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Chapter 6

Dynamics of the Criminal Justice System and the Current Status of Victims' Rights

Abstract: The criminal justice system involves many different agencies and individuals. Each of these has specific roles and responsibilities within the system. The victims' role within the system must be understood in this context. In large part, legislatively established "rights" provide victims with the means to make the system more accountable to them.

Learning Objectives: Upon completion of this chapter, students will understand the following concepts:

1. The basic roles and responsibilities of professionals along the criminal justice system continuum.

2. The interactions among these individuals and entities, and how these can assist victims.

3. The basic tenants of victims' rights legislation.

Among the most basic functions of civilized society is the protection of its citizenry from criminal victimization.

In modern day, the primary responsibility for protecting innocent citizens from those who would harm them rests with the criminal justice system. The criminal justice system involves many components that are reviewed in this chapter. The effectiveness of this system relates directly to the appropriate balancing of rights, roles, and responsibilities of the various participants within the system.

In his preface to The Price of Perfect Justice, Macklin Fleming (1974) reminds us that "the Goddess of Justice is traditionally depicted holding in one hand the scales of justice, with which she weighs the right, and in the other the sword, with which she executed it." The criminal justice system involves a delicate balance among its many components in the search for truth and justice. This chapter discusses the dynamics of this balance among the various professionals within the criminal justice system, and how the victim of crime figures into these dynamics.

There are many elements and "players" within the criminal justice system that need to be understood if one is to effectively advocate for the rights of victims of crime. Of course, a fundamental precondition is that many of these rights have been established within the legislative and case law framework in different states.

Assuming certain basic rights and protections are in place, then the victim and his or her advocate has some foothold to enforce these rights. Those primarily responsible for assuring victims are afforded the protections and assistance they deserve are criminal justice system professionals.

The criminal justice system, at its fundamental level, includes:

• Law enforcement
• Prosecution
• Defense counsel
• Judiciary
• Probation
• Institutional corrections
• Parole
  

In addition, victims are often involved in cases where the perpetrator is a juvenile who is served by professionals in the juvenile justice system. Moreover, there are allied professions that are often brought to bear on the criminal justice system, such as mental health professionals, child welfare workers, medical professionals, and others. The dynamics between each of these components and professional perspectives within the system need to be understood to best protect victims' rights.

Need for Improved Treatment of Victims

Victims of crime have generally been treated less than adequately within the criminal justice system, particularly in modern times. The historic vestiges of a victim-oriented or victim-driven system, with private prosecution or so called "vigilantism" justice, have given way over the last decades to an offender-based criminal justice system. (See, e.g., Carrington (1975) and Shapland (1985), and Wallace, this publication, Chapter 3). Much progress has been made in recent years to begin balancing the system to provide victims with rights and services (Carrington, 1975: Shapland, 1985). In order to continue these important efforts, victims and their advocates must understand and learn to work with the delicate balance among the various entities within the criminal justice system.

Victims and the Criminal Justice System

Victims of crime deserve rights and services in the criminal justice system that begin at the point of reporting crime to the police, and continue through the entire criminal justice and corrections processes.

The criminal justice system is charged with processing cases from the point of victimization, through investigation, arrest, prosecution and sanctions. At each point along this continuum, criminal justice agencies and professionals have opportunities and obligations to provide victims with assistance, services and accommodations to ease their difficulties in what is already a very trying, tragic time. The criminal justice system can minimize and avoid inflicting "secondary victimization" that has often characterized much of the plight of victims of crime.

Access to Services

Access to services is an extremely important component of any service delivery plan, and depends greatly on the physical location and accessibility of such services. For example, police officers should be trained and updated on a regular basis about existing victim service programs -- including 24-hour emergency crisis response and shelter -- and how to make appropriate referrals. Court-based advocacy programs should be established in all adult and juvenile court facilities. Probation officials must guarantee that crucial victim impact information is incorporated into their recommendations to the court relevant to an offender's sentencing and community supervision plan. Correctional institutions should include important victim information -- such as notification requests and victim impact statements -- in offender files or databases, with security precautions established to protect victim confidentiality. Paroling authorities should encourage and accept victim impact statements, and offer victims whatever reasonable protections they request if an offender is released to parole supervision.

Training and Technical Assistance

Victim sensitivity training should be provided to all criminal and juvenile justice professionals, as part of mandatory orientation educational programs, as well as continuing education. Such training should include, but not be limited to:

• The scope of crime and victimization.
• The trauma of victimization, with an emphasis on responses that are unique to different types of victims.
• Victims' rights accorded by constitutional and statutory mandates, as well as by agency policy.
• The short- and long-term needs of victims (physical, financial and psychological), with a focus on why appropriate referrals for follow-on assistance are so important.
• Cultural diversity and sensitivity.
• The need for multidisciplinary approaches to victim assistance and services from the criminal justice system -- including the use of inter-agency agreements that stipulate the various agencies' roles and responsibilities -- to ensure a "seamless" delivery of services.
• The role of allied professionals in enhancing criminal justice-based victims' rights and services.

"Cross training" is also essential to improving the delivery of services to victims within the criminal justice system. Just as service providers want criminal justice system officials to be knowledgeable about and consistent in their enforcement of victims' rights, criminal justice system officials want victim advocates to understand the scope and processes of the criminal justice system. Orientation, continuing education and cross training help guarantee that the criminal justice system continuum includes and involves victims and their concerns.

Core Components of Victim Services

All agencies along the full continuum of the criminal justice system should develop a comprehensive system of services that is "victim-centered." The National Victim Center, through an Office for Victims of Crime-sponsored project entitled Focus on the Future, has identified nine core components of an effective criminal justice-based victim assistance program. These components are designed to help victims navigate the criminal justice process, afford victims their legal rights, and make their overall participation less intimidating and burdensome.

