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Source: (consider it)
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Thread: Victim impact statements
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Lord Jestocost
Shipmate
# 12909
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Posted
This story is indeed heartbreaking ...
But, wasn't the judge right?
I've never been the victim of violent crime and no doubt have no idea what I'm talking about. I don't want to offend anyone who has had that experience, and I'm sure that victims of crime very often get left holding the short straw, which needs to be redressed.
But say two people, A and B, commit identical crimes and get identical sentences. Their victims get to make impact statements. A's family are inclined to be forgiving while B's are not. So, does A ultimately get less of a sentence?
And if not ... then precisely what are impact statements for?
Posts: 761 | From: The Instrumentality of Man | Registered: Aug 2007
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Eutychus
From the edge
# 3081
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Posted
This case highlights the fact that victims - or their families - very often feel sidelined in the traditional criminal justice system which opposes the state and the accused, and depersonalises the offence.
Restorative justice attempts to change this by placing the victim and the community at the heart of the process of justice.
I have a few criticisms of restorative justice (e.g. it means very different things to different people, can be rather gooey-eyed idealistic, etc.) but when you see how poorly the conventional criminal justice system functions sometimes (which I do), it seems well worth investigating.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Fineline
Shipmate
# 12143
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Posted
quote:
Originally posted by Lord Jestocost:
I've never been the victim of violent crime and no doubt have no idea what I'm talking about. I don't want to offend anyone who has had that experience, and I'm sure that victims of crime very often get left holding the short straw, which needs to be redressed.
It's a tricky one, particularly as the judge is saying it all depends on the offender's risk. To use a different sort of example, say someone is driving while drunk - they may or may not have a car accident, and this could be wholly dependent on the other traffic. They may have a car accident, and this may result in the people in the other car being injured. Or it may result in them being killed. The extent of injury, or whether it's an injury or death could depend on the state of health of the people in the other car. Thus the same action could have a variety of different impacts. And in the case of immediate impact, the impact does of course determine the conviction, despite the fact that, in reality, the risk is the same.
It gets more complicated when it's about longer term impact. What happens if a drunk driver has an accident, injures someone who dies a few years later due to complications of the injury? I don't actually know - I'm wondering aloud here. Would the person be reconvicted? And if so, surely it would be about reconviction, rather than extending parole, in that sort of case. Again, I don't know.
But I can see how it's more clear-cut when dealing with physical injury. People understand physical injury and death quite clearly. However, if two people are attacked and one has longer lasting emotional damage than the other, people will often judge that person as weaker, as if it's their fault almost, for not 'getting over it'.
It is important that victim's voices are heard, and emotional impact acknowledged in the same way as physical impact is acknowledged. But it is harder to measure. And I'm not sure whether the solution is about extending or shortening parole.
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chris stiles
Shipmate
# 12641
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Posted
quote:
Originally posted by Lord Jestocost:
And if not ... then precisely what are impact statements for?
I think their use should be confined to the rehabilitative process.
Using them to influence sentencing seems to me to be deeply problematic and go against the idea that justice should be blind.
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Felafool
Shipmate
# 270
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Posted
There is a reason that Lady Justice wears a blindfold whilst holding a sword and balance. The British justice system is supposedly based on impartiality and absence of emotion in order to prevent disproportionate revenge as in a lynch mob, and apply a consistent standard of judgement and punishment in accordance with the law as it stands. In the OT, the 'eye for an eye' was applied for the same reasons - you should not sledgehammer your neighbour's car if they had scratched yours.
In such a system, the victim statement should therefore not make any difference in terms of sentence or parole. It is difficult to argue that the victim should not have a voice, but it is the prosecutor's job (in Britain representing HM the Queen) to speak for the victim as well as the public at large.
The OP rightly states that if one victim was 'forgiving' and another 'vengeful', then to consider their statements would not be faithful to 'justice'.
Both of these victim positions may be valid and deserve to be heard, but they should not have any bearing on the judgement or sentence.
Now, if we are talking about 'mercy' (or it's counterpart 'revenge'?) then by all means the victim statements should have an impact. I'm not sure that the justice system in Britain has capacity for either.
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I don't care if the glass is half full or half empty - I ordered a cheeseburger.
Posts: 265 | Registered: May 2001
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Gee D
Shipmate
# 13815
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Posted
quote:
Originally posted by Eutychus:
This case highlights the fact that victims - or their families - very often feel sidelined in the traditional criminal justice system which opposes the state and the accused, and depersonalises the offence.
Restorative justice attempts to change this by placing the victim and the community at the heart of the process of justice.
I have a few criticisms of restorative justice (e.g. it means very different things to different people, can be rather gooey-eyed idealistic, etc.) but when you see how poorly the conventional criminal justice system functions sometimes (which I do), it seems well worth investigating.
But the criminal justice system is concerned with the wrong the entire community feels at the commission of a crime, and that is why the victim is not a party to the prosecution. A prosecution is brought by the community, not the individual. Of course, should the victim wish, then separate civil proceedings may be commenced by the victim seeking damages. A restorative justice system may be of use in those civil proceedings, but it cannot be in the criminal courts.
As to the use of victim impact statements in the sentencing of someone for murder or manslaughter: as explained in R v Privatera, such a course is to downgrade the loss of a person who dies friendless and leaving no family. The loss of any person is a loss of a member of society as a whole. Now, very recent legislation in NSW seeks to overturn Privatera, but that is best seen as a populist response by a government n trouble and seeking votes for next March's election where it can.
And what Felafool has said as well.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Gee D:
A prosecution is brought by the community, not the individual
Proponents of restorative justice would say, accurately I think, that it is brought by the state, not by the community.
I know plenty of people convicted of murder, and there is one case in particular in which I feel that the perpetrator and the victim's family (who are from the same community) could both benefit from the application of restorative justice principles, aside from the application of criminal justice (which consists solely of a prison sentence).
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Pomona
Shipmate
# 17175
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Posted
quote:
Originally posted by Eutychus:
This case highlights the fact that victims - or their families - very often feel sidelined in the traditional criminal justice system which opposes the state and the accused, and depersonalises the offence.
Restorative justice attempts to change this by placing the victim and the community at the heart of the process of justice.
I have a few criticisms of restorative justice (e.g. it means very different things to different people, can be rather gooey-eyed idealistic, etc.) but when you see how poorly the conventional criminal justice system functions sometimes (which I do), it seems well worth investigating.
