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55 In both criminal and juvenile court, emotional appeals and subjective recommendations complicate attempts to make decisions based on reason and to maintain, as much as possible, objective responses to similar cases. For example , victim impact statements (VISs) bring emotion directly into sentencing hearings when victims, with the help of their advocates, convey the physical, financial, and psychological effects of a crime upon their lives. When the Supreme Court in Payne v. Tennessee (1991) rejected the defense’s argument that victim impact evidence violated Eighth Amendment protections against cruel and unusual punishment, it opened the door for VISs to be presented in all sentencing hearings, regardless of whether offered in a capital or a noncapital case, whether the judge or a jury decided punishment, or whether a trial or a plea negotiation preceded sentencing (see, for example, Finn-DeLuca 1994; Stickels 2000–2001). In turn, the juvenile court, in which cases of child neglect and abuse (CHIPS [Child in Need of Protection or Services]) cases are heard, is by its very nature “such an emotional court,” as one judge described it, where “decisions that judges make . . . have the ability to have such a profound impact one way or the other on the child.”1 For the parents involved, “especially those who have been primary caretakers, loss of custody of their children is the most frightening thing they can imagine,short of death”(Erickson 2005,87).Whereas the VIS is often the main instrument that brings emotion into the criminal courtroom, CHIPS cases in juvenile court begin and end with parents’ worries, children’s confusion, and the judges’ recognition that personal stakes are very high for families. The effect of the Payne case on sentencing hearings and the open acknowledgment of the emotional nature of the juvenile court, however, do not resolve 3 Reason and Emotion, Objectivity and Subjectivity, in the Courtroom 56 | Victim Advocacy in the Courtroom the persistent reason/emotion and objectivity/subjectivity dichotomies that characterize the legal system. Lucinda Finley (1994) characterizes the results of this persistence: the law “is a language firmly committed to the ‘reason’ side of the reason/emotion dichotomy” and therefore “demands that we try to speak within its confines—it threatens us with not being heard or credited if we do not” (119). To be emotional or subjective before the law is “to fail to process information rationally”and therefore make“erroneous judgments”and engage in unreasonable problem solving, agrees Catherine Lutz (1988, 60). Those advocating for victims and families in both criminal and juvenile court often choose tactics that initially accommodate but may ultimately resist the normalization of reason and objectivity within the legal system, a system that has developed technologies of power to sustain such normalization. We begin this chapter by discussing the genres designed to normalize reason and objectivity, specifically sentencing guidelines in criminal court and case plans in juvenile court. In a way, we explore these genres to set up the façade of reason and objectivity in the beginning of this chapter only to break it down throughout the rest of this book, often through judges’ and advocates’ own reflections. We first expose the cracks in this façade by looking at judicial reactions to expressions of grief, anger, and compassion within VISs from the perspective of courtroom emotionology. Next, we focus on the results of the investigative work of guardians ad litem (GALs) to reveal how GALs display an awareness of the balance they must achieve by providing objective recommendations that are often rooted in very subjective accounts of their interactions with parents, children, and related parties. Understanding these dichotomies of reason/emotion and objectivity/subjectivity is foundational to an exploration of how victim advocates and GALs navigate the power/knowledge systems in criminal and juvenile court. Sentencing Guidelines in Criminal Court Contrasting judicial reactions to the legislated right of victims to give VISs reveals basic problems created by reason/emotion and objectivity/subjectivity dichotomies in criminal court. Some judges believe that the goals of the VIS and the legal system can align. As one judge said, “You know, the court is there to redress wrongs. And one of the wrongs for victims is emotional distress, and I think that being allowed to make a record on what happened to you and how you feel about it is one way of dealing with the emotional distress.”2 And so, as Samuel Pillsbury (1988–1989) points out, determining punishment naturally [3.21.76.0] Project MUSE (2024-04...

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