Share Your Grief But Not Your Anger: Victims and the Expression of Emotion in Criminal Justice
In Emotional Expression: Philosophical, Psychological, and Legal Perspectives, Cambridge University Press (Joel Smith and Catharine Abell eds.) 2016, Forthcoming
38 Pages Posted: 1 Sep 2015
Date Written: August 26, 2015
In the recent capital trials of Dzhokhar Tsarnaev for the Boston Marathon bombings and James Holmes for the Colorado theater shootings, victims’ families were permitted to give testimony after the sentence had been announced. Since victim impact testimony in capital cases was upheld by the Supreme Court on the ground that it provides important information to the sentencing jury, hearings after sentencing raise the question of what role the statements are meant to serve. I argue that although victim impact testimony was originally justified as a means of providing information to sentencing juries, it is now regarded as having two additional purposes. First, it is widely assumed that the statements serve a cathartic or therapeutic role for victims and their families; that they assist in obtaining “closure.” Second, there is a growing tendency toward viewing the statements as a means of confronting the perpetrator in order to elicit remorse, or at least impress on him the gravity of the harm he has caused. Each of these three rationales has different implications for the nature, scope and advisability of allowing victim impact statements. In this chapter I examine what goals the statements are meant to serve, how those goals should affect the rules governing the statements, and whether the goals are practically achievable or normatively desirable.
Keywords: victim impact statements, criminal procedure, criminal law, criminal justice, emotional expression, punishment, death penalty
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