In Payne v. Tennessee, the US Supreme Court upheld the admission of victim impact statements (VIS) on the ground that they provide valuable information to the sentencer. In the three decades since, two additional rationales for VIS have become ascendant: most prominently, a therapeutic rationale, and more recently, a public education rationale. In this article, I expand upon my critiques of the informational and therapeutic rationales in light of a growing body of empirical evidence about how VIS affect both sentencers and crime victims. Focusing on the powerful and viral VIS delivered at the Larry Nassar guilty plea hearings and the Brock Turner trial, I consider whether VIS can be defended as a vehicle for informing the public about the impact of crime—particularly crimes that are underenforced or poorly understood. I conclude that ultimately the current VIS regime arises from and reinforces an individualistic model of crime that is not well-suited to illuminating the scope or consequences of criminal behavior, particularly in multi-victim cases like those of Larry Nassar. More generally, I argue that there are fairer and more robust models for achieving the informational, healing, and educative goals that victim impact statements are meant to serve, and that these models may well require decoupling those goals from the narrow ambit of the criminal justice system.
Susan A. Bandes,
What Are Victim Impact Statements For?,
87 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol87/iss4/7