Most people are
aware that in cases of felony violence, victims have the
right to give in-court victim impact statements on the day
of sentencing. The problem with victim impact statements
is that aside from giving the victim the opportunity to
vent, these statements are essentially a powerless gesture.
They very rarely have any impact on sentencing. This is
because, in virtually all cases, the judge has already made
the sentencing decision prior to the sentencing hearing,
and before the victim speaks.
Less well known
is the fact that a victim can have a much greater influence
on the sentence given a defendant by giving her input to
the probation officer assigned to do the pre-sentencing
report in the weeks prior to sentencing.
When a defendant
is declared guilty, the judge and attorneys agree to a sentencing
date, which generally takes place within 20 court days of
the guilty verdict. If the defendant has been found guilty
of a felony, and on some occasions when the defendant is
found guilty of a misdemeanor, a probation officer is assigned
to prepare what's called a pre-sentencing report for the
judge in the intervening time prior to the sentencing date.
This is where the victim can frequently significantly influence
report prepared by the pre-sentencing probation officer
is a summary of relevant information on the defendant's
life put together for the purpose of arriving at an appropriate
sentencing recommendation. The defendant's criminal history,
mitigating circumstances in the defendant's life, the effect
of the crime on the victim, and other information are compiled
by the probation officer.
Once this information
is gathered, the probation officer puts the report together
along with the officer's sentencing recommendation to the
judge. In most all cases, judges abide by the sentencing
recommendation that is formulated by the pre-sentencing
probation officer. Whatever the victim has to say on the
day of sentencing in her victim impact statement is unlikely
to have any effect. By then, it's too late. The judge has
already made up his or her mind. Like so many other gestures
the criminal justice system gives to women, the victim impact
statement is all pat-on-the-head patronizing and no real
So if your client
wants to have real input and impact on sentencing, and most
do, it's important to inform her that the best way to do
that is to make an appointment with the pre-sentencing probation
officer as soon as that officer is assigned to the case.
This assignment usually occurs within a couple days after
the conviction or after the defense has accepted a plea.
It's very important the victim not delay in making this
appointment since the probation officers usually aim to
get their finished report and recommendation to the judge
at least days, and sometimes a week, before the scheduled
To make her appointment
with the pre-sentencing probation officer, the victim should
simply call the county probation department and ask the
receptionist which probation officer has been assigned to
the do the pre-sentencing report, and then make the appointment.
probation officers are willing to talk to the victim by
phone. But in order to have the most impact, it's better
if the victim can meet face to face with the probation officer
in person. In our experience, probation officers assigned
to write pre-sentencing reports take the victim's experience
and wishes seriously. They accurately record what the victim
has to say in the pre-sentencing report, and usually incorporate
the victim's wishes into the sentencing recommendation.
In fact, because there are no defense attorneys, no rules
of evidence, or any investigatory limitations that come
into play, the victim's meeting with the pre-sentencing
officer can be her best opportunity to get her full feelings
and perspective about the crime on the record. And, if she
would still like to give a victim impact statement in court
on the sentencing day, she can do that, too.
The key thing
to remember is that if the victim wants to assert influence
on the sentence meted out, talking to the pre-sentencing
probation officer ahead of the sentencing date is where
the power lies - it doesn't lie in giving a victim impact
statement the day of sentencing.
The pre-sentencing report prepared by the pre-sentencing
probation officer will be on the public record for sixty
days following the sentencing after which time the pre-sentencing
report will be sealed. (Times vary from one state to another.)
Given the comprehensive information on the perpetrator
that's been gathered into these reports, obtaining these
reports can be a gold mine of information and documents
for victims and advocates. So a week or two following
the sentencing, just go to the courthouse clerk and make
a public records request for the pre-sentencing report.