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THE EFFECTS OF VICTIM IMPACTSTATEMENTS ON SENTENCINGDECISIONS: A TEST IN ANURBAN SETTING*

ROBERT C. DAVISBARBARA E. SMITH

Victim Services AgencyNew York, NY

Many reforms have been initiated in an effort to assure victims partici-pation in the justice process. Although these reforms appear to representgreat progress, it remains unclear to what extent victims actually have ben-efited. The present study examines one widely heralded reform measure-victim impact statements-and seeks to determine whether they have re-sulted in sentences more congruent with the harm done to victims and/or insentences generally harsher on convicted defendants. These questions wereexamined in a field test implemented in Bronx County, NY. The study con-cludes that impact statements neither increased officials' consideration ofharm to victims nor resulted in generally harsher sentencing decisions.

The victim movement, begun tw o decades ago, has matured.More than 5,000 programs now provide services to victims in crisisand victims involved in the criminal justice system (Davis and Hen-ley 1990). The great majority ofthese programs are no longer tenu-ously funded demonstration projects, but entities with establishedplaces in local, state, and federal government budgets. As part ofthis maturation process, victim supporters have advocated not onlythat victims in the criminal justice system be treated well and keptinformed, but also that they receive rights to participate in thecourt process (e.g., DuBow and Becker 1976; Goldstein 1982).

Early attempts to allow greater participation to victims wereimplemented without supporting legislation. Reformers persuadedcriminal court officials to listen to victims' statements or to informthem of key decisions. Often these efforts were implemented aslimited-term experiments (see, for example, Clark et al. 1984; Ker-stetter and Heinz 1979). As time passed, however, victim advocates

* This research was funded under Grant 7-0483-0-NY-IJ of the National In-stitute of Justice. The views herein reflect those of the authors, and are not neces-sarily those of NIJ.JUSTICE QUARTERLY, Vol. 11 No. 3, September 1994 1994 Academy of Criminal Justice Sciences

HeinOnline -- 11 Just. Q. 453 1994


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454 EFFECT OF VICTIM IMPACT STATEMENTbecome more and more strongly convinced of the need fo r legisla-tion mandating that officials listen to victims and/or inform them ofcourt actions (e.g., Davis, Kunreuther, and Connick 1984).

Victims' Rights Legislationand Victim Impact StatementsDuring the 1980s, state and federal governments implemented

a vast array of legislation guaranteeing rights to victims in thecriminal justice process. In 1981 the federal government took theinitiative by declaring a Victims' Rights Week, to focus national at-tention on victim issues. Soon after that time, provisions weremade to inform victims of proceedings in their cases and, in someinstances, to consult them about the course of prosecution.

In 1982 the federal government established a PresidentialTask Force on Victims of Crime. The Task Force recommended thatvictim impact statements-assessments of the physical, financial,and psychological effects of crime on individual victims-be takenand distributed to judges before sentencing. That recommendationwas implemented when the 1982 Omnibus Victim and Witness Pro-tection Act became law; it mandated that victim impact statementsbe provided at sentencing in federal cases.

By the mid-1980s, victim impact statements had become a pop-ular vehicle for increased participation by victims. Victims' involve-ment at sentencing had been endorsed by the American BarAssociation and the National Judicial College (Kelly 1990). By1982, 12 states had passed impact statement laws (Hudson 1984).By 1984 the number had climbed to 22 (Davis, Fischer, and Paykin1985); as ofAugust 1987, 48 states had provisions authorizing someform of victim participation in conjunction with imposition of sen-tence (McLeod 1988:3).Victim impact statements offer victims the opportunity to re-late the harm done to them by the crime and (in some states) toexpress their concerns, in the expectation that this information willbe considered in sentencing decisions. Supporters of victim impactstatements have argued that the introduction of such statementswill improve the sentencing process by making decisions conformmore closely to the community's interests (Henderson 1985), by re-minding officials of the human costs of crime (Kelly 1987), and bymaking sentences more proportional to the actual harm done by theoffender (Rubel 1986).

Victim impact statements have met with criticism on severalfronts, however. Some writers have expressed fear that allowing



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DAVIS AND SMITH 455victims to participate may reduce judges' ability to withstand un-reasonable public pressure (Rubel 1986). Others have been con-cerned about the potential for adding costs to the justice system orcontributing to delay (Carrington and Younger 1979).

