Degrees of emotion: Judicial responses to victim impact statements

Law, Culture and the Humanities

Volumn 6, Issue 1, 2010, Pages 75-104

  Schuster, Mary Lay ^a   Propen, Amy ^b  

^a UNIVERSITY OF MINNESOTA   (United States)

^b YORK COLLEGE OF PENNSYLVANIA   (United States)

Author keywords

Domestic violence; Emotion; Judicial response; Sentencing; Victim impact statement

Indexed keywords

EID: 74849123742     PISSN: 17438721     EISSN: 17439752     Source Type: Journal    
DOI: 10.1177/1743872109349104     Document Type: Article

References (103)

1. Minnesota Statutes 611A.037-038 (Copyright © 2007 by the Office of Revisor of Statutes, State of Minnesota) can be found at http://www.leg.state.mn.us/leg/statutes.asp.
2. Booth v. Maryland 482 U.S. 496 (1987).
3. South Carolina v. Gathers 490 U.S. 805, 810 (1989).
4. Payne v. Tennessee 501 U.S. 808, 811 (1991).
5. John W. Stickels, Victim Impact Evidence: The Victims' Right That Influences Criminal Trials, Texas Tech Law Review 32 (2000-2001), pp. 231-47.
6. See, also, Valerie Finn-DeLuca, Victim Participation at Sentencing, Criminal Law Bulletin (1994), pp. 403-28.
7. and Edith Greene and Heather Koehring, Victim Impact Evidence in Capital Cases: Does the Victim's Character Matter? Journal of Applied Social Psychology 28 (1998), pp. 145-56.
8. Susan Bandes, Empathy, Narrative, and Victim Impact Statements, The University of Chicago Law Review 63 (1996), pp. 361-412.
9. See, also, Gregory B. Schneider, Victim Impact Statement: A Victim's Steam Valve, Criminal Justice Journal 14 (1992), pp. 407-423.
10. Richard Burr, Litigating with Victim Impact Testimony: The Serendipity That Has Come from Payne v. Tennessee, Cornell Law Review (88), pp. 517-29.
11. and Bruce Arrigo and Christopher R. Williams, Victim Vices, Victim Voices, and Impact Statements: On the Place of Emotion and the Role of Restorative Justice in Capital Sentencing, Crime & Delinquency 49 (2003), pp. 603-26.
12. Andrew J. Karmen, Who's Against Victims' Rights? The Nature of the Opposition to Pro-Victim Initiatives in Criminal Justice, St. John's Journal of Legal Comment 8 (1992), pp. 157-75.
13. Susan Bandes, When Victims Seek Closure: Forgiveness, Vengeance, and the Role of Government, Fordham Urban Law Journal 27 (2000), pp. 1-14.
14. See, also, Susan W. Hillenbrand and Barbara E. Smith, Victims Rights Legislation: An Assessment of Its Impact on Criminal Justice Practitioners and Victims, Executive Summary, A Study of the American Bar Association, Criminal Justice Section, Victim Witness Project. Funded by the National Institute of Justice, May 1989.
15. and Arrigo and Williams, "Victim Vices."
16. Edwin Villmoare and Virginia V. Neto, Victim Appearances at Sentencing Hearings under the California Victims' Bill of Rights, U. S. Department of Justice, National Institute of Justice. Study undertaken by the Center for Research, McGeorge School of Law, University of the Pacific, March 1987.
17. Edna Erez, Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice, Criminal Law Review (July 1999), pp. 545-56.
18. See, also, Edna Erez, Victim Impact Statements, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice. Australian Institute of Criminology, GPO Box 2944, Canberra ACT 2601, Australia, no. 33, 1-8, September 1991.
19. Edith Greene, The Many Guises of Victim Impact Evidence and Effects on Jurors' Judgments, Psychology, Crime & Law 5 (1999), pp. 331-48.
20. See, also, Greene and Koehring, Victim Impact Evidence" and Janice Nadler and Mary R. Rose, "Victim Impact Testimony and the Psychology of Punishment, Cornell Law Review 88 (2003), pp. 419-56.
