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The Citizen Victim: Reconciling the Public and Private in Criminal Sentencing

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Abstract

In recent decades, increased attention has been given to the place of the victim within criminal justice systems. Advocates have called for recognition and participation for victims of crime, and widespread political support throughout common law jurisdictions has resulted in a number of reforms. While some have proven uncontroversial, the question of victim input into sentencing decisions has emerged as a highly contentious issue within scholarship. Scholars have been concerned with the potentially corrupting influence of victims’ private preferences and dispositions on otherwise principled public decision-making. Exacerbating these concerns has been conceptual and normative ambiguity regarding the relationship of victims to public sentencing processes. Such questions relate to the proper relationship between individuals and public decision-making, and are thus usefully dealt with through political theory and the lens of citizenship. The present article applies deliberative democratic theory and argues that it accounts for scholars’ concerns while also providing direction through conceptual and normative clarity, reconciling in theoretical terms victim input with a public sentencing process. Moreover, it also argues that the framework highlights ways in which victims can make active contributions to processes of public deliberation by introducing novel perspectives and information, thereby enhancing the quality of sentencing decisions. Lastly, the article anticipates potential objections regarding the capacity of victims to meet civic standards in practice, pointing to a growing body of empirical research which suggests victims’ potential and emphasizes the importance of being attentive to questions of procedural design to realize it.

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Notes

  1. David Seipp, “The Distinction between Crime and Tort in the Early Common Law,” Boston University Law Review 76(1) (1996): pp. 59–88.

  2. PA Monture-Okanee and ME Turpel, “Aboriginal Peoples and Canadian Criminal Law: Rethinking Justice,” UBC Law Review 26 (1992): pp. 239–279.

  3. Sir William Blackstone, Commentaries on the Laws of England (1774).

  4. Jonathan Doak, “Victims’ Rights in Criminal Trials: Prospects for Participation,” Journal of Law and Society 32(2) (2005): pp. 294–316, p. 299.

  5. Erin Ann O’Hara, “Victim Participation in the Criminal Process,” Journal of Law and Policy 13(1) (2005): 229–248, pp. 229–230.

  6. Ibid., p. 300.

  7. Nils Christie, “Conflicts as Property,” British Journal of Criminology 17(1) 1977: pp. 1–15, p. 3.

  8. O’Hara, supra n 5, p. 244.

  9. Ian Edwards, “An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making,” British Journal of Criminology 44(6) (2004): pp. 967–982, p. 968 [“Ambiguous Participant”].

  10. Ian Edwards, “Victim Participation in Sentencing: The Problems of Incoherence,” The Howard Journal of Crime and Justice 40(1) (2001): pp. 39–54, p. 44 [“Victim Participation”].

  11. Ibid. Edwards, “Ambiguous Participant,” supra n 9, p. 976.

  12. Julian V Roberts, “Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole,” Crime and Justice 38 (2009): pp. 347–412, p. 348.

  13. Edwards, “Victim Participation,” supra n 10, pp. 47–48 (contrasting the British and South Australian approach with some American jurisdictions).

  14. Edna Erez, “Victim Participation in Sentencing: And the Debate Goes On …,” International Review of Victimology 3(1–2) (1994): pp. 17–32, pp. 19–21.

  15. Marie Manikis “Victim Impact Statements at Sentencing: Towards a Clearer Understanding of their Aims,” University of Toronto Law Journal 65(2) (2015): pp. 85–123, p. 85 [“Clearer Understanding”].

  16. Paul H Robinson, “Should the Victims’ Rights Movement Have Influence Over Criminal Law Formulation and Adjudication?,” McGeorge Law Review 33(4) (2002): pp. 749–758, pp. 756–757.

  17. Erez, “Debate Goes On,” supra n 14, p. 20.

  18. Marie Manikis and Julian V Roberts, “Recognizing Ancillary Harm at Sentencing: A Proportionate and Balanced Response,” Canadian Criminal Law Review 15(1) (2010): pp. 131–144, p. 135 (responding to Chasse).

  19. Manikis, “Clearer Understanding,” supra n 15, p. 117; see also Erez, supra n 14, p. 19 (citing DR Hellerstein, 1989).

