21 May WHAT IS YOUR PERSONAL STANCE ON THE CURRENT STATE OF VICTIMS’ RIGHTS IN AMERICA?
Victims’ Rights and Vengeance
Readthe
following two articles “Crime Victims’ Rights: From Illusion to Reality” and
“Vengeance Time” in this week’s Electronic Reserve Readings.
Writea 500- to
700-word personal reflection that addresses the following:
· What is
your personal stance on the current state of victims’ rights in America?
· Do you
believe that the 2004 Crime Victims’ Rights Act (CRVA) has been successful?
Explain.
· Is there
ever a circumstance in which you feel vengeance is appropriate, even when it
means breaking a law? Explain your response.
· Do you
agree with the actions of Survivors Network of those Abused by Priests (SNAP)?
Why or why not?
Crime
victim’s rights: From illusion to reality
Abstract
(summary)
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Advocates for victims’ rights have long complained that they
have been sidelined by a criminal justice system that is focused on the
interplay between the state and the defendant. With the enactment of the
Victims’ Bill of Rights Act of 2008, that is changing. The authors examine the
current state of victims’ rights, the evolution of the enforcement mechanisms,
and the emerging role of the criminal practitioner in regards to these rights.
[PUBLICATION ABSTRACT]
Full
Text
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Attorneys have an
obligation to their clients, to their profession, and to justice itself. They
are obligated to use their expertise to guarantee that the system does not
stray from the principle that lies at the heart of the law: justice for all who
seek it.
– Final Report,
President’s Task Force on Victims of Crime (1982)
Although she had read and
heard much about Santa, her friends told her that Santa didn’t exist, and she
had never actually seen Santa, so eight-year-old Virginia O’Hanlon asked the
now-famous question to the editor of the New York Sun more than 100 years ago,
“Is there a Santa Claus?” Some victim advocates have wondered the
same thing about victims’ rights: Are they just “mushy, ‘feel good’”
platitudes, as one court put it? (See United States v. Holland, 380 F. Supp. 2d
1264, 1279 (ND. Ala. 2005). After all, each state and the federal government
have passed literally thousands of statutes that say victims have rights, and
33 states have passed constitutional amendments protecting the rights of
victims in the criminal and juvenile justice systems. Yet when victims have
tried to assert these “rights,” they have often been turned away from
the courts. So, do these rights really exist?
Well, just as the editor
reassured young Virginia, victim advocates may be assured that a significant
and dramatic shift is occurring in the criminal and juvenile justice systems.
With the recent sweeping changes in the federal landscape for victims’ rights
under the Crime Victims’ Rights Act (CVRA), victims have been given the teeth
of standing to enforce their rights. (18 U.S.C. § 3771). Already, the states
are beginning to follow suit. In 2008, Oregon gave victims standing under its
constitution. (Or. Const, art. I, § 42 & 43.) In the November 2008
elections, the platform of change that swept through the nation brought to
California the strongest constitutional amendment for victims in the country.
(Victims’ Bill of Rights Act of 2008, West’s Ann. Cal. Const, art. 1, § 28,
adding standing).
So yes, victims’ rights
do, indeed, exist. This article examines the current state of victims’ rights,
the evolution of enforcement mechanisms seeking to implement those rights, and
the criminal justice practitioner’s emerging roles with respect to those
rights.
Reemergence of the
Victim’s Voice
In colonial America,
crime victims prosecuted their own criminal cases, in keeping with the common
law in which there was no public prosecutor. But this form of justice was
available only to those with resources, and was replaced as early as 1704 with
local public prosecutors. In 1789, the first federal code provided for public
prosecutors to prosecute federal crimes, and by the end of the 1800s private
prosecutions were entirely eliminated. Victims were basically relegated to
witness status.
As an outgrowth of the
civil rights work of the 1960s and 1970s, there was an increased attention to
crime and its aftermath. The first National Crime Survey in 1972 (now renamed
the National Crime Victimization Survey) identified crime rates much higher
than those reported to law enforcement in the FBI’s Uniform Crime Reports. The
tremendous toll of crime on its victims emerged into social consciousness.
Public support for crime victims was immediate and overwhelming. Indeed, the
crime victims’ rights movement has been termed “one of the most successful
civil liberties movements of recent times.” (John W Gillis and Douglas E.
Beloof, The Next Step for a Maturing Victim Rights Movement: Enforcing Crime
Victim Rights in the Courts, 33 McGeorge L. Rev. 689, 691 (Summer 2002).)