There are nine core components of comprehensive victim services in the criminal justice system. These services, which can be multidisciplinary, include:

1. Orientation to the criminal justice system and process.

2. Assistance to victims and witnesses who must testify.

3. Crisis intervention.

4. Information about individual case status and outcome.

5. Assistance with compensation and restitution.

6. Facilitating victim participation in the criminal justice system.

7. Facilitating property return.

8. Information about and referral to community services.

9. Education and training for the public, justice system personnel, and other local service providers about the needs and rights of victims in the criminal justice system.

In addition, witness coordination and post-disposition services are very important.

Basic services should be available at every stage of the criminal justice process for victims and witnesses, as described below. It is important to note that these victim services can be provided by multiple agencies or through multidisciplinary efforts.

Law Enforcement

Evolving from the earlier vestiges of sheriffs or constables, modern police forces are highly structured organizations that are accorded considerable authority, particularly the power of arrest that is provided each sworn law enforcement officer (Pacific Law Journal, 1992). Law enforcement agencies have traditionally addressed issues involving the general welfare of the public at large. As noted in Ryan (1994), in 1829, Sir Robert Peel included the following in his basic tenets of policing:

"To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen, in the interest of community welfare. . . ."

As the "first responders" to most crimes, police departments serve a critical and primary role in providing immediate intervention and assistance to victims of crime. Unlike most social service agencies, police departments are typically open every day of the year, 24-hours-a-day. As such, there is tremendous responsibility on the part of law enforcement officers and civilian personnel to provide sensitive and supportive victim services.

It is important to keep in mind that the three primary function of law enforcement are to:

• Protect life and property
• Prevent crime
• Apprehend offenders (Barlow, 1990)
  

Police Role in Victim Services

Although police departments today tend to provide more and better victim services, these services were not always part of traditional policing. The positive change on behalf of providing quality victim services has been very encouraging; however, many police officials have perceived their victim assistance responsibilities as a secondary responsibility, at best.

Victim sensitivity training for police officers comprises an important improvement. Historically, police academies have not provided adequate training for law enforcement personnel regarding victimization and the effect violent crime has on crime victims. This means that undertrained law enforcement personnel come into contact with an emotionally distraught victim, which can result in a combination of effects that decreases a victim's confidence and willingness to participate in the criminal justice system.

Much progress has been made over the last decade to increase law enforcement sensitivity to victims' issues. The establishment and expansion of law enforcement-based victim services programs have benefitted both law enforcement and victims. When effective victim service programs are provided through a police department, law enforcement officers are able to devote their time to the primary law enforcement responsibilities of investigating crimes and arresting suspects. Victims are well served because basic services are provided by law enforcement. This is extremely important because in a large majority of crimes, no perpetrator is ever apprehended. This means that court-based programs will never come into contact with large numbers of victims. Their only hope for assistance from the criminal justice system would be at the police-based level.

The move toward community policing in many jurisdictions has important implications for victims and those who serve them. With more officers visible and active on the street and in neighborhoods, the delivery of victim services can be provided more swiftly, and involve supportive advocacy from all facets of a neighborhood or community (such as businesses, churches and social services).

The Specific Roles and Responsibilities of Law Enforcement Officials

to Victims of Crime

Police-based services provide essential assistance to victims of crime. These include on-site crisis intervention and securing emergency medical assistance. Additionally, law enforcement programs may provide information and referrals to services and resources that can aid in a victim's short and long-term reconstruction. Essential services should include, but are not limited to:

• Orientation to the law enforcement and investigatory process.

• Provision of or referral and accompaniment to crisis intervention and psycho-logical first aid.

• Accompaniment to emergency medical services in cases involving injury.

• Contacting a victim service professional to provide on-site assistance and support, upon request from the victim.

• Providing information to crime victims about their constitutional and statutory rights, and the availability of crime victim compensation.

• Securing the victim's property if personal safety has been compromised as a result of crime.

• Personally contacting the victim by telephone or in person 24-to-48 hours following the initial response to see if assistance has been sought and/or received.

• Immediate referrals (verbally and in writing) to community agencies that offer emergency services to victims, as well as information about financial assistance, should be provided to all victims. For example, a brochure should be developed in different languages and given to victims that includes information about emergency and long-term services and victim compensation.

Law enforcement agencies should also establish and enforce strict property return protocol and procedures. This should be a standardized, jurisdiction-wide program -- closely coordinated with prosecutors' offices and the courts -- that can eliminate potential confusion about exactly which property return rights and procedures are enforced by different law enforcement agencies.

Essentially, police-based services, when adequately staffed and funded, can provide critical assistance and information to victims as they progress through the criminal justice system.

Perhaps most important, every law enforcement agency -- at the federal, state and local levels -- should assign a staff member to serve as a liaison to crime victims and victim services. This designation will enhance all roles and responsibilities described above, and will coordinate and streamline the victims' rights and the delivery of victim services.

Prosecution

When law enforcement has investigated a crime and a suspect has been arrested, the cases are then referred to prosecutors. Although each state's laws and procedures provide for different ways to initiate a criminal action, this is usually handled through either an initial court appearance or some process leading to charging and arraignment. At this point, information regarding the investigation and facts of the crime is presented by law enforcement to the court with the assistance of prosecutors, and appropriate charges are levied against the defendant. When appropriate, he or she is "bound over for trial" on the charges levied.

Again, victim advocates should be mindful that the prosecutor's primary role is the successful prosecution of criminal cases. This is accomplished within specific budgetary and human resources limitations. Therefore, there is tremendous motivation to utilize the typically limited resources made available to prosecutors to dispose of each case in the most just, yet efficient manner possible. The motivation to dispense cases due to the typically overwhelming work load handled by most prosecutors' offices often comes into direct conflict with the needs and desires of individual victims, who want their particular perpetrator prosecuted to the full extent of the law. However, victims' expectations are often not fulfilled, and the case is disposed of early on, most often through the use of a plea negotiation, usually referred to as plea bargaining.

