Boston — The mother of a slain 12-year-old girl rises to speak at the sentencing of a young man convicted in the slaying of her daughter. She holds up a framed oil portrait of her daughter. At one point, she tells the 17-year-old highschool basketball star who killed the girl that he is "an animal."
This incident took place last summer in Hartford, Conn. And it is a dramatic example of the gradually increasing involvement of crime victims in the sentencing process.
But, more often, crime victims or their relatives do not have the chance -- as the Hartford woman did -- to present their viewpoints during sentencing. As a result, such hearings often become the scene of emotional outbursts from the victims or their relatives. Some say these outbursts, premeditated or not, constitute a "backlash" to years of being virtually ignored by the American legal system.
"Emotional outbursts are probably because the victims simply don't have a say , and they get frustrated," says Robert Grayson, head of the New Jersey Council on Crime victims. Six years ago, Mr. Grayson was mugged by four men on his way home from work. He was incapacitated for nearly a year and now is blind in one eye. As for the muggers, he says, three of them received probation and the fourth, a three-month jail term.
Continues Mr. Grayson: "The frustration mounts, because nowhere in the trial does the victim get to tell how the crime affected his life.We want to see the victim be able to address the court. We find that when a judge knows the effects of a crime, he gives a tougher sentence."
Maxwell Heiman, a defense attorney in Hartford, agrees that there is an evolving change in victim's attitudes. He says the change may have grown out of the perception by crime victims that the justice system is for the accused only.
"Now victims are becoming more questioning of the system," he says. But he warns it is dangerous for a victim to dive in and try to influence the outcome of a trial.
"The reason for having judges in between the victim and the criminal is to have someone who isn't emotionally involved," says Mr. Heiman. "Otherwise, you have the Biblical 'eye for an eye, tooth for a tooth.' That would be fine in a retributive system of justice, but not in a rehabilitative one."
The concept of including victims or their relatives in the sentencing process is generating a lively debate in legal circles.
Portland, Ore., defense attorney Gary Berne dislikes the fact that currently a presentencing investigative report takes into account the victim's feelings.
"I think it's improper, but they take into account the attitude of the victim. It [the sentence] should be retribution for society as a whole, not for the individual," Mr. Berne says.
Gilber Salk, project coordinator for a Connecticut state task force on crime victims and witnesses, disagrees.
"The victim should not be the judge and jury in a case, but he should have a voice. He should be able to tell what happened to him and tell what he would like to happen," Mr. Salk says. He should have a voice . . . but it shouldn't go as far as giving the victim veto power."
Grayson also disagrees with the view that victim involvement in the criminal trial is a tool of revenge.
"I wasn't seeking revenge," he says."I wanted these guys to get a stiff sentence so they don't do it to someone else."
Both the New Jersey Council on Crime Victims and a Connecticut victim-witness project task force are planning to introduce bills into their respective legislatures to take steps toward solving the problem. Both group say they will suggest guidelines for victim rights and roles that include:
* Assurance that the victim has access to the prosecuting attorney. Then the victim would know about the right to express his or her feelings in the presentencing investigative report. That is the one legal channel so far for victims to make themselves heard. But, as Grayson points out, most people don't know that channel exists.
* Giving victims the same legal right to speak at the criminal sentencing as does the defendant, the prosecution, or defense. The law says nothing about whether or not a victim may speak at the time of sentencing. But the atmosphere , Salk says, is so intimidating that most are scared off anyway.
Assistant Hartford public defender Carl Eisenman suggests that victims should be placed under oath during sentencing if they want more of a say than the presentence investigation. Then, he continues, victims should be treated just like any other witness.
But Salk says that since no one else is put under oath at the sentencing, there is no reason why the victim should be treated differently.
Some defense lawyers have talked about going as far as asking for a gag rule on victims. Then the only input would be their attitudes as written up in the preinvestigation report. Defense lawyers say it is simply unfair for a judge to have to decide what punishment to impose on a criminal while listening to an emotional outburst.
Ultimately, says Grayson, it is a question of giving crime victims greater voice within the system to prevent the frustration that leads to emotional courtroom outbu rsts that may unfairly influence the judge and jury.