I am very uncomfortable with personalising offences - surely it leaves it open to mob justice? IMO, a professional judicial system is best placed for enforcing justice, not unqualified lay people. Being a victim of a crime doesn't give you law qualifications.
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Consider the work of God: Who is able to straighten what he has bent? [Ecclesiastes 7:13]
Posts: 5319 | From: UK | Registered: Jun 2012
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Jade Constable:
Being a victim of a crime doesn't give you law qualifications.
In precisely the same way, having law qualifications doesn't endow you with any sense of empathy for victims, understanding of offenders' mindsets, or ability to feel the human aspect of offending. Which many victims or their families find disconcerting, to say the least, as the OP testifies.
quote:
I am very uncomfortable with personalising offences - surely it leaves it open to mob justice?
Restorative justice is not about mob justice but about seeing the offence primarily as an offence against an individual or community and not (merely) the breaking of an abstract rule. Bear in mind I'm not an out-and-out advocate of restorative justice, but you are mis-representing what it stands for by a wide margin. quote:
IMO, a professional judicial system is best placed for enforcing justice, not unqualified lay people.
For instance, I never said anything about "unqualified lay people".
[ 05. August 2014, 16:07: Message edited by: Eutychus ]
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
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chris stiles
Shipmate
# 12641
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Posted
quote:
Originally posted by Eutychus:
Restorative justice is not about mob justice but about seeing the offence primarily as an offence against an individual or community and not (merely) the breaking of an abstract rule.
But victim statements as they exist are largely orthogonal to the question of restorative justice anyway. In this particular case the goal would have been to punish the offender and to protect society - the outrage around this case seems to centre around the fact that the statement didn't then make an impact on the first of these.
Posts: 4035 | From: Berkshire | Registered: May 2007
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Eutychus
From the edge
# 3081
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Posted
I think the subjects are related in that this is precisely the sort of issue that can be dealt with if one has restorative justice glasses on, but not adequately with traditional retributive justice glasses on.
One thing I have learned looking at restorative justice is how much using a different set of terminology and delimiters can provide an entirely different view of the subject and challenge assumptions.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
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Belle Ringer
Shipmate
# 13379
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Posted
quote:
Originally posted by Eutychus:
quote:
I am very uncomfortable with personalising offences - surely it leaves it open to mob justice?
Restorative justice is not about mob justice but about seeing the offence primarily as an offence against an individual or community and not (merely) the breaking of an abstract rule. Bear in mind I'm not an out-and-out advocate of restorative justice, but you are mis-representing what it stands for by a wide margin.
Depersonalizing crime as if it's against the state and not also against a person has some negative consequences. A taxi driver friend was cheated by a passenger, took him to court, the court found the passenger guilty and fined him, the state kept the fine, the taxi driver got nothing (plus lost the time the court process took him) - he said to me "where's the justice?" He said to me "the next time a guy said at the end of the ride he had no money to pay, I beat him up instead of going to court."
Of course that's the natural result of a system in which the state, not the victim, gets the reward from the "justice" system. But is that the result we want?
OTOH I once read about a judge who was famous for creative sentences. One I remember, a teen broke into someone's house, ransacked the place and stole a few items like the stereo. The judge said he was to watch silently while his victims went to his place, looked through it and decided which of his items they would take. The offender was quoted as saying he had no idea how awful it felt to have someone else disdaining your stuff and them walking away with something of yours and you can't stop them.
That's the kind of "eye for an eye" that might turn around a not yet hardened person the jail system would probably just harden.
Obviously this isn't appropriate for all criminals, or all crimes, but I do applaud efforts (even flawed efforts, since the prison idea is badly flawed in effectiveness) to try different ways to getting to a community and individual sense to justice.
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
Restorative justice might be acceptable in situations where there is an existing relationship followed by a crime. But if the relationship is created only because the criminal created one by doing the crime against the victim, then not a path to follow. I suspect those who think it might be good to do so in stranger crimes are comforting themselves about reaching the spark of humanity they hope to find within everyone, assuaging their fear of true evil, and hoping to make all things right. That is something for theory and for God. Restorative justice, like talking to the media about the crime, needs to be carefully and judiciously determined when to do. Definitely not in all circumstances, and I do not support at all in stranger crimes.
As for victim impact statements, our's were read into the court record, the judge commented about them at sentencing, and the parole board has further commented about them in their decisions. Perhaps it differs place to place regarding the weight given to such statements. In the OP situation, I would recommend a formal complaint to the body overseeing judges and their conduct. An explanation at minimum, and consideration of formal censure.
I would suggest that experience of a major crime of violence to a loved one, like dysentery or having a heart attack is easy to describe but very difficult to share the experience of; you kind of have to experience it to know.
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Out of this nettle, danger, we pluck this flower, safety.
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Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Gee D:
Of course, should the victim wish, then separate civil proceedings may be commenced by the victim seeking damages.
I wanted to say something about this, too.
In France, even when there is an overwhelming case for a public prosecution (e.g. charge of the equivalent of third-degree murder), pressure is very often brought to bear on relatives (in a domestic case such as alleged murder of a spouse, they may well be relatives of both the victim* and the perpetrator) to become civil plaintiffs, on the grounds that "this is the only way of them having access to the full facts of the case".
However, in doing so, they unavoidably "take sides" and will be urged to support the public prosecutor's case. There's nothing very restorative about that.
*And by the way, the phrase "victim impact" is misleading. In the OP it is the relatives of the victim making the statement, not the victim (who is dead). Of course they are indirect victims, but at the risk of sounding callous it's really important to distinguish direct and indirect victims. One of my complaints about some restorative justice measures is their failure to do just that.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by no prophet:
Restorative justice, like talking to the media about the crime, needs to be carefully and judiciously determined when to do.
This I agree with. quote:
Definitely not in all circumstances, and I do not support at all in stranger crimes.
It depends (again) on what is meant behind this (regrettably fuzzy) term. Restoration of a relationship obviously makes no sense for a stranger crime, but restorative justice is also about restoring offenders to the community at large. It could conceivably be less often applied for stranger crime, but I think it depends as much on the profile of the offender as on the proximity of the prior relationship, and this can vary widely for some forms of stranger crime in my experience.
quote:
I would suggest that experience of a major crime of violence to a loved one, like dysentery or having a heart attack is easy to describe but very difficult to share the experience of; you kind of have to experience it to know.
