, U.S. Department of Justice r Bureau of Justice Sta.tisties r ______'. • "', • ~ ..~ , ______• C<~~~,iII ~".

New State Laws and the System's Response Victim and Witness Assistance

Traditionally, the criminal justice system in this country has been offender­ May 1983 oriented, focusing on the apprehension, prosecution, punishment and rehabilitation The administration of American President's Task Force on Victims of of wrong doers. Victims and witnesses criminal justice has acquired a new Crime-it is clear that a substantial have been considered only when they play focus: victim and witness assistance. alteration is expected in the practices i a role in the identification and prosecu­ In seeking the cooperation of victims of police, prosecutors, judges, probation i tion of offenders. The justice system and witnesses, criminal justice agencies and parole officials, members of the I cannot function without tire assistance are increasingly sensitive to the need of bar, and health and support agencies. l and cooperation of victims and witnesses, victims for information, notification, Requirements for notifying victims of yet little if any recognition has been given' compensation, participation, and simple the status of their cases, for reflecting l~ to their rights and less has been done to , understanding. Concerns of victims, the views and experiences of victims, irrb assist them in overcoming the frustrations witnesses, and their extended families and for facilitating the participation of i~ and economic sacrifices that involvement are here framed in the context of issues victims at each stage of the criminal in criminal proceedings causes. treated by the Bureau of Justice proceeding will place new burdens on I~ This attitude has begun to change in Statistics over the past decade- both law enforcement and social ! the last decade, particularly in the last (1) developing computer-based service agencies. Policymakers at all few years. A strong national victim and information systems .in support of levels of government as well as the witness assistance movement has had operational law enforcement agencies, major participants in the criminal remarkable success in establishing pro­ (2) acquiring statistical data for justice system-law enforcement, grams to assist victims and witnesses national purposes from such systems courts, and corrections-will need to and in increasing the public's awareness and from other administrative records, ponder their responses to the of their problems and rights. Hundreds and (3) assuring the privacy and expectations of the victim assistance of local assistance programs have been security of data present in such systems movement. established throughout the country to and records. On the next page is a statement by respond to the special needs of crime When the expectations of the victim Lois Haight Herrington, Assistant victims and witnesses. Community or­ assistance movement are reviewed­ Attorney General Designate. ganizations, church groups, bar associa­ expectations best summarized in Steven R. Schlesinger tions, service ,groups and national lobbying the December 1982 report of the Director groups have beel1 active in the field. At . the national level the President last year appointed a Task Force on Victims of neceSsary,however, to ensure that the witnesses. To ,ensure program effective­ .ICrime and the Congress enacted the Fed­ broad scope of victim/witness concerns ness, such data must be accurate, eral Victim and Witness Protection Act are met in a comprEihensive and effective complete and timely. of 1982. manner in all jurisdictions. There will also be an added demand for State legislatures have been active in The implementation of new programs in statistical information about criminal ! responding to victim and witness needs. this area will impose substantial operating victimization and victim/witness programs Legislatures in 38 states have enacted demands upon all coml?onents of the for use in research and plal1fling as well as measures to provide compensation to criminal justice system. For this reason, in evaluating existing programs and victims of crime. Others have enacted it is critical th~t prompt recognition be services. Since the mission of the Bureau \ specific authority for courts to order given to the technical, administrative and of Justice Statistics includes the criminal offenders to make restitution to policy changes which may be required in collection and production of statistiCal their victims. states have also enacted order to ensure that new programs meet data of this type, this agenl!y is interested legislation to' assist victims and witnesses the objectives established in (lurrent and in the victim/witness movement and has

" in understandil,lg and participating in the future vicUm/witness legislation. monitored its progress. criminal justice process. A few states Specifically, the new programs will Provision must be made also to ensure have enacted comprehensive legislation require rapid availability of information that policies regulating data disclosure are recognizing a "bill of rights" for crime describing the criminal justice process and modified where necessary to best balance victims and witnesses. Further efforts are the individuals involved as victims' and/or the data needs of 'Victim/witness progl1ams t '. ..'• it' 4.' • ';. .' ..' • " • ~ ~... '. .. " ~ .. .." ~ sin and Maryland) impose a surcharge to a subpoena in a criminal case and consider the extent of the injury to the We as a nation are faced with a victims whose personal tragedies should and brought to justice. People are on convicted offenders to support court would require the employer to compensate victim in imposing sentence. Some states dangerous and often deadly menace. be the focus of our concern. victimized in their homes or on the administration of the restitution program. the employee for time lost in court appear­ (California, for example) permit the victim It affects everyone of us regardless Untold hours and uncounted millions street and then the more insidious ances. The Wisconsin statute protects to make an oral presentation in court; of our age, race, gender or economic of dollars have been spent trying to victimization begins when the criminal Lien on offender profits the employee's job but does not require in other states the presentence report group. While some are more vulnerable understand and reform the criminal. justice system starts to grind away at the employer to pay for time lost in court is required to include a "victim impact than others, none of us is immune, no Yet often little or nothJng has been them. A number of states (including Georgia, appearances unless the crime is work­ statement" prepared by the victim or matter who we are or where we live. done to assist the innocent victim. This indifference to the suffering of