Controversies in Victimology

Laura Moriarty

• Éditeur: Routledge
• Année: 2008
• ISBN:
  9781317523710
• Édition: 2
• Sujet: Droit
• Sous-sujet: Droit pénal

Controversies in Victimology features original works of noted scholars and practitioners, aiming to shed light on the debates over, the media attention on, and the psychology behind victimization. This book discusses the controversies from all sides of the debate, and attempts to reconcile the issues in order to move the field forward.

Chapter 1
Balancing Criminal Victims’ and Criminal Defendants’ Rights

Gregory P. Orvis and John David Reitzel

Criminal Victims’ Rights

What was once a loosely connected network of a few crime victims’ rights groups in the early 1970s has developed into a well-organized and politically powerful movement; one that can now claim numerous legal victories and an even greater influence on the political and criminal justice processes. As a direct result of this increased power, every state and the federal government now has at least some crime victim protection laws on the books and 33 states have victims’ rights amendments in their constitutions (Office of Justice Programs, 2007).

Federal legislation, such as the Justice for All Act of 2004, and calls by the past two presidents for constitutional amendments protecting crime victims’ rights, attest to the movement’s political influence at the national level. The legal achievements in recent decades also lend credence to the myriad claims that crime victims have long been ignored, betrayed, or even scorned by the criminal justice system. The sheer number of legislative victories is particularly noteworthy because it has occurred in an era where serious violent and property victimization declined an astounding 41 percent from its highest peak in 1994.

Yet this movement is much less about numbers than about how victims of serious crime are treated by a criminal justice system in which they have become unwilling participants. Unlike the protections for criminal defendants, victims’ rights were not specifically enumerated in the Constitution at its inception or in any of the subsequent amendments thereafter. Indeed, throughout most of U.S. history the criminal defendant has been given the lion’s share of legal protections. It is for these reasons and others that crime victims strongly proclaim that the scales of justice are unbalanced (Jackson, 2003).

Although President Reagan was among the first modern presidents to vocally advocate on behalf of victims’ rights, it was President Clinton who first called for a constitutional amendment guaranteeing such rights. And while this did not come to pass during Clinton’s presidency, only one year after taking office, President Bush made a similar push for an amendment introduced by Senators Kyl and Feinstein. Speaking at the Department of Justice in 2002, Bush outlined his support and captured some of the key issues for crime victims:

The victims’ rights movement has touched the conscience of this country, and our criminal justice system has begun to respond, treating victims with greater respect. The states, as well as the federal government, have passed legal protections for victims. However, those laws are insufficient to fully recognize the rights of crime victims. Victims of violent crime have important rights that deserve protection in our Constitution. And so today, I announce my support for the bipartisan Crime Victims’ Rights amendment to the Constitution of the United States. As I mentioned, this amendment is sponsored by Senator Feinstein of California, Senator Kyl of Arizona — one a Democrat, one a Republican. Both great Americans. This amendment makes some basic pledges to Americans. Victims of violent crime deserve the right to be notified of public proceedings involving the crime. They deserve to be heard at public proceedings regarding the criminal’s sentence or potential release. They deserve to have their safety considered. They deserve consideration of their claims of restitution. We must guarantee these rights for all the victims of violent crime in America. The Feinstein-Kyl Amendment was written with care, and strikes a proper balance. Our legal system properly protects the rights of the accused in the Constitution. But it does not provide similar protection for the rights of victims, and that must change. The protection of victims’ rights is one of those rare instances when amending the Constitution is the right thing to do. And the Feinstein-Kyl Crime Victims’ Rights Amendment is the right way to do it.