Plea Bargaining

Plea bargaining allows the defendant to avoid a trial and the possibility of a verdict that may result in a more severe sentence by agreeing to plead guilty to a lesser offense. Victims are often most distressed at the perceived ability of the defendant to "get off easy" by bargaining with the prosecutor to lower the offenses of which they may actually be guilty. Many victims and advocates rightfully consider victim participation in the plea negotiation process as essential to providing victims with a voice in the system. Any plea negotiation should include an opportunity to present the impact of the crime on the victim -- a victim impact statement.

Trial

Assuming a case goes beyond the plea negotiation stage to trial, the defendant continues to receive basic protections found in the United States Constitution, state constitutions and various case law holdings. Volumes of materials are available on defendants' rights. These include, for example, the right to obtain all exculpatory evidence from the prosecution, which would tend to prove the innocence of the defendant. Also, the defendant has the right to confront and cross-examine his or her accusers. Often, this is very difficult for the victim, who must be well prepared to withstand the onslaught of cross-examination by often aggressive defense counsel. Defense counsel typically use methods that involve the strategy of "defense by distraction". This approach is based on the notion that in order to place any possible "reasonable doubt" within the minds of the jury, a defense lawyer will attempt to focus attention on any other possible factor than the defendant's own actions. If the defendant is not released on various technical violations of his or her rights that may arise (for example from search and seizure issues), attempts will be made to blame others for the situation. The police will be accused of other violations, society may be implicated as the true cause of the problem, and especially victims are often blamed for their "contribution" to their own victimization. This can be a very difficult time for victims, and they need to be well prepared and supported.

There are a number of services that can and should be provided by prosecutor-based victim assistance programs. The most important of these are appropriate notification programs regarding the status of the case and the delays that often occur in the progress of a criminal prosecution. Victims are most often distressed by the lack of progress in their cases and the need to rearrange their personal and work lives repeatedly to attend court hearings that are often delayed. Also, victims may require assistance in attending and participating in court proceedings, protection from intimidation and harm, basic orientation to the criminal justice system and their appropriate role within it, as well as other services and interventions that are described at length in other chapters. Of course, referrals to appropriate victim assistance and victim compensation programs should be made by the prosecutor's office.

The American Bar Association has provided numerous guidelines for prosecutors, and others within the criminal justice system regarding the incorporation of victims' rights and needs into daily practice. These various guidelines involving victims' issues are listed in the resource materials at the end of this chapter. Regarding prosecutorial roles, issues such as protection from intimidation and harm are recognized, as well as the effect of continuances and case delays, and notification services, and prosecutors' involvement in assisting victims in obtaining restitution. The ABA guidelines provide a useful compilation of victims' issues within the criminal justice system, and they are commended to the reader for further review (APA Guidelines; see also Kelly, 1991).

Specific Roles and Responsibilities of Prosecutors To Victims

While the prosecutor's role is to present the government's case to the court, and see that justice is achieved in every case forwarded to his or her office, many important activities rely upon the involvement of victims. Although they are not the "victim's attorney," prosecutors have opportunities to keep victims informed and involved, to provide appropriate accommodations in the pre-trial and court settings, and to follow-up with information and referral, as needed. These opportunities should include, but are not limited to:

• Providing orientation to the criminal justice process.

• Providing information about the criminal justice system and proceedings in simple, layperson's terms to help victims understand the maze of the criminal justice system. Victim information should be available in multi-lingual formats.

• Providing notification of case status at key stages of the criminal justice system.

• Sponsoring witness alert programs to place witnesses on "stand-by" to come to court appearances, thus saving victims time and money.

• Coordinating witness appearances, i.e. scheduling witnesses, providing witness fees, per diem fees and accommodations for out-of-town witnesses, as well as assistance with transportation.

• Sponsoring victim/witness information telephone lines to provide up-to-date information after hours to subpoenaed witnesses.

• Providing educational and accompaniment programs to familiarize victims with the courtroom.

• Providing a waiting area for victims and witnesses and their families in the courthouse that is separate by sight and sound from the offender. These areas must be "child-friendly," safe and secure.

• Offering assistance to victims in completing victim compensation applications.

• Coordinating the inclusion of victim impact information, i.e. written statements, allocution, audio or video statements, into court proceedings (including plea bargains, pre-sentence reports and sentencing) with probation and the judiciary.

• Offering employer, landlord, and/or creditor intervention services.

• Expediting the prompt return of property, closely coordinating such efforts with law enforcement.

• Providing intervention, protection and recourse to victims and witnesses who are being intimidated or harassed by perpetrators.

In addition, many prosecutors are establishing "vertical prosecution units," especially for domestic violence cases, where specially trained prosecutors maintain caseloads of one type of victimization. Vertical prosecutors work on cases from the initial filing of charges through disposition. This relatively new approach to administering justice streamlines this stage of the criminal justice system, for the victim. Instead of several prosecutors working on the case at various stages in the prosecution, one prosecutor is assigned the case from the point of charging through trial.

Judiciary

The judiciary is intended to be a neutral entity that oversees the progress of a criminal action. Judges should equally weigh and protect the rights of all parties involved in a criminal prosecution. Of course, a judge can typically only take actions that are specified by law and procedural rules, or otherwise are within the discretion mandated by law.

Judges can provide essential protections to victims. For example, when cases involve children, certain accommodations such as allowing the victim to testify through close circuit television or granting orders requiring defense counsel to lower themselves to the child's eye level and not raise his or her voice, as well as other methods of making the courtroom less intimidating to a child, can be ordered. Judges can also expedite trials so as not to further victimize the crime victim due to additional delays during an already difficult process. Judges can deny motions by the defense that are clearly aimed at offending the victims.