The most significant concern about victim impact statements-and about victims' participation generally-is that gains for victimswill result in costs for defendants. Some legal scholars have ex-pressed fear that victim impact statements may reduce uniformityin sentencing and may introduce a greater degree of arbitrariness(Abramovsky 1986; Henderson 1985; Talbert 1988), or that theywill result in harsher treatment of convicted offenders across theboard (American Bar Association 1981). These issues have formedthe basis of court challenges to the constitutionality of victim im-pact statements. In June 1987 the United States Supreme Courtruled in a 5-4 decision (Booth v. Maryland1987) that victim impactstatements are unconstitutional in capital cases. The court con-tended that "such information is irrelevant to a capital sentencingdecision, and its admission creates a constitutionally unacceptablerisk the jury may impose the death penalty in an arbitrary and ca-pricious manner."

In June 1989, in a further development, the United StatesSupreme Court upheld a ruling by the South Carolina SupremeCourt, overturning a death sentence for the murderer of a "self-styled" minister. Although South Carolina v. Gathers (1989) didnot directly involve victim impact statements, the court's decisionextended and reaffirmed the Booth v. Maryland decision by reiter-ating that "a sentence of death must be related to the moral culpa-bility of the defendant." The Supreme Court upheld the lower courtruling, which maintained that the prosecution's description of thereligious articles found near the minister's body constituted infor-mation about the victim's personal character, and as such was irrel-evant to the sentencing decision.

Most recently, the Court revised itself and upheld state's rightsto allow victim impact statements. In Payne v. Tennessee (1991) thecourt decided that the Eighth Amendment erects no bar to victimimpact evidence per se. The decision, however, still left open thepossibility of excluding victim impact evidence if the evidence "is sounduly prejudicial that it tenders the trial fundamentally unfair."Clearly, the arguments against victim impact statements arenot frivolous, and public debate on their appropriateness is useful.That debate, however, underscores the need for a fuller under-standing of whether and how such statements affect sentences.The concerns raised by opponents of victim impact statements-



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456 EFFECT OF VICTIM IMPACT STATEMENT

that they may result in more disparate or harsher sentences-canbe subjected to empirical scrutiny by using social research methods.

To date we know of two attempts to bring empirical evidence tobear in examining how victim impact statements affect sentencingpatterns. An earlier study by our research group (Davis 1985) at-tempted to look at the effect of these statements on sentences byusing a quasi-experimental design. An impact statement procedurewas introduced by the District Attorney's office in one of two felonycourt parts in Brooklyn that handled essentially identical cases.(Assignment of cases to one part or the other alternated, dependingon the week when the cases were arraigned.) Comparison of theeffects of victim impact statements on sentencing was thwarted,however, because of prosecutors' resistance to the program. State-ments reached the judge in only one of the 10 cases designated toinclude impact statements. In the other nine cases, either prosecu-tors failed to obtain an impact statement or the statements neverwere forwarded to the presiding judge.

More significant is a correlational study by Erez andTontodonato (1990). These authors looked at 500 Ohio felony cases;victim impact statements were taken in some of these but not inothers, according to prosecutors' files. (The authors state that im-pact statements were solicited only when prosecutors expected acase to be tried.) Erez and Tontodonato compared sentencing incases with and cases without impact statements after controllingfor a number of potential confounding variables (e.g., seriousness ofcharge, defendant's record). They found that cases in which a vic-tim impact statement was taken were more likely than those with-out a statement to result in a prison sentence than in probation. Asecond analysis showed no association between length of sentence,among those incarcerated, and whether a victim impact statementwas taken.

The correlational approach used by Erez and Tontodonatomakes the results of their study difficult to interpret. These re-searchers found large differences in offense seriousness and inmany other measures between cases that had impact statementstaken and cases without statements. Although the study controlledfor many observed differences between the two groups of cases, theauthors acknowledged that "[T]o completely control for such bias, itwould be necessary to accurately model all previous selection deci-sions" (1990:462).The CurrentStudy

The only way to be confident that treatments are not con-founded with outcomes is to assign cases randomly to treatments



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DAVIS AND SMITH 457(Boruch and Wothke 1985). That approach was used in the currentresearch. In this study, implemented in the Bronx County, NewYork Supreme (Felony) Court, cases were assigned randomly' toone of three treatments: 1) impact statements were taken and dis-tributed to officials; 2) impact statement interviews were con-ducted, but no statement was prepared; and 3) no interview wasconducted.

