A Crime Victim Belongs in the Courtroom, Not Out in the Hallway

Picture a courthouse hallway. This is a labelled picture, not a case file, so nobody should write to me about the facts. There is a wooden bench, a vending machine that has been out of the good snacks since the Carter administration, and a woman in her best coat holding a folder of papers. Inside the courtroom, behind a heavy door, a judge is hearing a plea agreement about the man who broke into her house. She will find out how it went when somebody remembers to tell her.

Folks, if you designed a justice system from scratch, would you put the person who was hurt on the bench outside the door? Of course not. You would laugh at the designer who suggested it. Yet that was, in practice, the arrangement for a very long time, and it took a presidential task force, a long run of state laws and a reversal at the Supreme Court to move her to a seat in the room. Let me show you how that happened, why it is right, and what the defense bar says against it.

The claim, in numbered form

Here is the argument. I am going to number it, because the people who dislike it tend to argue against a version nobody holds.

1. A crime is done to a person, and also to the community. The prosecution represents the community. It does not represent the person.
2. At the moments when the most important decisions are made, such as the plea and the sentence, the law should allow the person harmed to be informed and heard.
3. Letting the victim speak does not give the victim a vote. The judge decides. The prosecutor decides what to charge. The jury decides guilt. The accused keeps every constitutional protection he has.
4. A system that hears from everyone but the person harmed is not neutral. It is incomplete.

That is the position. Notice how modest it is. It does not ask for revenge, it does not ask for a harsher sentence by default, and it does not ask anyone to believe a victim's account without testing. It asks for a chair.

The old rule: the victim is evidence

For most of the twentieth century, the American criminal process made the victim a witness. If the case went to trial, he or she testified, and then the state carried on. If the case ended with a plea bargain, the victim might hear about it afterward, or might read about it. At sentencing, in many places, the defendant's family and employer could speak about his character, but the person he had harmed was in no position to speak about what the crime had done.

The Supreme Court's own decisions reflected the arrangement, and here comes the part that surprises people. In capital cases, the Court went further than the practice and actively barred certain testimony.

Booth and Gathers: the bar

In Booth v. Maryland (1987), the Court, by a five-to-four vote in an opinion by Justice Powell, held that the Eighth Amendment prohibits a jury from considering a victim impact statement during the sentencing phase of a capital trial. In Booth's case, the statement had described the personal characteristics of the victims and the emotional impact of the crime on their family. The Court's reasoning was that such information was irrelevant to the defendant's blameworthiness and that it risked leading the jury to impose a death sentence in an arbitrary way, depending on how admirable the victims were or how eloquent the survivors.

Two years later, in South Carolina v. Gathers (1989), the Court extended the rule, again five to four, to a prosecutor's argument about the personal qualities of the victim. The argument was barred as well.

The logic was not foolish. The concern was that a jury deciding whether a man lives or dies should focus on his crime and his character, and not on a comparison of whose life was worth more. The consequence, though, was a rule under which the jury could hear every detail of the defendant's background, upbringing and virtues, and almost nothing about the person who was dead. It is one thing to say the jury must not rank victims. It is another to say that the victim must be reduced to a name on an indictment.

Payne v. Tennessee, 1991

The reversal came four years later. The case was Payne v. Tennessee, decided in 1991. The facts are grim and I will state them without decoration. Pervis Payne was convicted of murdering Charisse Christopher and her two-year-old daughter, Lacie Jo, and of assaulting with intent to kill her three-year-old son, Nicholas, who survived. At the sentencing phase, the state called the victims' grandmother, who testified about the effect on Nicholas, who still cried for his mother and sister. The prosecutor also referred to the loss in closing argument. Payne argued that Booth and Gathers barred it. The Tennessee Supreme Court upheld the death sentence, and the U.S. Supreme Court granted review.

Chief Justice Rehnquist wrote for a six-justice majority. The Court overruled Booth and Gathers on this point, holding that the Eighth Amendment does not erect a per se bar against victim impact evidence at the sentencing phase of a capital trial. His reasoning ran along these lines.

1. The harm done by the crime is relevant. Sentencing has always taken into account the harm caused by the crime, and the loss to a victim's family is part of that harm. The Court said victim impact evidence is simply another form of informing the sentencing authority about the specific harm caused by the crime.
2. It balances the scales. The defendant is allowed to present any mitigating evidence about his background and character, as the Court's capital cases required. The Court found it unfair that the state could not show the other side of the ledger, that the victim was also a unique human being.
3. The old rule was a fresh invention. Booth and Gathers were recent decisions, wrongly decided in the Court's view, and the doctrine of stare decisis is at its weakest, the Court said, in cases involving procedural and evidentiary rules and in decisions that were decided over spirited dissents and that had been questioned by lower courts.
4. The Constitution still guards against unfairness. The Court noted that if victim impact evidence is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause provides a mechanism for relief.

I have given the Court's reasoning in paraphrase, because paraphrase is what I can vouch for. Justice Souter and Justice Kennedy concurred separately, and Justice Scalia joined the majority and added his own thoughts. Justice Marshall dissented, joined by Justice Blackmun, and wrote with some heat that "Power, not reason, is the new currency of this Court's decisionmaking." Justice Stevens dissented separately. The dissenters' objection was largely about precedent: that the majority had overruled two recent decisions simply because the membership of the Court had changed. It is a fair point about process, and the stare decisis question is a legitimate one. But the merits of the Court's holding are another matter, and on the merits the majority was right.

