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Chapter 7
The Federal, Indian, and Military Justice Systems: Victims' Rights
and Assistance
Abstract: This chapter contains
three separate sections that address the federal, tribal, and
military justice systems. Each section discusses the relevant
laws, guidelines, regulations, directives and assistance available
to crime victims throughout each justice system. The systems'
interrelationships are also highlighted, as are the significant
providers of victim services within each justice system.
Learning Objectives: Upon completion
of this chapter, students will understand the following concepts:
1. The unique aspects of each justice system and the interrelationships
among the systems on the national, state and local levels.
2. The major laws, guidelines, regulations and directives
governing each justice system with respect to victims' rights
and services.
3. The individuals designated to implement victims' rights
within each system and examples of effective victim outreach and
assistance.
4. The role of federal agencies, including the Office for
Victims of Crime, in implementing and supporting victims' rights
and assistance within each system.
5. A broad understanding of the comprehensive services now
available to crime victims throughout these three systems.
Section I: The Federal Criminal Justice System
Statistical Overview
An Introduction to the
Federal Criminal Justice System
Federal and non-federal courts co-exist in separate, yet
highly related judicial systems. The genesis of this arrangement
is found in early notions of federalism as contained in the U.S.
Constitution. Essentially, the United States is a Federal Republic
of generally autonomous states. Article X of the Constitution
specifies that "[T]he powers not delegated to the United
States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people."
Thus, the powers not expressly given to the United States government
are retained by the state's and the people. In terms of the criminal
justice system, there are two primary areas where federal jurisdiction
is given to federal courts. That is:
(1) Through the enactment of statutes creating federal criminal
law by an act of Congress signed into law by the President.
Primarily these are contained in the federal criminal
code codified at 18 United States Code; or
(2) When a so called "federal question" arises in
a legal case. The most common of these would involve issues
deriving from the violation of rights accorded through the Bill
of Rights (e.g., freedom of speech, freedom of association,
etc.), or other federal civil rights issues.
When these specific federal laws are in question, or when generally
conceived federally derived rights are at issue, the federal courts
clearly have jurisdiction to hear the matter. In terms of federal
criminal violations, the U.S. Attorneys in 94 districts are authorized
to represent the interests of the federal government, that is,
to prosecute defendants. The same is true for civil cases involving
federal matters.
Therefore, the federal courts are of limited jurisdiction and
can only handle federal matters. That is why these courts account
for only about five percent of all criminal matters in the United
States, with about 95 percent of criminal cases handled at the
state level. Although federal courts are limited in this way,
the power of the federal judiciary should not be doubted. When
dealing with federal issues, federal courts can effectively overrule
lower court decisions through what is referred to as "federal
preemption." Thus, federal courts can impose their will
on the state's in legitimate federal matters.
Major Federal Laws Affecting Federal Crime Victims
Four significant laws affecting federal victims of crime have
been enacted in the past 14 years:
The Victim and Witness Protection Act of 1982
The Victim and Witness Protection Act of 1982
(VWPA) was enacted "to enhance and protect the necessary
role of crime victims and witnesses in the criminal justice process;
to ensure that the federal government does all that is possible
within the limits of available resources to assist victims and
witnesses of crime without infringing on the constitutional rights
of the defendants; and to provide a model for legislation for
state and local governments" (Attorney General Guidelines
for Victim and Witness Assistance, 1983).
The VWPA was considered landmark legislation in 1982 because,
for the first time, rights for victims of federal crimes were
established, including:
Procedures for responding to the needs of crime victims in the
federal criminal justice system, including referral services,
information and notification services, consultation services,
restitution, and victim impact statements were further delineated
in Guidelines for Victim and Witness Assistance issued by the
Attorney General in 1984.
The Victims of Crime Act of 1984
Two years following the passage of the VWPA, Congress enacted
the Victims of Crime Act of 1984 (VOCA) to provide funding
for victim assistance, victim compensation, and training and technical
assistance for victim service providers across the nation. VOCA's
innovative funding mechanism relies on fines, penalties and bond
forfeitures from convicted federal offenders -- not taxpayers
-- to generate an annual Crime Victims Fund. Congress directed
the Office for Victims of Crime (OVC) to distribute the funding
to states and U.S. Territories, to assist in expanding compensation
and assistance to crime victims nationwide.
While the majority of VOCA funding is distributed to states and
territories through formula grants, a small portion of the fund
is available for federal crime victims, as well as for training
and technical assistance in the federal arena and at the national
level.
OVC has utilized this funding for significant federal crime victim
assistance including:
One very important provision in VOCA is the requirement that in
order for state compensation programs to receive federal Crime
Victims Fund awards, victims of federal crimes must be
eligible for state compensation benefits. Following the enactment
of VOCA, many state legislatures amended their state laws to include
federal crime victims as eligible claimants. Today, victims of
federal crimes in 50 states are eligible to file compensation
claims to the state compensation program where the crime occurred.
The Crime Control Act of 1990
The Crime Control Act of 1990 contained
a wealth of new legislation and amendments to the existing federal
criminal code affecting the treatment of crime victims, including
children.
Provisions of the Crime Control Act created a new framework
for comprehensive victim assistance on the federal level by specifying
new, or clarifying previous, responsibilities of federal officials
with respect to implementing victims' rights. Federal officials
covered under the Crime Control Act include officials of
the U.S. Department of Justice and other federal agencies engaged
in the detection, investigation, or prosecution of crime.
Federal Crime Victims' Bill of Rights
The enactment of a Federal Crime Victims' Bill
of Rights was historic and paralleled legislative activity in
the states. Section 502 of the Act mandated that federal
officials "shall make their best efforts to see that
victims of crime are accorded the rights described in subsection
(b). . .
(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 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" (42 U.S.C. Section
10606(b).
The Attorney General revised the 1983 Guidelines for Victim and
Witness Assistance and re- issued them to "provide definitive
guidance on implementation of the 1990 Act as well as continued
guidance on the protection of witnesses under the VWPA."
(Guidelines, 1991) In addition, many of the approximately 75
federal law enforcement agencies that operate within federal agencies,
(e.g. Inspectors General, Postal Inspectors, Bureau of Indian
Affairs law enforcement, etc), took steps to issue guidelines
for the treatment of victims and witnesses.
Critical Changes
While many outstanding Victim-Witness Programs
had been created in United States Attorneys' offices across the
country by 1990, and some federal agencies had responded to implement
the Victim and Witness Protection Act (e.g. the Federal
Bureau of Prisons' victim notification and restitution programs),
the fact that Congress created strong new language "demonstrates
the continuing national concern for the innocent victims of all
crimes and reflects the view that the needs and interests of victims
and witnesses had not received appropriate consideration in the
Federal criminal justice system under the Victim and Witness
Protection Act" (Guidelines, 1991).
The 1983 Attorney General Guidelines, stemming from the passage
of the VWPA, required that services to victims and witnesses
be provided "whenever possible" and "within limits
of available resources." With the passage of the Crime
Control Act in 1990, victims' rights and services on the federal
level gained new status and it was clearly stated in law, and
in the revised 1991 Attorney General Guidelines, that victims'
rights and services "shall be provided."
The Violent Crime Control and Law Enforcement
Act of 1994
Four years later, Congress enacted comprehensive crime
legislation entitled the Violent Crime Control and Law Enforcement
Act of 1994 (Crime Act.) In addition to the establishment
of new victims' rights, and the passage of the historic Violence
Against Women Act contained within, the Crime Act encouraged
the federal government to form partnerships with state and local
communities. The specific rights and services contained in the
1994 Crime Act include:
The 1995 Attorney General Guidelines for Victim
and Witness Assistance
As a result of the passage of the 1994 Crime Act,
the Attorney General revised and re-issued new comprehensive guidelines
in 1995 to establish procedures for the federal criminal justice
system for implementing victim rights and assistance as enacted
under federal law. In issuing the 1995 Attorney General Guidelines
for Victim and Witness Assistance, Attorney General Janet Reno
stated:
"Crime is a shattering experience that affects the lives
of millions of Americans. It can destroy a person's sense of
safety and security. Of paramount importance to crime victims
and witnesses is their treatment by criminal justice personnel,
who should care about their suffering, enforce their rights and
protections, offer support to help them heal, and hold the criminal
accountable for the harm caused.
For too long, the rights and needs of crime victims and witnesses
were overlooked by the criminal justice system. In recent years,
however, new laws have been enacted at both the federal and state
level to remedy this injustice.
I am pleased to issue these new Guidelines, which incorporate
the important rights and protections for federal victims and witnesses
contained in the Violent Crime Control and Law Enforcement
Act of 1994, as well as provisions in prior victims' statutes.
They also establish procedures for implementation of these laws
by federal investigative, prosecutorial, and correctional personnel.
The Guidelines reflect my strong belief that victims should play
a central role in the criminal justice system and my commitment
that all components of the United States Department of Justice
shall respond to them with compassion, fairness, and respect,
in accordance with the letter and spirit of the law." (Guidelines,
1995, Foreword)
In combining the requirements of the Victim and Witness
Protection Act of 1982, the Crime Control Act of 1990,
and the Violent Crime Control and Law Enforcement Act of 1994,
the Guidelines provide "definitive guidance on implementation
of the 1990 and 1994 Acts as well as continued guidance on the
protection of witnesses under the VWPA; and shall serve as a primary
resource for Department of Justice (investigative, prosecutorial,
and correctional) agencies in the treatment and protection of
victims and witnesses of federal crimes under these Acts."
In addition, the Guidelines supersede previous Attorney General
Guidelines, specifically, the 1983 and 1991 Attorney General Guidelines
for Victim and Witness Assistance.
Federal Crime Victims' Rights and Services
-- Significant Elements of the 1995 Attorney General Guidelines
As in the 1991 Guidelines, the 1995 Guidelines
state that under 42 U.S.C. Section 10606(a), officers and employees
of the Department of Justice and other departments and agencies
of the United States engaged in the detection, investigation,
or prosecution of crime shall make their best efforts to
see that victims of crime are accorded the rights described under
federal law. However, the new Guidelines increased the accountability
of federal criminal justice officials. In the 1991 Guidelines
the Attorney General recommended that the annual performance
appraisals of federal law enforcement officers, investigators,
prosecutors, and corrections officers include compliance with
the Guidelines. The 1995 Guidelines direct that performance
appraisals and reports of best efforts include information
on compliance with the Guidelines.
Officials Responsible for Providing Rights
and Services
to Victims and Witnesses
The Guidelines provide explicit designations of
the individuals responsible for "identifying the victims
and performing the services due victims and witnesses under federal
law" and require that in each of the investigating field
offices, correctional facilities, U.S. Attorney's office and the
Justice Department Litigation division that "there must be
one individual who shall be designated to specifically carry out
victim-witness services."
Individuals charged with providing victims rights and services
are defined according to the following stages in the criminal
justice process:
The sharing of information and cooperation among the various federal
agencies, as well as interacting with tribal, state and local
agencies providing victim services, are also required by the Guidelines.
Victim and Witness Services
The Guidelines delineate a range of services that
should be provided to victims and witnesses at each stage of
the federal criminal justice process. Moreover, to further insure
implementation, specific responsibility is assigned to federal
agencies and officials to carry out these services. The services
listed in the Guidelines include the following:
In addition, the Guidelines address other forms of assistance
that shall be extended to all victims and witnesses to the fullest
extent feasible, including: victim privacy for child victims
and victims of sexual assault, employer creditor intervention,
parking, translator services, and related services.
Sentencing in Federal Courts and the Use of Victim
Impact Statements
In a landmark report sponsored by the Office for Victims
of Crime entitled A Victim's Right to Speak: A Nation's Responsibility
to Listen, The National Victim Center in 1994 addressed victim
impact in the federal system. The Report stated the following:
Selection of an appropriate sentence is one of the most important
decisions made in the criminal justice system. The primary vehicle
used to assist the sentencing court in fulfilling this responsibility
is the presentence investigation report. In November 1987, the
Sentencing Reform Act of 1984 became effective and radically changed
the philosophical model for sentencing offenders in Federal courts.
Congress relinquished an indeterminate model of sentencing and
adopted a determinate model based upon national guidelines. Changes
in the content and format of the presentence report were necessary
to accommodate the new sentencing process.
As part of the Crime Control Act of 1984, Congress created the
U.S. Sentencing Commission to serve as an independent body of
the judicial branch. The Commission was assigned responsibility
for establishing sentencing policies and practices for the Federal
criminal justice system in compliance with the Sentencing Reform
Act of 1984. The Commission was further directed to produce guidelines
that would avoid unwarranted sentencing disparities while retaining
enough flexibility to permit individualized sentencing when called
for by mitigating or aggravating circumstances.
However, if the court is to accurately determine mitigating or
aggravating circumstances of each individual case, it must have
access to all information pertinent to the case, and this information
must include a careful review of victim impact. Historically,
this information has been presented through the use of a presentence
investigation report.
In the United States Federal Court system, when a defendant is
apprehended and charged and is either found guilty or enters a
plea of guilty, a presentence investigation report is ordered
by the court prior to imposing a sentence. Under Federal Rule
32(c)(1) of the Federal Rules of Criminal Procedure and 18 U.S.C.
Section 3552, the defendant cannot waive the presentence investigation
with the exception of violations where penalties include the death
penalty. Rule 32(c)(1) also delegates the responsibility of preparing
the presentence investigative report to U.S. probation officers.
Traditionally, this report assists the Court to understand the
offender's background and to offer explanations as to the circumstances
surrounding the offense(s) and the offender's involvement. As
required by Rule 32(c)(1), the presentence report shall contain
information on the history and characteristics of the defendant,
including any prior criminal record; financial condition; educational
attainment; family history and marital history; and any circumstances
affecting the defendant's behavior (mitigating and aggravating
conditions) which may be helpful in imposing sentence or the correctional
treatment of the defendant, and any other information to be collected
as directed by the sentencing authority.
The federal criminal justice system took the lead in setting a
legal precedent for the inclusion of victim impact information
in sentencing with the passage of the Victim and Witness Protection
Act of 1982. The Act allows for the submission of
victim impact information at the time of sentencing, amending
the Federal Rules of Criminal Procedure (Rule 32(c)(1)) to require
U.S. Probation officials to include the following victim impact
information in their pre-sentence investigative reports to the
court:
This created the right for federal victims to provide information
on the impact of the crime in the sentencing phase of the federal
justice system -- commonly referred to as victim impact statements.
The Attorney General Guidelines address this right further by
requiring the following:
Finally, consistent with available resources and their other responsibilities,
federal prosecutors shall advocate the interests of victims, including
child victims, at the time of sentencing.
Today, victim impact statements are widely used in criminal cases,
including capital cases. Repeated challenges to the constitutionality
of the use of victim impact statements in capital cases was resolved
when the U.S. Supreme Court upheld the constitutionality of victim
impact evidence submitted during the sentencing phase in capital
cases Payne v. Tennessee in 1991.
Restitution
The Victims' Rights and Restitution Act of 1990
(part of the Crime Control Act) provides that victims
of federal crime have a "right to restitution." It
also requires that if a court does not order restitution, or orders
only partial restitution, the court must state on the record the
reasons why restitution was not, or only partially ordered. The
1990 Act also extended the court's ability to order restitution
to victims of an offense involving a scheme, conspiracy, or pattern
of criminal activity -- i.e. all victims harmed by crimes of
fraud. This extends to not only the victims of charged crimes,
but to all the victims named in the indictment, even when
the defendant was not charged on all accounts.
In addition, the 1990 Act extended the right to restitution to
all victims in plea agreements:
"The court may also order restitution in any criminal case
to the extent agreed to by the parties in a plea agreement."
The Guidelines underscore this right by stating that when plea
negotiations occur, prosecutors should attempt to obtain the defendant's
consent to an order of restitution for all victims of the offense,
not just for the victims involved in the courts to which he or
she pleaded guilty."
Departing from the previous trend to permit the court to have
discretion in ordering restitution, the 1994 Crime Act states
very clearly that convictions for four types of crimes must include
mandatory restitution as part of an offender's punishment:
The Act also lists expenses for which victim restitution is required:
In addition, the 1994 Crime Act extended and strengthened the
right to restitution for other federal crime victims by adding
requirements for reimbursement of victims, as well for the enforcement
of restitution orders against delinquent defendants.
Enforcement of Restitution
To ensure enforcement of restitution orders, the
Crime Act and 1995 Attorney General Guidelines specify that U.S.
Attorneys must enforce the restitution order "by all available
means."
The Crime Act provided several mechanisms to enforce restitution
payments including the following:
Finally, the Crime Act reinforced restitution payments by amending
the federal Bankruptcy Code to prevent defendants who owe restitution
from discharging their liability for payments by filing bankruptcy.
The Act states that a debt for restitution included as a sentence,
on the debtor's conviction of a crime, would not be discharged
in a Chapter 13 filing. The Act also added a new provision in
the Bankruptcy Code that addresses drunk driving debts, stating
that such debts are not dischargeable under Chapter 17, 11 and
12 proceedings.
Again, the 1995 Guidelines underscored restitution rights by stating:
"Federal prosecutors shall advocate fully the rights of victims,
including child victims, on the issue of restitution."
New Legislation: The Victims' Justice Act of
1995
Title I of the Victims' Justice Act of 1995
amends the federal criminal code to require judges to order restitution
for victims of the following crimes of violence:
In addition, procedures for issuing and enforcing restitution
orders were significantly expanded under the Act. Full implementation
of these new provisions will bring new importance to restitution
in federal criminal proceedings.
Coordination and Direct Services Role at the Federal
Level
One significant result of the Victim and Witness
Protections Act of 1982 was the creation of the position of
Victim-Witness Coordinator in United States Attorneys offices
to ensure compliance with the VWPA, as well as federal crime victim-related
laws enacted since 1982. Today, every office of the United States
Attorney across the country is authorized to employ a Victim-Witness
Coordinator.
While one of the roles of the Victim-Witness Coordinator is to
implement federal law regarding crime victims rights and services,
the position can be structured in many different ways, depending
on the size and configuration of the federal district and the
needs of the United States Attorney. As the title implies, Victim-Witness
Coordinators generally oversee and coordinate the victim assistance
program and services in the United States Attorneys Offices, and
work to establish procedures for victim and witness assistance
across the entire office. Coordinators work with federal prosecutors
and administrative staff to implement a wide range of victims'
rights and services.
Victim-Witness Coordinators have developed and implemented a wide
range of programs and services to assist federal victims. While
these services vary according to the needs of the District --
such as an innovative program to assist victims of white collar
crime now being developed in the Northern District of California,
to bank robbery victim outreach programs in the Eastern District
of Wisconsin and the District of Oregon -- certain procedures
tend to be standard across the nation.
For example, Federal Victim-Witness Coordinators have developed
policies and procedures for:
A Nationwide Network of Federal Victim Assistance
and Interagency Coordination
Victim-Witness Coordinators, located in the 94 U.S.
Attorneys' offices across the nation, have built a nationwide
network of support through which they rely on each other for
information, advice and assistance. In addition, Victim-Witness
Coordinators are linked by computer so that they may better communicate
as a true network of service providers. This has proven valuable
in providing expertise and experience often necessary for complex
cases. Many cases cross jurisdictional lines and require out-of-state
resources to assist victims and to effectively prosecute the case.
In addition, the networking activities of the Coordinators are
helpful in providing services and support to victims who reside
in rural-remote locations.
An important aspect of the Victim-Witness Coordinator's job is
to coordinate victim and witness service efforts with other federal,
as well as state and local law enforcement officials. In most
jurisdictions, Coordinators work closely with state-level and
local victim service providers and criminal justice officials,
which serves to "fill gaps" in the delivery of services.
Activities include, but are not limited to: cross-jurisdictional
training, participating in statewide victim assistance coalitions,
making victims service referrals and participating in commemorative
observances, such as National Crime Victims' Rights Week and National
Drunk and Drugged Driving Awareness Week. Two examples of the
role of Victim-Witness Coordinators are the following:
The Office for Victims of Crime Response to Federal
Crime Victims
The Federal Crime Victims Division is one of three
divisions located within the Office for Victims of Crime. The
Federal Crime Victims Division has responsibility for:
Federal Crime Victim Assistance Fund
The Federal Crime Victims Division oversees the Federal
Crime Victim Assistance Fund created by OVC and funded by VOCA
to meet the immediate needs of federal victims of crime when victim
services are otherwise not available. Victim-Witness Coordinators
in 93 U.S. Attorney's Offices can contact OVC to receive assistance
from the fund. The Emergency assistance funds have helped federal
crime victims in a variety of ways, including;
In the spring of 1996, OVC provided $200,000 in funding to assist
victims and survivors of the tragic bombing of the federal building
in Oklahoma City to cover the costs of transportation and lodging
incurred by the need to travel to Denver because of the change
in federal venue for the trial.
Federal Criminal Justice Personnel Training Efforts
The Federal Crime Victims Division supports numerous
training programs for federal officials and personnel on victim
assistance, support and advocacy. One of the longest-standing
interagency agreement in this arena is between OVC and the Federal
Law Enforcement Training Center (FLETC). Since 1986, OVC has
supported victim assistance training for all federal law enforcement
officers attending the Center's training program. OVC also has
an interagency agreement with the FBI to provide training on victims'
rights and assistance for agents.
In addition, OVC has provided training and technical assistance
to over 70 federal agencies regarding the development
of victim-witness policy and procedures, training investigators,
prosecutors, and Victim-Witness Coordinators.
Section II: The Tribal Justice System and
Native American Victims
The above statistics were excerpted from Criminal Justice
In Indian Country: A Focus on New Options, United States Department
of Justice, Criminal Division, 1994. (Training materials from
a conference held in Quantico, VA, November 7-8, 1994.)
Critical Jurisdictional Issues
"It is important to recognize that [tribal authority]
flows from the legal premise that Indian tribes retain a certain
"nationhood" status, which pre-dates the establishment
of the United States, and includes inherent powers of internal
self-government." (Homer, 1993)
A complex history of laws, customs, treaties, and traditions has
resulted in a potentially confusing array of jurisdictional issues
regarding native Americans and the U.S. criminal justice system.
As has been discussed in Chapter 5, jurisdiction is a legal
concept that provides courts with the lawful authority to exercise
their judicial powers over individuals, certain subject matters,
and specific geographic areas. Jurisdictional authorizations
are statutory or constitutionally based, and may overlap or even
conflict. This is particularly true in matters involving native
Americans. For example, a significant determinant of jurisdiction
involves the Indian or non-Indian status of the victim and the
offender, in addition to what crimes were committed and where
they occurred.
A key concept in understanding these jurisdictional issues is
the notion that Indian tribes are considered "domestic dependent
nations" and, therefore, they retain important aspects of
self-government. These dependent nations are afforded this respect
from the Federal and State governments due to the fact that Indian
tribal governance pre-dates the United States itself. Thus, tribes
are sovereign nations in their own rights and, despite their domestic
dependency, they retain powers of government that cannot be "extinguished"
by an act of Congress. Through numerous court cases on the state
and federal levels for over 160 years the independence of tribes
has been upheld. However, it is a complicated relationship, described
as the United States serving as a "fiduciary in a trust relationship
with the tribes which, at a minimum, entails the duty to provide
those benefits and services specified by treaty, executive order
or statute." (See Holmer, 1993.)
These jurisdictional determinations are of great importance to
victims and service providers. The court, and relevant body of
law, with jurisdictional authority over a particular case will
significantly influence the level and types of resources available
for assisting victims, determine the victims ability to participate
in the case proceedings, and govern the conduct of the trial and
sentencing of a convicted defendant. An overview of important
jurisdictional issues and relevant federal victim assistance initiatives
follows below.
Definition of Tribal Land/Indian Country
One important aspect of jurisdiction involves geographical
areas, such as territories where Native Americans reside that
are officially recognized as "reservations." Tribal
land is generally referred to as "Indian Country."
The definition of Indian Country, provided in 18 U.S.C. Section
1151, is expansive and includes all reservations whether established
by treaty, executive order or act of Congress; all "traditional"
dependent Indian communities, and all allotments where an Indian
title has not been extinguished, including land in the former
Indian Territory or elsewhere.
Specifically this includes the following:
Federal Jurisdiction
Two federal laws specifically provide for federal criminal
jurisdiction over Native American matters. The first is generally
known as the Major Crimes Act (18 U.S.C. Section 1153).
This act enumerates 14 specific, major offenses that may be prosecuted
by the federal government when the offender is an Indian. The
second is called the Indian Country Crimes Act (18 U.S.C.
Section 1152), sometimes called the General Crimes Act. This
Act provides for jurisdiction over matters where the offender
is non-Indian and the victim is Indian, or the reverse, that are
not covered in the Major Crimes Act. An exception to this is when
the offender is an Indian who has been punished by a tribal court
or the offense is subject to other limitations (i.e. treaty restrictions).
Essentially, the criminal laws of the United States generally
apply to Indian Country (18 U.S.C. Section 1152), subject to certain
limitations. Section 1152 does "not extend to offenses committed
by one Indian against the person or property of another Indian,
nor to any Indian committing any offense in the Indian country
who has been punished by the laws of the tribe, or...[when] the
exclusive jurisdiction over such offenses is or may be secured
to the Indian tribes respectively." However, 18 U.S.C. Section
1153, in turn, reserves federal criminal jurisdiction for specific
"major" crimes (e.g., murder, manslaughter, kidnaping,
incest, etc.) committed by Native Americans.
An additional conditions that allows for the application of federal
jurisdiction involves the Assimilative Crimes Act (18 U.S.C. Section
13). Where there is no substantive federal offense available,
the relevant law of the state may apply by being "assimilated"
into the federal code. The chart that appears below will be of
great assistance in understanding this array of jurisdictional
issues.
Indian Status Defined
A detailed discussion of who may utilize the status
of Indian for jurisdictional purposes is beyond the scope of this
chapter. It is important to note that the determination of Indian
status, or who may claim to be an Indian, is not defined in 18
U.S.C. However, about 150 years ago the U.S. Supreme Court first
attempted to address this very sensitive area concerning the definition
of who qualifies as an Indian. In the decision United States
v. Rogers, 45 U.S. 567 (1846) a two pronged test was established
that required:
This test, called the "Rogers Test" was refined in a
1988 decision in the District Court for the District of South
Dakota (St. Cloud v. V.S., 702 F. Supp. 1456 (D.S.D. 1988) that
outlined several additional factors to consider including:
The importance of this is apparent when one notes that there are
instances of defendants' convictions being reversed due to issues
regarding Indian status or lacking thereof.
Jurisdictional Chart
The following chart is intended to provide clarification
on the complicated federal, state and tribal jurisdictional issues:
| Indian | Indian | Major Crimes Statute (18 U.S.C. Section 1153) only applies. Fourteen specific major offenses may be prosecuted by federal government. (Otherwise Tribal court presides.) |
| Indian | Non-Indian | Major Crime Statute applies if one of 14 offenses occurs. Other crimes may allow federal prosecution under 18 U.S.C. Section 1152 (Indian Country Crimes Act) or if an other substantive federal offense is involved or action may be brought under 18 U.S.C. Section 13, Assimilative Crimes Act, where a substantive state offense may be incorporated. (State law may apply if no federal offense applies.) |
| Non-Indian | Indian | Indian Country Crimes Act (18 U.S.C. Section 1152) applies. Again, other substantive federal offenses or assimilated state offenses may be prosecuted federally. |
| Non-Indian | Non-Indian | State jurisdiction only. No federal jurisdiction. |
A Note Regarding State Jurisdiction
Most of the discussion above deals primarily with federal
jurisdiction. The issue of state jurisdiction must also be considered
briefly and presents different complications. As Homer (1993)
notes, "[t]he relationship between tribes and states is difficult
to characterize, and varies from region to region." (p.5.)
For example, the federal government has exclusive jurisdiction
to oversee the affairs of Indian nations (See Article I, Section
8, Clause 18, U.S. Constitution). However, jurisdiction over
criminal matters where the victim and the offender are non-Indians
and the crime is committed in Indian Country is exclusively with
the state where the reservation is located. Alternatively, the
state's are without jurisdiction over criminal matters committed
by Native Americans, absent an act of Congress granting such state
jurisdiction. This statutory scheme is further complicated by
recent efforts by states to return certain aspects of their jurisdiction
to the federal government, and by the fact that this is often
handled differently among several tribes within one state. Again,
as Homer (1993, p.7) points out, "[because there are so many
variables, it is recommended that periodically each district review
its jurisdictional analysis of Indian Country on a tribe by tribe
basis."
Tribal Courts and Jurisdiction
Tribal courts have jurisdiction over matters involving
Indians who commit crimes in Indian Country. Many times this
jurisdiction is concurrent with federal jurisdiction, such as
cases of child sexual abuse. Generally, these concurrent jurisdiction
offenses may see defendant's being tried in two court systems
(tribal and federal) without violating "double jeopardy"
prohibitions due to these being two separate sovereigns. Tribal
courts do not have authority to handle matters where the offender
is not an Indian.
Much of the general jurisdictional discussion above draws from
the Criminal Justice In Indian Country: A Focus on New Options,
United States Department of Justice, Criminal Division, 1994.
(Training materials from a conference held in Quantico, VA, November
7-8, 1994.) training materials, and in particular, the 1993 chapter
entitled Jurisdictional Issues Related to Indian Country Crimes:
A Brief Introduction prepared by Elizabeth Lohah Homer of
the U.S. Department of Justice's Child Exploitation & Obscenity
Section. Those interested in a more detailed treatment-of this
area are referred to this original text. Also, the National
Indian Justice Center, 7 Fourth Street, Suite 46, Petaluma, CA
94952 can provide materials on both legal and programmatic issues
discussed throughout this section.
Direct Native American Victim Assistance Services
Since 1987, the Office for Victims of Crime has focused
VOCA discretionary funds on improving services and outreach for
victims of crime in Indian country. OVC has supported a wide
range of programs including:
Victim Assistance in Indian Country Program (VAIC)
The Office for Victims of Crime (OVC) has provided
direct assistance in Indian Country through the VAIC grant program
which commenced in 1988. This program provides states with funding
to expand or create "on-reservation" victim assistance
programs in Indian Country where victim services have been limited
or non-existent. As of 1996, OVC has awarded over six million
dollars in grants to tribal victim assistance under this program.
In 1995, OVC funded 29 programs in the following states: Arizona,
Colorado, Idaho, Iowa, Kansas, Michigan, Minnesota, Mississippi,
Montana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South
Dakota, Utah, Washington, Wisconsin and Wyoming. The services
provided by these programs represent the full range of victim
assistance, including: crisis intervention, emergency shelter,
mental health counseling, and court advocacy.
In order to respond to tribal victims in federal cases who often
feel geographically isolated and have little access to communication
with the federal system, OVC encourages cooperation and coordination
in working relationships between the victim assistance coordinators
in Native American communities and the U.S. Attorneys' Victim-Witness
Coordinators. For example, tribal victim assistance providers
often accompany victims to federal court proceedings while federal
victim-witness coordinators provide information on case progress
and status to tribal coordinators. (OVC Fact Sheet, Project
in Indian Country)
Victim Compensation
Native American crime victims qualify for state victim
compensation awards as a result of VOCA requiring that victims
of federal crimes are to be treated the same as victims of state
criminal violations. However, as late as 1988, few native American
crime victims were aware of this potential financial assistance.
Thus, OVC worked with the National Association of Crime Victims
Compensation Boards to initiate comprehensive public awareness
efforts to inform victims on Indian Reservations about this important
program within each state. OVC funded the development of a video
entitled, Financial Assistance for Victims of Crime (see
Resource list at the end of this section), to further educate
and inform native Americans and tribal justice system professionals
about crime victim compensation and the procedures for submitting
a claim.
Additionally, in 1990, OVC added a new condition for state eligibility
to receive a crime victims compensation grant by requiring states
to undertake special efforts to inform on-reservation victims
about the State's compensation program and their eligibility to
apply.
Improving the Investigation, Prosecution and Handling
of Child Abuse Cases: The Children's Justice Act
In 1986, amendments to the Victims of Crime Act,
the Children's Justice Act was created to provide funding
for the nationwide improvement of the handling of child abuse
cases by the criminal justice system. The Children's Justice
Act for native Americans has served as an important source
of federal funding to assist tribes with the investigation, prosecution
and management of child abuse cases.
Over the years, OVC has awarded grants directly to tribes to create
systematic improvements for addressing child abuse -- not only
improving investigations and prosecutions -- but lessening the
trauma associated with children and families involved in these
complex cases. Since 1989, OVC has funded 29 tribal programs.
The programs have enhanced the following services and procedures:
(OVC Fact Sheet, Children's Justice Act Grant Program for
Native Americans)
Training and Technical Assistance
In addition, OVC has sponsored numerous training forums
on Native American victim issues. Each year OVC supports the
Indian Nations Conference which brings together victim service
providers, law enforcement officials, prosecutors, judges, health
and mental health providers to confront issues of victimization
and victim services in Indian Country. OVC has also provided
funding for "district specific" training, bringing together
federal law enforcement and victim assistance personnel with their
counterparts in Indian Country to improve communication and case
handling. This approach has met with great success. For example,
the Northern and Eastern Districts of Oklahoma signed Memoranda
of Understanding with 23 Tribal leaders that define federal, Tribal,
and state responsibility for investigating reports of child abuse,
prosecuting cases, and protecting children. (OVC Fact Sheet,
Projects in Indian Country)
In addition, OVC provides extensive training each year through
its Trainer's Bureau for grantees receiving Children's Justice
Act (CJA) for Native Americans funding. The Trainer's Bureau
provides training on all aspects of victimization, while the
CJA training program focuses on multidiciplinary approaches to
child abuse and increasing advocacy efforts for child abuse victims
system wide.
Section III: The Military Justice System and
Victims
of Crime
At the federal level, there is heightened interest
in the rights and needs of crime victims on military installations.
Through collaboration with the Office for Victims of Crime, the
Department of Defense (DoD) has provided training and technical
assistance to improve victims' rights and services when military
personnel are involved in crimes. The emergence of the recent
DoD Directive and Instruction, Memoranda of Understanding, and
model programs have contributed to greatly needed attention focused
on the rights and needs of victims throughout the military criminal
justice system.
DoD Policy Relevant to Victim and Witness Assistance
In 1994, the DoD responded to victims of crime by issuing
two major initiatives:
Together, the Directive and Instruction provide overall policy
guidance and specific procedures to be followed for victim and
witness assistance in all sectors of the military.
The 1994 Directive reissued military policies and procedures concerning
crime victims and witnesses that had been required since the 1982
enactment of the federal Victim and Witness Protection Act. The
new Directive applies to all branches of the United States military.
It effectively updated Department of Defense policies and assigned
responsibilities for providing assistance to victims and witnesses
of crimes committed in violation of the Uniform Code of Military
Justice (Chapter 47 of Title 10, U.S. Code). In addition, the
Directive formally established a Victim and Witness Assistance
Council.
DoD Instruction, 1030.2, added additional components to the military's
response to crime victims by providing the procedural guidance
for the Directive.
Victim and Witness Assistance Councils
Under Directive 1030.1, it is a responsibility of the
Under Secretary of Defense for Personnel and Readiness to, among
other responsibilities, create an Interdisciplinary Victim and
Witness Assistance Council to provide a forum for the exchange
of information and the consideration of victim and witness policies,
and provide a liaison with the Department of Justice, Office for
Victims of Crime.