21. Cynthia G. Ludwig, The Utilization of Victim Impact Statements and Victim Impact Policy and Instrumental Design by the Third Judicial District Court System in Shawnee County, Kansas, Unpublished Masters in Criminal Justice Thesis, Washburn University of Topeka, 2001.
22. See, also, Edna Erez and Pamela Tontodonata, The Effect of Victim Participation in Sentencing on Sentencing Outcomes, Criminology 28 (1990), pp. 451-74.
23. and Linda Sue Jackson, A Study of the Victim Impact Statement and Its Relationship to Sentence Length in Prince George's County, Maryland, Unpublished Masters in Arts Thesis, Institute of Criminal Justice and Criminology, The University of Maryland, 1994.
24. Edna Erez and Kathy Laster, "Neutralizing Victim Reform: Legal Professionals' Perspectives on Victims and Impact Statements," Crime & Delinquency 45 (1999), pp. 530-53.
25. See, also, Madeline Henley, Robert C. Davis, and Barbara E. Smith, The Reactions of Prosecutors and Judges to Victim Impact Statements, International Review of Victimology 3 (1994), pp. 83-93.
26. and Brian Myers and Jack Arbuthnot, The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock Jurors, Journal of Offender Rehabilitation 29 (1999), pp. 95-112.
27. Andrew Sanders, Carolyn Hoyle, Rod Morgan, and Ed Cape, Victim Impact Statements: Don't Work, Can't Work, Criminal Law Review (2001), pp. 447-58.
28. John M. Conley and William M. O'Barr, Rules versus Relationships: The Ethnography of Legal Discourse (Chicago: University of Chicago Press, 1990).
29. 15. In our sample, 60% of the judges were male, 40% female; 89% were Caucasian, 7% African American, and 4% Hispanic; 43% had 5 to 10 years' experience on the bench, 32% had 20 or more years' experience, and 25% had 11 to 20 years' experience; finally, current assignments were as follows: 66% criminal and civil, 17% juvenile, 7% civil only, 7% chief judge, and 3% family only. About one third of the judges in the Fourth District agreed to meet with us, and about one fourth of the judges in the Second District.
30. During this project we received encouragement and support in this project from WATCH, local volunteer-based court monitoring and research organization that follows family and sexual violence cases and provides feedback to the justice system, and for which one of us had served as a long-time volunteer. This support from WATCH served as a catalyst for the judges agreeing to be interviewed and helped us locate hearings in which impact statements were offered.
31. See Carole Z. Stearns and Peter N. Stearns, Anger: The Struggle for Emotional Control in America's History (Chicago: The University of Chicago Press, 1986), p. 13.
32. Peter N. Stearns, American Cool: Constructing a Twentieth-Century Emotional Style (New York: NYU Press, 1994).
33. See, also, Arlie R. Hochschild, Emotional Work, Feeling Rules, and Social Structure, American Journal of Sociology 85 (1979), pp. 551-75.
34. and Carole Z. Stearns and Peter N. Stearns, Introduction, in Carole Z. Stearns and Peter N. Stearns, eds., Emotion and Social Change (New York: Holmes and Meir, 1988), pp. 1-21.
35. Stearns and Stearns, Anger, p. 17.
36. Stearns, American Cool, p. 3.
37. Stearns and Stearns, Anger, p. 14.
38. Stearns, American Cool, p. 15.
39. Susan Bandes, Introduction, in Susan Bandes, ed., Passions of the Law (New York: NYU Press, 1999), pp. 1-15.
40. Sara Ahmed, The Cultural Politics of Emotion (New York: Routledge, 2004).
41. Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001).
42. Stearns, American Cool.
43. Stearns and Stearns, Anger.
44. see, also, Stearns, American Cool.