![[Votive]](graemlins/votive.gif)
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Gee D
Shipmate
# 13815
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Posted
Eutychus, probably I did not write well last night, but one of my major points was that the community, the state, society as a whole, however you want to describe it, is a victim of a crime. How does the state participate in a restorative justice programme? It can't.
I'd also like you comments on my point that in a murder case, victim impact statements have a very limited role to play. Take this example. A man stalks, rapes and kills a woman; he repeats his crime a fortnight later. The first woman was a loner - no real friends, no family, all alone. Her life is not really missed by anyone. The second woman was married with children, a wider family and many friends. he loss is widely mourned. Should the offender receive a lesser sentence for the death of the first, where there are no victim impact statements? Surely not.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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no prophet's flag is set so...
Proceed to see sea
# 15560
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Posted
It might offend a sense of fairness, but with such things, fairness is irrelevent. Of course the sentences will be different.
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Out of this nettle, danger, we pluck this flower, safety.
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Gee D:
How does the state participate in a restorative justice programme? It can't.
France may be about to find out, as the phrase "restorative justice" is in a penal reform bill currently going through parliament. My national prison chaplaincy is currently considering the implications of this.
In the UK, some forms of restorative justice are already a familiar part of the sentencing programme (although to repeat a point I made earlier, I'm not convinced about the little I've heard of these programmes and am definitely concerned that people put very different things behind the buzzword).
My own views are not settled, but I think there's room for both state-administered justice and restorative justice. In particular, I think restorative justice could treat the concerns of victims far more effectively than the current "partie civile" system in which, as I have already stated, victims are basically subservient to whatever the prosecutor wants to do.
quote:
I'd also like you comments on my point that in a murder case, victim impact statements have a very limited role to play.
I agree. The problem I see is that they serve victims badly, and can also serve offenders badly.
I think essentially the judge in that case was right (but insensitive in saying!) that the "impact statement" would not have an effect. But that was, as I understand it, the only way the open to the (indirect) victims to have a say. They have gone away frustrated and angry and understandably so. It won't help them process the impact at all - something that restorative justice aims to do.
In France the "partie civile" position can also serve offenders badly. I've heard that conditional release of an inmate can be denied after everyone else (parole board, etc.) has said yes simply because the "partie civile" objects. This appears to me to be, if not mob, at least popular justice by proxy, something that everyone here seems to agree should be avoided.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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saysay
Ship's Praying Mantis
# 6645
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Posted
quote:
Originally posted by Lord Jestocost:
This story is indeed heartbreaking ... But say two people, A and B, commit identical crimes and get identical sentences. Their victims get to make impact statements. A's family are inclined to be forgiving while B's are not. So, does A ultimately get less of a sentence?
And if not ... then precisely what are impact statements for?
In the US they are sometimes used as part of the rehabilitation process. A lot of criminals do, in fact, understand what it means to have a violent crime committed against them, as that is frequently how they wound up becoming criminals in the first place. But some don't, and victim statements from people who have been through a crime similar to the one the prisoners committed are sometimes used to try to help people see the error of their ways so they don't re-offend.
On the other hand, the for-profit prison system that exists in parts of the US seems to be mostly about making sure that no one who is ever involved in any state-run system can ever leave that system, so you know, possibly still pointless.
The don't tend to have an effect on sentencing as no one in the system has any discretion and everyone is being rewarded for locking as many people up for as long as they can.
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I'll tell you all about it when I see you again"
"'Oh sweet baby purple Jesus' - that's a direct quote from a 9 year old - shoutout to purple Jesus."
Posts: 2943 | From: The Wire | Registered: May 2004
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Gee D
Shipmate
# 13815
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Posted
Than you Eutychus. The only instance of a restorative justice system I know of which has a degree of success(and my knowledge here is 25 years old) is of juvenile offenders in NZ. The majority of both juvenile offenders and their victims there were Maori, and there was often at least some family knowledge one of the other. There were some requirements, the chief being that there was a plea of guilty. Of course that demands a decent legal aid system so that a juvenile is not "persuaded" to plead guilty when a not guilty plea would be more appropriate. All the then evidence was of a higher degree of satisfaction with the process by both parties and a lower rate of recidivism.
There is a similar scheme in some country districts in NSW, where both offenders and victims are often both Koori. Elders are involved in the conferencing. I do not know how successful this scheme is.
Despite this, I share the concerns expressed by many others that a departure from a process of sentencing by judges giving public reasons in accordance with statute law and precedent* is fraught with the risk of an equivalent of mob violence - the lurid comments of radio shock jocks and the headlines in newspapers.
* Spoken as someone trained in the common law system. I am aware that the systems used in France and many other countries are very different but I have no experience or knowledge of it.
[ 06. August 2014, 11:21: Message edited by: Gee D ]
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Gee D:
The only instance of a restorative justice system I know of which has a degree of success(and my knowledge here is 25 years old) is of juvenile offenders in NZ. The majority of both juvenile offenders and their victims there were Maori, and there was often at least some family knowledge one of the other.
Yes, RJ has had a lot of (touted) success among native communities. In RJ thought there appears to me to be something of a leap of faith from its application within native communities to the community at large. But having been very sceptical at the outset I'm now convinced there are some worthwhile ideas in there once you cut through all the confusion.
quote:
I share the concerns expressed by many others that a departure from a process of sentencing by judges giving public reasons in accordance with statute law and precedent* is fraught with the risk of an equivalent of mob violence - the lurid comments of radio shock jocks and the headlines in newspapers.
A couple of things here.
For one thing, sentencing here may be in application of the law but as someone who sees lots of people on the receiving end and occasionally attends court cases, it often appears to be alarmingly arbitrary. We may have avoided mob justice, but we seem to fall quite far short of the mark of impartial administration of justice and especially rehabilitation.
In fact it's quite hard to point out any aspect of the system that works as designed in the majority of cases. And certainly the system as it is neglects the plight of direct and indirect victims.
I would like to see, for instance, victim-offender mediation introduced for certain cases, quite possibly in addition to a traditional sentence. As I said earlier, I have in mind one horrendous case for which I'm sure such an approach would be of benefit to all concerned.
There is certainly a cultural aspect to restorative justice - everyone (victims and offenders and to some extent the criminal justice system) has to take it onboard. I've heard that Finland transitioned from one of the most repressive retributive regimes to one involving a lot of RJ, but I know no more at present.
