Section 2, Dynamics of the Criminal Justice System
The criminal justice system involves many different agencies and individuals. Each of these has specific roles and responsibilities within the system. The victims' role within the system must be understood in this context. In large part, legislatively established "rights" provide victims with the means to make the system more accountable to them.
Upon completion of this section, students will understand the following concepts:
One of the most fundamental functions of any civilized society is the protection of its citizens from criminal victimization. In the United States, the primary responsibility for protecting innocent people from those who would harm them rests with the criminal justice system. The criminal justice system involves many components that are reviewed in this section. 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 executes it." The criminal justice system involves a delicate balance among its many components in the search for truth and justice. This section discusses the dynamics of this balance among the various agencies and professionals within the criminal justice system, and how the victim of crime figures into these dynamics.
ELEMENTS OF THE CRIMINAL JUSTICE SYSTEM CONTINUUM
Assuming certain basic rights and protections are in place, then victims and their advocates have some foothold to enforce these rights. Those primarily responsible for assuring that victims are afforded the protections and assistance they deserve are criminal justice system professionals.
The criminal justice system, at its fundamental level, includes the following:
Allied professions, such as mental health, child welfare, medical, and others, often have significant roles within the criminal justice process. The dynamics of these professional perspectives within the system need to be understood to best protect victims' rights.
NEED FOR IMPROVED TREATMENT OF VICTIMS
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 within the criminal justice system that begin at the point of reporting a crime to the police and continue through the entire criminal justice and corrections processes. 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 twenty-four-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 and restitution requirements are 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, victim impact statements, and requests for protection, in offender files or databases, with security precautions established to protect victim confidentiality. Paroling authorities should encourage and accept victim impact statements and offer victims whatever reasonable protections they request if an offender is released to parole supervision.
Training and technical assistance. Victim sensitivity training should be provided to all criminal and juvenile justice professionals as part of mandatory orientation educational programs as well as continuing education. Such training should include the following:
"Cross training" is also essential to 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 Center for Victims of Crime, 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. The following are services which can be multi-disciplinary (NCVC 1992):
In addition, witness coordination and post-disposition services, such as monitoring of restitution payments and notification regarding an offender's incarceration status, are very important.
Basic services for victims and witnesses should be available at every stage of the criminal justice process, as described below. It is important to note that these victim services can be provided by multiple agencies or through multi-disciplinary efforts.
Criminal Justice System Agencies' Roles and Responsibilities
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, twenty-four 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 functions of law enforcement are to do the following:
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, some police officials have perceived their victim assistance responsibilities as a secondary responsibility, at best.
Victim sensitivity training for police officers comprises an important improvement. In the past, police academies have not provided adequate training for law enforcement personnel regarding victimization and the effect that crime has on crime victims. This means that when undertrained law enforcement personnel come into contact with an emotionally distraught victim, a victim's confidence and willingness to participate in the criminal justice system may be undermined.
Officers who initially respond to a crime scene, as well as investigating officers, are responsible for gathering evidence that can lead to arrest and prosecution of alleged perpetrators. Often the questions they ask victims appear to be judgmental or even blaming, despite their level of victim sensitivity. Police officials who interview victims must clearly establish that their role is to obtain relevant facts and evidence. While their line of questioning may appear to be judgmental or blaming, that is not their intent. This simple clarification can help officials obtain pertinent information without contributing to further victim trauma.
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 benefited 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. Victims' only hope for assistance from the criminal justice system is at the police-based level.
The move toward community policing in many jurisdictions has important implications for victims and those who serve them. Community policing involves partnerships with people who reside in neighborhoods that officers regularly patrol to increase opportunities for crime prevention, early intervention for people at risk of offending or victimization (especially juveniles), and services to individuals and neighborhoods that have been hurt by crime.
At its best, community policing creates a network of involved individuals who are available and willing to provide important witness information, as well as support for their neighbors who have been affected by crime. Community policing partnerships have resulted in neighborhood-based training and information initiatives that educate people about personal safety, victim and social services, and victims' immediate- and long-term needs that can be met by the community.