45. Carole Z. Stearns, 'Lord Help Me Walk Humbly': Anger and Sadness in England and America, 1570-1750, in Carole Z. Stearns and Peter N. Stearns, eds., Emotion and Social Change (New York: Holmes and Meir, 1988), pp. 39-69.
46. and Peter N. Stearns, Anger and American Work: A Twentieth-Century Turning Point, in Stearns and Stearns, eds., Emotion, pp. 123-49.
47. Stearns and Stearns, Anger, pp. 238, 239, emphasis added.
48. See, also, Danielle S. Allen, Democratic Disease: Of Anger and the Troubling Nature of Punishment, in Bandes, ed., Passions, pp. 191-214.
49. Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment, Cornell Law Review 74 (1988-1989), pp. 655-710.
50. See, also, Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton: Princeton University Press, 2004).
51. Pillsbury, "Emotional Justice," p. 690.
52. See, also, Bandes, "When Victims Seek Closure," p. 11.
53. Bandes, "Introduction."
54. Martha Minow, Institutions and Emotions: Redressing Mass Violence, in Bandes, ed. Passions, pp. 265-81.
55. Nussbaum, Upheavals, p. 299.
56. Arrigo and Williams, "Victim Vices."
57. See, also, Elizabeth V. Spelman, Fruits of Sorrow: Framing Our Attention to Suffering (Boston: Beacon Press, 1997).
58. Nussbaum, Upheavals.
59. and Kathleen Woodward, Calculating Compassion, in Lauren Berlant, ed., Compassion: The Culture and Politics of an Emotion (New York: Routledge, 2004), pp. 59-86.
60. Nussbaum, Upheavals.
61. See, for example, Susan Schechter, Women and Male Violence: The Visions and Struggles of the Battered Women's Movement (Cambridge, MA: South End Press, 1982).
62. Liz Kelly, Surviving Sexual Violence (Minneapolis: University of Minnesota Press, 1988).
63. R. Emerson Dobash and Russell P. Dobash, Women, Violence, and Social Change (London: Routledge, 1992).
64. Elizabeth Schneider, Battered Women & Feminist Lawmaking (New Haven: Yale University Press, 2000).
65. Jennifer L. Hartman and Joanne Belknap, Beyond the Gatekeepers: Court Professionals' Self-Reported Attitudes about and Experiences with Misdemeanor Domestic Violence Cases, Criminal Justice and Behavior 30 (2003), pp. 349-73.
66. and JoAnn Miller, A Specification of the Types of Intimate Partner Violence Experienced by Women in the General Population, Violence Against Women 12 (2006), pp. 1105-31.
67. Lucy N. Friedman and Minna Shulman, Domestic Violence: The Criminal Justice Response, in Arthur Lurigio, Wesley G. Skogan, and Robert C. David, eds., Victims of Crime: Problems, Policies, and Programs (Newbury Park, CA: Sage, 1990), pp. 87-103.
68. Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, Michigan Law Review 90 (1991), pp. 1, 5-6, 65-76, 78-79.
69. Patricia M. Yancey, John R. Reynolds, and Shelley Keith, Gender Bias and Feminist Consciousness among Judges and Attorneys: A Standpoint Theory Analysis, Signs 27 (2002), pp. 665-702.
70. J. Ford, E.L. Rompf, T. Faragher, and S. Weisenfluh, Case Outcomes in Domestic Violence Court: Influences of Judges, Psychological Reports 77 (1995), pp. 587-95.
71. James Ptacek, Battered Women in the Courtroom: The Power of Judicial Response (Boston: Northeastern Press, 1999).
72. See, for example, Lauren Bennet, Lisa Goodman, and Mary Ann Dutton, Systemic Obstacles to the Criminal Prosecution of a Battering Partner: A Victim Perspective, Journal of Interpersonal Violence 14 (1999), pp. 761-772.
73. and Hartman and Belknap, "Beyond."
74. Bandes, "Introduction."
75. Stearns, American Cool.
76. We identify the speaker of a quote according to the following key: if the speaker is a judge, we identify the district (in this case, the second judicial district is identified by 2JD), and we randomly assign the judge a number (in this case, it is judge number 3). We refer to any hearings observed by the date only to maintain confidentiality of the parties.
