Victim Participation in the Plea Negotiation Process in canada

6. Victim Satisfaction, Victim Participation and The Empirical Research

Ironically, the impact of victim impact statements on the sentencing process is undoubtedly limited by the circumstance that a majority of criminal cases are – to a greater or lesser extent – determined by the outcome of a plea bargaining process, from which victims in many jurisdictions (including Canada) are excluded(Kennard, 1989, p. 218). However, it has nevertheless been asserted that there are many benefits to be gleaned by victims from their increased participation in court proceedings through the vehicle of the victim impact statement. For example, victim impact statements may potentially serve as a useful medium through which victims can more fully express how a particular crime has affected their lives. As Chief Justice Rehnquist (of the Supreme Court of the United States) has suggested, victim impact statements can "illuminate each victim's uniqueness as an individual human being, in order for the jury to determine the loss to the community" (cited in Donahoe, 1999, p. 14). In this sense, the victim impact statement can provide the sentencing judge with in–depth information that can enable him or her to make a more informed decision concerning the imposition of an appropriate sentence.

Furthermore, it has been suggested that victim impact statements offer victims "more control of their lives; satisfying a victim's desire for retribution; and making the criminal sentencing proceedings more fair by giving consideration to the victim's needs" (Johnson, 1988, cited in Platt & Kauffman, 2000, p. 632). In a similar vein, it has been contended (e.g., Young, 2001, p. 18) that the sense of control, that victims gain from their participation in the sentencing hearing, ultimately proves to be most beneficial to them as they negotiate their passage through the healing process. As Sobieski (1993, cited in National Center for Victims of Crime, 2002) has suggested, "victim impact statements and other procedures that allow victims to ventilate their feelings are a significant factor in the healing process." Finally, some commentators have advanced the opinion that increasing the degree of victim participation in the sentencing and parole processes effectively minimizes the deleterious effects of the "secondary victimization," which victims frequently experience when dealing with the police and prosecutors (Fenwick, 1997, p. 320 and Kelly, 1987, cited in Smith, Watkins & Morgan, 1997, p. 57).

While there is a dearth of comprehensive and methodologically sophisticated empirical studies in this area, it is worthwhile to note that there are some studies that suggest that increased participation in court proceedings (through such vehicles as the victim impact statement) increases victim satisfaction with the ultimate disposition of "their" cases (Fenwick, 1997, p. 320; Wemmers, 1999, p. 176; &Young, 2001, p. 18). For example, in one particular study (Kilpatrick, Beatty, & Howley, 1998, pp. 7–8), the researchers concluded that:

  1. Victims who were informed of their rights were more satisfied with the justice system than those who were not.
  2. Victims who thought their participation had an impact on their cases were more satisfied with the system. [35] (Emphasis added).

Similarly, an empirical study by Sobieski [36] (1993, cited in National Center for Victims of Crime: 2002) found that there was a relatively high level of victim dissatisfaction with the criminal justice system, when victims were denied the opportunity to make an oral presentation of their victim impact statement during court proceedings. When victims were excluded from oral participation in the sentencing hearing, the dissatisfaction level rose to 65%, while the corresponding figure was 42%, when such an opportunity was accorded to victims.

Victims' Satisfaction with Criminal Justice System if NOT Given Opportunity to Present Oral Victim Impact Statements

A graph showing Victim Satisfaction with Criminal Justice System if not given Opportunity to present Oral Victim impact statements

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Victim's Satisfaction with Criminal Justice System if Given Opportunity to Present Oral Victim Impact Statements

Two graph showing Victim Satisfaction with Criminal Justice System if given Opportunity to present Oral Victim impact statements

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Source: National Center for Victims of Crime (2001).