The most obvious approach to examining how victim impactstatements affect sentences is by comparing sentences in cases inwhich court officials had access to victim impact statements withcases in which they did not have access. By framing the question inthis way (as did Erez and Tontodonato), one addresses the defenseissue of whether impact statements may lead officials to make har-sher sentencing decisions generally.

Upon reflection, however, we thought it unlikely that caseswith victim impact statements would routinely receive more severesentences than those without. In the cases with impact statements,court officials should know more about the effect of crime on thevictims. Sometimes that effect will be major, and officials will be-come more aware of the luridness of crimes, as Henderson (1985)suggests. Experience has shown, however (e.g., Davis 1985), thatfor many victims the impact of crime is relatively slight and short-lived; this is reflected in impact statements. Thus impact state-ments can either intensify or detract from officials' perceptions ofthe seriousness of a crime. (Erez & Tontodonato 1990 similarlypoint out that impact statements may increase proportionality insentencing.) Impact statements, on average, could induce officialsto impose harsher sentences only if officials normally assumed-inthe absence of impact statements-that the effect of crime on vic-tims was minimal. In other words, sentences would be harsher onlyif impact statements awakened officials to the fact that the casesthey had been sentencing actually were considerably more heinousthan they had imagined.

We thought this only a remote possibility. We believe that ifvictim impact statements affect sentences, their influence is likelyto be more subtle. We think these statements have the potential toproduce sentences that are more congruent with the harm done tovictims. That is, the effect of crime on victims ought to be a moreaccurate predictor of sentences when impact statements are avail-able to officials than when they are not. In cases in which the effect

1 In fact, we began the random assignment process after the first 32 cases hadbeen taken into the sample. As described below, all of the first 32 cases were as-signed to one of the treatment conditions.



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458 EFFECT OF VICTIM IMPACT STATEMENTof crime on victims is serious, impact statements may induce offi-cials to impose stiffer sentences than they would have imposedotherwise. (In particular we expected that restitution awardsmight be affected by victim impact information; this point was sug-gested by our earlier work. See Davis et al. 1984.) Conversely, incases in which the effect of crime on victims is slight, impact state-ments may induce officials to impose lesser sentences than theywould otherwise have imposed. Thus the net effect of impact state-ments on the overall harshness of sentences may be nil; at the sametime, impact statements may result in sentences that reflect moreaccurately the harm done to victims, whether large or small.

With these thoughts in mind, we decided to examine whetherimpact statements altered the distribution of sentences-howmany offenders were sentenced to conditional discharges versusprobation versus short or long terms of incarceration. We then in-vestigated whether impact statements result in sentences that re-flect more accurately the harm done to victims.

METHODWe conducted the experiment in the Bronx (New York)

Supreme Court. Between July 1988 and April 1989, 293 victims ofrobbery, nonsexual assault, and burglary went through the intakeprocedure. We chose these crimes rather than homicides or rapesin order to obtain the sample size we needed for analysis.

Sixty-nine percent of the sample were victims of robbery, 21percent were victims ofphysical assault or attempted homicide, and10 percent were victims of burglary. Twenty percent of the victimsknew the offender before the crime was committed. Only one in twoof the victims had completed high school; 52 percent had householdincomes of less than $15,000 per year. The median age of the sam-ple was 25 years.Treatments

Each victim was assigned to one of three treatments as follows:1) the victim was interviewed, and a victim impact statement waswritten and distributed (104 victims); 2) the victim was inter-viewed, but no statement was written (100 victims); 3) only the vic-tim's name and address were recorded (89 victims).Victims interviewed, statement written. Victims who received vic-tim impact statements were told by a caseworker (hired by the re-search project specifically to prepare impact statements) that theywould be interviewed and that a statement, based on the answersthey gave to the questions in the interview, would be written up



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DAVIS AND SMITH 459and distributed to the judge, the defense attorney, and the prosecu-tor. It was explained to these victims that because an impact state-ment would be prepared for them, court officials might have moreinformation about how they were affected by the crime. Victimsalso were told that judges would have this information during sen-tencing. In addition, they were informed that someone would try tocontact them by phone or letter in about one month in order to up-date the information in their statement.

