William and Mary Law School

An Excerpt from "Allocution for Victims of Economic Crimes"

An excerpt from Professor Jayne Barnard’s "Allocution for Victims of Economic Crimes" (Notre Dame Law Review 2001) is below.  For the full article, please click here.

Introduction

Since 1994, the Federal Rules of Criminal Procedure have required federal courts to entertain in-court victim impact testimony as part of the sentencing process. However, this testimony (also known as victim allocution) is required only in cases in which the defendant is guilty of a crime involving violence or sexual abuse.

This Article argues that this limitation on the ability of victims of non-violent crimes to have access to the courts for purposes of allocution is unwise and inappropriate. Federal courts should be required to entertain in-court victim impact testimony in cases involving nonviolent crimes as well as in cases involving violent crimes. Specifically, in-court victim impact testimony should be required in cases involving economic crimes such as mail fraud, wire fraud, securities fraud, telemarketing fraud, and “identity theft.” Victims of other federal felonies, to the extent they are clearly identifiable as victims, should also be entitled to victim allocution.

The background for this proposal is simple. Experience in economic crime cases demonstrates that victims of these types of crimes often feel just as violated, anxious, confused, betrayed, and depressed as do victims of violent crimes. Often they are the kinds of “vulnerable victims” recognized in the U.S. Sentencing Guidelines, yet they have few resources by which to express their vulnerability or to feel they have had a real impact on decisions relating to their victimizer’s fate.

Federal prosecutors often invite victims of economic crimes to recount their experiences in writing, in order to lend weight to a request for restitution, an enhancement of the defendant’s sentence, or an upward departure from the Sentencing Guidelines. Frequently, federal judges will include specific references to these written declarations in the course of the sentencing process. What I am proposing in this Article involves a greater commitment to victims of non-violent crimes, however—a legislatively-assured opportunity to be heard in open court.

The purpose of this proposal is three-fold: (1) to permit the victim to regain a sense of dignity and respect rather than feeling powerless and ashamed; (2) to require defendants to confront—in person and not just on paper—the human consequences of their illegal conduct; and (3) to compel courts to fully account in the sentencing process for the serious societal harms—harms that go well beyond issues of money—that economic crimes often impose.

The theories underlying this proposal are those that recognize the “expressive” and “educative” functions of sentencing, in addition to the deterrent and retributive functions. Victim allocution not only satisfies the public’s need for denunciation of offenders, but it can also serve as a platform for the moral re-education of the defendant.

At the same time, permitting fraud victims to tell their stories aloud and in public, rather than solely through the intermediation of a written document, can respond to victims’ needs for restorative justice. Most importantly, though, victim allocution should materially assist judges in reaching more appropriate sentencing decisions.