One common technique is for a defense counsel to subpoena the victims' family members as potential witnesses, request that the court order that witnesses be excluded from the courtroom (sequester) and then never call the victim's family to testify - thereby preventing their attendance in the courtroom. However, the defendant's family is allowed to sit in the courtroom, showing support for their family member who is on trial, while the victim's family appears to be uninterested in supporting the victim or the prosecution's case. Such motions can, and should, be denied.

Judges are empowered to sentence convicted criminals for the crimes for which they have been convicted. It is important that judges include information regarding the impact of the crime on the victim in their assessment of appropriate sentences. Often this information is provided through the prosecutor-based victim assistance program, a probation office, or another official source, and is typically referred to as a victim impact statement (VIS). VIS information is often the only comprehensive assessment of the injuries caused by the offender available to the judge; it is crucial that this information be conveyed to the sentencing court. Judges are also involved in various post disposition decisions, such as reconsideration of sentences and appeals.

Specific Role and Responsibilities of Judges to Victims

Judges can help assure victims are provided their rights under the law, as well as with adequate court-based services, which should include the following:

• Courtroom orientation for victims.

• Providing victims with physical waiting accommodations that are safe, secure and separate by sight and sound from the defendant or his/her family and friends.

• Considering victim impact information in all cases prior to sentencing (including in change of plea hearings if they do not coincide with the sentencing).

• Asking attorneys if they have consulted with the victim.

• Including any reasonable measures requested by the victim to ensure his or her safety and security, such as protection or "no contact" orders.

• Ordering restitution payments that are realistic, receiving priority above fines and other offender obligations.

• Ensuring that restitution orders do not "fall through the cracks" by developing a system of collection, disbursement, enforcement and victim recourse (that involves probation, the clerk of court, corrections and parole).

• In inter-familial criminal cases, ordering convicted offenders to pay financial obligations -- such as child support, costs of counseling, legal fees, or mortgage/

rent payments -- that help the victim gain independence from the perpetrator.

• Ensuring that all relevant victim information be included in convicted offenders' files -- with victim confidentiality and the security of this information guaranteed -- that are sent to probation, parole, or institutional corrections.

Finally, judges can steer their courts toward processes that are not only "offender directed," but "victim centered" as well. While conflicts can arise between the rights of the accused/convicted offender and crime victims, more often there is no disagreement about the importance of making participation the status quo for all participants in the criminal justice system.

Probation

Probation is often a condition of a plea bargain, or is the actual sentence handed down by a court following a trial. Prior to any agreement of probation, the probation officer should interview victims as part of the pre-sentence investigation (PSI) to determine the physical, financial and emotional impact the crime had on them. When an offender is sentenced to probation, he or she submits to community supervision from a probation officer. The probationer may be required to fulfill certain requirements -- called conditions of probation -- that might include: no contact with the victim; payment of monetary obligations to the victim, such as restitution, child support, mortgage payments, etc.; payment of fines (that often support law enforcement and victim services); no use of alcohol or other drugs (with an agreement to submit to random testing); specific treatment that addresses the probationer's criminal activities (such as sex offender treatment, alcohol or other drug counseling, anger management, etc.); and/or community service. While restitution payments are monitored by probation agencies, they are usually collected by the court.

An important condition of probation is that the probationer commit no new crimes during his or her period of community supervision. If a probationer violates any condition of his or her sentence, the probation agency can rescind or "revoke" probation, resulting in the offender's incarceration in jail or prison.

Specific Role and Responsibilities of Probation Officials to Victims of Crime

Probation officials' roles and responsibilities to victims should include, but are not limited to:

• Contacting victims to assess the psychological, financial and physical impact the crime had on them as part of the pre-sentence investigation (PSI).

• Incorporating any victim impact statement (allocution, written, audio or visual) into the official PSI report to the court.

• Determining any specific conditions of probation that will ensure the victim's safety and security.

• Soliciting victims' opinions relevant to appropriate community service sanctions for the probationer.

• Determining the amount of appropriate restitution payments, and developing a realistic schedule for the collection and disbursement of restitution to the victim. In some jurisdiction, probation officers are charged with physically collecting restitution payments, and forwarding them to victims.

• Supervising the probationer's involvement in any victim/offender programming, such as victim impact classes or panels, victim/offender mediation or conciliation, or "Impact of Crime on Victims" classes, that victims choose to participate in on a strictly voluntary basis.

• Notifying the victim of any probation violations that result in an offender's incarceration.

• Monitoring probationers to ensure full compliance with all conditions of probation that affect the victim's rights, safety and security, as well as the general orders of probation.

• Providing information and referrals to victims who require assistance.

• Participating in multidisciplinary efforts with other entities that comprise the criminal justice system to ensure a seamless delivery of rights and services to victims of crime.
  

Institutional Corrections

When a convicted offender is sentenced to a term of imprisonment, the state Department of Corrections or Federal Bureau of Prisons assumes responsibility for his or her supervision. The offender's file that contains details from the crime, court case and sentence, victim impact statement (when applicable), recommendations for treatment and services during the period of incarceration and personal information, is utilized as a basis for offender classification. The purpose of classification is to place the offender in the most appropriate incarceration setting (minimum, medium, maximum, or super-maximum facility). The Department of Corrections and institutions house the offender for his or her period of incarceration; implement and monitor work, educational and treatment activities available to inmates; and coordinate any release into the community with paroling authorities.

Over half of America's state corrections departments and the federal system now have victim service programs. All the roles and responsibilities enumerated below are generally sponsored and/or implemented by such programs.