With more officers visible and active on the street and in neighborhoods, the delivery of victim services can be provided more swiftly and can involve supportive advocacy from all facets of a neighborhood or community (such as businesses, churches, and social services) in measures that reflect the cultural, gender, economic, and geographic diversity of the community.
The specific roles and responsibilities of law enforcement officials to victims of crime. Police-based services provide essential assistance to victims of crime, including 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 the following:
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 victims' rights and the delivery of victim services.
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. The typically limited resources made available to prosecutors to dispose of each case in the most just, yet efficient manner possible is a tremendous motivation to dispense cases, in light of the often overwhelming workload handled by most prosecutors' offices. This motivation/pressure often conflicts with the needs and desires of individual victims, who want their particular perpetrator prosecuted to the full extent of the law. Consequently, victims' expectations are often not fulfilled, and the case is disposed of early on, most often through the use of a non-trial settlement, usually referred to as plea bargaining.
Plea bargaining. Plea bargaining allows the defendant to avoid a trial and the possibility of a verdict that may result in a more severe sentence by agreeing to plead guilty to a lesser offense. Victims are often most distressed at the perceived ability of the defendant to "get off easy" by bargaining with the prosecutor to reduce the severity of the offense of which they may actually be guilty. Many victims and advocates rightfully consider victim participation in the plea negotiation process as essential to providing victims with a voice in the system. Any plea negotiation should include an opportunity to present the impact of the crime on the victim--a victim impact statement--as well as the opportunity for the victim to consult with the prosecutor prior to any plea agreement.
Diversion. In non-violent and/or first-time offenses, prosecutors can recommend diversion of the case. Essentially, in diverted cases, the offender will be required to complete certain conditions--such as paying restitution, community service, victim/offender programming (with the victim's consent), and/or educational or treatment programs--in order to avoid having a criminal record. Diversion agreements should be confirmed only with the consent and agreement of any victim(s) involved in the case. Diversion agreements can be revoked at any time if an offender fails to comply with the conditions of the diversion agreement.
Trial. Assuming a case goes beyond the plea negotiation stage to trial, the defendant continues to receive basic protections found in the United States Constitution, state constitutions, and pertinent statutory law and case law. Volumes of materials are available about 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 an 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 process for victims, and they need to be well prepared and supported.
Prosecutors should also be knowledgeable about victim trauma, specifically as it relates to a victim's role as a witness. At the scene of the crime and shortly thereafter, victims may be unable to recall critical facts related to their victimization as a result of their trauma. Their knowledge of the details of the crime can increase significantly with appropriate crisis intervention and trauma response. However, any changes in their original witness statementsmay be challenged by defense counsel. As a result, prosecutors need to be able to explain the relationship of crisis reactions to victims' original statements, and how consistent ventilation about the crime and appropriate validation from supportive individuals can actually help victims better remember and articulate vital details as witnesses.
A number of services 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 a perceived or real lack of progress in their cases and the need to repeatedly rearrange their personal and work lives 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, and other services and interventions that are described at length in other chapters, such as obtaining restraining orders and filing victim impact statements. 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 in daily practice (see chapter References). Regarding prosecutorial roles, issues such as protection from intimidation and harm are recognized as well as the effect of continuances and case delays, 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 (ABA Guidelines; Kelly 1991).
Specific roles and responsibilities of prosecutors to victims. While the prosecutor's role is to present the government's case to the court, and see that justice is achieved in every case forwarded to his or her office, many important activities rely upon the involvement of victims. Although they are not the "victim's attorney," prosecutors have opportunities to keep victims informed and involved, to provide appropriate accommodations in the pre-trial and court settings, and to follow up with information and referral, as needed. These opportunities should include the following:
A significant prosecutorial development is the establishment of "vertical prosecution units," especially for domestic violence and sexual assault cases, where specially trained prosecutors maintain caseloads of one type of victimization. Vertical prosecutors work on cases from the initial filing of charges through final disposition, streamlining this stage of the criminal justice system for the victim. Instead of several prosecutors working on the case at various stages in the prosecution, one prosecutor is assigned the case from the point of charging through trial.