Certainly the system as it stands in France looks broken enough to me to mean that examining RJ alternatives/supplements is worthwhile, for both victims and offenders.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Marvin the Martian
Interplanetary
# 4360
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Posted
quote:
Originally posted by Belle Ringer:
Depersonalizing crime as if it's against the state and not also against a person has some negative consequences. A taxi driver friend was cheated by a passenger, took him to court, the court found the passenger guilty and fined him, the state kept the fine, the taxi driver got nothing (plus lost the time the court process took him) - he said to me "where's the justice?" He said to me "the next time a guy said at the end of the ride he had no money to pay, I beat him up instead of going to court."
I wouldn't blame him one bit. What's the point of someone being found guilty of stealing if they aren't then made to give back what they stole?
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Hail Gallaxhar
Posts: 30100 | From: Adrift on a sea of surreality | Registered: Apr 2003
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Sioni Sais
Shipmate
# 5713
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Posted
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by Belle Ringer:
Depersonalizing crime as if it's against the state and not also against a person has some negative consequences. A taxi driver friend was cheated by a passenger, took him to court, the court found the passenger guilty and fined him, the state kept the fine, the taxi driver got nothing (plus lost the time the court process took him) - he said to me "where's the justice?" He said to me "the next time a guy said at the end of the ride he had no money to pay, I beat him up instead of going to court."
I wouldn't blame him one bit. What's the point of someone being found guilty of stealing if they aren't then made to give back what they stole?
IANAL, but I'm sure that's what the civil courts are for.
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"He isn't Doctor Who, he's The Doctor"
(Paul Sinha, BBC)
Posts: 24276 | From: Newport, Wales | Registered: Apr 2004
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Belle Ringer
Shipmate
# 13379
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Posted
quote:
Originally posted by Sioni Sais:
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by Belle Ringer:
Depersonalizing crime as if it's against the state and not also against a person has some negative consequences. A taxi driver friend was cheated by a passenger, took him to court, the court found the passenger guilty and fined him, the state kept the fine, the taxi driver got nothing (plus lost the time the court process took him) - he said to me "where's the justice?" He said to me "the next time a guy said at the end of the ride he had no money to pay, I beat him up instead of going to court."
I wouldn't blame him one bit. What's the point of someone being found guilty of stealing if they aren't then made to give back what they stole?
IANAL, but I'm sure that's what the civil courts are for.
In USA hiring a lawyer to bring a civil case costs a lot of money, so the taxi driver would lose again even if he won, plus lose more days of work. Why shouldn't criminal cases have the civil restitution factor built in?
Posts: 5830 | From: Texas | Registered: Jan 2008
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Jon in the Nati
Shipmate
# 15849
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Posted
On the contrary, criminal courts regularly impose restitution (for property damage, medical bills, theft, etc.) as a penalty, in addition to a jail/prison term or probation. This occurs most saliently in situations in which there has been some discrete economic harm to the victim, as opposed to general compensation for having been the victim of a crime.
Certainly, restitution does not always get paid; you can't squeeze blood from a turnip, and if the offender simply can't pay restitution they often go to jail in lieu of it. But the suggestion that the criminal system does not attempt to actually compensate victims of crime is simply incorrect. It does, and does so regularly.
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Homer: Aww, this isn't about Jesus, is it?
Lovejoy: All things are about Jesus, Homer. Except this.
Posts: 773 | From: Region formerly known as the Biretta Belt | Registered: Aug 2010
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Eutychus
From the edge
# 3081
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Posted
But (at least here in France) the restitution simply takes the form of a large bill(1). There is no place in the system for a meaningful confrontation between the victim and the perpetrator(2) in which the subjective sense of loss or damage is evoked.
Almost to a man, every offender I know involved in a case with a clearly identified victim refers to the latter, not as "the victim" but as "the civil party", and by that they usally mean "the amount of money I have left to pay to my victim to get out of jail" (as in: "I've paid my civil party, why is the judge not letting me go?").
The system depersonalises the crime and detaches the perpetrator from the actual harm done. The victim is left feeling frustrated and voiceless.
(1)In drugs-related cases, frequently farcically large. Small fry are presented with a customs fine of over one million euros, agree to pay ten euros a month, obtain conditional release, and disappear. Everyone on all sides is familiar with this procedure.
(2)I fully accept this would not always be wise, meaningful or constructive. But I think it might be so more often than is generally believed.
[ 06. August 2014, 16:22: Message edited by: Eutychus ]
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Jon in the Nati
Shipmate
# 15849
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Posted
I thought we were talking about restitution paid to the victim for economic loss they have suffered. You were talking about "feelings." My mistake.
I don't know what a "civil party" is; it is not a thing in the United States.
As to drug offenses, the word you are thinking of is "fine" rather than restitution. There is no victim (traditionally speaking) in drug cases, so any monetary part of the sentence is a fine paid (and that is comparatively rare, here) rather than restitution paid to the victim.
When the victim has suffered a discrete economic loss, the law provides for restitution to be paid. The criminal law is not well equipped to deal with feelings. If the victim wants to pursue economic "restitution" for more generalized, non-economic harm (e.g., wrongful death, hurt feelings, etc.) they may do so through the civil tort system.
[ 06. August 2014, 16:43: Message edited by: Jon in the Nati ]
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Jon in the Nati:
I thought we were talking about restitution paid to the victim for economic loss they have suffered. You were talking about "feelings." My mistake.
The OP is incontrovertibly about "feelings", which is why I keep going on about them.
quote:
I don't know what a "civil party" is; it is not a thing in the United States.
As explained above, it is the status of an individual plaintiff adjoining themselves to a criminal case, which can happen for a variety of reasons. This involves making an official complaint to the police. Victims usually do this and are strongly encouraged to do so if the state prosecutor thinks the state has a good case.
quote:
As to drug offenses, the word you are thinking of is "fine" rather than restitution.
Indeed, it's the word I used. I mentioned it in passing just to point out that drugs cases highlight the absurdities of any type of financial transaction in a criminal case, except perhaps when one natural person has stolen a precise sum of cash from another.
quote:
The criminal law is not well equipped to deal with feelings.
Which is, to my mind, the big takeaway from the article in the OP, and why I think restorative justice is worth exploring.
[ 06. August 2014, 16:54: Message edited by: Eutychus ]
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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saysay
Ship's Praying Mantis
# 6645
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Posted
quote:
Originally posted by Eutychus:
The system depersonalises the crime and detaches the perpetrator from the actual harm done. The victim is left feeling frustrated and voiceless.
In theory in the US everyone has a right to confront their accuser, which allows victims to talk about how the crime affected them.