Specific Role and Responsibilities of Institutional Corrections to

Victims of Crime

Corrections officials' roles and responsibilities to victims should include, but are not limited to:

• Obtaining relevant victim information -- including victim impact statements and protection orders -- from court documentation for inclusion in the offender's file.

• Protecting the confidentiality of victim information through protected automated databases or "flags" on paper files that delineate that this information is not available to inmates or their counsel.

• Providing victims and witnesses with information and recourse relevant to inmates who attempt to intimidate, harass, or harm the victim during their period of incarceration.

• Upon request, notifying victims of an offender's status, including but not limited to: current location, classification, potential release date, escape, or death.

• Implementing and monitoring victim/offender programming, such as victim impact panels, victim/offender mediation or conciliation, or "Impact of Crime on Victims" programs.

• In some departments (such as California), monitoring, collecting and disbursing restitution payments to victims and/or fines to state victim compensation programs.

• Ensuring that inmates receive programming that is commensurate with court orders relevant to victims, such as sex offender treatment, alcohol and/or other drug counseling, anger management, etc.

• Coordinating the physical location and logistics of parole release hearings with paroling authorities, victims, and victim service providers.

• Providing information and referrals to victims who require assistance.

• Participating in multidisciplinary efforts with other entities that comprise the criminal justice system to ensure a seamless delivery of rights and services to victims of crime.
  
  

Parole Agencies

When an inmate is released from prison, his or her reintegration back into the community is accomplished through the parole process (with the exception of the federal system and many states where parole has been abolished). Parole is the early release of prisoners, with conditions attached to that release that are designed to protect the safety of both the victim and the public. Parole is considered part of the prison sentence, but is served in the community. Violations of any conditions of parole can result in revocation, which means the offender will be returned to an institutional corrections setting. It is important to note that some states provide for sentences of "life without possibility of parole," which equates to incarceration until an inmate's death.

There are two main functions of paroling authorities: parole boards and parole agencies.

Parole Boards

The American Correctional Association lists four primary functions of a state parole board:

• Grant parole to prisoners.
• Supervise control of parolees.
• Discharge individuals from parole.
• Make parole revocation decisions.

In most states, paroling authorities are separate from the Department of Corrections. Parole board members in most states are appointed by and serve at the pleasure of the Governor. In some states -- including California, South Carolina and Virginia -- victims of violent crime serve as parole board members; each state varies in its number of board members.

Parole decisions can be made before a meeting of the full board, or at hearings that have panels of three or more members present. It is important to note that, in most states, decisions by which an inmate is considered for parole are guided by statutory requirements (state law) or by judicial decisions related to prison overcrowding.

Similar to probation, successful candidates for parole must agree to abide by certain rules, which include but are not limited to: not committing any crimes during the period of parole; honoring protective or "stay away" orders that prevent contact with the victim; submitting to random testing for alcohol or other drugs; finding and maintaining employment and housing; paying restitution and other financial obligations, including child support, fines and costs associated with their parole supervision; and/or limited driving privileges.

In most states, victims have the statutory and/or constitutional right to provide parole boards with victim impact information about how the crime affected them. Since many offenders are sentenced for the crimes which they plead to in plea negotiations, it is imperative that parole boards know the facts of the crime that was actually committed. This important input also provides victims with an opportunity to request certain conditions of parole that make them feel safer, such as protective orders or requests that the offender be paroled to a geographic location that is a certain number of miles away from where the victim resides. In most states, victim impact statements are not confidential, offenders can access the statements (with protections afforded to the victim's contact information).

Approximately half of states have victim service programs located in state parole agencies. These programs serve many important purposes, including providing victims with information and notification about a parolee's status, as well as with overviews of how the parole process works (and victims' rights that are inherent in this process). Such programs serve to make a system that has traditionally been "offender directed" also "victim centered."

Parole Agents

Parole agents (also called "parole officers") are responsible for monitoring the supervision of parolees. In most states, parole caseloads are astronomically high, resulting in limited supervision due to the lack of human and financial resources. The parole agent is responsible for ensuring that persons on his or her caseload comply with all requirements of parole. When any requirement is violated, the parolee can be subject to "parole revocation." When parole revocation is recommended by a parole agent, the parolee must submit to a hearing by the parole board (or other independent and neutral entity) to determine his or her status. Crime victims -- of either the original crime for which the parolee was incarcerated, or the crime for which the revocation is being processed -- are seldom notified of parole revocation hearings or outcomes.

Parole agents, in many states however, do have frequent contact with victims, especially in interfamilial crimes. It is essential that victims know who their offender's parole agent is, and how the agent can be reached 24-hours-a-day.

Specific Role and Responsibilities of Parole to Victims of Crime

Parole officials' roles and responsibilities to victims should include, but are not limited to:

• Providing victims with an overview of the parole process, including parole board hearings, community supervision, parole revocation, and all related victims' rights and services.

• Providing victims with the opportunity to submit victim impact statements to the parole board, including allocution, written, audio or video statements.

• Asking victims about any specific concerns they have related to their personal safety and security if an inmate is released to parole, and incorporating these reasonable concerns into parole conditions.

• When possible under state law, providing victims with the opportunity to personally present victim impact information to the board without the inmate present, and without providing access to such information by the inmate and/or his or her counsel.

• Continuing restitution orders emanating from judges or, in states where parole has authority, ordering restitution payments (and ensuring that such payments are collected, disbursed to the victim, and enforced).

• Ordering important payments that help victims in interfamilial cases seek financial independence, such as child support, money for legal counsel or mental health counseling, mortgage or rent payments, etc.

• Providing victims with contact information for parole agents and paroling board members.

• Providing information and referrals to victims who require assistance.

• Participating in multidisciplinary efforts with other entities that comprise the criminal justice system to ensure a seamless delivery of rights and services to victims of crime.
  

