By Sandy Rozek . . . Testimony from individuals at a sentencing hearing has one primary purpose: to give the court additional information on which to base a sentencing decision.
Victim impact statements focus on the harm done, while statements on behalf of the convicted are intended to paint as thorough a picture as possible of the person, with an appeal to mitigating circumstances.
A sentencing hearing recognizes that an individual is more than the crime for which he or she has been convicted, more than the harm that he or she has inflicted on another or on society. People are encouraged to give testimony that better gives the court a feel for the totality of the person about to be sentenced.
Kristie Torbick, through a plea agreement, was convicted in early July 2018 for the sexual assault of a student, one whom Ms. Torbick in her position as a guidance counselor at Exeter High School in Exeter, New Hampshire, was counseling.
At her plea-and-sentencing hearing, colleagues and friends did what colleagues and friends do at sentencing hearings: Some had written letters; others spoke on her behalf. They were not supporting her choice to commit a crime. They were not supporting her illegal behavior. They were supporting her as an individual whom they knew to be more than someone who had crossed a line that should not be crossed.
One said she was the strongest school counselor in the department. Another spoke of her skill in dealing with troubled students and dedication to her profession. A former university professor said she was one of the top high school counselors in the state, and co-volunteers at a summer camp for children with cancer praised her abilities with these especially fragile children. Among the writers of 23 letters offered on her behalf were college professors, high school guidance counselors, attorneys, and psychologists.
These persons immediately came under fire for their support of Kristie Torbick. At this point, at least three of the persons have lost their jobs over this, and more are being investigated. Parents of students are demanding additional firings. A law firm has been hired by the school district to investigate the situation.
When people are afraid of losing their jobs for speaking their beliefs at a sentencing hearing, the entire judicial process is disrupted. If in court we are not safe sharing, through the spoken and the written word, what we know and believe about an individual, where are we safe? It is an abomination for persons to be forced to choose between risking their livelihood and following the dictates of their consciences in performing a civic and humanitarian duty.
The totality of the judicial system should be alarmed. A dangerous, dangerous precedent is being set.
The only foreseeable result of this is a snowball effect that will be detrimental to the entire system. With the threat and the intimidation of the loss of their jobs hanging over their heads, who would bravely step forward in defense of anyone convicted or even accused of not only the crime that society has decided is beyond redemption, a sexual offense against a minor, but any crime against which public indignation is aroused?
The premises on which our sense of fair play rests are in jeopardy.
Victims of crime are entitled to their day in court. They have the power of the state representing their interests. The accused is entitled to certain constitutional protections that the court is responsible for assuring. At sentencing, victim impact statements are allowed with the purpose of influencing the court against the now-convicted person. If words intended to offer mitigating factors to the court on behalf of the convicted are repressed with intimidation and fear, the process is corrupted.
The totality of the justice system should be not only alarmed but outraged. New Hampshire Citizens for Criminal Justice Reform, a state affiliate of the National Association for Rational Sexual Offense Laws (“NARSOL”) is closely monitoring the situation, especially whether more people lose their jobs over this. They may be reached here.
Peripherally intersecting this case is that of a man named Kevin Patrick Smith. At a recent sentencing hearing in Oregon for a former minister convicted of surreptitiously photographing girls in the bathroom and the shower at church retreats, Smith, the father of a victim, attacked the convicted man and pummeled him in the face until courtroom security pulled him off. The injuries included broken bones and required hospitalization.
Smith gave a statement to the press saying that what enraged him to the extent that it did were statements given in support of the convicted man, especially one that said he has found him to be a “…remarkably kind, giving human being.”
It appears that anyone giving testimony favorable to a convicted sexual offender at a hearing now must consider the possibility of losing his job AND being physically assaulted. Smith could just as easily have turned his rage and his fists on the witness.