In practice, however, the state has taken over to such an extent that victims are forced to testify even when they don't believe that the charges are warranted.
It's such a mess I'm not sure it can be fixed.
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"It's been a long day without you, my friend
I'll tell you all about it when I see you again"
"'Oh sweet baby purple Jesus' - that's a direct quote from a 9 year old - shoutout to purple Jesus."
Posts: 2943 | From: The Wire | Registered: May 2004
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Jon in the Nati
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# 15849
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Posted
The confrontation right is emphatically not theoretical. It is a right held by the defendant to see, hear and cross-examine in open court the person making the accusations. It is a bedrock constitutional right which, in the estimation of state and federal courts, is near-absolute.
that victims are forced to testify even when they don't believe that the charges are warranted.
quote:
In practice, however, the state has taken over to such an extent [...]
What does that mean? When has the state ever not been in control of criminal prosecutions?
quote:
[...] that victims are forced to testify even when they don't believe that the charges are warranted.
Criminal prosecutions in the United States are, with very few exceptions, not driven by the victims. In the final reckoning, it doesn't really matter whether or not the victim thinks that charges should be pursued, and I don't really think it should.
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Homer: Aww, this isn't about Jesus, is it?
Lovejoy: All things are about Jesus, Homer. Except this.
Posts: 773 | From: Region formerly known as the Biretta Belt | Registered: Aug 2010
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Eutychus
From the edge
# 3081
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Posted
There seems to be a contradiction, or at least a paradox, between your first and last paragraphs above.
On the one hand, the confrontation right of the victim is "a bedrock constitutional right which, in the estimation of state and federal courts, is near-absolute". [ETA does that extend to indirect victims i.e. relatives of murder victims, for instance?]
On the other, "In the final reckoning, it doesn't really matter whether or not the victim thinks that charges should be pursued, and I don't really think it should"
I'm not saying either of these is wrong, but I can see how a victim could feel they were the, um, victim of cognitive dissonance here. They can take part as much as they like but the whole process is, rightly or wrongly, out of their hands.
At the heart of restorative justice, as I understand it, is an attempt to reconcile this paradox by changing the paradigm.
[ 06. August 2014, 17:43: Message edited by: Eutychus ]
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Jon in the Nati
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# 15849
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Posted
I'm afraid I don't see the contradiction. The confrontation right belongs to the defendant, and not the victim. It is not the victim's right to participate, but rather the defendant's right to confront.
I'm willing to put my potential bias on the table here. I was a criminal defense attorney, both in private practice and as a government-employed public defender, for several years earlier in my life, before eventually choosing a profession of marginally greater societal value (clergyperson).
I think there are a ton of things wrong with the U.S. criminal system, but I don't think that one of them is that it doesn't cater enough to victims' hurt feelings. As such, I have always been skeptical of notions of restorative justice.
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Homer: Aww, this isn't about Jesus, is it?
Lovejoy: All things are about Jesus, Homer. Except this.
Posts: 773 | From: Region formerly known as the Biretta Belt | Registered: Aug 2010
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saysay
Ship's Praying Mantis
# 6645
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Posted
quote:
Originally posted by Jon in the Nati:
The confrontation right is emphatically not theoretical. It is a right held by the defendant to see, hear and cross-examine in open court the person making the accusations. It is a bedrock constitutional right which, in the estimation of state and federal courts, is near-absolute.
Do you know that between 93 and 95 percent of criminal cases at both the state and federal level are settled with plea deals? Do you know that it's routine for prosecutors to overcharge defendants and threaten mandatory minimums in order to get the plea deal they want? Do you know that in some places, while you still technically have the right to defend yourself, you have no access to the law books and no way to figure out how the system works?
I recommend three felonies a day.
We're all just playthings of the rich and powerful now.
quote:
quote:
In practice, however, the state has taken over to such an extent [...]
What does that mean? When has the state ever not been in control of criminal prosecutions?
When the county had that authority and could make decisions based on the wants and needs of the citizens within its borders.
quote:
quote:
[...] that victims are forced to testify even when they don't believe that the charges are warranted.
Criminal prosecutions in the United States are, with very few exceptions, not driven by the victims. In the final reckoning, it doesn't really matter whether or not the victim thinks that charges should be pursued, and I don't really think it should.
I don't even know what to say to this. The government should represent the people. That's why we elect representatives. When the government claims that its needs are more important than the needs of its citizens, then it's time for a revolution.
Where does your government derive its authority? From some tart on a lake perhaps?
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"It's been a long day without you, my friend
I'll tell you all about it when I see you again"
"'Oh sweet baby purple Jesus' - that's a direct quote from a 9 year old - shoutout to purple Jesus."
Posts: 2943 | From: The Wire | Registered: May 2004
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Jon in the Nati
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# 15849
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Posted
Actually, no. I was entirely unaware of those things. Incidentally, the number is closer to 98% ending in plea deals, but you were close.
So what's your point?
Also, have you never voted in a local election? Who do you think elects the local felony prosecutor? It is all at the county level, regardless of what it is called. District attorney, Commonwealth attorney, state's attorney, county attorney; all of them are elected at the county level. There are virtually no criminal prosecutions in which the state (by which you apparently mean the government of the state located in the state's capital city) has significant involvement.
You may not know what to say to my comment about victims running criminal prosecutions, but that does not make it less true. The government-employed prosecutor in a criminal case represents the government, and by extension the people of the county (or the government and people of the United States, in a federal prosecution). They do represent the interests of the people as a collective, but that doesn't mean they directly represent the interests of the victim. The interests of the government in a criminal prosecution and the interests of the victim(s) are similar and have lots of overlap, but not coextensive.
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Homer: Aww, this isn't about Jesus, is it?
Lovejoy: All things are about Jesus, Homer. Except this.
Posts: 773 | From: Region formerly known as the Biretta Belt | Registered: Aug 2010
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Jon in the Nati:
I'm willing to put my potential bias on the table here. I was a criminal defense attorney, both in private practice and as a government-employed public defender
Now we're talking ![[Smile]](smile.gif) . Can I invite you to speak to some French protestant prison chaplains? I haven't managed to persuade any local prosecutors to do so yet... (I still expect you would be horrified at the criminal justice system here, by the way).
quote:
I think there are a ton of things wrong with the U.S. criminal system, but I don't think that one of them is that it doesn't cater enough to victims' hurt feelings. As such, I have always been skeptical of notions of restorative justice.
