I am afraid my recent writing on criminal justice have made me sound as if I would prefer to see every shoplifter strung up at the nearest crossroad, and that just isn't the truth. I do think that proven felons, especially those who kill others or who commit more than one violent crime, should probably be strung up, and I do think prisons should be made less pleasant and the Miranda warning is outdated, but on the other hand I also believe in providing every legal protection to defendants. (I also believe in removing laws against drug abuse and prostitution, so I am hardly a hardliner there¹.)   And my views on immigration are rather mixed, as I am somewhat lenient on immigration laws, but would be rather harsh toward illegals who commit crimes².

Be that as it may, I have a topic which shall likely serve to dispel any belief that I am for uniformly harsh treatment of criminals. That topic is victim impact statements.

During the late 1980's and 1990's, a movement arose which usually went by the name of victim's rights. In response to the perception that criminals were being coddled by the system, victims of crime began to petition to have a voice in the punishment of criminals. Some of the propositions were harmless or even beneficial, such as providing notification tot he victim of a criminal's release. Others were stopgap measures intended to make up for weaknesses in the system, such as sex offender registries, about which I have written recently. And then there were some bad ideas, among which were victim impact statements.

As I wrote before, one can take two differing views on punishment, the practical and the just. While normally these two produce conflicting results, in this case both views suggest that allowing victim impact statements defeats the purpose of punishment.

Let us look at the statements first form the justice point of view³. This is the more complex argument, as it covers everything from the punishment to the rehabilitation point of view of our penal system. However, no matter how you look at it, the victim impact statement is counter-productive. There is one possible perspective from which the statement may be of some help, but even there it is inconsisten and far better means of achieving the same result are available.

When we look at prison as a means of rehabilitation, the victim impact statement is obviously pointless. How much harm has been done to the victim says nothing about the mindset of the prisoner. In fact, it may be particularly counterproductive, as a very repentant prisoner may have a victim with an inordinately strong impact, resulting in imprisoning a good candidate fro reform longer than another far less likely to be rehabilitated.

Even when we ignore rehabilitation and ask simply for just punishment, we find that the statements are counterproductive. In some ways we  want a criminal punished in a degree equal to the harm he has done, but we cannot tie this to the random variation fo the victim's personality. Do we really want one burglar to receive 5 years for robbing a normal individual while another gets 15 years for the same act, but committed against someone who is extremely sensitive or simply better at expressing outrage? And that is really what the end resutl of the victim impact statement is, the punishment, rather than being tied tot he crime itself, ends up being related to the sensitivity and eloquence of the victim. I don't think anyone could seriously argue that those two factors should be the driving force in sentencing.

There is one way in which this randomness could possibly be beneficial. If we view punishment primarily as a means of deterring other criminals,  then this random nature of punishment could possibly serve as an added deterrent. When criminals realize that they might accidentally injure an excessively sensitive victim and thus receive a very harsh sentence, it could cause them to reconsider. On the other hand, should all of those they know encounter relatively ambivalent victims, or at least victims insufficiently eloquent to increase the penalty, they could draw the opposite conclusion. And, in either case, the same result could be achieved more consistently by simply increasing the penalties for everyone.

Turning from just to practical views of punishment, we find similar results.

The practical view of punishment I have proposed is quite simple. We want to imprison criminals long enough that a combination of isolation, deterrence and rehabilitation prevents them from harming citizens ever again. We do not care why they stop committing crimes, all we desire is that those who are released have a recidivism rate of zero.

From this perspective the victim impact statement is worthless, as it does not in any way determine how likely the criminal is to offend again. All it tells us is how much harm has been done to the victim which tells us a lot about the victim, but very little about the criminal. Worse, if ti causes a criminal to be kept in jail longer than needed it takes up space that could be used to house another prisoner. With limits on construction keeping prison space from being expanded, we need to try to keep prisoners no longer than necessary.

In short, while the victim impact statement was an understandable reaction tot he excesses of the legal system, it really did more harm than good. It may have been satisfying to victims to play a part in the process, but it was more of an emotional than a logical response, and like most emotional responses it did little to resolve the underlying problem.

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1. I have an entire blog on the subject of drug laws, so I doubt I will write more on that here. However, on the subject of prostitution, I shall probably be writing later. Until I do write more, some general thoughts on this topic can be found in my essays "Standing By My Principles", "A Rational Approach to Punishment", and "The State and Morality". More on the law, in general, can be found in my blog index, currently covering articles from the first posting through May 5, 2008.

2. I just realized while writing this essay that I never posted on this topic. I have written on reforming and somewhat liberalizing immigration laws, but I never wrote about my thoughts on criminal illegal aliens (or if I did, I cannot find it). That being the case, I intend to write in the immediate future a comprehensive essay on my thoughts about immigration, both legal and illegal.

3. As I have written before, I find the practical approach preferable to the justice point of view.