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Taking Account of Victims in the Criminal Justice System: A Review of the Literature - Research Findings

DescriptionThis study is a review of international literature on the ways information and views from victims are taken into account in different criminal justice processes.
ISBN0 7480 8213 1
Official Print Publication Date
Website Publication DateApril 15, 1999
Social Work Research Findings No 32
Taking Account of Victims in the Criminal Justice System: A Review of the Literature
1999
Andrew Sanders
ISBN 0-7480-8213-1Publisher The Scottish Office
This study is a review of international literature on the ways information and views from victims are taken into account in different criminal justice processes.
Main Findings
  • Very few jurisdictions provide victim participation schemes at the prosecution and bail stages even though these stages are as important to many victims as the sentencing stage. The victim participation that does exist at these stages is therefore poorly organised and uncertain in impact.
  • Whether victim participation in the criminal justice process is on balance 'good' or 'bad', and 'successful' or 'unsuccessful', depends on the objectives of the particular form of participation under consideration.
  • On many important aspects of participation there is no reliable evidence from research.
  • Participation affects different victims in very different ways. It is not possible, therefore, to secure complete success with any one scheme. However, around half of all victims appear to gain some satisfaction from participation, although this varies from scheme to scheme.
  • On balance, all participation has less effect, in any way, than either advocates or critics anticipate. In particular, sentencing patterns appear to be largely unaffected by participation.
  • Direct participation in the criminal justice process, as distinct from statement schemes, appears to have the greatest beneficial effects, and fewest detrimental effects.
Introduction
In the 20th Century, criminal justice systems have become increasingly bureaucratised and professionalised. A distance has therefore grown up between the victim, the offender and the criminal justice process. The result is a two-way information deficit. First, victims are often not told what, if anything, is happening in 'their' cases. Second, victims are often not asked what they would like to happen and are not asked for full information about the crime and its effects on them. These effects may be financial, physical, psychological or emotional. They may be long-term or short-term. They may be apparent immediately after the crime or only emerge over time. They may be foreseeable or unexpected. In an attempt to remedy these defects, many governments have introduced mechanisms to enable the views of victims and/or information about the effects of crime on them to become known to criminal justice decision makers.
In Crime and Punishment (1996) the British Government expressed the view that the Scottish criminal justice system should take account of the effects of crimes on victims. The Scottish Office therefore commissioned this literature review in order to shed light on the ways in which information and views from victims are taken into account in other jurisdictions and to examine the underlying purposes of such developments.
The scope of the study
The review was concerned primarily with published information about developments in the 1990s in continental Europe, the USA and common law jurisdictions such as the UK, Australia and New Zealand. The published material was supplemented, where possible, with unpublished work and information about current developments.
Information was sought on five key stages of the criminal process: initial prosecution decisions, decisions to reduce or drop charges (including plea bargaining), bail or remand decisions, sentencing, and release from prison on parole or life licence. Although there is an extensive international literature on these areas of criminal justice, it is limited in a number of ways. First, there is little research on the ways in which victims' views are taken into account. This reflects the fact that victims' views have not been a concern until recently. Second, much research and writing concerns the law - such as when it is lawful to take account of the views of victims - rather than how the criminal justice systems work in reality. Third, relevant criminological research is concentrated on sentencing, rather than being spread across all the key stages of the criminal justice process. Finally, there is far more criminological research, specifically on the role of victims in criminal justice and of a more general nature, on American and common law jurisdictions than there is on European jurisdictions.
Key issues
1. What could be taken into account
Victim participation can aim to take into account the views of victims, the interests of victims or information about the effects of the crime on victims.
2. Types of involvement
There are two different ways of taking victims into account: transmitting their views (or information about the effects of the crime and the interests of the victim) in a written or oral form; and involving victims in decision making.
3. Types of decision
The five decision making stages with which this review is concerned can be characterised as either procedural - initial prosecution decisions; decisions to drop or downgrade all or some charges, including plea bargaining; bail and remand decisions; or judicial (or quasi-judicial) - sentence and release from prison.
4. Purposes of taking account of the victim
These include: expressive (or cathartic) purposes; instrumental purposes for the victim; instrumental purposes for criminal justice agencies (to increase their knowledge; to enhance victim satisfaction and respect for criminal justice processes; and thus to increase victim co-operation); and instrumental purposes for the government (in wanting to do something and be seen to be doing something for the victim).
