Part Il

First Line Criminal Justice Advocacy

H. Victim Impact Statements and
Pre-Sentencing Probation Reports

Most people are aware that in cases of felony violence, victims have the right to give in-court victim impact statements on the day of sentencing. The problem with victim impact statements is that aside from giving the victim the opportunity to vent, these statements are essentially a powerless gesture. They very rarely have any impact on sentencing. This is because, in virtually all cases, the judge has already made the sentencing decision prior to the sentencing hearing, and before the victim speaks.

Less well known is the fact that a victim can have a much greater influence on the sentence given a defendant by giving her input to the probation officer assigned to do the pre-sentencing report in the weeks prior to sentencing.

When a defendant is declared guilty, the judge and attorneys agree to a sentencing date, which generally takes place within 20 court days of the guilty verdict. If the defendant has been found guilty of a felony, and on some occasions when the defendant is found guilty of a misdemeanor, a probation officer is assigned to prepare what's called a pre-sentencing report for the judge in the intervening time prior to the sentencing date. This is where the victim can frequently significantly influence the sentencing.

The pre-sentencing report prepared by the pre-sentencing probation officer is a summary of relevant information on the defendant's life put together for the purpose of arriving at an appropriate sentencing recommendation. The defendant's criminal history, mitigating circumstances in the defendant's life, the effect of the crime on the victim, and other information are compiled by the probation officer.

Once this information is gathered, the probation officer puts the report together along with the officer's sentencing recommendation to the judge. In most all cases, judges abide by the sentencing recommendation that is formulated by the pre-sentencing probation officer. Whatever the victim has to say on the day of sentencing in her victim impact statement is unlikely to have any effect. By then, it's too late. The judge has already made up his or her mind. Like so many other gestures the criminal justice system gives to women, the victim impact statement is all pat-on-the-head patronizing and no real power.

So if your client wants to have real input and impact on sentencing, and most do, it's important to inform her that the best way to do that is to make an appointment with the pre-sentencing probation officer as soon as that officer is assigned to the case. This assignment usually occurs within a couple days after the conviction or after the defense has accepted a plea. It's very important the victim not delay in making this appointment since the probation officers usually aim to get their finished report and recommendation to the judge at least days, and sometimes a week, before the scheduled sentencing date.

To make her appointment with the pre-sentencing probation officer, the victim should simply call the county probation department and ask the receptionist which probation officer has been assigned to the do the pre-sentencing report, and then make the appointment.

Usually pre-sentencing probation officers are willing to talk to the victim by phone. But in order to have the most impact, it's better if the victim can meet face to face with the probation officer in person. In our experience, probation officers assigned to write pre-sentencing reports take the victim's experience and wishes seriously. They accurately record what the victim has to say in the pre-sentencing report, and usually incorporate the victim's wishes into the sentencing recommendation. In fact, because there are no defense attorneys, no rules of evidence, or any investigatory limitations that come into play, the victim's meeting with the pre-sentencing officer can be her best opportunity to get her full feelings and perspective about the crime on the record. And, if she would still like to give a victim impact statement in court on the sentencing day, she can do that, too.

The key thing to remember is that if the victim wants to assert influence on the sentence meted out, talking to the pre-sentencing probation officer ahead of the sentencing date is where the power lies - it doesn't lie in giving a victim impact statement the day of sentencing.

NOTE: The pre-sentencing report prepared by the pre-sentencing probation officer will be on the public record for sixty days following the sentencing after which time the pre-sentencing report will be sealed. (Times vary from one state to another.) Given the comprehensive information on the perpetrator that's been gathered into these reports, obtaining these reports can be a gold mine of information and documents for victims and advocates. So a week or two following the sentencing, just go to the courthouse clerk and make a public records request for the pre-sentencing report.

Feel free to photocopy and distribute this information as long as you keep the credit and text intact.
Copyright © Marie De Santis,
Women's Justice Center,
www.justicewomen.com
rdjustice@monitor.net