Healing and Hurting: Balancing the Therapeutic Power of Victim Impact Statements with their Punitive Intent

By: Isabelle Askanas

Ultimately, a murder victim’s family may never experience complete closure, as justice cannot substitute the profound loss and heartache a family suffers when a life is senselessly taken. However, because victims’ families now have the right to be heard at public proceedings involving pleas, sentencing, and release, they are able to present their own narratives. A Victim Impact Statement (VIS) is testimony read or written by a victim or his or her family and is utilized in both civil and criminal contexts. When read during sentencing proceedings, these poignant statements can be persuasive, convincing judges and juries to enhance sentences and parole boards to deny release. By arousing the emotions of the triers of fact, VISs have become a tool for prosecutors to use in order to encourage sentence maximization and parole denial. In capital trials, this method of persuasion serves a unique role by evoking sympathy from the triers of fact in order to encourage the death penalty. The Supreme Court of California has recently expanded the scope of aggravating evidence in capitals trial by allowing the prosecution to submit victim impact evidence relating to a defendant’s prior noncapital crime. In People v. Johnson, decided on January 21, 2016, California held that victim impact evidence regarding the noncapital, uncharged murder of Cory Lamons was admissible during the penalty phase of the capital trial for the murder of Scott Miller.[1] The Supreme Court found that testimony from Lamons’s mother during sentencing was not overly prejudicial, and did not improperly influence the jury. By setting a precedent favorable to victims, California, the birthplace of VISs, is now paving the way for the admission of more expansive victim impact testimony in capital trials.

Interestingly enough, VISs are rooted in one of the most notorious murders in history: the Tate-La Bianca killings committed by the Manson Family in 1969. Doris Tate, the mother of actress Sharon Tate who was brutally slain in the Hollywood killings, founded the Coalition for Victims’ Equal Rights in 1982 when one of the four killers, Leslie Van Houten, was up for parole.  Tate was persistent in advocating for victims to have a more involved role in judicial proceedings, reading her impact statement at every one of the Manson Family killers’ parole hearings.[2] But in 1987, the United States Supreme Court decided in Booth v. Maryland that the use of VIS in capital cases violated the Eighth Amendment, determining that the personal characteristics of the victims as well as the emotional trauma they suffered were irrelevant to the defendant’s culpability.[3] Two years later, the Supreme Court decided in South Carolina v. Gathers[4] that VISs that are not related to the circumstances of the crime and are thus inadmissible at trial. However, the Supreme Court overruled its decisions in Booth and Gathers in 1991 in Payne v. Tennessee, determining that the Eighth Amendment does not bar the admissibility of victim impact evidence because an assessment of the harm caused by a defendant is necessary to determine an appropriate penalty.[5]  In 1992, Congress enacted the Uniform Victims of Crime Act which provides that victims have: (1) the right to be present whenever a defendant has the right to be present at a court proceeding under the Confrontation Clause of the Constitution; (2) the right to be informed of the date, time and place of the trial; (3) the right to counseling information; and (4) the right to be free from harm and harassment.[6] The success Victims’ Rights Movement eventually resulted in the passing of the Crime Victims’ Rights Act in 2004, which enabled victims to present their own narratives of the tragic repercussions of the defendant’s proven or alleged criminal conduct.

A 2011 study published in the journal Criminology conducted by two professors at the University of Maryland demonstrates the compelling effect VIS have on juries and spectators of capital trials.[7] Participants who watched a capital trial with victim impact testimony were 45% more likely to impose the death sentence. The study concluded that those who viewed VISs perceived more harm and suffering by the victim’s family and were more likely to think that a sentence of death would help the victim’s family find closure. Though VISs may achieve a desirable impact for prosecutors, they are still somewhat controversial: eloquent statements by more articulate victims and family members may be more influential than those that are less articulate, and may also take away from the focus on the defendant’s culpability. Judges and jurors in capital trials may be unduly influenced by victims and families with unique circumstances, and may arbitrarily consider the defendant’s personal characteristics included in the testimony. As the Court in Booth v. Maryland stated, “[a]llowing the jury to rely on [victim impact statements] . . . could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill.”[8]

Though VIS ensure that a trial is not weighed in the defendant’s favor, they may also contribute to unreasonable sentencing. In California, where victims and families from defendants’ prior crimes can now testify at sentencing, 743 men sit on death row, giving it the highest death row population of any state. [9] This number may increase due to wider scope of victim impact testimony, but hopefully VISs can still maintain their roles as cathartic narratives that provide closure the defendants and victims need to rebuild themselves.


[1] People v. Johnson, 62 Cal. 4th 600, 644 (2016).

[2]  Meagan Day, “The Origin of Victim Impact Statements Has its Roots in the Charles Manson Case,” https://timeline.com/the-powerful-origin-story-of-victim-impact-statements-696073817e0a#.lkun52jgc (Jun. 9, 2016).

[3] Booth v. Maryland, 482 U.S. 496, 505 (1987).

[4] South Carolina v. Gathers, 490 U.S. 805, 811 (1989).

[5] Payne v. Tennessee, 501 U.S. 808, 825 (1991).

[6] Unif. Victims of Crime Act §§ 204, 205, 209 (Supp. 1994).

[7] R. Paternoster and J. Deise, A Heavy Thumb on the Scale: The Effect of Victim Impact Evidence on Capital Decision Making, 21 Criminology 129, http://www.deathpenaltyinfo.org/studies-effect-victim-impact-evidence-capital-trials (2011).

[8] See supra, n. 3.

[9] Death Penalty Information Center, “Death Row Inmates by State,” http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year.