  20. Robinson, supra n 16, pp. 756–757; Roberts, supra n 12, p. 372.

  21. Ibid.; Donald J Hall, “Victims' Voices in Criminal Court: The Need for Restraint,” American Criminal Law Review 28(2) (1991): pp. 233–266, p. 257. It is worth noting that this issue is distinct from that of the potential arbitrariness introduced by variability of victims’ resiliency or fragility, which depends on whether the amount of harm caused itself is seen as a valid rationale for more or less punishment, separate from the offender’s intent. This moral question is not engaged here and does not affect those put forward in this article.

  22. Abraham Abramovsky, “Victim Impact Statements: Adversely Impacting Upon Judicial Fairness,” St. John’s Journal of Legal Commentary 8(1) (1992): pp. 21–34, p. 23; see also Bruce A Arrigo and Christopher R Williams, “Victim Vices, Victim Voices, and Impact Statements: On the Place of Emotion and the Role of Restorative Justice in Capital Sentencing,” Crime and Delinquency 49(4) (2003): pp. 603–626.

  23. Elayne Rapping, Law and Justice as Seen on TV (New York: NYU Press, 2003), p. 245.

  24. Manikis, “Clearer Understanding,” supra n 15, pp. 85–86.

  25. Ibid., p. 117.

  26. Form 34.2, Victim Impact Statement, Criminal Code (R.S.C., 1985, c. C-46), ss. 722(4), available online: http://laws-lois.justice.gc.ca/eng/acts/C-46/page-280.html#docCont.

  27. Julian V Roberts and Marie Manikis, “Victim Impact Statements at Sentencing: The Relevance of Ancillary Harm,” Canadian Criminal Law Review 15(1) (2010): pp. 1–29, pp. 2–3 [“Ancillary Harm”].

  28. Manikis, “Clearer Understanding,” supra n 15, p. 86.

  29. Julian V Roberts and Marie Manikis, “Victim Personal Statements: A Review of Empirical Research,” Report for the Commissioner for Victims and Witnesses in England and Wales, 2011, p. 28.

  30. Christine M Englebrecht and Jorge M Chavez “Whose Statement Is It? An Examination of Victim Impact Statements Delivered in Court,” Victims and Offenders 9(4) (2014): pp. 386–412, p. 407.

  31. Ibid., p. 406.

  32. Edwards, “Ambiguous Participant,” supra n 9; Marie Manikis, “Expanding Participation: Victims as Agents of Accountability in the Criminal Justice Process,” Public Law 1 (2017): pp. 63–80 [“Expanding Participation”]; Ian Edwards, “The Evidential Quality of Victim Personal Statements and Family Impact Statements,” The International Journal of Evidence & Proof 13(4) (2009): pp. 293–320.

  33. Roberts, supra n 12, p. 400.

  34. See e.g., Roberts and Manikis, “Ancillary Harm,” supra n 27.

  35. See Malcolm Thorburn, “Criminal Law as Public Law,” in RA Duff and Stuart P Green (eds.), Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2011), pp. 21–43; George P Fletcher, The Grammar of the Criminal Law: Foundations (Oxford: Oxford University Press, 2007), p. 153; RA Duff, “Political Retributivism and Legal Moralism,” Virginia Journal of Criminal Law 1(1) (2012): pp. 179–204, p. 180.

  36. For the beginnings of these efforts, see Marshall, infra n 57; Matravers, infra n 37; Manikis, “Expanding Participation,” supra n 32.

  37. Matt Matravers, “The Victim, the State, and Civil Society,” in Anthony Bottoms and Julian V Roberts (eds.), Hearing the Victim: Adversarial Justice, Crime Victims and the State (London: Willan, 2010), pp. 1–16, pp. 3–4.

  38. Edwards, “Ambiguous Participant,” supra n 9, p. 973.

  39. S.C. 2015, c. 13, s. 2 (Defining a victim in reference to an “alleged” offence is presumably procedurally significant, providing rights to individuals throughout the process prior to conviction; however, conceptually victimhood would nonetheless exist only where there was in fact an offence.).

  40. Fletcher, supra n 35, pp. 128–129.

  41. Ibid. (Fletcher also notes a second dimension which is carried out of this history—that of a victim’s innocence).

  42. Sandra Walklate, Imagining the Victim of Crime (New York: Open University Press, 2006), p. 27.

  43. Ibid., pp. 27, 41.

  44. Nils Christie, “The Ideal Victim,” in Ezzat A Fattah (ed.), From Crime Policy to Victim Policy (London: Palgrave Macmillan, 1986), pp. 17–30, p. 18; Eamonn Carrabine et al., Criminology: A Sociological Introduction (London: Routledge, 2004), pp. 115–117.