Arguably, victim participation during plea negotiations might also contribute significantly to the overall levels of victim satisfaction with the criminal justice system. This practice has not been the subject of sustained empirical scrutiny. However, one empirical study – conducted in Florida – examined the degree of victim satisfaction, which was expressed by victims in a jurisdiction that permitted them to actively participate in the process of plea negotiation. It was found that increased rates of victim participation in the pre–trial process, particularly during the pre–trial stage, ultimately increased victims' satisfaction with the disposition of their cases [37] (Kennard, 1989, p. 436). It is also noteworthy that this study found that, rather than revealing a trend toward harsher punishments, victim participation was associated with a decrease in the severity of the sentence [38] and, specifically, in the "use of incarceration" (Kennard, 1989, p. 435).

Nevertheless, the research findings in this area are by no means uniform. Indeed, some researchers have published findings that counter the assumption that increased levels of victim participation – through the provision of information, submission of victim impact statements and participation during plea negotiations – necessarily increase the degree of victims' satisfaction with the criminal justice system. For example, some studies suggest that providing more information to the victim does not appear to affect the overall levels of victims' satisfaction with the disposition of their cases nor does it ameliorate the feelings of distress experienced by many victims (Toboslowski, 1999, p. 47) [39]. Other studies have found that, while some victims who completed a victim impact statement did indeed report that this was an overall positive experience, this form of participation in the judicial process did not actually increase their levels of satisfaction with the handling or disposition of their own, specific cases (Giliberti, 1990, p. 1). Moreover, it has been noted that the impact of victim participation on overall levels of satisfaction may be somewhat circumscribed by the realization, on the part of some victims, that their input did not, in reality, have any significant degree of impact on the nature and quantum of the sentences that were ultimately meted out to "their" offenders (Erez & Rogers, [40] 1999, p. 223 and Kennard, 1989, p. 435). Furthermore, victims may well view the value of their participation with a vaguely jaundiced eye if it is made clear to them that sentencing guidelines may sharply limit the scope of judicial discretion: indeed, it has been suggested that sentencing guidelines may be perceived as reducing victims' input to a mere "ritual" (Erez & Rogers, 1999, p. 235).

Although the empirical evidence is – at best – a tad equivocal, there are many commentators who have strongly asserted the need to enhance the nature and scope of victim participation in the criminal justice. It is generally assumed, in these academic quarters, that an increase in such participation is directly related to a rise in the level of victims' satisfaction with both the criminal justice system, in general, and the disposition of their own cases, in particular (Sanders, Hoyle, Morgan & Cape, [41] 2001, p. 457; Erez & Tontodonato, 1990, cited in Smith, Watkins and Morgan, 1997, p. 58; and Wemmers, [42] 1999, p. 176). Furthermore, it is widely suggested that even taking the basic step – of providing victims with accurate information concerning their cases – may ultimately help them to cope with the effects of the stress that besets them and to increase their feelings of satisfaction with the criminal justice system (Fenwick, 1997, p. 320; and Wemmers, 1999, p. 176).

Sanders, Hoyle, Morgan & Cape (2001, pp. 448–9) have neatly summarized the supposed benefits of victim participation in the criminal justice process in the form of the following table:

The Benefits of Victim Participation during Criminal Proceedings

  1. Giving victims a voice' for therapeutic purposes;
  2. Enabling the interests and/or views of victims to be taken into account in decision making;
  3. Ensuring that victims are treated with respect by criminal justice agencies;
  4. Reducing the stress for victims in criminal proceedings;
  5. Increasing victim satisfaction with the criminal justice system;
  6. Increasing victim co–operation, as a result of any of the above objectives.

Overall, the point has repeatedly been made that a victim, who feels satisfied with the criminal justice system, is considerably more likely to cooperate with, and to support, the criminal justice system (Kennard, 1989, p. 417; and Hall, 1975, cited in Smith, Watkins & Morgan, 1997, p. 60). In this respect, it has been asserted that the "ultimate right," that could be accorded to victims of crime, is the right to "veto" plea bargains which they do not consider to be fair (Kennard, 1989, p. 418). To date, such a suggestion has received no support in any jurisdiction in North America: indeed, even in the State of Arizona, which guarantees the right to active victim participation in plea negotiations, the regulatory legislation clearly specifies that the victim does not have the right to independently make decisions that traditionally fall within the domain of prosecutorial discretion.