plea proposal is made to the defendant, (3) giving a victim and an offender an opportunity for reconciliation, and (4) giving a victim the right to be heard at a plea hearing. (Starkweather, 1992:877–8; see also Fenwick, 1997)

The academic enterprise of struggling to provide a proper penological foundation for victims’ rights has spawned a large body of literature which has reformulated the nomenclature and philosophical underpinnings of a retributive theory of justice (Cavadino & Dignan, 1996; Sebba, 1996). Whether it is called "reconciliation" (Marshall 1985; Umbreit, 1985; Galaway & Hudson, 1990), "reparative justice" (Dignan, 1992), "relational justice" (Baker & Burnside, 1994) or "restorative justice" (Cragg, 1992; Zehr, 1990), the focus has been on emphasizing the "restoring the balance" function of retributive justice. Reflected in the steady growth of mediation and alternatives to criminal courts, restorative justice is an attempt to heal the wounds attendant upon victimization and to instil a feeling of accountability within the offender. In 1999, the Law Commission of Canada released a report on restorative justice and they begin by outlining the shortcomings of the current criminal process even with the progressive reforms in favor of the victim:

Many positive steps have been taken to assist victims. For example, victim impact statements may now be introduced in court. Victim/witness support programs have also been introduced in many jurisdictions. The goal of these programs is to assist victims and witnesses in understanding the trial process and to help avoid re-victimization. Nonetheless, neither alters the structural position of victims within the system. Victims remain on the outside looking in, rather than being engaged as direct and active decision-makers.

The current criminal process also does not always do justice for offenders. It encourages many to be passive and to plead guilty in order to receive the most lenient sentence possible. Their crime is objectified and abstracted from the context in which it took place. Offenders’ actions are cast in terms of violations of the Criminal Code rather than as violations of others. The offenders lawyer uses the law to distance the offender as far as possible from the conflict. Offenders are rarely provided the opportunity to develop an appreciation of the impact their actions have on the lives of victims, and seldom are they asked to repair any damages they have caused. Because it offers few incentives for offenders to accept responsibility for their actions, the trial process does little to instill in them respect for the law or respect for others. (Law Commission of Canada, 1999:18–19)

The report continues by providing the following description of the theory and practice of restorative justice:

Restorative justice is an approach to resolving conflict that places much attention on the physical, economic, emotional, psychological and spiritual elements of the conflict. As such, it can be well-suited to achieving justice within a diverse population. Sentencing circles, for example, operate in many Aboriginal communities in Canada. Sentencing circles allow victims, offenders, community elders, other community members and court officials to discuss together the consequences of a conflict and to explore ways of resolving the aftermath. Restitution for damages and reintegrating the wrongdoer into the community are high priorities. Community members play an active role in assisting the victim and the wrongdoer with the healing process. Youth justice committees operate similarly to sentencing circles, although they are also used for non-Aboriginal offenders as well as Aboriginal offenders…

Restoration has different meanings for victims, offenders, and the community. For victims, restoration has a healing component. It may involve restoring victims’ sense of control over their lives by providing them the opportunity to express their anger, to get answers to questions they may have about the incident and to re-establish order and predictability in their lives. For offenders, restoration involves accepting responsibility for their actions by repairing the harm they have caused. This also means addressing the issues that contribute to their propensity to engage in harmful behavior. This may require dealing with anger management or chemical dependency. For the community, restoration involves denouncing wrongful behavior and reaffirming community standards. Restoration also includes ways of reintegrating offenders back into the community. (Law Commission, 1999:26–7)