The Sixth Amendment to the Constitution, a part of the Bill of Rights, provides the basis for the right to criminal defense in the United States. In part, this Amendment reads that "In allcriminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense." Indeed, this provision of the U.S. Constitution has been expanded to require, or at least strongly favor, defense attorney involvement even before criminal prosecution commences (i.e., while the accused is being questioned after arrest when a lawyer is requested). Regrettably, victims of crime enjoy no such protections under federal constitutional law.
Significant components of the role of defense counsel include the following:
Since it is, indeed, the duty and obligation of defense counsel to defend their client's constitutional and other legal rights in the most competent manner possible, it is, unfortunately, not atypical that defense counsel's actions will re-victimize the victim. Victims must be prepared for this possibility.
The obvious position that defense counsel assume, as juxtaposed with the victim's or survivor's perspective, is a natural outcome of the adversarial system of justice practiced in the United States. Ideally, two opposing sides equally equipped with resources and legal rights come before a neutral decision-maker, the court, to have issues settled according to the prevailing law. Of course, even a casual observer is aware of the significant failing of this system vis-à-vis the crime victim. However, the roles and responsibilities of defense counsel are deeply rooted in our system of justice.
Despite the adversarial nature of our legal system, there are ways in which defense counsel have and may continue to be of assistance to victims. Among these are the following:
Whether defense counsel are viewed as necessary evils, or potential participants in programs that may even assist victims, and even though some individual defense counsel may not be ethical in their criminal defense tactics, the role of defense counsel in our system of justice is firmly secured and must be acknowledged for the principle it represents.
Judges can provide essential protections to victims. For example, when cases involve children, certain accommodations such as allowing the victim to testify through closed 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 or intimidating victims.
One common technique is for defense counsel to subpoena the victims' family members as potential witnesses, request that the court order witnesses be excluded from the courtroom (sequester), and then never call the victim's family to testify, thereby preventing their attendance in the courtroom. Meanwhile, 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 may appear to be uninterested in supporting the victim or the prosecution's case because they are sequestered. Such motions, when made for such manipulative purposes, can and should be denied.
Judges are empowered to sentence convicted criminals for their crimes. It is important that judges include information regarding the full 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 and pre-sentence investigation reports (PSIs) are often the only comprehensive assessment of the actual injuries and losses caused by the offender available to the judge; it is crucial that this information be conveyed in a timely fashion to the sentencing court. Judges are also involved in various post disposition decisions, such as reconsideration of sentences and appeals.
Specific role and responsibilities of judges to victims. Judges can help assure that victims are provided their legal rights as well as adequate court-based services, which should include the following:
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.
When an offender is sentenced to probation, victims should be notified of the status and location of the offender and, in particular, any of the offender's actions that may lead to revocation of community supervision.
An important condition of probation is that probationers commit no new crimes during their period of community supervision. If probationers violate any condition of their sentence, the probation agency can rescind or "revoke" probation, which results in 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:
Nearly all of America's state corrections departments and the federal system now have victim service programs. All the roles and responsibilities enumerated below are generally sponsored and/or implemented by such programs.
Specific role and responsibilities of institutional corrections officials to victims of crime. Corrections officials' roles and responsibilities to victims should include:
There are two main functions of paroling authorities: parole boards and parole agencies.
Parole boards. The American Correctional Association identifies four primary functions of a state parole board, which are to:
In many 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, Ohio, South Carolina, and Virginia, victims of violent crime serve as parole board members (including some through designation of a victim parole board member as a statutory provision). Each state varies in its number of board members.
Parole decisions can be made before a meeting of the full board, at hearings that have panels of three or more members present, and/or through a meeting with an individual parole board member (Wisconsin) who reports back to the full board. 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 not committing any crimes during the period of parole; no possession of weapons; 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 to which they pled 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 sometimes 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 overviews of how the parole process works (and victims' rights that are inherent in this process). Such programs serve to make a system that has traditionally been "offender directed" also "victim centered."
Parole agents. Parole agents (also called "parole officers") are responsible for monitoring the supervision of parolees. In most states, parole caseloads are astronomically high, resulting in limited supervision due to the lack of human and financial resources. The parole agent is responsible for ensuring that offenders 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 should be 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 twenty-four hours a day.
Specific role and responsibilities of parole officials to victims of crime. Parole officials' roles and responsibilities to victims should include the following:
Doctors, nurses, and other hospital personnel provide tremendous assistance to victims of crime. In addition to police officers, medical personnel, who also are often available twenty-four 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 carefully document 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, but 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 damage and injuries incurred by the victims. These have important ramifications for the investigation and referral by law enforcement, by the handling of cases in prosecutor's offices, and in sentences handed down by judges.
Child protection officials have a significant role in cases involving child abuse and neglect. Depending on the jurisdiction and the nature of the victimization, these cases may be handled in a criminal court, juvenile court, or family court system. In each of these systems, it is important that the child protection official cooperate in developing the best investigation report possible for presentation at trial. Increasing use of Court Appointed Special Advocates (CASAs) and Guardians Ad Litems (GALs), whose roles are to advocate to the court on a child's behalf, provides an important voice to the needs and concerns of child victims.
As almost all victims of crime may require some medical, mental health, or other social services intervention, the coordination of these efforts within and complementary to the criminal justice system is crucial to providing the most victim-centered, victim-oriented criminal justice system response possible.
Current Status of Victims' Rights Within the Criminal Justice System
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 (NCVC 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 laws. Of course, only a detailed analysis ofspecific pieces of legislation and an evaluation of their actual implementation will give a full sense of how victims' rights are being provided.
Although there are many ways in which various victims' rights can be established and protected through legislation, for the most part they can be understood in four general categories:
In 1982, the President's Task Force on Victims of Crime listed sixty-eight 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.
VICTIM IMPACT STATEMENTS
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 drunk driving crash 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 (Sobieski, MADDVOCATE 1993).
VIS also provide information to courts and corrections that is valuable in determining appropriate sentences and 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 time of sentencing and release decisions, are not known, such as:
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:"
A new approach to VIS is being utilized in jurisdictions that operate under a restorative justice framework. This approach seeks to focus on victim impact, opportunities for considerable victim input into sentencing decisions, opportunities for victims (who so desire) to meet with their offenders in a structured setting to define the harm caused by the offense, and accountability from the offender.
A restorative VIS includes the following questions:
The combination of "specific" and "open-ended" questions will elicit valuable insights into the victim's opinions, recommendations, and desire to participate in victim/offender programming. In addition, the victim impact statement can include a question regarding whether or not the victim wishes to be notified of the offender's status (such as violation of probation, or release from incarceration/detention), which can then be forwarded to the proper authority.
VICTIMS' BILLS OF RIGHTS AND RELATED LAWS
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:
The National Center for Victims of Crime (NCVC) has identified fifty-eight possible points of notification throughout the criminal justice process. Notification 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 forty-five states have enacted laws encouraging prompt return of the victim's property. Several of these laws allow photographs to be admissible in court in place of the actual property.
Victims of crime in the federal system also enjoy certain basic rights. The Victims' Rights and Restitution Act of 1990 provides the following rights to victims of federal crimes:
ENFORCING VICTIMS' RIGHTS THROUGH CONSTITUTIONAL AMENDMENTS
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 in relation to criminal justice that are most recognizable to the general citizenry as defendants' rights, such as the right to a jury trial, the right to avoid self-incrimination, and the right to be free from unreasonable search and seizure, are found, at their roots, in the Bill of Rights. Victims deserve no less than such fundamental, constitutional protections.
Thirty-two states now protect victim rights through rights provided for in their state constitutions. The past decade has 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. Since that time, several version of the federal victims' rights constitutional amendment have been before the United States Congress. The latest version, Senate Joint Resolution 3, was introduced in January, 1999 by Senator Kyl of Arizona. If passed, it will amend the U.S. Constitution to guarantee that victims of violent crime have participatory rights throughout the criminal justice process, including rights to reasonable protection from the offender, a speedy trial, and restitution.
State constitutional amendments are quite varied. This is a result of the specific 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 enabling legislation must provide for the actual programs and funding needed to ensure that victims' constitutional rights will become a reality.
ENFORCEMENT OF CONSTITUTIONAL RIGHTS
There is an adage in the law that "a right without a remedy is no right at all." Obviously, a right that cannot be enforced and does not benefit the intended person is truly not a right. For example, a victim may have a constitutional right to be notified at sentencing of an offender and to be heard by way of providing a victim impact statement to the court. What recourse should a victim have under this arrangement if he or she was not notified of the sentencing of the offender?
If a defendant was not accorded a particular right that affected his or her sentence, he or she could petition that court, or a higher court, to set aside the sentence and provide a new sentencing hearing where all the relevant rights could be provided the defendant. This is the sort of mechanism that victim advocates argue should be available to victims who are not accorded basic, particularly constitutional, rights.
Two specific 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, but are refusing to do. The case of Marbury v. Madison, which established the power of the courts to review the actions of other branches of government, involved a mandamus action compelling a government official to complete a ministerial act that was previously refused. Victims could seek to have the court force public officials to provide them with adequate and reasonable compliance with their constitutional rights.
Injunctive relief. The party seeking an injunction is seeking to have someone stopped from commencing or completing an act. Victim advocates are familiar with the concept of temporary injunctions, restraining orders or protective orders that compel individuals to stop doing certain things, such as in domestic violence or stalking cases. This is essentially the same mechanism that could be used by victims to stop public officials from doing what is contrary to the rights they should have 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 a stronger legal foundation 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.
VICTIMS' RIGHTS COMPLIANCE EFFORTS
At least three states that have passed constitutional amendments for victims' rights have also developed initiatives to encourage compliance with the provisions of their respective amendments:
In addition, in 1986, Minnesota established its Office of the Crime Victims Ombudsman (OCVO) to help ensure that victims are guaranteed their rights and treated fairly and appropriately by criminal justice practitioners. OCVO officials may investigate both statutory violations of victims' rights laws and alleged mistreatment by criminal justice practitioners. In conducting their work, OCVO officials indicate that they approach the enforcement of victims'rights in a neutral and objective manner. They act not as victims' advocates, but as advocates of fair government.
IMPLEMENTATION AND PROVIDING RESOURCES
The dynamics of the criminal justice system can be brought into balance, and victims can become an integral part of this system. However, laws alone cannot operate in a vacuum, and should be augmented by multi-disciplinary initiatives focused on implementation, funding, evaluation, monitoring, and enforcement.
SUPERVISION OF ADULT PROBATION AND PAROLE VIA INTERSTATE COMPACTS
It is estimated that as of 1999, approximately 250,000 offenders are under community supervision who are living or traveling in states other than where they were convicted. In addition to the sheer volume of offenders who fall under ISC jurisdiction, the National Institute of Corrections has identified three additional reasons why the ISC is so critical to public safety:
Interstate compact and victims' concerns. Crime victims and victim service providers have raised significant issues relevant to the ISC, which fall into two categories: ISC management and the enforcement of victims' rights.
A few states, such as Pennsylvania, require mental health evaluations of potential ISC offenders prior to acceptance, which is not always required in reciprocal states. This approach, which gives receiving states important information about the offenders they will or will not agree to accept, should be expanded to all states.
Domestic violence advocates express concern that the ISC is not in compliance with the interstate policies of the Violence Against Women Act. In addition, many domestic violence "convictions" are civil and, as such, are not addressed under the terms of the ISC.
Perhaps most significant, in addition to managing an overwhelming number of offenders, compact administrators are required to manage a process that lacks appropriate funding and staffing. Increased resources are needed to adequately address the tremendous responsibilities of managing the ISC, collecting vital data regarding compliance, and, perhaps in the future, enforcing all relevant victims' rights as a component of the ISC mandates.
The APPA Victim Issues Committee and ACA Victims Committee have identified a number of issues relevant to the enforcement of victims' rights that should be considered in amending the ISC, as well as by Compact Administrators in the meantime. They include the following:
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 laws?
4. How many states today have constitutional amendments that guarantee victims participatory rights within the criminal justice system?