36 Pages Posted: 11 Feb 2003
A growing body of empirical evidence from psychology, sociology, law, and criminal justice has demonstrated that lay intuitions about punishment are strongly rooted in retributivism: i.e., the idea that punishment should be distributed in proportion to moral desert. Level of harm is often thought to be indicative of desert, but harm described by victims (or survivors) in the context of victim impact evidence is subjective and often unforeseeable insofar as it is attributable to chance factors. How do observers (such as jurors or judges) use information about consequences determined by chance factors when they judge punishment? The emotional and cognitive processes involved in jurors' use of victim impact evidence potentially reveals key insights about the psychological mechanisms underlying laypersons' punishment judgments generally. This paper explores empirical evidence for the notion that the subjective harm experienced by the victim of an offense serves as proxy for the level of defendant's effort and culpability, and by implication, the perceived seriousness of the crime.
Keywords: victim impact statements, punishment, retribution, psychology, capital punishment
Suggested Citation: Suggested Citation
Nadler, Janice and Rose, Mary R., Victim Impact Testimony and the Psychology of Punishment. Cornell Law Review, Vol. 88, pp. 419-456, 2003; Northwestern Public Law Research Paper No. 03-02; U of Texas Law, Public Law Research Paper No. 47. Available at SSRN: https://ssrn.com/abstract=377521 or http://dx.doi.org/10.2139/ssrn.377521