The victim impact interview typically took 5 to 10 minutes.Victims were asked about the impact the of crime in five areas oftheir lives: physical impact, property loss or damage that occurredas a direct result of the crime, any subsequent financial loss (suchas hospital bills or pay lost from time missed from work), psycholog-ical impact, and behavioral impact (any changes in routines or hab-its as a result of the crime-for example, whether they now hadtrouble sleeping, or took a different route to work). The victims'responses to the interview questions were rated on a scale of 1 to 3according to the magnitude of the impact of the crime (from no im-pact to much impact in each category of response).

Victims in the impact statement group (like all the victims, re-gardless of their treatment group) were given a pamphlet from thevictim assistance unit located in the Bronx Criminal Court. Theywere told that they could go to the victim assistance office if theyneeded information, referrals, or counseling.

The impact interview, containing the ratings of harm to the vic-tim, was copied immediately, and a copy was turned over to theprosecutor assigned to the case. The caseworker then wrote a vic-tim impact statement based on the victim's responses to the inter-view questions, and distributed it to the prosecutor and the defenseattorney through the head of the Supreme Court Bureau. Copies ofthe statement also were forwarded to the appropriate judge for eachcase. One copy was mailed out as soon as a judge was assigned tothe case. Another copy was delivered to the chief clerk of theSupreme Court Bureau, who enclosed the statement with the filecontaining the presentence report and delivered it to the judge justbefore sentencing.

Victims interviewed, no statement written. This treatment pro-vided a comparison group for determining whether the impactstatement procedure resulted in sentences that reflected more accu-rately the harm done to the victim. The victims in this treatmentgroup were administered the same interview as the victims forwhom statements were written. The caseworker explained to them



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460 EFFECT OF VICTIM IMPACT STATEMENTthat she was conducting research to learn more about the exper-iences of crime victims and that she would like some backgroundinformation about the effects of the crime on their lives. The inter-view questions were asked, but none of the descriptive responseswere written down; victims' responses were rated on the same scaleas was used for victims who went through the impact statementprocedure.

These victims, like those in the first group, were given a victimassistance pamphlet. The prosecutor received a copy of a form thatreflected only the victim's and the defendant's name, the charge,the docket number, and the ratings of harm to the victim. The pros-ecutors required this form, which defined the victim's role in thestudy, to document the fact that the victim had not disclosed discov-erable information to the research project caseworker.Victims in the control group. Only the names and addresses ofthese victims were recorded. The prosecutor received a memo say-ing that each of these victims was a control in our study, and thatonly his or her name and address were recorded. Like the victimsin the other two groups, these victims received a victim assistancepamphlet.

ProceduresIntake. All victims were brought by the prosecutor assigned totheir case to the research project office after their grand jury testi-mony. Victims were assigned to treatments according to a log sheetthat was prenumbered with victims' ID numbers and a correspond-ing treatment group for each number. The treatments were preas-signed on the basis of a table of random numbers.The random assignment was not begun, however, until afterthe first 32 victims were interviewed. These initial victims, all ofwhom gave impact statements, were intended originally to be apretest group. We were forced to include them in the experiment,however, when intake proved to be far slower than anticipated.Analyses revealed no significant differences between these 32 vic-tims and later victims assigned to the impact statement group interms of type of charge (chi-square = 2.43, df = 3, n.s.), severity ofcharge (t [98] = 0.09, n.s.), victim's education (t [72] = 0.75, n.s.),income (t [30] = -1.13, n.s.), or age (t [75] = -1.26, n.s.).

Rating system. As explained above, we developed a rating systemto rank the severity of the various effects of the crime. This systemincluded five categories for which the victim received a rating



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DAVIS AND SMITH 461(physical injury, immediate property loss or damage, subsequent fi-nancial loss, psychological impact, and behavioral change). Victimsin the impact statement and interview-only groups were rated inthese five categories on a scale of 1 to 3: 1 represented no impact ornot applicable, 2 represented some impact, and 3 represented majorimpact. For example, a victim who reported having suffered nophysical injury received a rating of 1 for the injury category, a vic-tim with minor injuries received a 2, and a victim who had beenhospitalized received a 3.

After much debate about how to rank psychological distress, wedecided to ask the victims to rate themselves. As part of the inter-view we asked victims whether they had been feeling upset sincethe crime. If they said no, they received 1 on the rating scale. Ifthey said, yes, we asked them to say whether they would describethemselves as "somewhat" or "very" upset, and subsequently gavethem a 2 or a 3 on the scale, depending on their answer.

