Confirming kanBARoo court's assessment that moralism lies at the heart of what ails the State Bar establishment, an influential committee of the Board of Governors recommends that the California State Bar allow prosecutors to use victim-impact statements in discipline proceedings. (See http://tinyurl.com/mjftvr.) Victim-impact statements are emotional statements, often diatribes, about how culpable acts affected the victim and family. These histrionics have wheedled into the criminal justice system under the system's logic-chopping formalism, which permits prosecutors to do in sentencing what's forbidden for convicting. In trials for noncapital crimes, every state allows victim-impact statements, their use highly contentious only in murder trials, where 38 states allow them. The U.S. Supreme Court has considered the place of victim-impact statements in capital cases, originally holding victim statements unconstitutional under the 8th Amendment proportionality doctrine because punishment inspired by reports of specific victim harm breaks the link between seriousness of offense and punishment. Then, abrogating stare decisis, the court overturned the holding it announced in Booth v. Maryland (1987) 482 U.S. 496 and upheld in South Carolina v. Gathers (1989) 490 U.S. 805 by holding in Payne v. Tennessee (1991) 501 U.S. 808 that the 8th Amendment doesn't bar victim statements in capital cases. Regardless, as almost all legal scholars agree, victim-impact statements have no place in the criminal courtroom; they have even less place in attorney-discipline proceedings.
The most important reason victim-impact statements are oppressive in any criminal case is that they are irrelevant to sentencing. Victim statements are irrelevant in criminal proceedings because criminal guilt depends on public policies of retribution. (See Greenberg, J.D. Is Payne Defensible?: The Constitutionality of Admitting Victim-Impact Evidence at Capital Sentencing Hearings (2000) 75 Ind. L.J. 1349, 1370.) The degree of culpability of an act for retributive purposes shouldn't depend on adventitious happenings; it depends on the inherent wrongfulness of the act as intended by the person committing it. A crime shouldn't be punished for what the perpetrator never intended, even apart from the injustice of punishing based on inflammatory portrayal of those unforeseen consequences; whereas, ordinary evidence establishes the criminal act's specific foreseeable consequences, and a type of crime's foreseeable consequences forms the basis for the statutory level of punishment.
The main argument advocates propose for victim-impact statements is that the right of defendants to argue mitigating circumstances should be balanced by commentary from the victim's point of view. Use of mitigating circumstances in criminal sentencing is a tarnished process, often serving as an inverted means to impose de facto aggravations on defendants whose unmitigated sentences are unduly harsh, but when mitigating factors refer to the defendant's motivation for crime, they target a defendant's blameworthiness, the designated inquiry, while impact statements divert attention to the irrelevant.
While victim-impact statements are oppressive in criminal proceedings — consider their role in the outlandish sentencing of Bernie Madoff — they lack even colorable justification in State Bar discipline. All reasons for admitting victim statements in criminal matters are based on the retributive function of punishment. (See Greenberg, supra.) To admit victim evidence, the court conceives the blameworthiness of the crime as including consequences unknown to the defendant, for otherwise proof would lie in defendant intent, not in the criminal act's consequences. Victim statements express an expanded moralistic view of the law, oppressive in criminal proceedings but incongruous in State Bar proceedings, which are public protective rather than retributive.
The State Bar defense establishment has centered its opposition on obtaining the right to cross-examine victims. Cross-examination of victims doesn't usually moderate the perniciousness of victim statements, since thorough cross-examination of victims on the harm suffered puts defendants in the bad light of attacking the persons they are charged with harming.
(See also companion Juridical Coherence essay: 5.14 Checks and Balances at Trial)