Instruction 1030.2, further defines the role of the interdisciplinary
council: "to coordinate the development of policy recommendations
and the implementation of the Victims' Advocate Program within
their respective programs on victims and witness assistance, family
advocacy, and equal opportunity."
The DoD's Victim and Witness Assistance Council has helped develop
and define its broad mission in the implementation of policies
and procedures to respond to crime victims and witnesses. Significantly,
a Senior Program Specialist within the U.S. Department of Justice,
Office for Victims of Crime joined the Council as the only non-military
member. As a result, the Council has had the benefit of access
to, and information about, victims rights and services developed
on the federal, state and local levels. OVC's input has greatly
assisted DoD in defining and expanding services and training and
technical assistance opportunities on victims issues. For example,
OVC and DoD have entered into an interagency agreement to provide
training to multidiciplinary teams in military installations around
the world.
In addition, DoD Instruction 1030.2 states that, to the extent
practicable, a Victim and Witness Assistance Council should be
established at each significant military installation to ensure
that an interdisciplinary approach is followed by victim and witness
service providers. These providers may include the following:
Victims' Rights and Services within the United
States Military
The DoD Directive and Instruction on victim and witness
assistance cover the entire military justice process -- from investigation
through prosecution and confinement. They apply to the Office
of the Secretary of Defense and the following military departments:
To increase sensitivity to victims of crime and to provide services
for victims, the DoD Directives state the following:
"It is Department of Defense policy that: The necessary role
of crime victims and witnesses in the criminal justice process
should be enhanced and protected.
The DoD components shall do all that is possible within limits
of available resources to assist victims and witnesses of crime,
in accordance with the requirements listed in DoD Instruction
1030.2, without infringing on the constitutional rights of an
accused. Particular attention should be paid to victims of serious,
violent crime, including child abuse, domestic violence, and sexual
misconduct."
The Directives serve as the definitive guidance on standardizing
victim and witness assistance services throughout the military.
Each of the services -- Army, Navy, Air Force and Marines --
has now developed and issued regulations to implement the DoD
directives.
Victims' Rights and Services Within the Military
DoD Directive 1030.1 directs all agencies and services
of the military involved in the detection, investigation, or prosecution
of crimes that victims are to be accorded the following rights
(Note: These rights are essentially the rights articulated for
federal crime victims as enacted by federal law, and previously
stated):
Jurisdictional Conditions
In terms of jurisdictional conditions applicable
to Federal lands, there are four commonly used categories of legislative
authority:
1. Exclusive federal jurisdiction: The federal government
has all of the legislative authority within the land area in question.
Normally, the state reserves the right to serve civil or criminal
process on the federal area.
2. Concurrent jurisdiction: In granting to the United
States authority otherwise tantamount to exclusive legislative
jurisdiction over an area, the state reserves the right to exercise
the same authority concurrently with the United States.
3. Partial jurisdiction: The federal government has
some legislative authority, but the state reserves the right to
exercise other authority beyond service of process. Neither the
federal government nor the state has complete authority over the
land in question.
4. Proprietary interest: The federal government has
some degree of ownership or right to use of land within the state,
but does not have legislative authority except as authorized by
the constitution.
In addition, under the terms of the Federal Assimilative Crimes
Act, state law may become part of the federal code and is
then applied in federal prosecutions as it would have been if
the case had been tried at the local level. As stated in Section
13 of Title 18 of the United States Code:
"The Federal Assimilative Crimes Act is an adoption
by Congress of state criminal laws for areas of exclusive or concurrent
federal jurisdiction, provided federal criminal law, including
the UCMJ, has not defined an applicable offense for the misconduct
committed. The Act applies to state laws validly existing at
the time of the offense without regard to when these laws were
enacted, whether before or after passage of the Act, and whether
before or after acquisition of the land where the offense was
committed. For example, if a person committed an act on a military
installation in the United States at a certain location over which
the United States had either exclusive or concurrent jurisdiction,
and it was not an offense specifically defined by federal law
(including the UCMJ), that person could be punished for that act
by a court-martial if it was a violation of a non-capital offense
under the law of the state wherein the military installation is
located, and applies it as though it were federal law..."
Military Court-martials
Military Services only have the authority to court
martial active duty military service members. They do not have
the authority to order restitution or to utilize victim impact
statements as part of a court-martial. However, the DoD Directive
addresses restitution and victim impact statements in the following
way:
"Court-martial convening authorities and clemency and parole
boards shall consider making restitution to the victim
a condition of granting pretrial agreements, reduced sentences,
clemency, and parole. They may consider victim
impact statements on the impact of crime." (emphasis added)
Victim Services in the Military
At the DoD level, as well as in each branch of Military
Services, there is an office that provides oversight for the implementation
of victims' rights and services. Each branch of the military
has issued regulations to further implement victim/witness assistance
within their services. You may contact the DoD, or the representatives
from the individual military services at the following locations:
Department of Defense -- Headquarters
OUSD (P&R) RR/LP
4000 Defense Pentagon
Washington, D.C. 20301-4000
Phone: (703) 697-3387
Fax: (703) 693-6708
Army
HQDA-CL
Pentagon Room 2D423
Washington, D.C. 20301
Phone: (703) 695-2193
Fax: (703) 693-5086
Air Force
AFLSA/JAJM
112 Luke Avenue, Room 343
Bolling Air Force Base
Washington, D.C. 20332-8000
Phone: (202) 767-1539
Fax: (202) 404-8755
Marine Corps
CMC, HQMC Judge Advocate Division (JAM)
2 Navy Annex
Washington, D.C. 20380-0001
Phone: (703) 614-4250
Fax: (703) 695-5111
Navy
Office of Legal Counsel
PERS 0611
Washington, D.C. 20370-5006
Phone: (703) 614-2225
Fax: (703) 693-7265
Family Advocacy Program
In addition, each branch of Services has a Family Advocacy
Program. The Program is designed to prevent and treat child and
spouse abuse in accordance with DoD Directive 6400.1, Family
Advocacy Program. Each branch of Service maintains a central
registry of reports of alleged child and spouse abuse. Allegations
of child sexual abuse that occur in out-of-home care settings,
such as in child care centers, family day care homes, schools,
or recreation programs, must be reported within 72 hours to the
Service Family Advocacy Program for inclusion in the central registry
and to the DoD Assistant Secretary (Force Management Policy) or
to his or her designee. Criminal prosecution is the goal of intervention
in cases involving child sexual abuse in an out-of-home care setting.
