Arguments Against Victim Involvement in Sentencing: A Legal Analysis

This essay addresses the contentious issue of whether victims should have a say in sentencing, specifically within the Australian legal context. The essay argues against victim involvement in sentencing, emphasizing the importance of rationality, consistency, and objectivity in the application of the law. It highlights the potential for emotional biases and inconsistencies if victim impact statements are given undue weight, and it underscores the necessity of judicial discretion based on a clear understanding of legal principles. The essay uses legal principles from the Rule of Law to explain why victim's say should not be taken into consideration in sentencing. Furthermore, the essay considers the need for consistent sentencing practices and the potential for unfairness if sentencing decisions are influenced by factors other than the nature of the offense and the offender's actions. In conclusion, the essay synthesizes these points to advocate for a sentencing process that prioritizes fairness, impartiality, and adherence to established legal standards, ultimately concluding that victims' statements should not be the primary factor in determining sentences.

Introduction
Sentencing is the most debated topic in Australia with regards to punishment and penalty;
mostly in the media and social media. Sentencing should be mandatory and there’s need to
introduce three strikes rule. Parole should be short, and bail replaced by remand. Victim impact
statements are allowed by legislation. A victim impact statement is written by either a primary
victim, a family victim or a representative of the victim. The statement outlines the impact that a
crime has had on the victim after the offender has been convicted and is to be sentenced
(Robinson 2001 p.749). The following paragraphs indicate the reasons why victims should not
be allowed to have a say in a sentence.
The law should and must be rational. Given the irrational feelings felt during court
proceedings, especially by the victim, it would be difficult for the victims to have a say in a
sentence. For instance, a strong form of victim sentence may reflect the capabilities of the victim
and win a longer sentence in cases where the victim impact statement is given weight in
sentencing. The rule of law should ensure equality and neutrality. Sentencing should, therefore,
be left in the hands of a judge to ensure there is fairness.
Victims have no understanding of the principles of law (Bandes 2016 p.40). During
sentencing, the prosecutors make references to certain chapters and clauses from the constitution.
The victims are usually not aware of such, and that may result in non-compliance to the rule of
law. For example, there are minimum years of sentencing associated to certain offenses which
must be followed to the latter. Therefore, sentencing should be left in the hands of the judges as
they have a clear understanding of the principles of the law.
Sentencing should be objective. There are a number of factors for imposing sentences
such as punishment, rehabilitation, protection of the community and deterrence as well as

recognition of the harm done to a victim (Bandes 2017 p.225). Such objectives have to be taken
into consideration in light of the offense itself, unlike a victim's statement which in some cases
may be targeting revenge. Consequently, in imposing a sentence to the offender; some of the
objectives must be met.
There should be consistency in sentencing. Punishment is an essential element of the
criminal justice process and gains a legal dimension through connection between criminal
sanctions and penalty. The same offense carried out under similar conditions should result in a
similar penalty. However judicial discretion plays a pivotal role in sentencing whose basis for
non-legislation is found in the third characteristic of the Rule of Law. (Van Camp & Wemmers,
2016 p 415). However, there are cases where victims do not give their statements which may
result in inconsistencies in sentencing. Hence, sentencing should be left to the courts to ensure
consistency.
In conclusion, the need for rationality, consistency, objectivity and a clear understanding
of the law point out to the reasons why victims say should not be taken into much consideration
in sentencing.

References.
Bandes, S., 2017. Empathy, narrative, and victim impact statements. In Nussbaum and Law (pp.
225-276). Routledge.
Bandes, S.A., 2016. What Are Victim-Impact Statements For? The Atlantic.
Robinson, P.H., 2001. Should the Victims' Rights Movement Have Influence over Criminal Law
Formulation and Adjudication? McGeorge L. Rev., 33, p.749.
Van Camp, T. and Wemmers, J.A., 2016. Victims’ reflections on the protective and proactive
approaches to the offer of restorative justice: The importance of information. Canadian Journal
of Criminology and Criminal Justice, 58(3), pp.415-442.