Illinois, New YOl'k, Oklahoma, South related. The Illinois law specifically a probation officer. Indiana law permits This threat is violent crime. When a child is brutalized, when an the innocent must stop. We must Carolina and Tennessee) have enacted states that it does not require the employer the victim to offer his views on any recom­ Every 23 minutes one of us is mur­ elderly person is robbed and knocked to restore a balance to a system that tries legislation granting victims access to to pay for lost time. mended plea bargain. California permits dered. Every 6 minutes a woman is the ground breaking a hip, when a to be both responsive and fair but is income generated by offenders as a result victims to appear personally or by counsel raped. While you read this, two woman is raped and tortured, their lives often neither. We must bear in mind of publicity about their crimes. The Recognition of the rights of vi~:lms at parole hearings and requires the parole Americans will be robbed and another are forever changed. In a moment or that when we take the justice out of legislation generally provides that any and witnesses board to consider the victim's statement two will be shot or stabbed or seriously an hour of terror honest people lose the criminel justice system we ieave profits made by an offender through in reaching a parole decision. South Caro­ beaten. Yet only 9% of the crimes property; suffer injuries that may last a behind a system that serves only the books, articles, movies or other publications In addition to pl'oviding financial assis- lina requires the victim's recommendations reported to police in four major states lifetime; sustain physical scars that criminal. exploiting the criminal offense shall tance to victims and witnesses, most states to be considered before an offender is resulted in a criminal going to jail or may mar them forever; become Lois Haight Herrington be paid into an escrow fund to cover have enacted bills that seek to assist such admitted to a pretrial intervention pro­ prison. These numbers capture our incapacitated and unable to work; or, in Chairman, President's Task successful civil judgments by victims persons in their dealings with the criminal gram. attention, but when we focus on the the most tragic cases, leave behind a Force on Victims of Crime; of the crime. Victims are given periodic justice system. These reforms include numbers, we forget the central fact family to mourn, pay funeral expenses Assistant Attorney General notice of the existence of the fund. victim and witnes.~ notification, protection Protection of victims and witnesses that for every statistic there are and wait years to see the killer tried Designate ~omm~nl~, if no v~c~im ci,-:i1 action is of witnesses from intimidation, providing from intimidation flIed wlthtn a speCifIed perlOd, the funds counselor ombudsmen for victims facili- are paid into the state's victim compensation tating the participation and impac't of Intimidation of victims and witnesses to prevent or discourage them from cooper­ fund. victims in criminal proceedings and in­ ating in the prosecution of criminal cases and the privacy interests of individual restitution programs under which offenders Some states have created new agenci('<; creased use of depositions in lieu of court victims and witnesses. Return of seized property has long been a widespread problem. are required to reimburse their victims. to administer the programs, while others appearances. In 1980, the American Bar Association This Bulletin is intended to provide A few states have enacted legislation have incorporated the programs in existing Most states have enacted one or more an overview of new legislative programs At least one state (Kansas) has enacted recomme .• Jed a model statute to help giving victims access to revenue realized administrative structures or designated of these reforms and several (including prevent such intimidation. The model in the states which respond to the needs by offenders because of publicity about existing agencies (such as the courts) to legislation to expedite the return to vic­ California, Wisconsin, Washington, Okla­ of victims and witnesses. It describes tims of recovered property. Commonly has provided the basis for anti-intimidation their crimes. Other states have enacted administer the programs. homa, New Jersey, New York, Massachu­ legislation in Pennsylvania, Rhode Island those programs that provide financial a variety of legislative initiatives aimed such property is retained as evidence until setts and Maryland) have enacted or are assistance to victims and witnesses as the prosecution of the case is concluded--Il. and California and at the federal level. at reducing the financial burden of court Restitution considering comprehensive legislation This legislation makes it a crime to well as programs that recognize the rights appearances by victims and witnesses. period of months in many cases. The Kan­ establishing a "bill of rights" for crime of victims and witnesses and seek 1:0 pro­ The following sections briefly describe Restitution is a sanction imposed sas law provides that the seized property victims and wi tnesses. These omnibus attempt maliciously to prevent or discour­ age a witness from cooperating in a crimi­ tect them and help them to understand these legislative reforms. by the court upon an offender who has may be photographed and then returned measures commonly include all or most the criminal justice process and their been apprehended and convicted. As to the victim/owner. The photograph, nal prosecution. It also expressly author­ of the rights and protections discussed izes criminal courts to issue protective role in it. Victim compensation programs a condition of probation or in addition with a description of the property endorsed in this section. The Bulletin also discusses some of to incarceration, the offender is ordered on it, is authenticated under oath by the orders forbidding defendants or other parties from communicating with or com­ the informational ramifications of the At least 38 states have enacted legisla­ to compensate the victim for injury or investigating police officer and is subse­ Victim notification programs new programs, both in terms of their im­ tion providing for compensation of victims loss caused by the offense. quently admissible in evidence. ing near witnesses and, in extreme cases, of violent crimes under specified circum­ Although judicial authority to order This legislation is aimed at keeping authorizes courts to order law enforcement mediate impact on law enforcement agen­ the victim informed of the status of court cies, as well as their possible long-range stances. Payments are made from state­ restitution has long been explicitly estab­ Increased witness fees agencies to protect threatened witnesses. administered funds upon application by lished