The legal and international framework
Both the UN and the Council of Europe have produced guidelines for victim participation. They provide for a minimum level of participation without specifying how any of the key issues identified above should be resolved, and without requiring that any one, or all, of the five stages be covered by participation. This minimalist approach reflects the different legal structures of different jurisdictions: adversarial systems (largely found in common law jurisdictions) find it more difficult to accommodate victim participation, especially of the decision making variety, than do inquisitorial systems. Some forms of participation require legislation, but many do not.
Methods of taking account of victims
1. Taking account of victims by transmitting information or their views ('statement schemes')
Schemes of this type involve written statements being given by victims and transmitted to any criminal justice agency which makes decisions that might be of concern to victims. There are three types of statement scheme. First, there are victim impact statement schemes. Impact statements contain information about the victim and the effects of the crime. Second, there are victim opinion statement schemes. Opinion statements are the same as impact statements except that they present the views of victims (usually in relation to sentence or parole) as well as factual statements. Third, there is a victim statement scheme which is the subject of trials in England. These statements are the same as impact statements, but they are not intended to affect sentences.
2. Taking account of victims by providing the opportunity for participation
Again, three types of process can be identified. First, there have been US experiments with victim advocates in court: a victim advocate is literally, someone who advocates the victim's interests in criminal court proceedings. Second, many European jurisdictions provide for 'auxiliary prosecutors', which allow victims to be joined as parties in criminal proceedings. Third, there have been US experiments with personal participation by the victim, whereby victims may participate in proceedings by, for instance (at a minimum), presenting their statements orally.
3. Taking account of victims through processes of restorative justice
Restorative justice involves, among other things, the participation of as many parties concerned with the offence as possible; avoidance of courts where possible; and the restoration to victims of something of what they lost through the crime, and to offenders a place in society. In this process, victim participation is essential and all the normal stages of the criminal justice process are collapsed into one.
Procedural stages
Although there is little literature on victim participation at different procedural stages (initial prosecution decisions; decisions to drop or downgrade all or some charges, including plea bargaining; bail and remand decisions), participation is potentially important and valuable for victims. Some victim pressure groups are more concerned to secure participation at these stages than at the sentencing stage. Most jurisdictions have provisions for victim participation, but there are very few systematic schemes, and no research evaluations of them could be discovered at all. However, the 'auxiliary prosecutor' scheme has the potential to cater for victim participation at the bail and plea bargaining stages more easily in inquisitorial than in adversarial systems.
Sentencing
Most studies found the participation rates of eligible victims to be around 30%. Those which asked victims, found that around half of all participating victims felt that participation was worthwhile in expressive terms. A very small minority found it upsetting, while the rest felt that making statements had little effect on them. This is true of both opinion and impact statements. Statement schemes appear to be less successful than other types of scheme. This is probably because they are not truly participatory, statements may be taken and used unsympathetically or not used at all. They often raise victims' expectations unrealistically and some victims participate out of a sense of duty and do not expect a benefit.
Statement schemes are even less successful in satisfying victims in instrumental terms. Most victims wish to influence decisions (including sentencing) but feel that they actually had little influence. The data suggests that victims are correct in this assessment. This is probably due to a combination of factors: officials not taking notice of statements, and sometimes not even reading them; officials discounting anything said or expressed that is out of the ordinary; and victims rarely providing unusual information or views. One of the more surprising findings is hostility or indifference to statements among many judges and prosecutors in some jurisdictions.
Statement schemes are almost entirely unsuccessful in providing instrumental benefits for criminal justice agencies. Few victims feel more kindly disposed to the criminal justice system as a result of their participation, since many statement schemes take an extra statement and then ignore the victim as comprehensively as ever. The criminal justice system remains mysterious and unwelcoming to most victims.
Release on licence from prison
Only two research studies of victim participation in this area could be located. One, in the USA, found that release was less likely in cases in which impact statements were made. The other, in England, concerned life sentence prisoners. Whereas in the USA victims can offer opinions on release, in England opinions should only be offered about the conditions which would be placed on release if this were allowed. Many victims participate enthusiastically. Again, there is the risk of unrealistically raising expectations.
Conclusion
Victim participation schemes have been introduced in a patchy way both within particular jurisdictions and across the different jurisdictions reviewed. Often their objectives are unclear, and they rarely specify what weight should be given to the information or views which they elicit. This is reflected in the limited success of most schemes. Most victims who do participate seek to be involved in their cases, and most schemes - 'auxiliary prosecutor' and restorative schemes excepted - simply do not provide for genuine participation. Those that do tend to be more successful than those that do not.
The study was conducted by Andrew Sanders of the University of Bristol. It was funded by the Home Department of The Scottish
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