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
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:
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
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
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:
"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,
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
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:
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
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:
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.
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 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
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,
Specific Roles and Responsibilities of Prosecutors
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:
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
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
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:
rent payments -- that help the victim gain independence from the
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 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:
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
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:
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
There are two main functions of paroling authorities: parole boards
and parole agencies.
The American Correctional Association lists four primary functions
of a state parole board:
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 (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:
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:
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
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,
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
! 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
! 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
! 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
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:
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:
Notification, a basic victim right, is provided in numerous ways:
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:
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:
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
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
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
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,
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
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
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
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
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?
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
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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