by legislation in many states and proceedings against the offender. In some The legislation is much broader and tighter influence on the development of criminal states the notice requirement applies justice information systems. The final eligible claimants. Payment does not is generally thought to be inherent in the In most states witness fees are so than previous intimidation statutes and depend upon the arrest and conviction sentencing power of criminal courts, it low as to be little more than symbolic-­ to all major activities or decisions in the closes loopholes that previously existed. section of the brief discusses some of case; in others it applies only to specified the security and privacy questions raised of the offender and there is no need for has been sparsely utilized as a sanction commonly $5 to $10 a day and in some by the information impact of the new the claimant to secure a civil judgment. until recently. In the past few years, states as low as 50 cents a day. These events such as plea negotiations, sentenc- Counsel for victims initiatives. Coverage generally extends to both however, pressure from victims'rights modest fees do not begin to compensate ing or parole decisions. The New York victims and dependents of victims, and groups and other factors have caused a witnesses for the financial burden involved proposal would require the police officer Victims and witnesses are not officially This Bulletin is not intended to, and or prosecuting attorney to provide the parties to criminal cases and thus have does not, present a comprehensive or in­ the laws generally define both terms marked increase in the utilization of court­ in being a witness in a criminal case, broadly. Most of the statutes condition ordered restitution. In the states without particularly if the case is lengthy and victim with a victim notice form on which no right to be represented by counsel depth description or analysis. Rather, he may indicate which events and decisions even if their conduct is drawn into question the Bulletin presents a brief summary eligibility on the victim's having reported victim compensation programs, restitution involves numerous appearances. To reduce the crime to the police and some also may be the only practicable means by this burden, several states (including he wishes to receive notice of. The Cali- during the proceedings. To alleviate of relevant law and policy and a brief fornia law provides that victims must this situation, California has enacted analysis of relevant policy issues. Accord­ require that the victim have cooperated which a victim can obtain any financial Florida, Nebraska and Nevada) have enacted in the investigation and prosecution of assistance and, in virtually every state, legislation to significantly increase witness receive notice of an offender's sentencing and New York is considering legislation ingly, the issues posed are not explored hearing and, upon request, may receive to allow the victim to retain counsel in great detail. the case. Commonly, the laws require it is the only means of recovering for fees and other states (including California the claimant tf? show financial hardship. property loss or damage without going and New York) have similar legislative 30 days' notice of the offender's parole (at his expense) if his conduct is alleged hearing. Ohio and Iowa have proposals to be improper in the course of a criminal Overview of legislation CompensatlOn generally is provided t~ court. a~d obtaining a civil judgment proposals pending. The California proposal for unreimbursed medical expenses, funeral (sInce VIctIm compensation laws do not would incrElase witness fees to $35 per pending that would require the prosecutor proceeding. The New York law would to aid victims expenses, loss of earnings and support cover property loss). day and the New York proposal would to notify a victim of his intention to recom- permit the victim to be represented by and witnesses of dependents of deceased victims. Proper­ Most state laws authorizing restitution set the fee at the prevailing minimum mend a plea bargain. Connecticut law counsel at any stage of a prosecution ty loss generally is not reimbursed. A permit the court to impose restitution wage and would include parking expenses. provides for notices to victims of sentenc- where evidence is offered concerning Financial assistance programs few states provide compensation for such or not in its discretion. A few laws make inghearings in major felony cases. the victim's sexual conduct or where additional expenses as psychiatric services restitution mandatory in certain cases, Employer obligations to victims any other improper, culpable or illegal The majority of the states have enacted conduct by the victim is alleged. Under occupational training and required house- ' and others require the court to consider and witnesses Victim participation in criminal legislation providing some form of finan­ hold services. Most of the laws set a ceil­ both laws, the victim's counsel would restitution as a condition to probation proceedings be permitted to appear and offer legal cial assistance for crime victims who ing on the amount of recovery by an indi­ and in some cases to state the reasons Other states (including Hawaii, Illinois, suffer economic loss--medical bills, vidual claimant, in a few states up to New York and Wisconsin) have enacted Some states have enacted laws that arguments but would not be allowed to .• for not ordering restitution. call or cross-examine witnesses. loss of income or earning capacity or $50,000, but more commonly in the range A significant problem with the increased or are considering legislation to protect go a step further than victim notification lost money or property. These legislative of $10,000 to $15,000. the jobs of victims and witnesses while by ensuring that the victim may partici­ use of restitution is the additional expense Use of depositions reforms have included principally crime Most of the victim compensation pro­ to court systems, particularly the cost they are participating in criminal proceed­ pate in specified decisions affecting the victim compensation programs which grams are financed from general revenue ings. The Hawaii proposal would prohibit disposition of the case. Most of this legiS­ of administrative follow-up to insure that an employer from dismissi!lg or penalizing establish state funds to compensate cl'ime funds, althoug'h some are financed in whole restitution orders are not ignored by of­ lation pertains to sentencing. It allows, At least four states (Connecticut, victims in specified circumstances, and an employee absent from work in response or in part from offender assessments. fenders. A few states (including Wiscon- or in some states requires, the court to Florida, Missouri and New York) have 2 3 - t:i: . .. ( - - j ~ ... '. \. . -- ' . .