  45. Christie, supra n 44, p. 18.

  46. Daniela Bolivar, “Conceptualizing Victims’ ‘Restoration’ in Restorative Justice,” International Review of Victimology 17(3) (2010): pp. 237–265; Manikis, “Clearer Understanding,” supra n 15.

  47. Christine M Englebrecht “Where Do I Stand?: An Exploration of the Rules that Regulate Victim Participation in the Criminal Justice System,” Victims & Offenders 7(2) (2012), pp. 161–184, p. 175; Engelbrecht and Chavez, “Whose Statement Is It?,” supra n 30, pp. 401–402.

  48. See e.g., Christie, “Conflicts as Property,” supra n 7 (referring to excluded victims as “double losers”); Judith Lewis Herman, “The Mental Health of Crime Victims: Impact of Legal Intervention,” Journal of Traumatic Stress 16(2) (2003): pp. 159–166.

  49. Walklate, supra n 42, p. 24.

  50. Nils Christie, “Victim Movements at a Crossroad,” Punishment & Society 12(2) (2010): pp. 115–122.

  51. Doak, supra n 4, p. 300.

  52. Geoffrey Stokes, “Democracy and Citizenship,” in April Carter and Geoffrey Stokes (eds.), Democratic Theory Today (Cambridge, UK: Polity Press, 2002), pp. 23–51, p. 24.

  53. Ibid.

  54. Ibid.

  55. This should be distinguished from work on the politics of victims’ rights or victims’ participation movement itself and the forces that have fueled it. What I am engaging with here is normative political theory that gives a deeper account of victim participation within the criminal process as political in nature.

  56. See e.g., Howard C Rubel, “Victim Participation in Sentencing Proceedings,” Criminal Law Quarterly 28(2) (1986): 226–250; Edwards, “Ambiguous Participant,” supra n 9.

  57. Sandra E Marshall, “Victims of Crime: Their Station and Its Duties,” Critical Review of International Social and Political Philosophy 7(2) (2004): pp. 104–117; see also Marie Manikis, “Conceptualizing the Victim within Criminal Justice Processes in Common Law Tradition” in D Brown, J Turner-Iontcheva and B Weiber (eds.), The Oxford Handbook of Criminal Process (Oxford University Press: Oxford 2018) (forthcoming). Manikis goes some way toward this as well in her illustration of how victims can in practice be seen as “part of” or “agents” of the public interest within criminal justice—and particularly prosecutorial—decision making. Here, she draws on a mixed framework in which the public interest is conceived as “aggregate individual or group interests” but which also gives some role to deliberation. Having a descriptive project, however, Manikis stops short of investigating the normative implications of this conception, including both the ways in which an aggregative view exacerbates the tension between victim participation and public decision making, as well as the conciliatory potential of public deliberation.

  58. Ibid., p. 104.

  59. Ibid., p. 105.

  60. SE Marshall and RA Duff, “Criminalization and Sharing Wrongs,” Canadian Journal of Law and Jurisprudence 11(1) (1998): pp. 7–22.

  61. Marshall, supra n 57, p. 110.

  62. Ibid., pp. 113–114.

  63. Ibid., p. 116 (Marshall qualifies this by seemingly requiring a reasonableness standard, though is unclear as to what degree this should be enforced).

  64. Ibid., p. 110.

  65. Claes Lernestedt, “Victim and Society: Sharing Wrongs, but in Which Roles?,” Criminal Law and Philosophy 8(1) (2014): pp. 187–203, p. 191.

  66. Joshua Cohen, “Deliberation and Democratic Legitimacy,” in Alan Hamlin and Philip Pettit (eds.), The Good Polity: Normative Analysis of the State (Oxford: Basil Blackwell, 1989), pp. 17–35, p. 22 [“Democratic Legitimacy”]; John Rawls, Political Liberalism, Expanded Edition (New York: Columbia University Press, 2005), p. 217.

  67. Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton: Princeton University Press, 2004), pp. 3–4.

  68. Christian Kock and Lisa S Villadsen, “Citizenship as a Rhetorical Practice,” in Christian Kock and Lisa S Villadsen (eds.) Rhetorical Citizenship and Public Deliberation (University Park: Penn State University Press, 2012), pp. 1–10, p. 1 (emphasis added).