As President Bush’s statement demonstrates, “victims’ rights” are equally important to the long-standing “due process” rights guaranteed to criminal defendants by the Bill of Rights. While Congress has been unable to muster a majority to pass the Feinstein-Kyl amendment, they did the Justice for All Act in 2004, which some victims’ groups suggest is the strongest federal victims’ rights legislation in history (Maryland Crime Victims’ Resource Center, 2007). Also, considering that there have been only 27 amendments to the Constitution in its more than 230-year history, a constitutional amendment guaranteeing victims’ rights would nevertheless be quite an accomplishment, if successfully implemented, for a political movement that is not even 25 years old.

In 1931 the National Commission on Law Observance and Enforcement noted that the administration of justice suffered because of the great economic and psychological burdens placed on those who testify in court, however, the first victim/witness assistance programs were not initiated until the mid-1970s, when the Law Enforcement Assistance Administration funded the first 10 programs, which have now expanded to more than 600 programs and more than 5,000 yearly grants under the federal Office of Victims of Crime (OVC) (Office of Justice Programs, 2007; Roberts, 1991). However, it can be argued that the victims’ rights “reform” movement did not become prominent until 1982 when California voters adopted “Proposition Eight,” which was state legislation that included a victims’ bill of rights (Friedman, 1984).

Since that time, the victims’ rights movement has been largely responsible for Congress passing the Victim and Witness Protection Act of 1982, which makes the granting of victim restitution a norm in federal sentencing; the Victims of Crime Act of 1984, which established a federally financed victim compensation fund and now dispenses hundreds of millions of dollars in the form of victims’ compensation, assistance, and grants; a package of victims’ rights legislation as part the Justice Assistance Act and the Violent Crime Control and Law Enforcement Act of 1994; and most recently the Justice for All Act in 2004, which enhanced protections in federal crimes and provided additional funding for witness and victim protection (Office of Justice Programs, 2007; Leahy, 2004; Orvis, 1998; McMurry, 1997).

Today, the federal system and many state systems require that a trial judge read victim impact statements prior to sentencing a convicted criminal defendant (Holman & Quinn, 1996). The federal system and more than 40 states have passed laws requiring victim notification of the offender’s trial, sentencing, plea bargain, and parole proceedings. Most states limit these actions to only victims of certain crimes, such as felonies, violent crimes, adult offenders, or crimes specifically enumerated in the law (Tobolowsky, 1999). Twenty-six states grant victims the right to be heard during a hearing on the acceptance of a plea agreement and 35 states give victims the right to attend even the disposition hearing of a juvenile in felony cases. Furthermore, 49 states have laws requiring HIV testing of certain sex offenders and all 50 states require convicted sex offenders to register with public officials, with 48 of these states requiring community notification of the release of sex offenders or allowing community access to sex offender registration information (National Center for Victims of Crime, 2007).

After the vigorous lobbying of state legislatures by victims’ rights groups, 33 states have enacted a victims’ rights amendment to their state constitutions.¹ Some of the rights granted to victims by their state constitutions seem to be common courtesy, and are often already provided by victim/witness services, such as Missouri providing its crime victims “the right to information about how the criminal justice system works, the rights and availability of services, and upon request of the victim, the right to information about the crime” (Constitution of Missouri, 1999, art. I, sec. 32-7). Other examples are New Mexico’s provisions for the crime victim to have “the right to have the prosecuting attorney notify the victim’s employer . . . of the necessity of the victim’s cooperation and testimony” and “the right to promptly receive any property belonging to the victim that is being held for evidentiary purposes” (Constitution of New Mexico, 1999, sec. 24-10 & 11).

The vast majority of victims’ rights established by state constitutional amendments, however, guarantee the victim active participation in the criminal justice process. Some states take a general approach toward the handling of victims, such as Indiana’s constitutional amendment that provides, “Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused” (Constitution of Indiana, 1999, art. I, sec. 13b). A few states, like Colorado, are more abstract than that, merely stipulating that a victim will be heard at all “critical stages” of the criminal justice process (Constitution of Colorado, 1999, art. II, sec. 16a; Constitution of Florida, 1999, art. I, sec. 16).

