Saturday, April 7, 2012
Why NZ Director's Reference to the "Oprahfication" of the Courtroom was Really a Jab at the "Pussification" of the Courtroom
I'm not a huge fan of victim impact statements. These statements typically used to consist of family members taking the witness stand during the sentencing phase of a murder trial and explaining the character of the victim and what his or her loss meant to the family and the community. Now these statements more typically involve DVDs with montages of photographs showing the victim from birth until just before death, evocative music in the background from artists as varied as Enya and the Beatles, and voiceover narration from a family member. There are of course several problems with such statements, not the least of which is that they can tend to enforce the notion that some lives are more equal than others. A rich victim from a supportive family will likely have several witnesses willing and able to take the witness stand and describe how much the victim meant to them, creating a good likelihood of a lengthier sentence (or death) for the defendant. Meanwhile, the homeless victim without much of a support system likely won't have (m)any people willing or able to take the stand and vouch for his or her character, likely resulting in a lighter sentence.
Conversely, I love the idea of restorative justice.
Restorative justice is an umbrella term for various voluntary, nonadversarial processes that try to bring together offenders, crime victims, and others to repair the material and intangible harms caused by crime. For example, victim-offender mediation induces offenders to speak with their victims face-to-faceabout their crimes. Family group conferences use trained facilitators to encourage discussions among the families of offenders and victims. Circle sentencing encourages offenders, victims, their friends and families, members of the community, and criminal justice professionals to discuss and agree upon a sentence. Community reparative boards are panels of citizens that discuss crimes with offenders and work out restitution plans. Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 917 n.12 (2006).
Therefore, in theory, I should like the argument made by Kim Workman, the Director of Rethinking Crime and Punishment in New Zealand. So, what's the problem?
Workman recently made an oral submission to the Justice and Electoral Select Committee in connection with the Victims of Crime Reform Bill. Workman spoke out against the excesses of victim impact statements, arguing that
Committee that great care and wisdom will be needed to prevent rhetorical appeals to victims’ suffering to deteriorate into a public skewering of the offender....
"Providing a better service to victims does not always translate into better practise. It would be to the ultimate detriment of the victim if the opportunity to tell the offender in the courtroom how the crime has affected them, became an exercise in retribution. While many victims believe at the that they will feel better for it, research shows that victims who take revenge in this way have often felt worse off than if they had done nothing at all."
Workman then touted the virtues of restorative justice, noting that
Our experience with restorative justice conferences tells us that the victim’s decision to meet with an offender is driven by one of three things. Firstly, they want to talk about the harm they have suffered, to challenge the offender about their actions, , and have them respond. Secondly, they want to understand why the offender committed the offence, their motivation, and personal circumstances. Thirdly, they want to assess whether the offender is genuinely sorry for what happened.
Finally, Workman advocated for restorative justice instead of traditional victim impact statements, recommending
that instead of a victim reading out a statement, a private facilitated meeting be held between the offender and victim, at which the victim was free to make their feelings known within acceptable limits, and the offender had the opportunity to respond. The outcome of the meeting would then be reported back to the Court, achieving the same purpose as a Victim Impact Statement, but in a way that was more satisfying to the victim.
All of this sounds terrific and a proposal that I would readily endorse. But let's go back to Workman's disparaging of victim impact statements. With regard to victim impact statements, Workman claimed that
"At its worst, it could lead to the "Oprahfication" of the Courtroom, with the TV cameras capturing every twitch of the offender for signs of defiance or remorse, and the New Zealand viewing public casting their votes accordingly."
I don't know about readers, but this strikes me as an incredibly misogynistic statement. Workman's statement reads to me as if he is saying, "At its worst, it could lead to the "Pussification" of the Courtroom. Now, this might seem harsh, but I don't see any other way to construe Workman's statement. In essence, he's saying that the same people -- women -- who watch and are emotionally effected by Oprah Winfrey are likely to be unduly influenced by victim impact statements into making irrational verdicts.
Now, maybe Workman didn't explicitly say this, but let's read between the lines. Why else would Workman invoke Oprah Winfrey (in a disparaging manner) if not to claim that we must protect women from victim impact statements? The Oprah Winfrey Show was all about bringing people face-to-face with their adversaries and trying to get them to reach some type of understanding of each other. What I regard as the most (in)famous episode of the show was when Winfrey went to Forsyth County and taped an episode on race relations in which KKK members and minorities explained their positions to each other.
In other words, The Oprah Winfrey Show is much more in the vein of restorative justice than it was in the vein of the traditional victim impact statement. Moreover, Oprah is a big advocate of restorative justice and has done episodes on the subject. Workman's invocation of the "Oprahfication" of the Courtroom in connection with the traditional victim impact statement thus makes no sense unless viewed as a general attack on women.