From these five individual measures of harm to the victim-physical harm, short-term financial impact, long-term financial im-pact, psychological harm, and behavioral changes-we created acomposite harm measure. This summary variable was produced bysumming the scores for the five component items.Follow-up. Approximately one month after case intake, we at-tempted to contact victims from whom victim impact statementshad been taken, in order to update the information in their state-ments. When new information was discovered, the impact state-ments were revised and an updated version was given to the judgeat the time of sentencing. We tracked cases; when they had beendisposed, we gathered information on sentences from files of thedistrict attorney's office.

SubgroupDifferencesWe examined the three treatment groups to ensure that they

were comparable before undergoing the experimental manipula-tion. We found no differences between the three conditions in termsof type of charge (dichotomized as personal crimes, attempted mur-der and assault, versus property crimes, robbery and burglary: chi-square = 8.10, df = 6, n.s.); severity of charge (coded from 1 to 5,corresponding to the felony class of the charge, A through E: F =0.78, df = 2,283, n.s.); victim/offender relationship (dichotomized asstrangers versus acquaintances: chi-square = 0.26, df = 2, n.2.); of-fender's prior record (number of felony convictions: F = 0.29, df =2,286, n.s.); victim's age (F = 0.13, df = 2,212, n.s.); victim's years of



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462 EFFECT OF VICTIM IMPACT STATEMENTeducation (F = 1.66, df = 2,209, n.s.); or victim's annual householdincome (F = 0.67, df = 2,103, n.s.).

We further compared the impact statement group with the in-terview-only group on ratings of crime impact, based on informationprovided by victims during the interview. We found no differencesbetween the two groups on the overall measure of crime impact (F =1.96, df= 1,200, n.2.); behavioral impact (F = 0.48, df= 1,201, n.2.);immediate financial impact (F = 0.09, df = 1,201, n.s.); subsequentfinancial impact (F = 0.05, df = 1,201, n.s.); or psychological impact(F = 1,26, df = 1,200, n.s.). The differences between the two groupson physical impact fell just short of statistical significance (F = 3.59,df= 1,201, .05 < p < .10).Interviews with CriminalJustice Officials

We asked assistant district attorneys to complete a 10-itemsurvey concerning their experiences with and opinions ofvictim im-pact statements. Surveys were completed and returned by 22 of the24 assistants in the unit. We also conducted semistructured inter-views face-to-face with all seven judges who had received victim im-pact statements in at least three of their cases. Interviewsaveraged 20 to 30 minutes in length.

RESULTSCase dispositions for the 293 cases in the sample were as fol-

lows: 3 percent ended in bench warrants, 14 percent were dis-missed, 3 percent were acquitted, 10 percent were sentenced toprobation, 14 percent were sentenced to less than one year in jail, 7percent were sentenced to one to three years in state prison, 32 per-cent were sentenced to three to six years in prison, and 14 percentwere sentenced to more than six years in prison. Each of the analy-ses described below on the effects of victim impact statements usesthe 229 cases in the sample in which convictions were won andsentences imposed.Effects on Overall SentencingPatternsof Victim ImpactStatements

Table 1 compares sentences for cases in the three treatmentgroups. The table shows only minor variations between the groupsin the frequencies of conditional discharges, sentences of probation,



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DAVIS AND SMITH 463and various lengths of prison terms. The differences in the distri-bution of sentences between the groups did not approach statisticalsignificance (chi-square=10.86, df=8, n.s.).2 ,3Table 1. Effects of Treatments on Sentencing Patternsa

Victim Impact InterviewStatement Only ControlConditional Discharge 2% 1% 8%(2) (1) (5) n=8Probation 15% 11% 12%(13) (8) (8) n=290-1 Years' Incarceration 20% 22% 10%(17) (17) (7) n=411-3 Years' Incarceration 12% 7% 6%(10) (5) (4 ) n=193-6 Years' Incarceration 41% 37% 42%(35) (28) (28) n=916+ Years' Prison 11% 22% 22%

(9) (17) (15) n=41100% 100% 100%(n=86) (n=76) (n=67) N=229

Excludes open cases, bench warrants, dismissals, and acquittals.As a further check on the effects of impact statements on sen-

tence patterns, we conducted a multivariate logistic regressionanalysis. We dichotomized the sentence variable as "incarcerated"and "not incarcerated" and the treatment variable as "impact state-ment present in file" and "impact statement not present in file."(We combined cases in which no impact interview was held withcases in which an interview was held, but an impact statement wasnot produced.)

