The Volokh Conspiracy
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Professor Edna Erez and I have a new article supporting victim impact statements. It is entitled "How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nasar's Sentencing." We will be presenting it at Marquette Law School later today.
In brief, we examine the 168 victim impact statements (VISs) presented at the sentencing of Larry Nassar for sex abuse. The article culls insights about what crime victims include in their VISs through quantitative and qualitative analysis of the statements presented. We conclude that content analysis of the 168 statements provides strong support for the use of VIS in criminal cases.
Here's the introduction:
Over the past several decades, crime victims' rights advocates have sought to amplify the victim's voice in the criminal justice process. A key part of that effort has been giving crime victims the right to deliver a victim impact statement (a "VIS") at sentencing before a sentence is imposed. Today, the federal system and virtually all states allow VISs in the United States.
While VISs are now firmly entrenched in the American criminal justice landscape, the wisdom of allowing such statements is sometimes disputed. Yet many arguments for and against VISs rest not on empirical data but rather on theoretical speculation about what those statements might look like, what victims' motives are in delivering them, or what effects the statements produce at sentencing. This reliance on speculation stems from the fact that surprisingly little is known about VISs. To be sure, anecdotal examples of particular statements have been cited by scholars, including by us. And various scholars have theorized about what VISs might usually contain. But, relatively little empirical work exists regarding VISs, either quantitative or qualitative.
This dearth of empirical research is partially explained by the difficulty in studying a "typical" VIS. Different crimes perpetrated by different offenders in different ways cause different forms of victimization. And even when the victimization stems from the same legally defined crime, the crime may take varying forms or be perpetrated in different social contexts, with different offender-victim relationships producing variable harms. Because each crime—and each victim—is unique, it is hard to determine whether victims' assertions in their VISs result from their unique circumstances. And that difficulty has left scholars wondering what factors might drive victim impact statements and their content generally.
Recently, a unique data set of VISs developed. In January 2018, Michigan Judge Rosemarie Aquilina allowed 168 direct and indirect victims of former USA Gymnastics team doctor Larry Nassar (or the victims' representatives) to all deliver VIS. The nation was riveted as Nassar's victims explained how Nassar had sexually abused them. The resulting set of VISs is rich in details about what kinds of assertions victims make in them. Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits to victims of submitting VISs. Specifically, it is possible to explore the question of whether (roughly) the same crimes produce (roughly) the same VISs. This data set also has the advantage of the absence of significant utilitarian motives for submitting the VISs, such as the desire to affect the sentence. When the victims prepared and delivered their VISs, they already knew that Nassar would spend essentially the rest of his life in prison. Thus, the opportunity to present the VIS itself drove victim participation. Further, the victims essentially had complete freedom in what they discussed and to whom they addressed their statements; their statements were completed without any "guidelines or control" from criminal justice personnel, as has been the case in some other sentencing hearings.
To explore issues surrounding the content of VISs, this article relies on a thematic content analysis of the VISs presented at Nassar's sentencing. The analysis generates both quantitative and qualitative information, focusing on such questions as why a victim chose to present a VIS, which audiences the victim was addressing, the types of harms the victim suffered, and the meaning of the opportunity to present a VIS. With those findings in hand, this article returns to the core question about VISs: Do they promote justice?
This article proceeds in seven parts. Part I provides a brief overview of the conventional understanding of VISs. The existing literature provides a general understanding of what victims say at sentencing but does not sufficiently capture the variegated experiences of victims.
Part II turns to the victims who delivered the victim impact statements analyzed here—specifically the 168 presenters (direct and indirect victims or victims' representatives) who made statements at the Nassar sentencing.
Part III describes the methodology used to review, code, and analyze the statements' content.
Part IV presents the quantitative and qualitative findings of the content analysis. We explore issues surrounding the victims' reasons for delivering a VIS; the length, structure, and manner of their VISs; the victims' descriptions of Nassar's crimes; the apparent intended audience for the VISs; and the possible therapeutic benefits from delivering the VIS for victims.
After presenting the content analysis results, Part V explores the implications of our findings for the debate over VISs in the criminal justice process. Our findings suggest that VISs are a useful feature of criminal justice. Most of the information the victims provided went directly to relevant sentencing issues. In addition, delivering VISs appeared to produce useful therapeutic benefits for victims. The VISs also served educative and perceived fairness purposes without appearing to impair the sentencing proceedings.
Part VI summarizes some of the limitations of our study.
Part VII briefly concludes by suggesting that our findings support the conclusion that the role of crime victims in the criminal justice process should continue to expand.
You can download the whole article here.