It depends what one is trying to achieve. "Catering to victims' hurt feelings" is your phrase, not mine. The concern of RJ is about victims being involved in the process of restoring offenders to the community. It emphatically isn't a substitute for trauma counselling or whatever.
I can't speak to the US system, but my decade's worth of experience of the prison system in France suggests, anecdotally, that it works, sort of, about half the time at best. And if current trends continue, we would need to build one 500-place prison every four months, just to keep up with the ongoing net growth in the prison population.
The reform currently going through parliament is designed in part to address this. It opens up the possibilty of sentencing plans including a new raft of measures other than jail time, and includes the phrase "restorative justice". The French Protestant Federation has lobbied for that, so I have an interest.
Once again I'd like to point out that the way forward here looks like a "both/and" (retributive/restorative justice) rather than an "either/or" solution - a prospect I think you've avoided entertaining (or at least commenting on).
I'm certainly not a naive protagonist of RJ but after close inspection, I think there's more to it than warm fuzzy feelings.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Try
Shipmate
# 4951
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Posted
I'm going to agree with everyone who said that victim imact statements and restorative justice should be taken into account with property crimes but not in crimes of violence. This is because the impact of property crimes on their victims will change while the objective worth of human life does not change.
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“I’m so glad to be a translator in the 20th century. They only burn Bibles now, not the translators!” - the Rev. Dr. Bruce M. Metzger
Posts: 852 | From: Beautiful Ohio, in dreams again I see... | Registered: Sep 2003
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Try:
I'm going to agree with everyone who said that victim imact statements and restorative justice should be taken into account with property crimes but not in crimes of violence. This is because the impact of property crimes on their victims will change while the objective worth of human life does not change.
Let me go back to a murder case I've mentioned upthread (obviously I can't go into too much detail, suffice it to say everyone was drunk at the time). I know the perpetrator well. He acknowledged his guilt from the outset and as far as I know has cooperated with the investigation and trial at every turn.
When his co-defendant appealed the verdict, his first thought was for the family of the victim having to go through the whole thing again. He is serving out his time and to the best of my knowledge is no trouble at all in the prison.
I can't help thinking that both he and the victim's family could benefit from (indirect) victim/offender mediation. I'm not saying that should necessarily reduce his sentence, but I think it would help it make sense to him and perhaps achieve more closure for the family. None of this is possible as things stand in the system here right now. Is there a good reason to prevent this kind of thing happening?
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Twilight
Puddleglum's sister
# 2832
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Posted
I think it might be cathartic for the victim or family of the victim to make an impact statement, but I think it should be after the judge and jury have made their decision.
I would hate to think my ability, or more likely my lack of ability, to show emotion in public would have a bearing on anyone's decision. The verdict and sentence might depend on the eloquence of the victim, just as some people have gone to prison because their lack of visible emotion is used as "evidence," against them.
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saysay
Ship's Praying Mantis
# 6645
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Posted
quote:
Originally posted by Jon in the Nati:
Also, have you never voted in a local election? Who do you think elects the local felony prosecutor? It is all at the county level, regardless of what it is called. District attorney, Commonwealth attorney, state's attorney, county attorney; all of them are elected at the county level. There are virtually no criminal prosecutions in which the state (by which you apparently mean the government of the state located in the state's capital city) has significant involvement.
I've participated in local elections when I've lived in places that held them and actually recognized the results of them. It is not true that this is done on a local level everywhere. In Delaware, for example, the elections themselves are run by the county, but you vote for a state attorney general. The state's attorney general then appoints the chief county prosecutors. The state also hires the state police, and there are all kinds of bizarre rules about who has jurisdiction where, but the fact of the matter is that at this point I've collected about a billion stories of state police charging people with crimes that the people in the county say shouldn't be crimes. For example, they're trying to reduce gun ownership by charging everyone who legally owns a gun with a gun crime if they commit a crime even when their victim says the gun was not used in the crime. In the most absurd, a friend of mine was staging a protest at the local mall (for buy nothing day); mostly people were ignoring her but she was eventually arrested for solicitation. And let's not get started on what counts as child neglect, child abuse, bullying, cyberbullying, or child porn.
Furthermore, the state of Delaware has voted to allow medical marijuana, but they can't set them up until there's some evidence that the federal government has stopped raiding the marijuana dispensaries in other states because it's still illegal on the federal level.
quote:
You may not know what to say to my comment about victims running criminal prosecutions, but that does not make it less true. The government-employed prosecutor in a criminal case represents the government, and by extension the people of the county (or the government and people of the United States, in a federal prosecution). They do represent the interests of the people as a collective, but that doesn't mean they directly represent the interests of the victim. The interests of the government in a criminal prosecution and the interests of the victim(s) are similar and have lots of overlap, but not coextensive.
And people keep asking me why so many people hate the cops and will never, under any circumstance, report any kind of crime to the government. When the government can charge someone with a crime on the basis of the fact that it thinks that someone should have hurt feelings or be scared, then something has gone horribly wrong.
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"It's been a long day without you, my friend
I'll tell you all about it when I see you again"
"'Oh sweet baby purple Jesus' - that's a direct quote from a 9 year old - shoutout to purple Jesus."
Posts: 2943 | From: The Wire | Registered: May 2004
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Jon in the Nati
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# 15849
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Posted
quote:
I think it might be cathartic for the victim or family of the victim to make an impact statement, but I think it should be after the judge and jury have made their decision
In the United States, victim impact statements are presented after a finding of guilt has been made (either by a trial, or by entering a plea), but before sentencing. There is generally a gap of about four weeks between the two. In this context, the victim impact statement is relevant only to sentencing, not to guilt or innocence.
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Homer: Aww, this isn't about Jesus, is it?
Lovejoy: All things are about Jesus, Homer. Except this.
Posts: 773 | From: Region formerly known as the Biretta Belt | Registered: Aug 2010
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Jon in the Nati
Shipmate
# 15849
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Posted
quote:
When the government can charge someone with a crime on the basis of the fact that it thinks that someone should have hurt feelings or be scared, then something has gone horribly wrong.
Actually, it has little to do with whether the government feels the victim should have hurt feelings or not. As I thought I had mentioned previously, the government does not bring a prosecution on behalf of the victim. It brings the prosecution on behalf of itself.
Suppose, though, that the wishes of the victim out to control. You believe, then, that the sole criterion as to whether a criminal prosecution should be brought is whether or not the victim (assuming one exists) wishes it?
If so, should that be for all crimes, or only some? If only some, then which?
