Voices of justice

THE defendant in the assault case had pleaded guilty, and now the judge was trying to decide a proper sentence. He had received a full report from the probation department, detailing the defendant's background. Then each of the lawyers had submitted a sentencing memorandum of predictable content: The assistant district attorney demanded lengthy incarceration; defense counsel urged ``the street,'' that is, a suspended prison term. It was, however, a fourth document in the sentencing packet which caused the judge the most thought: the Victim Impact Statement. After a guilty verdict or a change of plea, a state law gives the victim or the victim's parent a legal right to write the judge, for consideration before sentencing, saying pretty much anything the victim wants to express about the crime, the criminal, the effect on the victim, and the victim's view as to an appropriate sentence.

Not all cases produce a statement. Some crimes - drug offenses, for instance - have no individual victim. Other times, the victim will not wish to write. The judge could understand why someone brushed by random violence might simply prefer to forget the whole business.

The victim in the present case, though, was clearly not one of those. After describing in sparse, direct prose the invasion of her apartment and the personal violence to which the burglar had subjected her, she went on to depict the lasting effects of the crime: the fear of recurrence, the nightmares, the distrust of strangers, the counseling and therapy.

These impact statements always troubled the judge. On the one hand, having some say about sentencing doubtless made a victim feel better. Yet it was important that the judge not let the statement override his discretion, lest a victim with a writing talent, or even an unusual ability to articulate her feelings, in essence usurp the sentencing function.

Indeed, it was not inconceivable that a well-written, emotional impact statement might produce a sentence measurably heavier than a defendant would receive were his victim inexpressive, or, for whatever reason, simply unwilling to write the court.

At the same time, the judge felt vaguely uneasy for, in a sense, neutralizing the victim's only active contribution to the process of justice.

The tendency in recent years to give the victims a chance to speak in court has a literal component. The judge's state afforded them the statutory right to address him before sentence passed. Even fewer spoke than wrote, but those who did often seemed starkly eloquent.

Was this whole idea of victim input somehow a form of ``consumerism,'' the idea that those affected by a large social, commercial, or political institution should have the right to command its attention? Or did it, rather, comprise a reaction against the prevalent feeling of powerlessness, the fear that the individual no longer mattered?

Those few victims who spoke in court displayed visible satisfaction, simply at the certainty that the judicial system incarnate was listening to their words.

Some used the opportunity for a kind of verbal revenge. The judge recalled one mother of a murdered teen-ager who spoke, not to the bench, but to the sullen defendant - himself not much older than the dead child. ``I hate you,'' she said in words that shivered the silent courtroom.

Although at the time he had thought the outburst inappropriate, reflection had convinced the judge of its inevitability and hence rightness.

Yet proper and healthy though it might be for victims to express their feelings and their wishes, the judge also remembered those times - rarest of all - when a defendant, offered his chance to speak, took the occasion not to beg for mercy, but to tell the victim of his remorse.

The old Russian proverb speaks truly: While the thief feels the lash, he is a pious man. So a judge must not give unstinted credit to pre-sentence regrets. In their way, they are like the victims' imprecations, attempts by individuals to influence society's apparently limitless power.

Where, the judge wondered as he leafed through the sentencing papers, would he hear the true sound of justice?

Hiller B. Zobel sits on the Massachusetts Superior Court.

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