We introduced into the analysis extraneous variables that werelikely to influence the decision to incarcerate, including seriousnessof the charge, type of charge, offender's prior record (number of con-victions), and overall harm to the victim (the sum of the five indi-vidual impact measures-physical, psychological, behavioral,

2 In calculating the chi-square value, we combined conditional discharges andprobation sentences (the first two rows of Table 1) in order to avoid expected cellfrequencies less than 5.3 Our thanks to an anonymous reviewer who pointed out that at least onepartitioning of the data would lead to an alternate conclusion. If sentences are di-chotomized into six or fewer years in prison versus more than six years and if thetw o control groups are combined, sentences involving victim impact statements areless likely to be long-term than sentencing decisions reached without victim impactstatements (chi-square = 5.1, df=l, p.=.05).



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short-term financial, and long-term financial-each measured on athree-point scale).

The results of the logit analysis are displayed in Table 2. Typeof charge, severity of charge, and prior convictions all exerted sig-nificant influences on the decision to incarcerate. Yet neither thepresence of an impact statement in the court file (the treatment va-riable) nor the overall victim harm measure approached statisticalsignificance in the analysis.Table 2. Multivariate Analysis of the Effects of

Treatments on the Decision to IncarcerationaEstimated

Effect Coefficient SE SignificanceCharge Type -1.39 0.61 .02Charge Severity -0.50 0.25 .05Convictions 0.43 0.21 .04Victim Impact 0.16 0.14 .26Treatment 0.68 0.56 .22aModel chi-square = 16.12, df=5, p


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DAVIS AND SMITH 465variables likely to influence sentence severity, including serious-ness of the charge, type of charge, and number of convictions. Onthe first step of the analysis, we entered nature of the charge, seri-ousness of the charge, and offender's prior record. On the next step,we entered the overall measure of harm to the victim.

The results are displayed in Table 3. This table shows that se-riousness of the charge and (for VIS cases only) nature of the chargeare associated with sentence severity: sentences were more severewhen charges were more serious and (for VIS cases only) when thecharge involved an assault or attempted murder rather than a rob-bery or burglary. Harm to the vi6tim, however, played little role insentencing decisions after charge and criminal history were takeninto account. Adding victim impact to the regression model in-creased the model's explanatory power by less than 2 percent. Thiswas true for the victim impact statement group (F [1,77] = 1.64,n.s.) as well as for cases where no impact statement was taken orforwarded to officials (F [1,66] = 1.00, n.s.).Table 3. Effects of Victim Impact on Sentence Severity, by

Treatment GroupRegression Coefficients

Standardized Regression Coefficients for Interview OnlyRegression Coefficients for VIS Cases CasesStep 1Prior convictions 0.10 0.09Seriousness of charge 0.32* 0.56*Nature of charge 0.21* 0.05Step 2Victim impact 0.09 0.07Increase in VarianceExplained by AddingVictim Impact to Model


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CourtOfficials' Reactions to Victim Impact StatementsInterviews with prosecutors revealed that 15 of the 22 thoughtit appropriate to consider the impact of crime on victims in negoti-

ating dispositions, but they did not think that victim impact state-ments added substantially to their knowledge of impact on thevictim: only three prosecutors believed that impact statementsusually contained more accurate or more detailed information thanthey would have obtained from their files on personal interviewswith victims. Moreover, 13 of the 22 prosecutors thought that pro-cedures for taking victim impact statements were problematic(some were worried that the defense could use the statements topoint up inconsistencies in victims' testimony) or inconvenient(some expressed concern about subjecting victims to "Yet anotherinterview").

Interviews with the seven judges suggested that they had re-ceived and read our victim impact statements. All of the seven be-lieved it was helpful to learn through the statements how victimswere affected by crime. Unlike prosecutors, the judges stated thatthey did not normally receive information on victim impact throughother channels, either from prosecutors or from victims themselves.

Yet prosecutors expressed skepticism about judges' interest inthe impact of crime on victims. Only three of the 22 prosecutorsbelieved that judges usually considered victim impact in sentencingdecisions.