If other factors ought to be considered, what would they be and why?
[ 06. August 2014, 20:43: Message edited by: Jon in the Nati ]
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Homer: Aww, this isn't about Jesus, is it?
Lovejoy: All things are about Jesus, Homer. Except this.
Posts: 773 | From: Region formerly known as the Biretta Belt | Registered: Aug 2010
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Gee D
Shipmate
# 13815
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Posted
People are talking from backgrounds in totally different systems. Eutychus's experience is of what we here used call the Continental or European system, but which appears to have been adopted in the francophone countries and to have similarities with Japan, Thailand and perhaps others. That has a much closer involvement of the victim in both the determination of guilt and then the sentencing. The system we know here, and which applies in the US, Canada, NZ, India and others is descended from the English common law. That involves a prosecution by the State and much less involvement of the victim save as a witness. In the US, there are some overlays to that. Many of those making decisions to prosecute are elected, whereas we have gone the other way, with the establishment of officers quite independent of the political process to institute and prosecute criminal cases. In addition, the US system of plea bargain has been avoided. It was tried in NSW during the 1980s, but so quickly fell into disrepute that it was abandoned. A major problem with it was that it involved the judge giving a private indication of the sort of sentence being contemplated, and so took away the openness of the court system which we consider so essential.
All that said, I have a lot of trouble with much of what Eutychus says. (S)He comes with the approach that the parties are the victim and the accused. As Jon in the Nati says, the victim is a major witness in most prosecutions, but that is the limit of the role. In some jurisdictions, a criminal court may award compensation, but the limited links which used exist have been removed here to be completely divorced from the criminal proceedings (save for some very minor orders in property crimes).
Despite this, the shock jocks and the press still carry o as if the victim or the family have some right to be involved. So often, teary parents say that the prisoner will be free after serving the sentence, but that they have to live forever with the loss of a child. Well, yes they do. There is nothing which will bring that child back. Never]do the parents suggest an alternative, and the detailed reasons given by a judge for the fixing the punishment fall on deaf ears of both the parents and the reporters.
It goes back to the basis of a criminal prosecution, which is to deal with a wrong against the community, not the individual. Picking up on the taxi driver example, of course the fine went to the government as that was the punishment; here, a criminal court could have ordered the payment of a small sum such as the fare, and even had that not been available, a civil case - with no need for lawyers in such a small case - could have been launched. In the case of a serious injury, there are at least 2 remedies here: there can be an application to an independent tribunal for payment from public funds of a limited sum (from memory, the limit is somewhere around $50,000); or there could have been a full-blown civil action, with little hope of recovery at the end.
Unlike Jon, I've done very little criminal law. Over the last 40 years, I've probably billed less than $20,000 for the work I've done and much of that would have been in my early days. But I do retain a strong interest in criminal law as the real core of a justice system.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Gee D
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# 13815
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Posted
And as in the US, victim impact statements are used in the sentencing process, after either a plea or a finding of guilt. They would be almost entirely irrelevant, but often dangerous, in a trial.
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Not every Anglican in Sydney is Sydney Anglican
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saysay
Ship's Praying Mantis
# 6645
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Posted
quote:
Originally posted by Jon in the Nati:
quote:
When the government can charge someone with a crime on the basis of the fact that it thinks that someone should have hurt feelings or be scared, then something has gone horribly wrong.
Actually, it has little to do with whether the government feels the victim should have hurt feelings or not. As I thought I had mentioned previously, the government does not bring a prosecution on behalf of the victim. It brings the prosecution on behalf of itself.
On what basis does the government bring a prosecution on behalf of itself? What is giving the government authority if not the consent of the governed?
And I don't understand why you think some prosecutions have little to do with whether or not the government decides someone should have hurt feelings or not. The harrassment, stalking, terroristic threatening, offensive touching, bullying, cyberbullying, disorderly conduct etc. laws in some places are so vague and open to interpretation that it's possible for anyone to get charged with something at any time. That places people at the whims of people who have social and political power. The poor and working class are getting caught up in the system because the upper class doesn't like the way they talk to each other even though neither one of them has a particular problem.
Take this thread. If they were both in Delaware, Karl could be prosecuted for any number of things because Mousethief brought the threat to the attention of the authorities even though any number of people did not think Zach's interpretation accurate.
quote:
Suppose, though, that the wishes of the victim out to control.
I have no idea what this sentence is supposed to mean. I'm guessing it was a typo, but I can't figure out what you were trying to type.
quote:
You believe, then, that the sole criterion as to whether a criminal prosecution should be brought is whether or not the victim (assuming one exists) wishes it?
If so, should that be for all crimes, or only some? If only some, then which?
If other factors ought to be considered, what would they be and why?
No, I don't believe that the sole criterion as to whether a criminal prosecution should be brought is whether a victim wishes it. But I think there needs to be a lot more local community control as to whether or not a legal charge is leveled in the first place, as well as more local control over sentencing. Maybe that exists where you are (and if so, where is that? Maybe I'll move there.)
The system we have isn't working. Our current domestic abuse laws are killing people by taking a bad situation and making it even worse by mandating arrests and huge fines (collected by the state) for people who were often financially struggling to begin with. Etc.
You can't rehabilitate people who weren't habilitated in the first place. And for the most part we're not even trying.
You admit that the state cares nothing about the victims and that it's bringing the charges on behalf of itself. But you don't think that one of the problems of the system is that it doesn't cater enough to a victim's hurt feelings? How does this make sense? What do you think the problems in the system are? If you're suspicious of restorative justice because it involves talking about feeling and those don't belong in a court of law or prison system, then what do you suggest?
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"It's been a long day without you, my friend
I'll tell you all about it when I see you again"
"'Oh sweet baby purple Jesus' - that's a direct quote from a 9 year old - shoutout to purple Jesus."
Posts: 2943 | From: The Wire | Registered: May 2004
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Jon in the Nati
Shipmate
# 15849
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Posted
I'm not sure what to make about your insistence on "local control." I am honestly baffled by it.
I stand duly corrected on how things work in Delaware; some research reveals that apparently things are run similarly in New Jersey as well. Nonetheless, in the vast majority of states, the local prosecutor is a county office, elected in a county election with no involvement by government of the state. Similarly, judges at the trial court level are elected by counties, again with no involvement from the state. Every prosecutor's office is run independently from the others, with decisions as to what charges to bring and when being the exclusive purview of the elected county prosecutor.
That seems to be about as local as it gets. What else would you prefer to see?
