American Victimology at Law & Society Blog

American Victimology

Published by Manfred Gabriel August 3rd, 2004 in Jurisprudence

Some time ago, Janice Nadler and Mary R. Rose published Victim Impact Testimony and the Pschology of Punishement. Here is the abstract:

A growing body of empirical evidence from psychology, sociology, law, and criminal justice has demonstrated that lay intuitions about punishment are strongly rooted in retributivism: i.e., the idea that punishment should be distributed in proportion to moral desert. Level of harm is often thought to be indicative of desert, but harm described by victims (or survivors) in the context of victim impact evidence is subjective and often unforeseeable insofar as it is attributable to chance factors. How do observers (such as jurors or judges) use information about consequences determined by chance factors when they judge punishment? The emotional and cognitive processes involved in jurors’ use of victim impact evidence potentially reveals key insights about the psychological mechanisms underlying laypersons’ punishment judgments generally. This paper explores empirical evidence for the notion that the subjective harm experienced by the victim of an offense serves as proxy for the level of defendant’s effort and culpability, and by implication, the perceived seriousness of the crime.

The research on which Nadler and Rose rely is American, and the argument is centered around the jury trial. Nadler and Rose are mostly puzzled by crimes in which the perpetrator intends an illegal act, but not the consequences. They give the example of someone who permits his car to role downhill. Research shows that juries would punish this offense much more severely if harm comes of it than if the car landed in a ditch, hurting no one. Is it right, they ask, that victim impact statements showing the harm in such a situation leads to more severe punishment? I would tend to pose the question the other way around: The lucky perpetrator is spared some punishement that he or she deserves and that is required for deterrence, because there was no specific harm. Mild punishment of the lucky perpetrator would be viewed as sufficient to reinforce the norm.