Allied Professionals

In addition to the core criminal justice system professionals discussed above, various allied professionals have a significant impact on the criminal justice system response to involving victims. These include, but are not limited to:

• Medical personnel
• Mental health service providers
• Child protection professionals

Doctors, nurses and other hospital personnel provide tremendous assistance to victims of crime. In addition to police officers, medical personnel, who are often also available 24 hours a day, seven days a week, are commonly the first ones to come into contact with crime victims who have experienced some form of injury. In their roles, they are uniquely suited to make careful documentation of the condition of the victim and objectively report these findings (much of which can be utilized as evidence in criminal cases).

Of course, the immediate and appropriate treatment of the victim is paramount; however, in the course of treatment, appropriate documentation provides useful information for prosecutors and victims in forwarding various criminal and other legal actions against the perpetrator. Of particular importance is the use of appropriate evidentiary collection kits to gather information in sexual assault and sexual abuse cases for later evidentiary use at trial. This needs to be done sensitively, but competently, so that the trauma of the rape examination is minimized and evidence is accurately collected.

Mental health professionals are often involved in providing testimony at trial regarding the impact of crime on victims. In addition to treating victims, mental health professionals who are expert in the evaluation of the effect of trauma on victims are often used. It is important to note that these allied professionals and experts are heavily relied upon by the courts to make determinations regarding the damages and injuries incurred by the victims. These have important ramifications for the investigation and referral by law enforcement, by the handling of cases in prosecutor's offices, and in sentences handed down by judges.

Child protection officials have a significant role in cases involving child abuse and neglect. Depending on the jurisdiction and the nature of the victimization, these cases may be handled in a criminal court, juvenile court, or family court system. In each of these systems, it is important that the child protection official cooperate in developing the best investigation report possible for presentation at trial.

As almost all victims of crime may require some medical, mental health or other social services intervention, the coordination of these efforts within and complimentary to the criminal justice system is crucial to providing the most victim-centered, victim-oriented criminal justice system response possible.

One of the most significant rights of crime victims is the right to submit victim impact statements (VIS) that include crucial information about the short- and long-term psychological, financial, physical and emotional effects of a crime on victims. Impact statements provide victims with a voice that should be heard by courts, as well as probation, parole and corrections officials.

VIS not only give victims an important voice in a case that has had a profound impact upon their lives; they also often improve victims' overall opinions of the justice system. In research conducted by Mothers Against Drunk Driving, two-thirds (66%) of victims who were given the opportunity to present written VIS were "satisfied" with the criminal justice system. For those victims who were not allowed to submit VIS, three out of four (75%) were "dissatisfied" with the criminal justice system as a whole (Regina Sobieski, MADDVOCATE, 1993).

VIS also provide information to courts and corrections that is valuable in determining appropriate sentences, as well as release-from-incarceration dates for convicted offenders. They are an integral piece of a "case puzzle," and can shed light on facts that, at the point of sentencing and release decisions, are not know. For instance:

! When offenders plea bargain to lesser crimes, the judge or jury may not know or comprehend the magnitude of the criminal act, and its detrimental impact on victims.

! Often, judges and juries hear myriad details that present the alleged and/or convicted offender's version of the crime, with less attention paid to the victim's perspective.

! VIS at parole hearings -- which tend to occur some time after the commission of the crime -- are important to help paroling authorities understand the long-term impact the crime has had on victims and their loved ones, despite the passage of time.

In the landmark publication Impact Statements: A Victim's Right to Speak, A Nation's Responsibility to Listen (Alexander and Lord, 1994), eight important national recommendations were offered relevant to "sound system-wide policies and procedures that clearly detail and designate the roles and responsibilities of all key players in the criminal justice system for soliciting, processing and applying victim impact information:"

1. The criminal justice system should adopt policies that allow crime victims to play an integral role in the American criminal justice process. Such policies must reflect an attitude that our justice system does not exist despite its victims, but rather, it exists because of its victims.

2. Legislation should be enacted or amended at the federal, state and local levels to provide crime victims with the right to submit VIS by written, oral, video, audio or other electronic means at the time of sentencing and to paroling authorities.

3. Legislation should be drafted and enacted at the federal, state and local levels that provides victims of juvenile crime with the right to submit victim impact information at the time of adjudication.

4. Legislation should be enacted that delegates specific authority, roles and responsibilities at the federal, state and local levels for the distribution, collections and dissemination of VIS. This legislation should also provide specific mandates for accountability and outline specific penalties for noncompliance with the legislation...

5. All criminal justice professionals who influence the victim impact procedure in any way must have a thorough understanding of their state's statutes and case law regarding the submission and use of VIS.

6. All agencies that interact with crime victims should have VIS instruments and supplementary guides that explain to victims about the importance of VIS; their right to submit one; and the criminal justice system's use of VIS.

7. Statewide victim networks, coalitions and criminal justice agencies should join together to evaluate the effectiveness of their VIS statute(s) and, if it (they) are inadequate, work together to amend it (them).

8. Training and continuing education about the traumatic effects of crime victimization must be made available to all criminal justice professionals who interact with crime victims.

Although each type of criminal justice professional can, and often does, assist victims involved in the system, this is typically not his or her primary role. How can victims' rights be recognized and guaranteed? A fundamental component of this is victims' rights legislation (National Victim Center, 1993, 1994). This section will briefly outline the general status of crime victims' rights in the United States today, and will serve as a useful guide to advocates who wish to assess the standing of their state's victim-related legislation. Of course, only a detailed analysis of specific pieces of legislation, and an evaluation of their actual implementation, will give the reader a full sense of how victims' rights are being provided.

