Victims, “Closure,” and the Sociology of Emotion

Bandes discusses the polarizing function of victim impact statements used in the context of the death penalty. The use of victim impact statements is justified in order to promote closure for the victim, but it\u27s unclear what psychological closure can be accomplished from the formal litigation process. Even if victim impact statements do help their authors, in the context of the death penalty the authors are family members of the victim, not the direct victim, and Bandes questions whether it\u27s important to further their interests at the expense of the interests of the defendant. The only recourse for the jury is to deliver a sentence of death, so the statements have the effect of polarizing the conflict in ways that Bandes thinks interfere with promoting justice

Empathy and Article III: Judge Weinstein, Cases and Controversies

The question of whether judges ought to be empathetic has been hotly debated in recent years. This Issue celebrating the life and achievements of Judge Jack Weinstein presents an ideal opportunity to productively focus and narrow the empathy debate. Problematically, this debate generally treats judging as a monolithic concept. To debate whether empathy is a desirable attribute of judges as a general matter is to overlook important distinctions between trial, appellate, and Supreme Court jurists, and between federal and state courts. Using Judge Weinstein’s approach to judging as a touchstone, I will explore the role of empathy for Article III judges, and for federal district court judges in particular

What Are Victim Impact Statements For?

In Payne v. Tennessee, the US Supreme Court upheld the admission of victim impact statements (VIS) on the ground that they provide valuable information to the sentencer. In the three decades since, two additional rationales for VIS have become ascendant: most prominently, a therapeutic rationale, and more recently, a public education rationale. In this article, I expand upon my critiques of the informational and therapeutic rationales in light of a growing body of empirical evidence about how VIS affect both sentencers and crime victims. Focusing on the powerful and viral VIS delivered at the Larry Nassar guilty plea hearings and the Brock Turner trial, I consider whether VIS can be defended as a vehicle for informing the public about the impact of crime—particularly crimes that are underenforced or poorly understood. I conclude that ultimately the current VIS regime arises from and reinforces an individualistic model of crime that is not well-suited to illuminating the scope or consequences of criminal behavior, particularly in multi-victim cases like those of Larry Nassar. More generally, I argue that there are fairer and more robust models for achieving the informational, healing, and educative goals that victim impact statements are meant to serve, and that these models may well require decoupling those goals from the narrow ambit of the criminal justice system

All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment