Magazine

Should victims have a say in sentencing criminals?

Breaking into a house

If someone does you wrong, should you have a say in their punishment? Great thinkers have mulled such questions for centuries, says philosopher Mark Vernon in the Magazine's series on modern ethics.

Should victims have a say in sentencing criminals? That partly depends upon what you mean by "have a say".

A weak form of involvement would have a judge listen to a statement from victims, but ensure the judge alone does the sentencing.

A slightly stronger form would be when the impact on victims is considered as part of assessing the moral seriousness of the crime. The strongest form would be when victims have a direct say in the type of sentence.

So which is the more just?

A utilitarian approach, which seeks people's greatest happiness and is associated with the British philosopher Jeremy Bentham, can provide one reason why victims should, in part, play judge. It can be called the therapeutic argument.

Victim sentencing could serve as an outlet for their rage, pain and desire for justice. It promises closure by offering catharsis, thereby helping to restore the victim's happiness, or at least helping to lessen their pain.

However, this might backfire.

Given the choice, many victims might desire longer sentences than the judiciary would allow. When that desire is not satisfied, their anguish might be exacerbated. The therapeutic argument has also been called the "Oprahisation" of sentencing.

This is because victim impact statements may include attacks on the defendant. There is a danger, then, that the court room comes to resemble a talk show, particularly if the trial is televised. This may increase general happiness, though not by helping victims, but by entertaining viewers.

The second, Kantian approach emphasises reason and rights.

Image caption With the "Oprahisation" of justice, could an eloquent victim win a longer sentence for the offender?

It stresses the law should be rational, and that includes keeping careful tabs on the irrational feelings that are inevitably present during legal proceedings. This would be harder to do, the more the voice of victims is heard.

More seriously still, strong forms of victim sentencing would reflect the capabilities of the victim. A victim who could powerfully express their feelings might win a longer sentence. That would be irrational because it would suggest that a crime is more serious if the victim is more articulate.

That said, impact statements may allow victims to feel the law is serving their needs. As is sometimes said, victims have rights too.

And impact statements may help a judge to understand the moral seriousness of a crime. The law already discriminates between different kinds of murder, for example. Why shouldn't it also discriminate between the effects of different murders?

Taking considerations of moral seriousness into account would fit within a third approach, the one that stresses the common good and virtue and is associated with Aristotle.

Image caption Would you want to meet the person who did this to you?

Understanding the moral seriousness of a crime is important because it helps the criminal to take responsibility for what they've done. Victim feelings are also a crucial component in so-called restorative justice, in which the criminal is confronted with their crime, perhaps by meeting the victim.

That said, a virtue ethics approach would be concerned with the moral state of the victim too. Victims may need to forgive those who have wronged them, in order that they might flourish in the future. An impersonal legal system, that does not allow victims a say, might actually help with that, as it ensures objectivity.

Mark Vernon, the author of Philosophy For The Curious and Ethics For The Curious, will tackle more modern dilemmas throughout the week. Tomorrow, should companies pay to pollute.

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