recently enacted legislation to encourage Some of the more common types of Several states (including Connecticut, The federal law: (1) provides for inclu­ toughen bail laws, in part by allowing ThE',y also must bear the added burden the use of depositions in lieu of courtroom "special victim" legislation include the Illinois, Kentucky, Michigan, New York, sion of a victim impact statement in pre­ courts to deny bail to persons considered of the increased use of restitution orders appearances for certain victims and wit­ following: Ohio and Washington) have enacted legisla­ sentence reports; (2) makes it a felony dangerous to the community. The Task and provide the administrative machinery nesses. The Florida law applies to children tion to require more complete recordkeep­ offense to threaten, intimidate or other­ Force also recommends the enactment of and information necessary to follow up who have been sexually abused or battered. The elderly ing of domestic violence cases. Although wise tamper with a victim, witness or legislation to abolish parole and limit restitution orders to ensure that they Other laws apply to mentally disturbed The elderly are more vulnerable to domestic violence is known to be a serious informant; (3) makes it a felony offense judicial discretion in sentencing, with the are complied with. or seriously injured witnesses. In some crime and generally less able to recover problem, the extent of the problem has to retaliate against a victim, witness or result that offenders would serve the full In addition to these added o[?erational cases, the deposition may be videotaped. from injuries or recoup financial losses. not been very well documented. This informant for giving. information about sentence imposed for their crimes reduced information requirements, law enforce­ The purpose of the laws is to spare unstable State legislatures have sought to assist is due principally to the fact that most an offense or testifying in a criminal pro­ only by good time credits act4ally eftrned. ment agencies will most likely bear a or traumatized victl.ns or witnesses the elderly victims by establishing victim domestic violence situations are resolved ceeding; (4) imposes a mandatory condition The recommendations of the Task large share of the responsibility for collect­ emotional strain of a public courtroom assistance programs to respond to the informally without arrest and are not on the release of defendants prior to trial Force are the most complete yet issued ing and perhaps collating and analyzing appearance. The deposition is sworn particular needs of the elderly. They recorded by police agencies. The new or pending sentencing or appeal that the on the subject of victim and witness assis­ statistical data about crime victims neces­ and is subject to cross-examination and have also sought to protect elderly persons laws require law enforcement agencies defendant refrain from committing victim tance. Since they bear the authority and sary for such purposes as predicting and the use of videotaping permits the judge against criminal conduct by stiffening to maintain written records of all incidents harassment offenses; (5) authorizes federal prestige of the President, they should assessing the seriousness of crime from and jury to observe the deponent's demeanor criminal laws and procedures relating of domestic violence encountered or re­ courts to issue protective orders to prevent add significant impetus to the victim/ the victim's perspective, developing victim and appearance. to crimes against the elderly. For exam­ ported to them. In some states (New York harassment of victims or Witnesses; and witness movement. profiles for identifying potentially vulner­ Ombudsman for victims ple, a few states (including Nevada, Rhode and Washington) the courts are given re­ (6) provides explicit authority for federal able victims, and developing and imple­ As noted above, numerous states have Island and Wisconsin) have enacted'laws sponsibility for collecting data on the trial courts to order offenders to make menting new response programs, including incidence of domestic violence. The aim restitution to victims and requires courts Information impact educational programs to enable police provid~d financial assistance and other that require or permit the imposition of forms of protection and assistance to an additional penalty of up to five years of the legislation is to encourage police to state on the record the reasons for of victim and officers to diagnose and treat crisis symp­ victims and witnesses, and other states for an offense against an elderly person. to treat domestic violence cases more not ordering restitution. witness programs toms in victims. have sought to help vietims understand Other states (California and New York) seriously, to increase public awareness The legislation also requires the Attor­ Some information of this type for some of the problem of domestic violence and ney General to (1) report to Congress crimes is now collected by the Bureau and participate in criminal proceedings have prohibited plea bargaining for offen­ As evidenced by the above discussion of by providing notice of the status of pro­ ders charged with crimes against the elder­ to document more accurately the magni­ regarding any necessary law to prohibit of Justice Statistics as part of the National tude and nature of the problem. offenders from deriving profits from publi­ legislative activity, the victim/witness Crime Survey. These annual surveys ceedings and allowing them to participate ly. Still other states have created a new assistance movement has achieved in certain actions such as plea bargaining criminal offense--to abuse, neglect or city about their offenses, and (2) issue include interviews with about 132,000 Sexual assault comprehensive federal guidelines for fair remarkable momentum and is likely to individuals in a probability sample of 60,000 and sentencing. Oklahoma has gone a exploit the elderly. Nevada and Vermont grow. As also indicated, however, the step further by providing for the appoint­ go even further by subjecting to criminal A number of state legislatures have treatment of crime victims and witnesses. households designed to collect comprehen­ enacted measures providing increased implementation of the programs defined in sive information about the circumstances ment of victim/witness advocates to advise fines any persons who have knowledge existing new legislation imposes victims and witnesses of their rights in of abuse or neglect of the elderly by others services and assistance for victims of The President's Task Force and consequences of criminal victimization sexual assault. New Mexico has enacted on Victims of Crime substantial new responsibilities upon the nationally. Information collected includes relation to tlJe criminal justice process and fail to report it to authorities. criminal justice system particul.arly as and to coordinate the operation of existing a law which requires the development data about the crime as well as the vic­ Domestic violence of a statewide comprehensive plan to On April 23, 1982, the President ap­ respects the timely production of data tim's age, race, sex, marital status, edu­ victim and witness programs. The Okla­ pointed a special Task Force on Victims necessary to support program objectives. homa law allows each district attorney State legislatures have sought to deal deal with the prosecution of sexual crimes cation, employment and relationship to and the treatment of victims. The legisla­ of Crime. During 1982 the Task Force Specifically, many of the new laws the offender. The survey also collects to appoint a victim/witness coordinator with the pervasive problem of domestic held hearings in Washington and in 5 cities require police agencies, prosecutors or to oversee implementation of the Okla­ violence in a variety of ways, including tion provides for free medical and psycho­ information about the consequences of logical treatment for victims of sexual across the country, receiving the testimony probation officials to give notice to the crime, including data about injuries, homa Victims' Bill of Rights. These rights principally authorizing the issuance of of almost 200 witnesses, including federal, victims and witnesses concerning the