We inspected files from the district attorney's office to deter-mine whether the copies of impact statements given to prosecutorshad been placed in the files, and whether the envelopes containingthe statements had been opened. We found that impact statementswere missing in 37 percent of the files where they ought to havebeen included. In the files that contained impact statements, 53percent of the statements had never been opened.

CONCLUSIONSWe began this study to address some ofthe controversial issues

surrounding the use of victim impact statements. Do impact state-ments result in harsher sentences? In sentences that reflect moreaccurately the harm done to victims?In one important respect, our results back up the advocates ofvictim impact statements: we found no support fo r those who argueagainst these statements on the grounds that their use places de-fendants in jeopardy and may result in harsher sentences. In thisrespect, our data stand in contrast to the findings reported by Erezand Tontodonato (1990), who found that victim impact statements



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DAVIS AND SMITH 467were associated with an increased likelihood of incarceration. Thediscrepancy between the two studies may reflect differences be-tween courts in receptivity to such statements. Again, it may existbecause Erez and Tontodonato used a weaker, correlational re-search design: their study gives no guarantee that cases in whichvictim impact statements were taken were equivalent in other re-spects to cases without impact statements, even after the research-ers controlled for some potential confounding variables.

Our data, however, also may give advocates of victim impactstatements cause for concern. These statements did not producesentencing decisions that reflected more clearly the effects of crimeon victims. Nor did we find much evidence that-with or withoutimpact statements-sentencing decisions were influenced by ourmeasures of the effects of crime on victims, once the charge and thedefendant's prior record were taken into account. (This finding rep-licates the results of a study by Hernon and Forst 1983, which con-cluded that harm to the victim had little effect on sentencingdecisions.) Yet it is also true that the impact of crime on victims isincorporated into charging decisions: more serious charges tend toreflect greater harm to victims, and our analysis found severity ofcharge to be highly predictive of sentences.

Interviews conducted with officials helped to explain why im-pact statements had no discernible effect on sentencing. Althoughjudges professed to be interested in the impact of crime on victims,prosecutors thought, at best, that judges considered such informa-tion only occasionally. Also, although most of the prosecutors inter-viewed said that victim impact ought to be considered regularly,judges reported that prosecutors rarely related such information tothem. Moreover, prosecutors clearly believed that information con-tained in victim impact statements was not especially useful tothem, as evidenced by their frequent failure to incorporate thestatements into their case files and their failure to open the state-ments that had been placed in case files.4

Probably the truth is that officials have established ways ofmaking decisions which do not call for explicit information about

4 One could argue that the experiment is invalidated by the fact that manyimpact statements were not read by prosecutors. We disagree for several reasons.First, judges also received copies of the statements, and judges are the officials whodirectly pass sentence on convicted offenders. Second, even if statements had beenpresent and opened in prosecutors' files in all cases in the experiment, one still couldquestion whether prosecutors gave them serious attention. (Indeed, prosecutors' orjudges' apathy toward impact statements is an important factor that would havegone undetected in earlier studies of the effects of victim impact statements on sen-tencing.) In our opinion, our finding that prosecutors often did not attend to state-ments when they were available is a legitimate and interesting outcome of theintervention we designed.



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the impact of crime on victims. They make sentencing decisions ac-cording to established norms based on the nature of the charge andthe defendant's character (Rosett and Cressey 1976): in this pro-cess, officials may believe that the charge itself often conveysenough information about harm to the victim to meet the purposesof sentencing. Inducing officials to consider specific measures ofvictim impact entails changing well-established habits, and a briefexperiment is not likely to do that.

Our conclusions about the effects of impact statements on sen-tencing are limited by the fact that we conducted the research on anew rather than a well-established program. Possibly it takes along time for officials to accept and incorporate impact statementsinto the sentencing process-not the few short months available tous in this experiment. Moreover, the results we obtained in theBronx may not apply equally well to lower-volume suburban or ru-ral courts. Thus replications of our experiment are needed at othersites. Moreover, we examined common felony crimes-robbery, as-sault, and burglary-so that we could generate a sample largeenough to permit tests of statistical inference. It may be that im-pact statements have greater effects for the most serious crimes-homicides, rapes, and aggravated assaults.

