Reply to Paul Cassell: What We Know About Victim Impact Statements

Abstract

In an article in this symposium, Paul Cassell takes issue with the position I espoused in my 1996 article: Empathy, Narrative and Victim Impact Statements (63 University of Chicago Law Review 361 (1996)). In that article I argued that victim impact statements wrongly divert the capital jury from its duty to shift its gaze from the question of the defendant's guilt for a heinous murder to the question of whether this particular murderer ought to be killed or spared. Cassell argues that victim impact statements do not divert sentencers from this focus, but instead provide crucial information to judges and juries about the full harm caused by a murder. He further argues that victim impact statements will not increase the incidence of death sentences, but instead will aid victims in the healing process.

This reply considers the evidence Cassell advances to support his empirical claims. It concludes that Cassell offers no empirical support for his claim that capital juries will receive crucial information from victim impact statements, and instead offers a misleading and dangerous simple test for evaluating the information offered by such statements. Second, it concludes that Cassell's empirical claim that victim impact statements will not increase the incidence of death sentences is contradicted by the available evidence. Finally, it concludes that Cassell offers no empirical proof for his claim that victim impact statements aid victims in the healing process and that the available evidence is inconclusive at best.