include notification, participation, protec­ protective orders, funding programs to assaults. A victim need not pursue crimi­ cost of medical attention, property loss nal prosecution of a suspect in order to state and local officials, professionals status of criminal cases and scheduled and time lost from work. In addition, tion and information regarding financial provide domestic violence services and engaged in all aspects of victim and wit­ court appearances. Other laws require assistance and other social services avail­ requiring better recordkeeping about the qualify for treatment and the law covers law enforcement agencies in some juris­ all treatment needed, not just the initial ness assistance and private organizations that notice be given to victims of dictions now routinely collect some limited able to victims or witnesses. incidence of domestic violence. and individuals interested in the rights particular actions or decisions, such as statistical information about victims, Legislation pending in Ohio would allow Numerous states (including Alaska, examination. Florida, Maryland, North Carolina and Oklahoma also have enacted of victims and witnesses. Most important, plea bargains, sentence hearings or parole such as age, sex and race. It seems certain designated advocacy groups to hire attor­ Arizona, California, Connecticut, Georgia, the Task Force heard from some 60 victims or probation hearings. Still other laws tha t other agencies will need to collect neys to assist crime victims by advising legislation to provide medical services Iowa, Maryland, Massachusetts, Minnesota, of crime. require law enforcement agencies to such data and that other data elements them of their rights and available services North Carolina, New Jersey, Pennsylvania for victims of sex crimes, although these lavls are aimed more at assisting law en­ In December 1982, the Task Force maintain records of all domestic incidents, will need to be collected, such as previous and keeping them informed of the status and Wisconsin) have laws that explicitly issued its final report setting out compre­ even those resolved without arrest or of their cases. authorize courts to issue protective orders forcement agencies in gathering evidence victimization experience, economic status, for prosecution than at providing treat­ hensive and detailed recommendations other formal proceedings. the relationship between the victim and The aim of this type of legislation in domestic violence cases to prevent for action at the federal, state, local and To meet these notice and recordkeeping is to facilitate more extensive recognition ment for victims. the offender, and other data elements further incidents. Most of the statutes private levels to assist victims of crime responsibilities law enforcement agencies now included in the National Crime Sur­ of victims' rights and greater utilization allow any family or household member California and Pennsylvania have en­ and witnesses. The recommendations are in many jurisdictions are now required vey. of programs to aid victims and witnesses, to petition for a protective order and acted legislation providing that communi­ far-ranging, including proposed actions by cations between the victim of a sexual to collect more accurate and complete In the long run, the information needs as well as to improve their understanding commonly the order not only enjoins vio­ state and federal legislatures, criminal personal information about victims and of the criminal justice system. assault and a counselor are privileged of the victim/witness rights movement lent conduct but may also prohibit one justice agencies and other agencies and witnesses and to maintain it in a more will have a significant influence on the party from coming near the other or award and may not be disclosed or admitted groups such as hospitals, schools, bar as evidence in court. The privilege covers systematic manner. They also must main­ development and structure of criminal Special-victim legislation exclusive possession of a family residence associations, mental health facilities, the tain information about victim compensa­ justice information systems. Certainly, to one party. Violation of a protective information concerning the victim's prior ministry and the private sector. The sexual experiences and personal beliefs tion programs in order to give required the notice requirements of the new laws In addition to enacting legislation aim- injunction can result in punishment as majority of the recommendations deal notice of the programs to claimants. ed at victims and witnesses as a class, a contempt of court and in several states and feelings, but does not cover informa­ will give added impetus to the implementa­ specifically with the recognition of the Even where the responsibility for the ad­ tion of automated systems that track many states have recently enacted some (including North Carolina and Minnesota) tion about the alleged offense. rights of victims and witnesses and the ministration of victim compensation pro­ the status of criminal cases through the form of legislation to protect or benefit can result in immediate arrest on a mis- establishment and funding of the types of certain classes of individuals felt to be demeanor charge. Federal actions grams is vested in other agencies, law justice system. They may also result in assistance and services discussed above. enforcement agencies must provide or significantly restructured information especially vulnerable to crime. These Other states (including Florida, Indiana, Additional recommendations address confirm information concerning the nature "special victims" include the elderly, spouses,· Kansas, Michigan, Nevada, Ohio, Okla- The Federal Victim and Witness systems that are indexed by victim and Protection Act of 1982 issues which are of primary concern to and circumstances of the offense and witness identity as well as by offender children, victims of sexual assaults, the homa, Texas, Washington and Wisconsin) victims since they relate to the victim's the cooperation of the victim to enable identity, particularly since some of the handicapped or even police. Legislation have enacted legislation establishing and On October 12, 1982, Congress enacted perception of the functioning of the the administering agency to make eligibil­ new laws require the maintenance of infor­ to aid these special victims has taken funding domestic violence services, such criminal justice system,. ity decisions. Law enforcement agencies mation about victims of offenses for which numerous forms, such as creating new as shelter facilities, counseling and hot- an omnibus measure to protect and assist victims and witnesses of federal offenses. For example, the Task Force in some jurisdictions are required to advise no offender has been identified or appre­ crimes (child abuse or abuse of the elder- lines. Some of the programs are funded recommends the abolition of the victims of available services and they hended. Finally, the need for more statis­ ly), instituting special procedures (protec- from general revenues, but some are fund- The legislation expressly states that the Federal Government should exercise a controversial "exclusionary rule," which must acquire and maintain this informa­ tical information about victims may necess­ tive orders for domestic violence situa- ed from such sources as marriage license now operates to rend6r relevant evidence tion. Finally, pursuant to some new laws, itate the redesign of existing criminal tions) or setting up programs to meet surcharges, divorce surcharges, or assess- leadership role in the victim/witness move­ ment and one of the stated purposes of inadmissible in criminal trials if it was courts and parole officials must collect justice statistical systems to facilitate the needs of special victims (such as rape ments against offenders convicted of do- gathered as a result of impl'oper police and use information from victims at sen­ the collection of data of the kind discussed victims or chila abuse victims). mestic abuse offenses. the law is to provide a model for legisla­ tion for state and local governments. conduct. Other recommendations would tencing hearings and parole hearings. above.

4 5 ~~~ ______~_ ~ ______--~ ------~ 4 • , ...... '. (~ .' ." .