By 1981, President Reagan
established a National Victims’ Rights Week. Programs sprang up to help victims
navigate the complexities of the criminal justice process. Grassroots efforts
in sexual assault and domestic violence led to early reforms for the treatment
of these victims.
Perhaps one of the most
influential efforts to improve the treatment of crime victims occurred as a
result of publication of a report of President Reagan’s Task Force on Victims
of Crime in 1982. That report detailed the truly sorry state of treatment of
crime victims in the criminal justice system. The task force found that victims
“pleas for justice have gone unheeded, and their wounds – personal,
emotional, and financial – have gone unattended.” The report concluded
that “sustained efforts of federal, state and local governments, combined
with the resources of the private sector” were necessary to “restore
balance to the criminal justice system.” (Final Report of the President’s
Task Force on Victims of Crime (Dec. 1982) available at http://www.ojp.gov/ovc/
publications/presdntstskforcrprt/).
One of the 68 recommendations
of that landmark report was the establishment of a governmental focus and a
funding source for victims. The following year, the Department of Justice
established the Office for Victims of Crime (OVC). Among its duties was to
administer the newly passed Crime Victims Fund, part of the Victims of Crime
Act, which established a source of funds for victim assistance and compensation
from federal fines, penalties, and bond forfeitures. With a permanent funding
source, treatment and assistance for victims improved, and victim advocates
began to focus on legal reform.
Legal Reform
The U.S. Supreme Court
noted the strength of the emerging victims’ rights movement in Payne v.
Tennessee, when it reversed a previous decision excluding victim impact statements
in a capital case at sentencing as wrongly decided. (See Payne, 501 U.S. 808,
834 (1991) (overruling Booth v. Maryland, 482 U.S. 496 (1987).) In Payne, the
Court recognized a murder victim’s “uniqueness as an individual human
being” in permitting victim impact statements at sentencing. Indeed,
Justice Scalia opined that Booth “conflicts with a public sense of justice
keen enough that it has found voice in a nationwide ‘victims’ rights’
movement.” (See Payne, 501 U.S. at 834 (Scalia, J., concurring).)
The permissible scope of
victim impact statements in capital cases continues to be an issue in the
courts. In November 2008, the U.S. Supreme Court refused to hear two cases in
which technology-enhanced victim impact statements were allowed at sentencing in
capital cases. (See Kelly v. California, 129 S. Ct. 564 (2008).) In the Kelly
case, the California Supreme Court allowed a 20-minute video of the life of a
murder victim as part of a victim impact statement as within the trial court’s
discretion to permit relevant and factual information. (People v. Kelly, 42
CaI. 4th 763, 799 (CaI. 2007) (allowing soft music in the background).) In the
Zamudio case, the same court allowed a 14-minute video with 118 pictures of the
elderly couple who had been murdered by the defendant. (People v. Zamudio, 43
Cal. 4th 327, 366 (Cal. 2008) (however, trial court excluded the music and
required narrative to be “objective”).) In each case, the Supreme
Court of California recognized the need to balance such evidence against the potential
for impermissible prejudice.
Despite concerns of the
defense bar, having a “voice” in the criminal proceedings does not
mean that victims have party status. (See Amy Baron-Evans, National Federal
Defender Sentencing Resource Counsel, Crime Victims Rights Act (Oct. 12, 2008)
available at http://www. fd.org). Victims “are not accorded formal party
status, nor are they even intervenors” in the traditional sense. (See
United States v. Rubin, 558 F. Supp. 2d 411, 417 (E.D.N.Y. 2008).) Still, crime
victims are to be treated as “participants in the process.” (See
United States v. Hunter, 2008 U.S. Dist. LEXIS 443 at *5 (D. Utah, Jan. 3,
2008).)
But what are
“participant” rights? Unlike the clearly identified
constitutional standards for defendants, there were no uniform standards to
guide the early development of “Bill of Rights” laws for victims.
Each jurisdiction was free to conceptualize what “due process” meant
in the context of “victims’ rights.” This has produced considerable
differences in language, scope, and level of specificity for the
“rights” of victims across the country. Generally, though, victims’
rights laws included the right to information; the right to be present at
criminal justice proceedings; the right to notice and to be heard (at least at
the victim impact stage); the right to restitution and/ or compensation; the
right to protection; and the right to privacy. (See National Conference of
State Legislatures, Victims Rights Laws in the States, available at http://
www.ncsl.org/programs/cj/victimsrights.htm).
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