  69. Daniel Weinstock and David Kahane, “Introduction,” in David Kahane et al. (eds.), Deliberative Democracy in Practice (Vancouver: UBC Press, 2010), pp. 1–18, pp. 6–7; Stokes, supra n 52, pp. 41–42.

  70. Stokes, supra n 52; Micheline Milot, “Conceptions of the Good: Challenging the Premises of Deliberative Democracy,” in Kahane et al., supra n 69, pp. 30–31.

  71. Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Belknap Press, 1996), pp. 53ff.

  72. Andrew Dobson, “Listening: The New Democratic Deficit,” Political Studies 60(4) (2012): pp. 843–859.

  73. Weinstock and Kahane, supra n 69, p. 8; Stokes, supra n 52, pp. 42–43.

  74. Stokes supra n 52, p. 42; Weinstock and Kahane supra n 69, p. 9.

  75. It is worth pointing out here that this speaks to concerns of the ambiguity of the weight of victim input through a contingent rather than universal answer.

  76. Robinson supra n 16, p. 757 (emphasis added).

  77. Roberts, supra n 12, p. 372.

  78. See also Mark D Walters, “Legality as Reason: Dicey, Rand, and the Rule of Law,” McGill Law Journal 55(3) (2010): pp. 563–586, p. 572 (describing one perspective on the rule of law as being “instantiated through a form of justificatory interpretation aimed at consistency, coherence, or equality of reason. Within this tradition, the rule of law is … a ‘rule of reason,’ a dynamic process of reasoned justification.”).

  79. Roberts, supra n 12, p. 380.

  80. Roberts and Manikis, “Empirical Review,” supra n 29, pp. 25–27.

  81. Jane Mansbridge, “Should Blacks Represent Blacks and Women Represent Women? A Contingent ‘Yes’,” Journal of Politics 61(3) (1999): pp. 628–657, p. 628 [“Contingent Yes”].

  82. Jane Mansbridge, “Should Workers Represent Workers?,” Swiss Political Science Review 21(2) (2015): pp. 261–270, p. 266.

  83. See e.g., Karen Gelb, “Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing” (2006) Melbourne: Sentencing Advisory Council, pp. 33–34 (Noting research that demonstrates that victims may be more interested in prevention and rehabilitation than the general public).

  84. See Samuel Perreault, “Criminal victimization in Canada, 2014,” Statistics Canada, available online: https://www.statcan.gc.ca/pub/85-002-x/2015001/article/14241-eng.htm.

  85. See Shana Conroy and Adam Cotter, “Self-reported sexual assault in Canada, 2014,” Statistics Canada, available online: https://www.statcan.gc.ca/pub/85-002-x/2017001/article/14842-eng.htm.

  86. Karen-Lee Miller, “Relational Caring: The Use of the Victim Impact Statement by Sexually Assaulted Women,” Violence and Victims 29(5) (2014): pp. 797–813, pp. 802–804.

  87. Gutmann and Thompson, Democracy and Disagreement, supra n 71, p. 21.

  88. Jose Luis Martí, “The Epistemic Conception of Deliberative Democracy Defended,” in Samantha Besson and Jose Luis Martí (eds.), Deliberative Democracy and its Discontents (Burlington: Ashgate Publishing Limited, 2006), pp. 27–56, p. 42.

  89. Roberts, supra n 12, p. 378.

  90. Ibid.; see also Manikis, “Clearer Understanding,” supra n 15, p. 93.

  91. Paul G Cassell, “In Defense of Victim Impact Statements,” Ohio State Journal of Criminal Law 6(2) (2009): pp. 611–648, p. 620.

  92. Ibid., p. 94.

  93. Hélène Landemore, “Deliberation, Cognitive Diversity, and Democratic Inclusiveness: An Epistemic Argument for the Random Selection of Representatives,” Synthese 190(7) (2013): pp. 1209–1231.

  94. Ibid., p. 1211. Hong and Page’s model which she invokes “denotes more specifically a diversity of perspectives (ways of representing situations and problems), diversity of interpretations (ways of categorizing or partitioning perspectives), diversity of heuristics (ways of generating solutions to problems), and diversity of predictive models (ways of inferring cause and effect).”.

  95. Ibid., pp. 1212–1217.

  96. Manikis, “Clearer Understanding,” supra n 15, p. 117.

  97. Lyn Carson, “Ignorance and Inclusion, Mr. Jefferson, Might Be Good for Democracy” (November 2009) United States Studies Centre Working Paper, available online: http://www.activedemocracy.net/articles/ignorance_mr_jefferson.pdf.