Security and privacy considerations discharging statutory duties, criminal cies are instructed to balance the reques­ viewed by the courts as constitutionally attention has been paid however, to the justice agencies should run little risk in tor's need for the data against the poten­ permissible. operational implications inherent in such Bureau of Justice Statistics Bulletins Just as the criminal justice system releasing to them any requested informa- tial harm caused to the individual by the Victim and witness assistance organiza­ programs or to the substantial financial are prepared principally by the staff of has historically been offender-oriented, tion reasonably necessary in connection release. tions should be able to make strong policy and administrative responsibilities which the Bureau. Carol B. Kalish, chief of criminal justice information systems also with their duties. In the absence of an In the absence of statutory guidance, arguments in favor of obtaining necessary programs impose on both the overall policy analysis, edits the bulletins. have been offendel·-oriented. So too have express law to the contrary, this probably disclosure of victim and witness information from criminal justice agencies. criminal justice system and those Marilyn Marbrook, publications unit state laws dealing with criminal records. could include the offender's criminal information will depend upon local agency Although victims and witnesses arguably components having primary responsibility chief, administers their publication, These laws apply principally, and in most history record where the counselor policy and agency officials may need to do have a privacy interest in maintaining for the collection and analysis of assisted by Julie A. Ferguson and states exclusively, to criminal history ombudsman needs this information to follow a similar balancing-of-interests the confidentiality 'of information about information. Lorraine Poston. This bulletin was records--to alphabetically indexed records assist a victim or witness in petitioning procedure. To date, there is little caSe them, this interest may not be particularly In order to ensure the successful prepared by Paul Woodard and Gary that identify individuals charged with for a protective order or in resisting re- law to guide them. No court has yet compelling since for most crimes (sexual development of nationwide victim/witness Cooper of SEARCH Group, Inc., under criminal conduct and contain information lease of the offender on bail, probation squarely resolved the question of whether assaults and child abuse offenses are excep­ programs therefore, it is critical that the direction of Carol G. Kaplan of about the progress of these offenders or parole, in states that permit victims a victim or witness has a privacy interest tions) identification as a victim or witness attention be directed at this time to the BJS. through the criminal justice system. or witnesses to participate in this way in personal identifying data that outweighs does not result in stigma, embarrassment operational and policy implications Victim/witness programs require a in the criminal process. the public's interest in seeing the data or or loss of opportunities. In addition, the new programs will have on existing NCJ-87934, May 1983 different type of data--data concerning A more difficult question arises when the state's public safety interest in degree of potential' harm caused by disclo­ criminal justice information systems and the identity and personal characteristics the requestor is a private organization supporting victim/witness programs. The sure of victim or witness identification cap'.bilities. of victims and witnesses. Since these performing victim/witness services or Supreme Court has said that a rape victim data to service organizations is slight, In particular, it would seem advisable individuals have not been charged with assistance without statutory authorization. does have a constitutional privacy interest particularly if the organizations have for state legislatures and criminal justice criminal offenses, information about them Literally hundreds of such organizations in maintaining confidentiality and has procedures to protect the confidentiality record system administrators to give some is not covered by most state criminal have sprung up around the country in re- suggested that a state law forbidding any of the information. Indeed, disclosure consideration to the impact of the new record laws. A few states have laws gov- cent years. Typically, they provide special- disclosure of information concerning the may serve the interests of the data sub­ programs on criminal justice record erning intelligence and investigative data ized services or assistance to particular identify of such victims would be systems. These officials might also 3 jects since the purpose of the organizations !hat mig~t apply to victim and v.:itness classes of victims (and, to a more limited constitutional. Other state and federal is to assist them and provide services consider whether presently structured mformatIon and a few have pu!>hc reco:d extent, to witnesses), including rape vic- courts have upheld state statutes making to them. For these reasons, victim and information systems and practices are laws that ~'lould apply to such l?formatIon. tims, the elderly or children who have certain other types of criminal justice witness organizations can argue persuasive­ adequate to collect and make available ~ow~ver, m most states, qu~stlOns ~on,cern- been abused. Sometimes these organ- data non-public, in,fluding cumulative ly that their identity and purpose entitle the kind of information necessary to mg dlSclosure, use and securIty of victim izations are sought out by victims or wit- criminal his~ories, non-contemporaneous them to greater access rights than the support victim/witness programs and and ~itl!ess data are not c!early answered ne~es who can themselves provide some arrest data, and i~telligence and public generally, and criminal justice agen­ research. As in the case of all major by eXlstmg la~. Statel:glslatures may: of the data to the organizations and can investigative data. On the other hand, cies can defend policies that permit dis­ program initiatives, major system changes need to deal With these :ssues,by: enac~mg give their consent to the release of ad- the S~reme Court's decision in Paul v. closure to such