If more than one child is a victim of sexual abuse in an out-of-home
care setting, the branch of Service may convene a multidiciplinary
technical assistance team for the installation at the request
of the installation commander, or the DoD Office of Family Policy
may convene a multidiciplinary team of specially trained personnel
from the four Services to provide technical assistance. Technical
assistance may include law enforcement investigations, forensic
medical examinations, forensic mental health examinations, and
victim assistance to the child and family. The primary recipients
of technical assistance are the Family Advocacy Program Manager,
the investigators of the installation law enforcement agency,
and the physicians and mental health professionals at the military
treatment facility or those who provide services under contract.
Services are available to the following:
Another example of a military victim service program is the Navy's
Sexual Assault Victim Intervention Program (SAVIP). Established
in 1994, the program is described by the Navy as unique in the
services and as a " comprehensive, standardized, victim-sensitive
system response to sexual assault Navy-wide." Specifically,
the program provides sexual assault awareness and preventive education
programs; victim advocacy and intervention services; and collects
accurate data on sexual assault in the Navy. There were 28 SAVIP
Coordinators working through 26 Family Service Centers by April
of 1994.
Collaborative Efforts Between the Military and
Local Victim Services
The Naval Air Station in Jacksonville, Florida and
the City of Jacksonville Victim Services Division Adult/Adolescent
Sexual Assault Center have created a Sexual Assault Victim Advocacy
Program through a Memorandum of Understanding. According to the
Memorandum, "this program is intended to provide emotional
support and guidance to victims of sexual assault during administrative,
medical, investigative and legal procedures, and to ensure that
they understand and can anticipate these procedures. In addition,
the Victim Advocate Program informs victims on the availability
of appropriate follow-up care."
In Jacksonville, the Navy and the Jacksonville Victim Services
Division collaborate on training, service provision, information
and referral for victims of sexual assault whose cases fall under
the jurisdiction of the Navy.
In addition to establishing a position for a sexual assault victim
intervention program coordinator, designated by the installation
commander, as well as a victim intervention program coordination
committee, specific duties relevant to program implementation
are detailed in the Memorandum of Understanding. The Naval Installation,
in accordance with the Memorandum, will:
The responsibilities of the AASAP, as detailed in the Memorandum
of Understanding, are to:
This Memorandum of Understanding is an excellent example of a
collaborative effort between the military and local victim services
that can serve to increase reporting of crimes, and access to
services, and enhance the quality of assistance available to victims
of sexual assault whose cases fall under military jurisdiction.
Conclusion
This chapter has discussed three separate federal systems of victims'
rights and services. While there are certain similar aspects
of each system (for example, victims whose cases are prosecuted
at the federal level, stemming from an offense committed at the
tribal or military level, are accorded the same victims' rights
under the federal laws discussed in the beginning of this chapter),
it should be clear that each justice system is separate and unique.
Where possible, issues of overlapping jurisdiction, or interagency
cooperative efforts, funding and support have been highlighted.
A common characteristic among the three justice systems is that
the 1990s has been the decade of significant progress in each
of the systems. New laws, regulations, directives, programs,
and personnel have been incorporated in the federal, tribal and
military justice systems. Victims of crime falling under each
of these systems now truly have an opportunity to exercise their
rights, to be informed, and to be treated with dignity and compassion.
Resources for Native American Victims
The Office for Victims of Crime has supported the development
of a number of useful publications and videos to assist Native
American crime victims. Specifically these resources are:
Note: Contact the Office for Victims of Crime Resource Center
(OVCRC) at (800) 627-6872 for information about the availability
of these resources.
Self Examination Chapter 7
The Federal, Indian and Military Justice
Systems: Victims' Rights and Assistance
1) What four major federal laws have been enacted
to provided rights, services and funding for federal crime victims?
2) Describe the role of the Federal Victim-Witness Coordinator
and give an example of the type of interagency assistance Coordinators
can provide.
3) Jurisdictional issues are extremely complicated when responding
to Native American crime victims. Briefly describe the relationship
between federal, tribal and state law in this area (use Jurisdictional
Chart for this answer.)
4) The Military justice system has responded to crime victims
through what mechanisms? What branches of Service(s) do victims'
rights now apply?
5) In your opinion, what has been the most significant development
on the national level that has contributed to the comprehensive
system of rights and services now available to victims of federal
crimes?
References
Bureau of Justice Statistics. (1996, May). Felony
sentences in the United States, 1992, Washington, DC: U.S.
Department of Justice.
Children's Justice Act fact sheet for Native Americans.
)1995). Washington, DC: Office for Victims of Crime.
Criminal justice in Indian country: A focus on new options.
(1994). Quantico, VA: U.S. Department of Justice, Criminal Division.
Federal Victim-Witness Coordinators as a Resource. (1996).
Washington, DC: Office for Victims of Crime.
Law Enforcement Coordinating Committee/Victim-Witness Assistance
Program Manual. (1990). A guide for LECC/victim-witness coordinators.
Washington, DC: U.S. Department of Justice, Executive Office
of U.S. Attorneys.
Projects in Indian Country. (1995). OVC Fact Sheet. Washington,
DC: Office for Victims of Crime, Federal Crime Victims Division.
Shriner, Sue. (1992, February). Victim programs to serve Native
Americans. OVC Bulletin. Washington, DC: Office for Victims
of Crime, U.S. Department of Justice.
Victim and witness assistance. (1994, November 23). Department
of Defense Directive, 1030.1.
Victim and witness procedures. (1994, December 23). Department
of Defense Instruction, 1030.2.
The information on this page is archived and provided for reference purposes only.