Other states’ victims’ rights amendments have provided specific privileges to crime victims, such as in Wisconsin where victims are guaranteed: (1) timely disposition of the case; (2) the opportunity to attend court proceedings unless sequestration is necessary for a fair trial; (3) reasonable protection from the defendant; (4) notification of court proceedings; (5) the opportunity to confer with the prosecutor; (6) the opportunity to make a victim’s impact statement at sentencing; (7) victim’s restitution; (8) victim’s compensation; and (9) notification about the outcome of the case (Constitution of Wisconsin, 1999). Another specific right sometimes granted state constitutional protection is included in Alaska’s provisions on the “Rights of Crime Victims,” which is notification about the crime offender’s escape or release after conviction (Constitution of Alaska, 1999). Arizona’s state constitution includes possibly the most rights for victims, including rights to be heard at any postarrest release or plea negotiation proceeding, to be heard at any post-conviction proceeding when release is being considered, and to read the accused’s presentence reports (Constitution of Arizona, 1999). Louisiana goes one step further and allows the victim to comment on the presentence report (Constitution of Louisiana, 1999). South Carolina even goes further with allowing the crime victim “reasonable access after the conclusion of the criminal investigation to all documents relating to the crime against the victim before trial” (Constitution of South Carolina, 1999, art. I, sec. 24-A8). Furthermore, some states, such as Idaho, give the same rights to victims when the offender is a juvenile (Constitution of Idaho, 1999).

The Victims’ Bill of Rights in some states evokes change in criminal procedure and evidence laws. California’s “Right to Truth in Evidence” provides that, “relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court” (Constitution of California, 1999, art. I, sec. 28d). Arizona provides a right to victims to have all rules governing criminal procedure and the admissibility of evidence amended to protect victims’ rights (Constitution of Arizona, 1999). Mississippi leaves the door open for further “reform” by stating, “The legislature shall have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed victims by this section” (Constitution of Mississippi, 1999, sec. 26A3). It should be noted, however, that some states, such as Alabama and Kansas, limit these victims’ rights “to the extent that these rights do not interfere with the constitutional rights of the person accused” (Constitution of Alabama, 1999, amend. 556a; Constitution of Kansas, 1999, art. 15, sec. 15a).

Even the courts have succumbed to the lobbying by the victims’ rights movement. Traditionally, interest groups have sought to influence the decisions of the judicial branch through either amicus curiae (i.e., literally translated, “friends of the court”) briefs or through the sponsorship of test cases (Epstein, 1991). It has only been in the past decade, however, that cases involving statutes providing victims’ rights have reached appellate courts in any great number. Although hesitant at first, state and federal appellate courts have generally upheld statutory provisions allowing greater victim access and participation in the criminal justice process, often balancing them against the defendant’s due process rights (Tobolowsky, 1999). The U.S. Supreme Court upheld the statutory right of victims to make impact statements during sentencing unless it was shown that the statements were so prejudicial as to make the process fundamentally unfair (Payne v. Tennessee, 1991).

Despite these lobbying successes, victims’ rights groups, now about 8,000 strong, continue to press for an amendment to the United States Constitution (Ben-David, 1996). They reason that only a federal amendment would bring into “balance” the scales of justice, which they believe are tipped in favor of the criminal defendant. Furthermore, a constitutional amendment to the U.S. Constitution would guarantee that crime victims’ rights would be enumerated and protected like the Bill of Rights protects the rights of those accused of crimes (McMurry, 1997). Thus the joint resolution presently before the House of Representatives for an amendment to the United States Constitution takes the latter approach to victims’ rights by proposing specific privileges:

Each individual who is the victim of a crime for which the defendant can be imprisoned for a period longer than one year or any other crime that involves violence shall have the rights—

• to reasonable notice of, and not exclusion from, any public proceedings relating to the crime;
• to be heard, if present, and to submit a statement at all such proceedings to determine ...