Victim Impact Statements and Ancillary Harm: The American Perspective

Canadian Criminal Law Review, Vol. 15, p. 149, 2011

48 Pages Posted: 14 May 2011  

Paul G. Cassell

University of Utah - S.J. Quinney College of Law

Edna Erez

University of Illinois at Chicago

Date Written: May 11, 2011

Abstract

A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.

In this response, we bring an American perspective to bear on these issues, finding much in the American crime victims’ literature and court decisions to support the Robert-Manikis thesis. For example, at the recent sentencing of Bernie Madoff, the sentencing judge referenced ancillary harm as an important factor. A number of cases have reached similar conclusions. While not using the phrase “ancillary harm” to justify their actions, the court decisions make clear that foreseeable harm to others is an important consideration at sentencing. The American cases also support a crime victim having a right to deliver a victim impact statement not only in writing, but also orally at the sentencing hearing itself. Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

Keywords: Victim, Crime Victim, Impact Statements, Criminal Justice, Sentencing

JEL Classification: K14, K41, K42

Suggested Citation

Cassell, Paul G. and Erez, Edna, Victim Impact Statements and Ancillary Harm: The American Perspective (May 11, 2011). Canadian Criminal Law Review, Vol. 15, p. 149, 2011. Available at SSRN: https://ssrn.com/abstract=1838731

Paul G. Cassell (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
801-585-5202 (Phone)
801-581-6897 (Fax)

Edna Erez

University of Illinois at Chicago ( email )

1200 W Harrison St
Chicago, IL 60607
United States

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