  98. Martí, supra n 88, p. 42.

  99. Manikis, “Expanding Participation,” supra n 32.

  100. Ibid., p. 70.

  101. Ibid., p. 67.

  102. Glen Staszewski, “Reason-Giving and Accountability,” Minnesota Law Review 93(4) (2009): pp. 1253–1326, p. 1284 (noting the dynamic nature of deliberative accountability, which occurs throughout deliberations as well as following decisions).

  103. Christine M Englebrecht, “The Struggle for ‘Ownership’ of Conflict: An Exploration of Victim Participation and Voice in the Criminal Justice System,” Criminal Justice Review 36(2) (2011): pp. 129–151.

  104. While victim-specific research is more limited than that involving the public generally, outcomes regularly overlap and research has shown that the distinction is not likely to preclude shared conclusions: for instance, victims and non-victimized members of the public share levels of punitiveness as well as receptiveness to community-based sentences. See Mike Hough and Julian Roberts, “Sentencing Trends in Britain: Public Knowledge and Public Opinion,” Punishment & Society 1(1) (1999): pp. 11–26, p. 21; Julian Roberts and Kent Roach, “Community-Based Sentencing: Perspectives of Crime Victims An Exploratory Study” (2004) Ottawa: Department of Justice, p. 17.

  105. Gelb, supra n 83, pp. 23–26.

  106. J Henderson and G Thomas Gitchoff, “Victim and Offender Perceptions of Alternatives to Incarceration: An Exploratory Study,” South African Journal of Criminal Law and Criminology 7 (1983): pp. 44–53, p. 49 as cited in Roberts and Roach, supra n 12, p. 15; Roberts, supra n 12, p. 400.

  107. Gelb, supra n 83, p. 20.

  108. Julian Roberts, Nicole Crutcher, and Paul Verbrugge, “Public Attitudes to Sentencing in Canada: Exploring Recent Findings,” Canadian Journal of Criminology and Criminal Justice 49(1) (2007): pp. 75–107, pp. 83–84.

  109. Englebrecht and Chavez, “Whose Statement?,” supra n 30, pp. 397–399; Englebrecht, “Where Do I Stand?,” supra n 47; Arrigo and Williams, supra n 22.

  110. Gelb, supra n 83, p. 34.

  111. Miller, supra n 86, p. 804.

  112. Anthony Doob and Julian Roberts, “Sentencing: An Analysis of the Public’s View of Sentencing” (1983) Ottawa: Department of Justice Canada.

  113. Erez, “Debate Goes On,” supra n 14, p. 21; see also Henderson and Gitchoff, supra n 106.

  114. Roberts, supra n 12, p. 395; William McDonald, “The Victim’s Role in the American Administration of Criminal Justice: Some Developments and Findings,” in HJ Schneider (ed.), The Victim in International Perspective (New York: de Gruyter, 1982), pp. 400–401 (showing that victims who provide sentencing recommendations in the presence of their aggressors are significantly less punitive than those who give recommendations in their absence).

  115. Paul L Simpson et al., “Assessing the Public’s Views on Prison and Prison Alternatives” (2015) Journal of Public Deliberation 11(2); Geraldine Mackenzie et al., “Measuring the Effects of Small Group Deliberation on Public Attitudes towards Sentencing,” Current Issues Criminal Justice 25(3) (2014): pp. 745–761; Robert C Luskin, James S Fishkin, and Roger Jowell, “Considered Opinions: Deliberative Polling in Britain,” British Journal of Political Science 32(3) (2002): pp. 455–487, p. 463.

  116. Simpson et al., supra n 115, p. 12–14.

Acknowledgements

An earlier version of this article was presented at the Deliberative Governance and Law Workshop at McGill University in January 2018. I am grateful for the comments I received on that occasion, and am especially grateful to Marie Manikis and Hoi Kong, as well as Angela Campbell, Ron Levy, Sarah Berger Richardson, Stefanie Carsley, and Geoff Conrad for helpful feedback on previous versions. All errors are my own.

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    Jeffrey Kennedy

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Kennedy, J. The Citizen Victim: Reconciling the Public and Private in Criminal Sentencing. Criminal Law, Philosophy 13, 83–108 (2019). https://doi.org/10.1007/s11572-018-9462-0

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