Pending additional research, our experiment raises troublingquestions about the viability of impact statements as a vehicle forvictims' participation in the court process. These statements havebecome the preferred method for allowing victims greater participa-tion. They are less controversial than other means of victim partici-pation might be, and they are relatively inexpensive to administer.For these reasons, victim advocates have pushed hard for statutesto mandate their use. But if impact statements do not give victimsa meaningful voice, what gains have victims really made over thepast 20 years in having their concerns represented to the court?This question deserves to be considered carefully by those inter-ested in making the justice process responsive to the concerns ofvictims and other citizens.

REFERENCES

Abramovsky, A. (1986) "Crime Victims' Rights." New York Law Journal,February3, pp. 1 and 3.American Bar Association (1981) Victim/Witness Legislation. Report of the VictimWitness Assistance Project, Criminal Justice Section. Washington, DC: Ameri-can Bar Association.Boruch, R.F. and W. Wothke (1985) "Seven Kinds ofRandomization Plans fo r De-signing Field Experiments." In R.F. Boruch and W. Wothke (eds.), Randomiza-tion and Field Experimentation,pp. 95-113. San Francisco: Jossey-Bass.HeinOnline -- 11 Just. Q. 468 1994


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DAVIS AND SMITH 469Carrington, F., and E.E. Younger (1979) "Victims of Crime Deserve More Than Pity."Human Rights 8:10-15.Clark, T., J. Housner, J. Hernon, E. Wish and C. Zelinski (1984) "Evaluation of theStructured Plea Negotiation Project." Report of the Institute for Law and SocialResearch to the National Institute of Justice.Davis, R.C. (1985) "First Year Evaluation of the Victim Impact Demonstration Pro-ject." Unpublished report, Victim Services Agency, New York.Davis, R.C., P. Fischer, A. Paykin (1985) "Victim Impact Statements: The Experi-ence of State Probation Officers." Journalof Probationand Parole16:18-20.Davis, R.C. and M. Henley (1990) "Victim Service Programs." In A. Lurigio, W. Sko-gan, and R. Davis (eds.), Victims in the CriminalJustice System, pp. 157-171.Beverly Hills: Sage.Davis, R.C., F. Kunreuther, and E. Connick (1984) "Expanding the Victim's Role inthe Criminal Court Dispositional Process: The Results of an Experiment."

Journalof CriminalLaw and Criminology2:491-505.Dubow, F. and T. Becker (1976) "Patterns of Victim Advocacy." In W.F. McDonald(ed.), CriminalJustice and the Victim, pp. 147-164. Beverly Hills: Sage.Erez, E. and P. Tontodonato (1990) 'The Effect of Victim Participation in Sentencingon Sentence Outcome." Criminology28:451-74.

Goldstein, A.S. (1982) "Defining the Role of the Victim in Criminal Prosecution."MississippiLaw Journal52:515-61.Henderson, L.N. (1985) "The Wrongs of Victims' Rights." Stanford Law Review37:937-1021.Hernon, J.C. and B. Forst (1984) "The Criminal Justice Response to Victim Harm."Report of the Institute for Law and Social Research to the National Institute ofJustice.Hudson, P.S. (1984) "The Crime Victim and the Criminal Justice System: Time for aChange." PepperdineLaw Review 11:23.Kelly, D.P. (1987) "Victims." Wayne Law Review 34(1):69-86.(1990) "Victim Participation in the Criminal Justice System." In A. Lurigio,W. Skogan, and R. Davis (eds.), Victims and the CriminalJustice System, pp.172-187. Beverly Hills: Sage.Kerstetter, W.A. and A.M. Heinz (1979) "Pretrial Settlement Conference: An Evalu-ation." Report of the University of Chicago Law School to the National Instituteof Justice.McLeod, M. (1988) The Authorization and Implementation of Victim Impact State-ments. Washington, DC: National Institute of Justice.Rosett, A. and D. Cressey (1976) Justice by Consent: PleaBargains n the AmericanCourthouse. New York: Lippincott.Rubel, M.C. (1986) "Victim Participation in Sentencing Proceedings." CriminalLawQuarterly28:226-50.Talbert, P. (1988) "The Relevance ofVictim Impact Statements to the Criminal Sen-tencing Decision." UCLA Law Review 36:199-202.

CASES CITED

Booth v. Maryland, 482 U.S. 496 (1987).Payne v. Tennessee, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).S. Carolina v. Gathers, 490 U.S. 805 (1989).



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Documents

Victim Impact Statement Article A