- Introduction
Establishing justice for the victim of a crime is one of the purposes of the legal justice system; it is a founding basis upon which other legal principles are built. There is a difference between justice and revenge, however; and revenge is often the topic of discussion when including victims in the legal process is concerned, particularly in the sentencing phase. The discussion here will center around the question of whether the victim or victims should be involved in the sentencing process, given their close emotional connection with the crime in question.
- Literature Review
A number of studies have been done regarding the topic of retribution in sentencing when victims are involved in the sentencing process. Erez and Tontodonato (1992) note that victim satisfaction with a verdict is a good predictor of how the victim will feel about the criminal justice system as a whole (Erez and Tontodonato 1992). If the victim feels that the sentence is fair, then he or she is going to feel as though the system is fair (Erez and Tontodonato 1992). Erez and Tontodonato (1992) note that it was much more common for victims to feel the punishment too lenient than too strict.
There are, however, a number of intricacies insofar as motives and the desire to punish are concerned. Vengeance is not the only motivator or indicating factor for punishment; there are utilitarian motives that sometimes arise as well (Carlsmith 2006). However, Carlsmith (2006) also finds that retribution motivators are the most common motivators for punishment: he suggests, “Three studies examined the motives underlying people’s desire to punish Systematic manipulations within these scenarios revealed high sensitivity to factors associated with motives of retribution, but low sensitivity to utilitarian motives Study 1 demonstrated that retribution information is more relevant to punishment than either deterrence or incapacitation information. Study 2 traced the information that people actually seek when punishing others and found a consistent preference for retribution information. Finally, Study 3 confirmed that retribution information increases participant confidence in assigned punishments. The results thus provide converging evidence that people punish primarily on the basis of retribution” (Carlsmith 2006). If this data holds true, then including victims in the punishment process will severely curtail the individual perpetrator’s right to have a fair trial, and maybe even his or her right against cruel and unusual punishment.
Edwards (2001) notes something similar: it is common for states to include victims in the sentencing phase today, Edwards (2001) notes, but this is, by necessity, something that acts against the interest of the state, whose purpose should be rehabilitation, not retribution (Edwards 2001). Fletcher (1999) writes that in the American criminal justice system, it is common for victims to have at least a partial say in the sentencing process, and that this creates a significant problem insofar as justice is concerned, Fletcher (1999) writes, “ Since the victims usually are interested in making the defendant suffer as much as possible, this practice services the interests of prosecutors. But the sentiments of the particular victims seem to me less important than the class of victims violated by the particular offense. In the crime of homicide, for example, it should not matter whether the decedent is a solitary old lady killed for her money or the mother of three killed in a drive-by-shooting” (Fletcher 1999). He notes that there is no good solution for the problem of balancing the involvement and noninvolvement of victims in criminal trials (Fletcher 1999).
Fletcher (1999) also notes that it will be difficult, for most crimes, to determine a single individual who was harmed. True, one individual may be harmed more than others, but the harm done by a single crime fans outward like cracks through glass (Fletcher 1999). For murder, for instance, the victim is the decedent; who, then, is the justice for? Fletcher (1999) suggests that everyone close to the crime is a victim, touched by the crime in some way. Thus, it is difficult to determine who should be part of the punishment and rehabilitation process; determining who the victim is can be a tricky philosophical and judicial trick (Fletcher 1999).
Xiao and Tan (2014) write that there are specific reasons to use groups of individuals to decide the fate of one. Edwards (2001) notes that groups are less likely to try to apply a harsh sentence to an individual, and Xiao and Tan (2014) reinforce this statement, writing: “We conduct an experiment to examine the role of retribution and deterrence in motivating third party punishment In a one-shot prisoner’s dilemma game with third party punishment, we find groups punish more when the penalty embeds deterrence than when it can only be retributive. In contrast, individual third parties’ punishment decisions do not vary on whether the punishment has any deterrent effect” (Xiao and Tan 2014). Xiao and Tan (2014) go on to note that in general, third party groups are significantly less likely to impose punishments than individuals; this indicates that individuals and their behavior are tempered by the presence of third parties, although Xiao and Tan (2014) do not speculate as to why individual third-party behavior may be different from group third-party behavior.
In some of the most well-known social science experiments of all time, the Stanford Prison experiments, the world saw for the first time what evil people were capable of when they were given anonymity in a group. Xiao and Tan (2014) note that the opposite is also possible: the group can temper the individual and bring the individual to rest in the middle, rather than at the extreme (Xiao and Tan 2014).
- Methodology
Control Group
The control group in this social experiment will be read the following text:
Imagine you are walking down the street and you see a man at a bus stop hit a woman in the face and steal her purse. He runs off, but you see him caught by the police and arrested. The police take you to the station, where you give your statement about what you saw.
The control group is a group that has no emotional connection with the event except that they witnessed it; the control group has no reason to be emotionally connected to the victim, and no reason to be involved in the punishment of the individual who is responsible for the assault and theft on the woman at the bus stop. The control group will then be surveyed and asked the following questions:
- Please rate, on a scale of 1-10, with 1 being “unimportant” and 10 being “absolutely necessary,” how important it is that the individual responsible for the assault be arrested and punished.