agencies of information may be necessary in order that the !lew measures or amendmg eXI~tmg cr!m- ditional data. More typically, however, Davis has been widely interpreted to that is not available to the public, includ­ criminal justice system can effectively ~nal ~ec~rd laws. ,In the meantime, crlm- the service organizations seek out the mean that there are no constitutional ing the news media. respond to the newly identified data mal Justice agenCies may ~e called ~on victims and witnesses; and in order to privacy interests that forbid the disclosure The Report of the President's Task requirements of expanded victim/witness !o resol,:e some new securl!y and privacy do this they apply to criminal justice agen- by criminal justice agencies of informa­ Force on Victims of Crime did not deal programs. Iss~es wI!hout ~tatutory guidance. cies, principally to police agencies, for tion about individuals arrested for directly with the issue of confidentiality '1 he ~rlmar~ ISSue c~nt~rs on th: victim and witness identifying data and criminal offenses. of criminal justice agency data on victims, Other publications ~uthorltY, to dlSclose victim ,a~d witness addresses to enable them to contact per- The import of these decisions seems to although it is clear that the Task Force Victim/Witness Legislation: Considerations ~nformat~on, and perhaps crlmma~ re,cord sons who may need their services. be that there is no constitutional interest expected data to be made available where for Policymakers, American Bar Association, mformation ?-bo~t offend~rs! ~o victims Assuming that the state criminal rec- that dictates agency policy with respect necessary. The report did, however, in­ Section on Criminal Justice, 1800 M St., N,W., and to organlzatlOns and IndiViduals ord law does not cover such a disclosure to disclosure of victim and witness clude two recommendations raising secur­ Washington, D.C. 20036. Sept. 1981. (The p~ov:iding serv!ces and a~istance t~ ,. request, other state laws may provide information. The public (including victims ity and privacy considerations of interest descriptions of state legislative programs set vlct~m~ and wltl!esses •. Tlm.e~y a-:ailablbty the answer or guidance. As noted, some and victim/witness support organizations) to criminal justice policymakers. In its out in this issue brief are based largely on this ?f vI~~lm and, witness Ide~bflcatIo~ data states have public record laws that make has a constitutionally based right to be recommendations for legislative action, pUblication. The publication contains the text of sample laws and an extensive bibliography.) 15 critical to Implementa,tI~n of assistance many criminal record files available to informed about the operation of the the task force proposed that state criminal Restitution to Victims of Personal and House­ ~d support programs. Similarly, the public. Other states have laws express- criminal justice process. However, record laws be amended, if necessary, hold Crimes, Bureau of Justice Statistics, U.S. disclosure of off~l!der recor~ data ~ay.be ly providing that the names and addresses statutory or policy standards that limit to make available to employers the sexual Department of Justice. 1980. ?ecessary t,o faCilitate meanIng~ul victim of certain victims and/or witnesses shall the disclosure of particular types of assault, child molestation or pornography Crime Victim Compensation: Program Mod­ mput to ,b~ an~ parole pr~ceedIngs. be made public. For example, California records normally are permissible. It is arrest records of prospective and present els, National Institute of Justice, U.S. Depart­ likely that a reasoned policy forbidding or employees whose work will bring them ment of Justice. 1980. Whe~e vlcbm/wI~ness se~vlces are has a law making the names and addresses Final Report of the President's Task Force pro~lde? by pUbli~ agenCl:s pursuant to of all crime victims publicly available, limiting the disclosure of victim or into regular contact with children. And on Victims of Crime, December 1980. leglSla!lve aut,horlty, the Issue o~ with the exception of the addresses of witness information based upon potential in its recommendation for federal action, authority to dlSclose may be easily victims of sexual assaults. On the other harm caused by disclosure would not be the task force recommended that a study resolv~d., Mo~t ~f the state lay-rs hand, some state laws expressly forbid viewed by the courts as an unconstitu­ be commissioned at the federal level to establishin~ vlct~m compensation. , the public release of certain types of vic- tional impingement on the public's right to evaluate the juvenile justice system from programs (mcluding the laws of dcav~lf~r~la, tim information, typically personal infor­ obtain information about the functioning the perspective of the victim, and urged Kansas, Marylan?, New Y,ork an ,I,rgInIa) mation about rape or sexual assault vic- of the criminal process. On the other specifically that reconsideration be given ~xp~essly aut?orlze and ,direct crlmmal tims. Other states have exemptions to hand, a soundly based policy of disclosing to policies supporting the sealing of juven­ Just!ce agencies to prOVide requested " , such information also probably would be ile records. In its commentary, the task information to the agency administering their public ~ecord laws ~hat author,lze force stated that the juvenile records the program. Where such authority is not the ~Ylthholdmg of ~ert~m tYpes ?f Il!for- of serious juvenile offenders should be expressly stated, it may be considered to mat~on, ~uch as police Investigative mfor- 3COX Broadcasting Corporation v. Cohn, 420 available in adult criminal proceedings be implied. Similarly, the laws providing mation, If release of the data would cause U.S. 469 (1975). if the offender continues to commit crimes for various kinds of notification to victims enumerated t~es ~f harm" such as an as an adult. This recommendation is consis­ and witnesses of the progress of criminal unwarranted mvaSlOn of ~r1Vacy., The "Houston Chronicle Publishing Co. v. City of ' . t an 11 ed offe d U. S. Department of Justice has mterpret- Houston, 531 S. W. 2d 177 (Tex. Ct. App. tent with research data now becoming proce,e dmgs agruns a e~ n er ed the federal Freedom of Information 1975). available that indicates that juvenile mis­ C?nstItute adequate authorlt~ for the, Actl and the federal Privacy Ace to permit behavior is a predictor of adult criminal dlSclosure of such necessary Informa~l~n. federal agencies to make selected disclo- s Menard v. Mitchell, 430 F.2d 486 (D.C. Cir. conduct. The same should be true of laws provldmg , " " , 1970). for the appointment of counsel and sures of victim IdentifICatIOn data. Agen- 6 Houston Chronicle case and Congressional Conclusions ombudsmen to assist victims and witnesses IThe Freedom of Information Act, 5 U.S.C. News Syndicate v. Department of Justice, in applying for services and assistance and §552. . 438 F .Supp. 538 (D.D.C. 1977). The victim/witness movement has in dealing with the criminal justice achieved considerable success in the state process. Since these persons are ZThe Privacy Act of 1974, 5 U.S.C. §552a. 7424 U.S. 693 (1976). legislatures in recent years. Little

