Legal Series Bulletin #7: Victim Input Into Plea Agreements
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U.S. Department of Justice Office of Justice Programs Office for Victims of Crime NOVEMBER 2002 LEGAL SERIES Victim Input Into BULLETIN Plea Agreements #7 Message From Introduction ccording to the Bureau of Justice Statistics, guilty pleas in 1996 accounted for 91 the Director percent of felony convictions in state courts.1 This figure has been consistent since Over the past three decades, the 1988. Thus, unless crime victims are afforded the opportunity to be involved dur- criminal justice field has witnessed an A ing plea negotiations and related proceedings, most of them will be effectively denied astounding proliferation of statutory any chance for meaningful participation in the criminal justice process. enhancements benefiting people who are most directly and intimately affect- The enactment of victims’ rights legislation in recent years has allowed victims of crime ed by crime. As of 2000, all states had to take a more active role in criminal proceedings. By sharing the impact the crime has passed some form of legislation to ben- efit victims. In addition, 32 states have had on their lives and voicing their views on sentencing, victims can play an essential recognized the supreme importance role in the appropriate administration of justice. Victims in many states, however, have of fundamental and express rights for not been able to fully exercise the rights provided them by law. crime victims by raising those protec- tions to the constitutional level. Of course, the nature, scope, and en- Status of the Law forcement of victims’ rights vary from state to state, and it is a complex and hen victims have been permitted to provide input into plea agreements, the often frustrating matter for victims to right has typically been granted at two stages of the criminal justice process: determine what those rights mean for (1) when conferring with the prosecutor during plea bargaining and (2) when them.To help victims,victim advocates, W addressing the court, either orally or in writing, before the entry of the plea. Depending and victim service providers under- on the law of a particular state, a victim may be given the opportunity to comment on stand the relevance of the myriad laws and constitutional guarantees, the the proposed plea at either or both of these stages. Office for Victims of Crime awarded funding to the National Center for Right To Confer With Prosecutor Victims of Crime to produce a series Most states provide victims with some level of prosecutorial consultation about a negoti- of bulletins addressing salient legal is- ated plea agreement; however, the extent of their participation varies widely from state sues affecting crime victims. to state. In no state is the right to confer interpreted as the right to direct the prosecu- Victim Input Into Plea Agreements, the tion of the case or to veto decisions of the prosecutor. As the applicable law in Wisconsin seventh in the series, provides an over- specifically states, “The duty to confer . does not limit the obligation of the district at- view of state laws addressing the rights torney to exercise his or her discretion concerning the handling of any criminal charge of victims to be involved during plea against the defendant.”2 negotiations in criminal cases.This bul- letin and the others in the Legal Series highlight various circumstances in In several states, victims are afforded a general right to confer with the prosecutor. The laws of those states require prosecutors to consult or confer with victims concerning plea Continued on page 2 OVC Legal Series and submitting to the prosecutor a written statement outlining Continued from page 1 the impact of the crime and any sentencing recommendations they feel are appropriate.10 which such rights are applied, emphasizing their successful implementation. Under this type of consultation law, crime victims are at least We hope that victims, victim advocates, victim service providers, given an opportunity to fully inform the prosecutor’s decision, criminal justice professionals, and policymakers in states across although the terms and sentencing recommendations agreed to the Nation will find the bulletins in this series helpful in making under a negotiated plea are still ultimately the decision of the sense of the criminal justice process and in identifying areas in prosecutor. Because most states provide no consequences for non- which rights could be strengthened or more clearly defined.We encourage you to use these bulletins not simply as informational compliance with such laws, however, crime victims are still fre- resources but as tools to support victims in their involvement quently left out of the plea agreement process. with the criminal justice system. Victim Impact Testimony at Plea Entry John W. Gillis The impact of the offense is also an important consideration in Director determining the appropriateness of a plea agreement, and the victim can offer the court a unique perspective on the impact of the crime. A third of the states permit the victim to be heard, ei- bargaining or negotiated plea agreements but fail to state what ther orally or in writing, at plea entry proceedings.11 In Missouri, “consult” and “confer” mean in this context.3 for example, “[p]rior to the acceptance of a plea bargain by the court, . the court shall allow the victim of such offense to sub- In other states, the obligation to confer appears to be limited to mit a written statement or appear before the court personally or notifying, informing, or advising victims of a plea bargain or by counsel for the purpose of making a statement.”12 Although agreement that has already been reached before presenting the Kansas only requires prosecutors to inform victims of the nature proposed plea to the court.4 Prosecutors in Vermont must both of a plea agreement, victims have the right to have their views inform and consult with victims throughout the plea agreement and concerns heard throughout the criminal justice process and negotiation process.5 Generally, few procedural guidelines regard- to have those views and concerns brought to the court’s attention ing the prosecutor’s responsibilities to confer are included in when personal interests of the victim are affected.13 these types of laws, however, leaving their implementation large- ly at the discretion of the prosecutor. In a few states, a written impact statement may be submitted early in the criminal justice process and used by the court when Obtaining Views of Victim the plea agreement is presented. Rhode Island victims have the In at least 22 states, the victim’s right to confer with the prosecu- right to prepare a written impact statement for insertion in the 14 tor requires a prosecutor to obtain the victim’s views concerning prosecutor’s case files. The statement is submitted for court re- the proposed plea.6 Whereas the laws in some of these states do view, or the victim is given a chance to address the court before 15 not address how victims will make their concerns known, others the plea is accepted. Similarly, the same victim impact state- specifically provide for written input. In Georgia, a victim’s im- ment attached for use by Georgia prosecutors may be used by the 16 pact statement “shall be attached to the case file and may be used judge when considering a plea agreement. In Texas, “[b]efore ac- by the prosecuting attorney . during any stage of the proceed- cepting a plea of guilty, . the court shall inquire as to whether ings against the defendant involving . plea bargaining.”7 State’s a victim impact statement has been returned to the attorney rep- attorneys in Illinois are required, where practical, to both consult resenting the state and ask for a copy of the statement if one has 17 with the victim and consider a written impact statement, if one been returned.” 8 has been prepared, before entering into a plea agreement. South Prosecutor To Inform the Court of Victim’s Views Dakota victims also are permitted to provide their views both orally and in writing.9 Not only do victims have the right to offer As an alternative to—and, in some states, in addition to— written input into whether a plea bargaining agreement is proper, permitting the victim to address the court or submit a victim but also prosecutors must make a reasonable effort to provide impact statement, the prosecutor must inform the court of them the opportunity to comment on the agreement terms. In the victim’s position on the plea agreement. For example, in New Jersey, victims have the right to assistance with preparing Minnesota, if a victim is not present to express his or her 2 VICTIM INPUT INTO PLEA AGREEMENTS opinion of the plea agreement, the prosecutor must bring to the Both Alabama and Indiana have similar laws in effect.25 In attention of the court any known objections expressed by the Maine, the attorney for the state must disclose to the court any victim.18 Similarly, prosecutors in Arizona and Maine are required and all attempts to notify the victim of the plea agreement and to inform the court of the victim’s position on the plea, even any victim objections to the plea proposal.26 Prosecutors in Del- when the victim is present and addresses the court at the time aware must state on the record that the victim has been notified the plea is entered.19 In Washington, “the prosecutor shall make of a plea agreement to a reduced charge and given the opportuni- reasonable efforts to inform the victim . of the nature of and ty to discuss the plea before entry. If notice is not made or practi- reasons for the plea agreement, .