- Please rate, on a scale of 1-10, with 1 being “unimportant” and 10 being “absolutely necessary,” how important it is that the victim be allowed input on the sentencing of the individual in question.
- Does the severity of the crime change whether the victim should be allowed input on punishment? Why or why not?
- Please rate, on a scale of 1-10, with 1 being “unimportant” and 10 being “absolutely necessary,” how important it is to punish offenders when victims are the victim of a physical assault.
- If the victim was a friend or loved one, would you change your answers to any of the previous 4 questions? If yes, which ones?
- What sentence would you give this individual?
The answers from these individuals will then be collected, collated, and analyzed for trends.
Experimental Group
The process will be much the same for the experimental group, except this group will receive a different prompt; the experimental group will be asked to consider the following prompt:
You’re sitting at a bus station when someone much larger than you comes up to you. The man seems unstable-- he’s muttering under his breath, and doesn’t seem to be able to focus-- when he suddenly hits you in the face and grabs for your wallet. Your lip is cut and you are stunned, but you see someone grab the perpetrator. The police come and you give your statement. You’re mostly unhurt, but now whenever you walk down the street you are a little nervous, and you find yourself having anxiety problems and panic attacks that you never experienced before.
The experimental group will then be asked the following questions in a survey format:
Please rate, on a scale of 1-10, with 1 being “unimportant” and 10 being “absolutely necessary,” how important it is that the individual responsible for the assault be arrested and punished.
- Please rate, on a scale of 1-10, with 1 being “unimportant” and 10 being “absolutely necessary,” how important it would be to you to be allowed to have input on the punishment.
- Does the severity of the crime change whether the victim should be allowed input on punishment? Why or why not?
- Please rate, on a scale of 1-10, with 1 being “unimportant” and 10 being “absolutely necessary,” how important it is to punish offenders when victims are the victim of a physical assault.
- If the victim was a friend or loved one, would you change your answers to any of the previous 4 questions? If yes, which ones?
- Would you consider yourself motivated primarily by revenge or by justice in your sentencing decision?
- What sentence would you give this individual?
The answers from these individuals will then be collected, collated, and analyzed for trends.
- Discussion
It would be expected that victims are more likely to be revenge motivated regarding the scenario given in the research proposal than individuals who were merely witnesses to the attack. The actual process of being attacked and becoming victimized seems to have an effect on an individual; it seems to promote the drive and desire for revenge in many people, for better or worse. Fletcher (1999) suggests that there is a place for the victim in the justice process, but that it may not be in the sentencing portion of the process.
Indeed, the whole discussion regarding victim involvement in the process does not even ask if victims should be involved in the process: if the system is, indeed, justice-based, it has been demonstrated time and again that victims are motivated primarily by retribution, revenge, and vengeance, not by any noble need to provide justice and rehabilitation to the offender. Rehabilitation is a gift that society gives to an offender-- it is not something that a victim is likely to give to any offender, especially if the pain of the crime is fresh or particularly significant (Fletcher 1999).
In the experiment, it is likely that victims will score higher on many of the questions regarding retribution and revenge, but the questions regarding the physical assault of the woman at the bus stop is one such question that does not have a clear answer. The trends seem to suggest that both groups consider a physical assault to be more worthy of revenge and retribution than an emotional or verbal assault alone; when the man at the bus stop hit the other individual, that man crossed a line that everyone, victim or eyewitness, was unwilling to allow to go unpunished.
- Conclusion
Victim statements may be cathartic for the victim, but they may also be doing more harm than good to the American justice system. Justice is always said to be blind, but there is no way justice could possibly be blind if judges are taking into account the emotion-riddled testimonies of victims. Victims should have a place in the criminal justice system-- their recovery after an experience with a criminal is very important, and should not be shunted to the side. However, it is more likely that the criminal justice system will succeed if victims are not responsible for punishing those individuals who are responsible for their victimization. Unfortunately, in many cases, it is completely unrealistic to expect perfect justice; the criminal justice system does its best to mete out justice rather than punishment. Although it is a penal system, it is not a punitive system. Victims are often unable to tell the difference between justice and punishment, they should not be expected to be able to determine the difference between these two philosophical concepts. That should be the job of the many different legal professionals who go to school for a number of years to learn to determine precisely this type of distinction.
References
Carlsmith, K. (2006). The roles of retribution and utility in determining punishment. Journal Of Experimental Social Psychology, 42(4), 437-451. doi:10.1016/j.jesp.2005.06.007
Edwards, I. (2001). Victim Participation in Sentencing: The Problems of Incoherence. Howard J, 40(1), 39-54. doi:10.1111/1468-2311.00188
Erez, E., & Tontodonato, P. (1992). Victim participation in sentencing and satisfaction with justice.Justice Quarterly, 9(3), 393-417. doi:10.1080/07418829200091451
Fletcher, G. (1999). The Place of Victims in the Theory of Retribution. Buffalo Criminal Law Review,3(1), 51-63. doi:10.1525/nclr.1999.3.1.51
Glaeser, E., & Sacerdote, B. (2003). Sentencing in Homicide Cases and the Role of Vengeance. The Journal Of Legal Studies, 32(2), 363-382. doi:10.1086/374707
Tan, F., & Xiao, E. Third-Party Punishment: Retribution or Deterrence?. SSRN Journal. doi:10.2139/ssrn.2425522