-~~--~--- 6 7 --~-~----- M : Bureau of Justice Statistics reports (revised March 1983) National Prisoner Statistics Expenditure and employment BJS bulletins: Single copies are available free from the National Justice expenditure and employment In the Prisoners at midyear 1982, NCJ-84875, 11/82 U.S., 1979: Preliminary report, NCJ-73288, 1/81 Criminal Justice Reference Service, Box 6000, Prisoners In 1981, NCJ-82262, 5/82 Rockville, Md. 20850 (use NCJ number to order). expenditure and employment data for the Prisoners 1925-81, NCJ-85861, 12/82 criminal justice system, 1978, NCJ-6&, 182, 7/81 Postage and handling is charged for multiple Death-row prisoners 1981, NCJ-83191, 8/82 copies (301/251-5595). Trends In expendllure and employment ,iata for Public-use tapes of BJS data sets and other Prisoners in State and Federal institutions on the criminal justice system, 1971-77, criminal justice data are available from the Criminal December 31, 1980 (final report), NCJ-80520, NCJ-57463, 1/80 Justice Archive and Information Network, P.O. 7/82 Box 1240, Ann Arbor, Mich. 48106, (313n64-5199). Capital punishment 1981 (final report), Privacy and security NCJ-86484, 4/83 Computer crime: -, National Crime Survey 1979 survey ofinmates ofState correctional facilities Computer security techniques, and 1979 census of State correctional facilities NCJ-84049, 9/82 Criminal victimization In the U.S.: (BJS bulletins): 1980-81 changes based on new estimates Bectronic funds transfer systems and crime, Prisoners and drugs, NCJ-87575, 3/83 (BJS technical report), NCJ-87577, 3/83 NCJ-83736, 9/82 1980 (final report), NCJ-84015, 4/83 Prisoners and alcohol, NCJ-86223, 1/83 Legislative resource manual, NCJ-78890,9/81 1979 (final report), NCJ-76710, 12/81 Prisons and prisoners, NCJ-80697, 2/82 Expert witness manual, NCJ-77927, 9/81 1973-79 trends, NCJ-77639, 4/82 Veterans in prison, NCJ-79632, 11/81 Criminal justice, NCJ-61550, 12n9 BJS bulletins: Census of jails and survey of jail inmates: Privacy and security of criminal history information: Households touched by crime 1981 , Jail inmates 1982 (BJS bulletin), NCJ-87161, 2/83 NCJ-64406, 9/82 Census of jails, 1978: Data for individuaf jails, A guide to researctl and statistical use, NCJ-69790, 5/81 Violent crime by strangers, NCJ-80829, 4/82 vols. I-IV, Northeast, North Central, South, West; NCJ-72279-72282, 12/81 Crime and the elderly, NCJ-79614, 1/82 A guide to dissemination, NCJ-40000, 1n9 Victims of crime, NCJ-79615, 11/81 Profile of jail inmates, 1978, NCJ-65412, 2/81 Compendium of State legislation: Measuring crime, NCJ-75710, 2/81 Census of jails and survey of jail inmates, 1978, NCJ-48981, 7n8 preliminary report, NCJ-55172, 5n9 1981 supplement, NCJ-79652,3/82 The National Crime Survey: Working papers, vol. I: Current and historical perspectives, Criminal justice information policy: NCJ-75374,8/82 Parole and probation R5search access to criminal justlce data, Crime against the elderly in 26 cities, Characteristics of persons entering parole NCJ-84154,2/83 NCJ-76706, 1/82 dUring 1978 and 1979, NCJ-67243, 4/83 Privacy and juvenile justice records, The Hispanic victim, NCJ-69261, 11/81 Probation and parole, 1981 (BJS bulletin), NCJ-84152, 1/83 Issues in the measurement of crime, NCJ-83647, 8/82 Survey of State laws (BJS bulletin), NCJ-74682,10/81 Characteristics of the parole population, 1978, NCJ-8Q836, 6/82 Criminal victimization of Califomia reSidents, NCJ-66479, 4/81 Privacy and the private employer, 1974-77, NCJ-70944, 6/81 Parole in the U.S., 1979, NCJ-69562,3/81 NCJ-79651, 11181 RestHution to victims of personal and household crimes, NCJ-72770, 5/81 Courts General Criminal victimization of Ngw York State BJS five-year program plan, FY 1982-86, 7/82 reSidents, 1974-77, NCJ-70944, 9/80 State court case load statistics: 1977 and 1981 (BJS speciai report), Violent crime in the U.S. (White House briefing The cost of negligence: Losses from preventable book), NCJ-79741, 6/82 household burglaries, NCJ-53527, 12n9 NCJ-87587, 2/83 State court organization 1980, NCJ-76711, 7/82 Sourcebook of criminal justice statistics, 1981, Rape victimization In 26 American cities, NCJ-78672, 6/82 NCJ-55878, 8n9 State court model statistical dictionary, NCJ-62320, 9/80 Federal justice statistics (BJS bulletin), Crimllial victimization in urban schools, NCJ-80814,3/82 NCJ-56396, 8n9 A cross-city comparison of felony case processing, NCJ-55171, 7n9 Dictionary of criminal justice data terminology: Crime against persons in urban, suburban, and Terms and definitions proposed for interstate rural areas, NCJ-53551 , 7n9 Federal criminal sentencing: Perspectives of analysis and a design for research, NCJ-33683, and national data collection and exchange, 2nd An introduction to the National Crime Survey, ed., NCJ-76939, 2/82 NCJ-43732, 4n8 1On8 Variations in Federal criminal sentences, Correctional data analysis systems, Local victim surveys: A review of the issues, NCJ-76940, 8/81 NCJ-39973, 8n7 NCJ-33684, 10n8 Federal sentencing pattems: A study of Technical standards for machine-readable data geographical variations, NCJ-33685, 10n8 supplied to BJS, NCJ-75318, 6/81 Predicting sentences in Federal courts: The Justice agencies in the U.S., 1980, NCJ-65560, feasibility of a national sentencing policy, 1/81 NCJ-33686, 1On8 Indicators of crime and criminal justice: State and local prosecution and civil attomey Quantitative studies, NCJ-62349, 1/81 systems, NCJ-41334, 7n8 A style manual for machine-readable data, NCJ-62766, 9/80 Myths and realities about crime, NCJ-46249, 10na

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