Note the limits of Payne. It does not require states to admit victim impact evidence. It says the Constitution does not forbid it. And it left standing a narrower rule from Booth, which the Court reaffirmed in Bosse v. Oklahoma (2016): in a capital case the jury may not hear a victim's family characterize the crime or the defendant or give an opinion on the sentence the jury should impose. The line is between the harm and the opinion about punishment. The victim may tell the court what the crime cost. The victim may not tell a capital jury what the sentence should be.

From case law to statute: the right to be heard

While the Court was moving, legislatures were acting. The federal Crime Victims' Rights Act of 2004, codified at 18 U.S.C. 3771, gives federal crime victims a list of rights, including the right to be reasonably heard at any public proceeding in the district court involving release, plea or sentencing, the right to reasonable, accurate and timely notice of public court proceedings and of any release or escape of the accused, and, through later amendment, the right to be informed in a timely manner of any plea bargain or deferred prosecution agreement. The history of how Congress and the states built these rights is in The Victims' Rights Movement Began With a 1982 Presidential Task Force.

State law is broader still. Every state has some statutory or constitutional provision on victims' rights, with differences in the wording and in the remedies. For a practical walk through the stages, see What to Do if You Are a Crime Victim, Your Rights Step by Step.

Two features of the federal statute are worth noting. First, it makes the right to be heard a right to speak at the plea and sentencing hearings and not a right to control either. Second, it provides a mechanism of enforcement: if a district court denies a victim's assertion of a right, the victim can petition the court of appeals for a writ of mandamus. A right with no way to claim it is a courtesy. The Act turned a courtesy into a claim.

The defense bar's best argument

The most serious opposition does not come from people who dislike victims. It comes from defense lawyers, some prosecutors and many judges, and it deserves a hearing.

The argument is that victim statements inflame juries and judges. Emotion is the enemy of consistent sentencing. Two defendants who commit the same crime may receive different punishments because one victim has a large, articulate and sympathetic family and the other does not. The person who killed a beloved teacher is punished more than the person who killed a lonely man, though the crime and the offender are the same. That runs against the principle of equal justice under law. Defense lawyers add that statements may include claims about the defendant that were not proven, that a victim's understandable anger may crowd out the defendant's mitigating evidence, and that some victims want leniency and are not heard when they say so.

That is a real argument, and I would be dishonest to wave it away. Here is the answer.

1. Sentencing has always been individualized. The law has never sentenced a category. It sentences a person for a crime that did harm to particular people. If a judge may consider the defendant's family, work history and remorse, which he may, then he may consider the harm. Excluding the harm is the arbitrary course.
2. The victim speaks to the judge, mostly. In non-capital cases, sentencing is by a judge who has seen thousands of cases. Judges are trained to receive emotion and still apply the law. Under the federal rules, a victim may address the court, and the judge keeps control of the proceeding.
3. Hearing is not obeying. Allowing a statement does not require the judge to adopt its conclusions, and Payne was careful to preserve the due process objection when the evidence is unduly prejudicial.
4. The disparity cuts both ways. Where a victim is poor, obscure or without family, the person who harmed him should not enjoy a lighter sentence because nobody is there to speak. The remedy for that inequity is a prosecutor and victim advocate who help every victim be heard, not silence for all.
5. Some victims ask for mercy. The right to be heard includes the right to say "please be lenient" and the right to say "please be tough." If the system is allowed to hear only one, it is not listening.

What the Founders would have recognized

The framers of the Constitution lived in a world in which the injured party often brought the prosecution. Private prosecution was common in the colonies and the early states. The shift to a strictly public prosecutor came with the nineteenth century and the professional police. The wisdom of that shift is not in doubt, since public prosecution protects victims from having to fund justice themselves and protects the accused from private vendettas. But it should not have been a one-way door.

The right to be heard is also at home in the moral tradition behind our law. The book of Proverbs tells the judge to open his mouth for the one who cannot speak. A court that listens to the person hurt is not abandoning the rule of law. It is living up to the old promise that the law exists for people.

For more on the courtroom's other half, see The Case Against Cashless Bail Starts With the Victim, Not the Defendant on who gets protected before trial, and Mandatory Minimums Divide Conservatives, and Both Sides Have a Point on sentencing itself.

The case in brief

1. Booth v. Maryland (1987) and South Carolina v. Gathers (1989) barred victim impact evidence in capital sentencing, and Payne v. Tennessee (1991) overruled them on that point, holding that the Eighth Amendment does not forbid it.
2. Bosse v. Oklahoma (2016) preserved the narrower line that a capital jury may not hear a victim's opinion about the sentence.
3. The federal Crime Victims' Rights Act, 18 U.S.C. 3771, guarantees the right to be reasonably heard at release, plea and sentencing hearings, and the right to timely notice.
4. The defense bar's worry about inflamed juries is serious, but sentencing has always considered the harm done, and the judge, not the victim, decides.
5. A victim in the room restores the person to a system that exists to serve people.

What you can do: call your county prosecutor's victim-witness office, ask how victims are notified of plea hearings and sentencing, and ask whether the office tells them in writing.