I've done a lot of defense side work and a little bit of prosecuting as well. I get the feeling that you and I would agree on a lot of things about what is wrong with the system, but just not on what the role of the victim in a criminal prosecution is or ought to be. Gee D's post above is right on the mark as well.
quote:
I have no idea what this sentence is supposed to mean. I'm guessing it was a typo, but I can't figure out what you were trying to type.
It was to be "the wishes of the victim ought to control." So sorry for that.
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Homer: Aww, this isn't about Jesus, is it?
Lovejoy: All things are about Jesus, Homer. Except this.
Posts: 773 | From: Region formerly known as the Biretta Belt | Registered: Aug 2010
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Gee D:
All that said, I have a lot of trouble with much of what Eutychus says. (S)He comes with the approach that the parties are the victim and the accused. As Jon in the Nati says, the victim is a major witness in most prosecutions, but that is the limit of the role. (...)
It goes back to the basis of a criminal prosecution, which is to deal with a wrong against the community, not the individual. (...) I do retain a strong interest in criminal law as the real core of a justice system.
I'd like to know what you (or Jon in the Nati) think of my scenario here.
quote:
Originally posted by Jon in the Nati:
the victim impact statement is relevant only to sentencing, not to guilt or innocence.
To me the notion of a "victim impact statement" comes across as an attempt to shoehorn some of the notions dear to RJ into a completely different system, right against the grain of the argument that criminal justice is about the state dealing with the offender and their place in society and not at all about the victim.
It indicates a niggling sense that there's more to justice than this, but does not address this niggle adequately because there's no place in the existing criminal justice paradigm to do so.
It also runs counter to Gee D's implicit argument here. Should the perpetrator get a lighter sentence merely because the victim is not really missed by anyone?
As I've said, my investigation into RJ is a work in progress; I'll need to go and dig out my notes again. I'd also like to take a closer look at how RJ links into political theory and ethics - at an event unrelated to RJ this week I realised that it also hinges on people's views of the state, individual versus collective responsibility, and so on. Criminal law may be the core of our existing justice system, but whether the status quo is the definitive paradigm is open to debate I think.
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Gee D
Shipmate
# 13815
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Posted
Well, AFAIK. restorative justice under that name only came into real use in the 1990s. Some of the concepts now embraced by that term - but not all - were behind the establishment of the NZ scheme. I don't think it would be correct to describe either the NZ scheme, or that amongst the Koori people in NSW, as restorative justice. In any event, victim impact statements were in use here well before the growth of RJ learning.
Now, if you started with my first posts, you will see that proper principle here used be that victim impact statements have played no part in the sentencing of someone convicted of murder or manslaughter. While it appears that they may play a role in a decision to release on parole for someone convicted of murder/manslaughter in England, they have no such function here. The attempt to abolish the principle in Privitera is so recent as not yet to have been considered and interpreted by judges. From the little I know of it, I would not be surprised if the amending legislation was held not to have made much change at all. And no, a prisoner should not receive a lighter sentence because the victim is not mourned by a large and loving family and group of friends. Such a course operates simply to downgrade the diminish the life of the loner.
In the scenario you mention, the prisoner who had pleaded guilty and recognised the impact of the actions would and should receive a less severe sentence for a variety of reasons. The first is the utilitarian value of the plea, and the consequent saving in public expenditure on a trial. Depending upon when the plea of guilty is entered, the reduction is within the range of 10 - 25%. There is then the remorse of the prisoner to take into account and that indicates a further reduction because of a lesser need for personal deterrence. There could well be a difference of perhaps 40% in the 2 sentences before there could be said to be a legitimate sense of injustice on the part of the prisoner who had pleaded not guilty and gone to trial.
Finally, to discuss Saysay's comments about local control of the criminal justice system. Like most common lawyers outside the US, I have very great difficulty with a system where prosecutors and judges are elected - and indeed even with the manner in which Justices of the Supreme Court have to go through the inquisition they do. But that aside, what control should be exercised locally beyond the enactment of a Crimes Act? If the local community considers that the legislation is not adequate, surely its remedy is to amend it - not to dismiss the judges who enforce it. And that does not even get into the area of how local that degree of control should be - national, by state or province, by city/county and so forth.
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Gee D
Shipmate
# 13815
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Posted
This statement:
53However, I am bound to acknowledge that this spirit of reconciliation and forgiveness "cannot be allowed to interfere with a proper exercise of sentencing discretion" (Efthimiadis v R [2013] NSWCCA 276 at [67] per Johnson J). Serious crime is a wrong against the community at large and the community is entitled to exact punishment.
from a recent decision says very clearly what I've been trying to say.
[ 07. August 2014, 08:11: Message edited by: Gee D ]
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Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
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Eutychus
From the edge
# 3081
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Posted
quote:
Originally posted by Gee D:
In the scenario you mention, the prisoner who had pleaded guilty and recognised the impact of the actions would and should receive a less severe sentence for a variety of reasons. The first is the utilitarian value of the plea, and the consequent saving in public expenditure on a trial.
In French criminal law, which is inquisitorial, you don't plead guilty or not guilty, so the trial happens anyway, even if you "acknowledge the facts".
I'm not really quibbling the length of his sentence, either (the 'right' length of sentence is a different conundrum altogether). In the case I'm thinking of, the perpetrator doesn't feel particularly hard done by. I just think he could be rehabilitated better, and the indirect victims could get better closure, if mediation could occur - something which the current system here renders impossible.
[ETA: x-post with your addition. There's nothing in that ruling that excludes a "both-and" approach to my mind.]
[ 07. August 2014, 08:16: Message edited by: Eutychus ]
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Let's remember that we are to build the Kingdom of God, not drive people away - pastor Frank Pomeroy
Posts: 17944 | From: 528491 | Registered: Jul 2002
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Gee D
Shipmate
# 13815
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Posted
Eutychus, there are 3 things I do not understand in your last post:
1. What does you ETA actually mean, or are there a couple of words lost in the ether?
2. Mediation, AIUI in the legal sphere, is a form of alternative dispute resolution in which a mediator works to help parties reach their own resolution of a dispute. Such a method has no real place in the standard criminal justice system as a victim, either direct or indirect, is not a party.
3. Closure is a word that is used a lot, but seems to me to be just a buzz-word, one used to sound good without actually meaning anything. What did you mean by it?
Off to open the wine and then have dinner.
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Not every Anglican in Sydney is Sydney Anglican
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