Although there are many ways in which various victims' rights can be established and protected through legislation, for the most part they can be understood in four general categories:

1. Provision of specific victims' rights

2. Requirements for victim services or assistance

3. Funding mechanisms for services or rights provision

4. Victim-oriented criminal justice reform measures

In 1982, the President's Task Force on Victims of Crime listed 68 recommendations to improve the treatment of victims of crime. The goal of these recommendations was to provide for renewed balance in the criminal justice system by adding victims' rights to considerations weighed in making a determination of what is a just outcome in a case. The purpose was not to diminish the rights of criminal defendants, but to enhance the status of victims within the criminal justice system.

Victims' Bills of Rights and Related Laws

Among the earliest and most prevalent approaches to enacting victims' rights legislation is the passage of Victims' Bills of Rights. An obvious reference to the first ten Amendments to the United States Constitution that comprises the Bill of Rights, typical Victims' Bills of Rights similarly propose providing protections to individuals within the criminal justice system. Whereas the original Bill of Rights focused on defendants' rights to fair and speedy trials, protections from illegal searches and seizures, and other rights, Victims' Bills of Rights address fundamental protections that protect and restore the victim.

Victims' Bills of Rights take on numerous forms, but generally address the following victims' statutory rights:

• Information about victims' rights and referral to services
• Protection from intimidation, harassment and harm
• Notification about case proceedings and delays
• Participatory rights, such as to attend hearings and address concerns to the court, and to present a verbal, written, audio or video victim impact statements at time of sentencing
• Rights to confidentiality (i.e., of name and address)
• Speedy trial provisions to avoid unnecessary delays
• Prompt return of property
• Notoriety-for-profit provisions
• Right to orders of restitution in criminal sentences
• Compensation payments

As stated above, Victims' Bills of Rights vary state-to-state and may include combinations of the above rights. Below is a listing of major types of victims' rights laws and the estimated number of states that have enacted them:

• Approximately 46 states have enacted Bills of Rights.
• 20 states protect victims' rights through constitutional amendments.
• 6 states will vote on constitutional amendments in the 1996 election.

Notification, a basic victim right, is provided in numerous ways:

• 25 states require notice of bail or pretrial release.
• 28 notify victims of plea bargaining/negotiations.
• 34 provide notification of sentencing hearings.
• 37 notify victims of parole hearings.
• 44 inform victims of parole release.
• 29 notify victims of escape.

Victims' participatory rights are essential to giving victims a voice in the system. At various points along the criminal justice continuum, victims have essential input into the system. Victims are given the right to attend and/or be heard at various hearings:

• 21 states provide the right to attend bail hearings.
• 9 provide the right to be heard at pretrial release.
• 14 give the victim the right to attend plea bargaining hearings.
• 10 allow for victims to be heard at plea bargaining.
• 24 states provide for victim attendance at trial.
• 42 provide the right to submit a victim impact statement at sentencing.
• 7 allow for pre-sentence report input only.
• 21 provide the right to attend parole hearings.
• 32 allow for victims to be heard at parole; 30 mandate this right.

Victims' rights to restitution are extremely important. This provides a vehicle for victims to recover their financial losses due to the crime. It is crucial to note whether restitution is mandatory or discretionary as part of sentencing (listed below). However, there are significant issues with restitution at both award and collection time periods. For example, what factors are primarily used to determine restitution, the victims' loss or the offender's ability to pay? Also, who is responsible for assisting the victim in collecting restitution payments?

Currently restitution laws vary, for example:

• 26 states require mandatory restitution unless the judge offers compelling reasons for not ordering restitution.
• 24 states allow restitution to be discretionary.
• 29 states allow restitution orders to become civil judgments.

In addition, at least 45 states have enacted laws encouraging prompt return of the victim's property. Several of these laws allow photographs to be admissible in court in place of the actual property.

Victims of crime in the federal system also enjoy certain basic rights. The Victims' Rights and Restitution Act of 1990 provides the following rights to victims of federal crimes:

1. The right to be treated with fairness and with respect for the victim's dignity and privacy.

2. The right to be reasonably protected from the accused offender.

3. The right to be notified of court proceedings.

4. The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial.

5. The right to confer with the attorney for the government in the case.

6. The right to restitution.

7. The right to information about the conviction, sentencing, imprisonment, and release of the offender.

Enforcing Victims' Rights Through Constitutional Amendments

Constitutional law is the fundamental law of the land. It provides the foundation upon which the rest of our legal structure is built. Generally described, constitutional law is superior to statutory law, and the Federal Constitution preempts state laws and constitutions, when they come into conflict.

The importance of a constitutional basis for protecting rights can be traced back to the very beginning of the United States when those who opposed adoption of the Constitution were not satisfied with promises of post-enactment legislation to protect what they viewed as fundamental rights. They insisted on ten constitutional amendments they called The Bill of Rights.

Those rights that are most recognizable to the general citizenry as defendants' rights, such as the right to a jury trial, the right to avoid self-incrimination and the right to be free from unreasonable search and seizure, are found, at their roots, in The Bill of Rights. Victims deserve no less than such fundamental, constitutional protections.

Twenty states now protect victim rights through rights provided for in their state constitutions. A few of these were adopted in the mid- to late 1980s. The past couple of years have witnessed a flurry of constitutional amendments, and more will be considered by states in the near future.

On April 22, 1996, during National Crime Victims' Rights Week, history was made when a federal constitutional amendment was introduced in the United States Senate. The Victims' Bill of Rights Constitutional Amendment will amend the U.S. Constitution to guarantee victims' participatory rights throughout the criminal justice process, as well as ensure reasonable protection from the offender, a speedy trial, and restitution.

Victim constitutional amendments are quite varied. This is a result of the particular idiosyncracies of each state's approach to their constitution and the political power of the victim rights' advocates in a particular state. Some of these amendments could be considered relatively weak, and others considered strong. In most cases, a companion scheme of statutorily provided enabling legislation must provide for the actual programs and funding needed to see to it that victim constitutional rights will become a reality.

