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10 C. Cal. Interdisc. L.J. 17 (2000-2001)
Narrating Pain: The Problem with Victim Impact Statements

handle is hein.journals/scid10 and id is 23 raw text is: NARRATING PAIN: THE PROBLEM
WITH VICTIM IMPACT STATEMENTS
ELIZABETH E. JOH*
[Not being allowed to make a victim impact statement] was the most
crushing feeling in the world. It was feeling like a secondhand citizen, like
a piece of evidence.
-Roberta Roper, mother of a murder victim'
Q: Could you tell the Court, Mrs. Johnson, how
the loss of Daralyn Johnson has affected you personally?
A: I would say probably devastation is the best
description. I think someone could probably have cut off
my right arm, and I would not have missed it as much as I
have   my   daughter   . . . [Her death] has required
psychological counseling.
.   I feel that it has been proven beyond a doubt
that Mr Fain is guilty, of taking the life of my daughter...
I feel that the death penalty is a fair penalty and I believe
that under the law it should be administered in a case such
as this.
-victim impact testimony in a capital murder trial2
I. INTRODUCTION: THE DIFFICULTY OF RULES FOR THE
HARDEST SUBJECT3
In retrospect, few would find that the Supreme Court's acceptance of
victim impact statements into the capital sentencing scheme is surprising.
The victims' rights movement has gained the status of a mini-discipline,
complete with its own idiom of victimology4 and a small cadre of
scholars. Yet the shift in attitude from the Court's 1987 decision in Booth v.
J.D. New York University School of Law, 2000; Ph.D. student, Institute for Law and Society,
New York University. I thank the Center on Crime, Communities, and Culture for its continued support,
David Garland for his seminars in which I had the opportunity to develop these ideas, and especially
Christine Harrington, for her comments and encouragement.
Nightline: Vctim Impact Statements (ABC television broadcast, June 10, 1991).
' State v. Fain, 809 P2d 1149, 1151-52 (Idaho 1991).
'This phrase refers to Robert Weisberg's comment on decisionmaking in death penalty cases in
which he states: Capital punishment is at once the best and worst subject for legal rules. The state's
decision to kill is so serious, and the cost of error so high, that we feel impelled to discipline the human
power of the death sentence with rational legal rules. Robert Weisberg, Deregulating Death, Sup. CT.
REV. 305, 308 (1983).
'Martha Minow, Suniving Victim Talk, 40 UCLA L. REv. 1411, 1416 (1993).

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