77. Bandes, "Empathy".
78. see, also, Catherine A. Lutz and Lila Abu-Lughod, Introduction, in Catherine A. Lutz and Lila Abu-Lughod, eds., Language and the Politics of Emotion (Cambridge: Cambridge University Press, 1990), pp. 1-23.
79. and Sally Engle Merry, Resistance and the Cultural Power of Law, Law and Society Review 29 (1995), pp. 11-26.
80. During our study the US Supreme Court rendered a decision in Blakely v. Washington 542 U.S. 296; 124 S. Ct. 2531; No. 02-1632 (June 24, 2004), which affects states with sentencing guidelines such as Minnesota. A jury must now determine beyond a reasonable doubt whether aggravating factors, other than prior convictions, exist as "facts" before a judge may use them to depart upward from the sentencing guidelines, or the defendant must waive his "Blakely rights" in a plea negotiation that contains an upward departure.
81. Minnesota sentencing guidelines can be found at .
82. Bandes, "Empathy".
83. see, also, Catherine Lutz, Unnatural Emotions: Everyday Sentiments on a Micronesian Atoll & Their Challenge to Western Theory (Chicago: University of Chicago Press, 1988).
84. Arlie Russell Hochschild, The Managed Heart: Commercialization of Human Feeling (Berkeley: University of California Press, 2003).
85. see, also, Stearns, American Cool.
86. and Spelman, Fruits of Sorrow.
87. For studies that identify anger with higher status, see, for example, Larissa Z. Tiedens, Anger and Advancement versus Sadness and Subjugation: The Effects of Negative Emotion Expressions on Social Status Conferral, Journal of Personality and Social Psychology 80 (2001), pp. 86-94.
88. Stearns, American Cool.
89. Schechter, Women and Male Violence.
90. Elaine Chiu, Confronting the Agency in Battered Mothers, Southern California Law Review 74 (2001), pp. 1223-73.
91. Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, William & Mary Law Review 39 (1997-1998), pp. 1505-84.
92. Edna Erez and Linda Rogers, Victim Impact Statements and Sentencing Outcomes and Processes: The Perspective of Legal Professionals, British Journal of Criminology 39 (1999), pp. 216-39.
93. Lynn Hecht Schafron, Maiming the Soul: Judges, Sentencing and the Myth of the Nonviolence Rapist, Fordham Urban Law Journal 20 (1993), pp. 438-53.
94. see, also, Amanda Konradi, Understanding Rape Survivors' Preparations for Court, Violence Against Women 2 (1996), pp. 25-62.
95. and Hartman and Belknap, "Beyond the Gatekeepers."
96. Leonore M. J. Simon, Therapeutic Jurisprudence Approach to the Legal Processing of Domestic Violence Cases, in David B. Wexler and Bruce J. Winick, eds., Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, NC: Carolina Academic Press, 1996), pp. 243-85.
97. see, also, Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, Yale Journal of Law and Feminism 11 (1999), 3.
98. Mahoney, "Legal Images".
99. see, also, Edna Erez and Tammy A. King, Patriarchal Terrorism or Common Couple Violence: Attorneys' Views of Prosecuting and Defending Woman Batterers, in Edna Erez and Kathy Laster, eds., Domestic Violence: Global Responses (Bicester, UK: A. B. Academic, 2000), pp. 207-26.
100. Konradi, "Understanding".
101. see, also, Schneider, "Victim Impact Statement".
102. Jennifer K. Wood, 'In Whose Name': Crime Victim Policy and the Punishing Power of Protection, National Women's Studies Journal 17 (2005), pp. 1-17.
103. and Jeffrey W. Spears, Prosecution of Sex Crimes, in Frances P. Reddington and Betsy Wright Kreisel, eds., Sexual Assault: The Victims, the Perpetrators, and the Criminal Justice System (Durham, NC: Carolina Academic Press, 2005), pp. 281-97.