Enforcement of Constitutional Rights

In general, when constitutional rights of any sort are not being provided, the aggrieved party must take some action to enforce their rights under the constitution. An important, developing phase in victims' rights advocacy is the enforcement of victim constitutional rights.

There is an adage in the law that "a right without a remedy is no right at all." Obviously, a right that cannot be enforced and does not benefit the intended person is truly not a right. For example, a victim may have a constitutional right to be notified at sentencing of an offender and to be heard by way of providing a victim impact statement to the court. What recourse should a victim have under this arrangement if he or she was not notified of the sentencing of the offender?

If a defendant was not accorded a particular right that affected his or her sentence, he or she could petition that court, or a higher court, to set aside the sentence and provide a new sentencing hearing where all the relevant rights could be provided the defendant. This is the sort of mechanism that victim advocates argue should be available to victims who are not accorded basic, especially constitutional, rights.

Two particular forms of enforcement mechanisms illustrate the ways in which legal rights are enforced, and how victims could be empowered to assure their constitutional rights. The first is petitioning the court for a writ of mandamus, and the second is injunctive relief. Although these concepts are not limited to constitutionally protected rights alone, the fundamental basis of constitutional protection would assist the legal arguments for these significant court actions.

Writ of Mandamus

Commencement of a mandamus action means that the party wants the court to force someone, usually a public official in this case, to do something that they are supposed to do but are refusing to comply with. The colonial era case of Marbury v. Madison, which established the power of the courts to review the actions of other branches of government, involved a mandamus action compelling a government official to complete a ministerial act that was previously refused. Victims could seek to have the court force public officials to provide them with adequate and reasonable compliance with their constitutional rights.

Injunctive Relief

The party seeking an injunction is seeking to have someone stopped from commencing or completing an act. Victim advocates are familiar with the concept of temporary injunctions, restraining orders or protective orders that compel individuals to stop doing certain things, such as, in domestic violence or stalking cases. This is essentially the same mechanism that could be used by victims to stop public officials from doing what is contrary to the rights they enjoy under a constitutionally protected scheme. Courts could, for example, order that sentencing hearings be delayed until victim impact statement information is available.

Victims' rights protected through constitutional-level authority would allow victims greater legal bases for arguing that their rights should be protected and that they are on the same level as defendant's rights, typically already protected by the Constitution of the United States and state constitutions.

Implementing and Providing Resources

Providing for victims' rights through statutory language is, in itself, sufficient for victims to be assured of receiving these rights, thereby bringing balance back to the criminal justice system. The past decades of struggling for victim legislation, then realizing that new battles need to be fought in implementing and funding arenas, agency politics, and other areas has been instructive to the contrary.

The dynamics of the criminal justice system can be brought back into balance, and victims can become an integral part of this system, but only if we do not stop with legislation alone and follow through with implementation, funding, evaluation, monitoring, enforcement and improvement.

Self Examination Chapter 6

Dynamics of the Criminal Justice System

And Current Status of Victim Rights

1) What are the seven elements/agencies that comprise the criminal justice system?

2) Identify five core components of basic victim services within the criminal justice continuum.

3) What are the four general categories of "victims' rights" that can be established and protected through legislation?

4) How many states today have constitutional amendments that guarantee victims participatory rights within the criminal justice system?

Class Exercise Chapter 6

Victims Rights Laws

Understanding Victims' Rights Legislation:

Enactment through Implementation

This exercise provides an opportunity for you to apply the knowledge you have gained during the lectures and curriculum about the evolution of victims' rights and the elements of effective legislation. Select a Bill of Rights statute from your state or a federal victims' rights statute. Please read it and answer the following questions.

1. Who is responsible for interpreting this law and what do specific words mean?

2. Is there a designated agency in charge?

3. Are individuals given specific responsibilities? If yes, for what?

4. Is funding addressed?

5. Are there time limits for providing these rights?

6. What recourse, if any, do victims have under this law if their rights are not provided?

References

Alexander, E. K. and Lord, J. J. (1994) Impact statements: A victim's rights to speak, a nation's responsibility to listen. Arlington, VA: National Victim Center, Mothers Against Drunk Driving, and American Prosecutor's Research Institute.

Barlow, H. D. (1990). Introduction to criminology (5th Ed.). Harper Collins.

Carrington, F. G. (1975). The victims. New Rochelle, NY: Arlington House Pub.

Fleming, M. (1974). The price of perfect justice. New York: Basic Books, Inc.

Kelly, D. P. (1991, Fall). Have victim rights gone too far -- or not far enough?, Criminal Justice Magazine, .

National Victim Center. (1993; 1994). Legislative data base and statistical overview information. Washington, DC: Author.

Ryan, J. F. (1994). Community policing: Trends, policies, programs, and definitions. In A.R. Roberts (Ed.) Critical Issues in Crime and Justice. Thousand Oaks, CA: Sage,.

Shapland, J. (1985). Criminal justice system and the victim. Victimology, 10, (1-4), 585-599.

Victims' Rights Symposium in Memoriam of: Frank G. Carrington. (1992, April). Pacific Law Journal, 23, (3).

ABA Guidelines Acknowledging Victim Issues Include:

Guidelines for Fair Treatment of Victims and Witnesses in the Criminal Justice System.

Suggested Guidelines for Reducing Adverse Effects of Case Continuances on Crime Victims and Witnesses.

Recommendations for Reducing Victim and Witness Intimidation.

Criminal Justice Sentencing Alternatives and Procedural Standards 18-5.9.

Criminal Justice Prosecution Function 3-3.2.

Guidelines Governing Restitution to Victims of Criminal Conduct.

Guidelines for Fair Treatment of Child Witnesses in Cases Where Child Abuse is Alleged.

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