New Directions in Victims' Rights

SECTION I New Directions in Victims’ Rights he backbone of our justice system is the laws that give it shape and coherence. For T many years, victims of crime were unrecog- nized in criminal and juvenile justice laws. To the extent victims of crime had a role in the justice system, it was narrow; to the extent victims had rights, they were few. This section examines the nation’s progress in enacting laws to establish and enforce rights for crime victims. It is based upon papers submitted by leading experts in the field as well as the input of countless victim advocates, justice system professionals, crime victims, and others at public hearings and in working groups. This section reviews the nation’s progress in the past two decades toward establishing state and federal rights for victims of crime, including a federal constitutional amendment to guarantee those rights. It also presents recommendations from the field for ensuring that victims’ rights, including fundamental rights for victims of juvenile offenders, are expanded and enforced within the American justice system. Chapter 1: Victims’ Rights CHAPTER 1 Victims’ Rights Victims’ Rights: Two Decades of Dramatic Change The enactment of the nation’s first state bill of rights for crime victims Let us make sure that we in 1980 in Wisconsin ushered in an era of dramatic progress for victims’ rights.1 In 1982, the passage of the federal Victim and Witness Protection give our victims the right Act2 and the release of the Final Report of the President’s Task Force on to be heard—not in some Victims of Crime brought national prominence to crime victims’ concerns. dispassionate way in an The Final Report established a broad agenda for implementing victims impact statement, but in rights and services, and most of its 68 recommendations are highlighted throughout this report. This section reviews many of the state and federal a courtroom if they want initiatives to expand the rights of crime victims since these seminal events. to be heard, so that people can know what it’s like to State Initiatives be a victim. Let us give State progress in legislating rights for crime victims within the them an opportunity to criminal and juvenile justice systems since the 1982 Final Report has participate, to be there, been remarkable.When the Task Force began its work, only four states and to hold the criminal had enacted a set of basic rights for crime victims in the criminal justice system, commonly referred to as victims’ bills of rights.3 Today, justice system at every every state has laws protecting victims’ rights. Moreover, victims’ rights level accountable. have been strengthened in 29 states by constitutional mandate.4 The scope of rights extended to crime victims also has expanded U.S. Attorney General 5 significantly. Although states have not established one standard set of Janet Reno rights for victims, most bills of rights contain basic provisions for New York City National victims to be treated with dignity and compassion, to be informed of Candlelight Vigil the status of their case, to be notified of hearings and trial dates, to be heard at sentencing and parole through victim impact statements, and April 25, 1993 to receive restitution from convicted offenders. Most states afford victims the right to notice of events and proceedings at various stages of the judicial process. Moreover, 35 states give victims the right to attend most criminal justice proceedings and 24 constitutionally protect that right.6 Every state now allows courts to consider victim impact information at sentencing, and at least 41 states allow victims to make oral statements during sentencing hearings.7 Virtually every state requires victim impact information as part of the presentence report, and at least half of the states expressly require the court to consider that information in sentencing decisions.8 3 Section 1: New Directions in Victims’ Rights Each year, hundreds of new victims’ rights laws and innovative practices are enacted and implemented across the country. Since 1990, after cases of stalking received national attention from the media and victim advocacy groups, all 50 states and the District of Columbia modified their laws to criminalize stalking.9 Some state legislatures also reacted swiftly to the escalation of juvenile crime to record levels in the early 1990s by extending at least some rights to victims of juvenile offenders. In 1992, for example, only five states provided victims the right to be notified of a disposition hearing involving a juvenile. By 1995, 25 states provided this right.10 Despite this record of success, however, victims are still being denied their right to participate in the justice system. Many victims’ rights laws are not being implemented, and most states still have not Sadly today, victims’ enacted fundamental reforms such as consultation by prosecutors with victims prior to plea agreements, victim input into important pretrial rights largely remain release decisions such as the granting of bail, protection of victims ‘paper promises.’ For too from intimidation and harm, and comprehensive rights for victims of many victims and juvenile offenders.11 families, the criminal justice system remains Federal Initiatives more criminal than just The 1982 passage of the federal Victim and Witness Protection Act and when it comes to protect- the release of the Final Report of the President’s Task Force on Victims of Crime were the catalysts for a decade of advances in victims’ rights.12 ing their rights. The Act became a national model for state victims’ rights laws, while the Final Report’s 68 recommendations spurred legislative reforms and Roberta Roper, Founder, initiatives to improve criminal justice and allied professionals’ response to crime victims. Stephanie Roper Committee, Co-chair, Congress’ strong advocacy for crime victims was reflected in the National Victims’ Constitutional Victim and Witness Protection Act’s statement of purpose:“to enhance Amendment Network and protect the necessary role of crime victims and witnesses in the criminal justice process; to ensure that the federal government does all that is possible to assist victims and witnesses of crime, within the limits of available resources, without infringing on the constitutional rights of the defendant; and to provide model legislation for state and local governments.”13 Congress instructed the Attorney General to develop and implement guidelines for the Victim and Witness Protection Act within 270 days of its enactment. In response, the Attorney General Guidelines for Victim and Witness Assistance (AG Guidelines) were issued in 1983, establishing standard policies and procedures and a code of conduct for federal criminal justice officials who interact with crime victims.14 The AG Guidelines have been updated periodically to incorporate new rights for victims, such as those set forth below. 4 Chapter 1: Victims’ Rights In 1990, the Crime Control Act established a new framework for victims’ rights by creating the first federal bill of rights for victims of crime.15 This legislation, referred to as the Victims’ Rights and Restitution Act of 1990, or the Victims’ Rights Act, requires federal law enforcement officers, prosecutors, and corrections officials to use their “best efforts” to ensure that victims receive basic rights and services.16 These include the right to be treated with fairness and with respect for the victim’s dignity and privacy, to be reasonably protected from the accused, to be notified of court proceedings, to be present at all public court proceedings unless the court determines otherwise, to confer with the prosecutor, to restitution, and to information about the offender’s conviction, sentencing, imprisonment, and release. The “best efforts” standard, however, made the federal law weaker than many state victims’ rights laws, which make the provision of victims’ rights and services mandatory. Even in states with a In 1994, passage of the Violent Crime Control and Law Enforcement victims’ rights constitu- Act created new rights for victims of sexual assault, domestic violence, tional amendment, the sexual exploitation, child abuse, and telemarketing fraud. The legislation also included significant funding for combating domestic violence and overall protection of victims sexual assault, placing 100,000 community police officers on the street, is varied and uneven. In 17 and launching a variety of other crime prevention initiatives. addition, without federal In 1996, the Megan’s Law amendment to the Jacob Wetterling Crimes constitutional protection, Against Children and Sexual Violent Offender Act was enacted to help victims’ rights are always ensure that communities are notified of the release and location of subject to being automati- convicted sex offenders.18 President Clinton also signed the Antiterrorism cally trumped by Act that year to strengthen efforts against terrorists and to make restitution mandatory in violent crime cases. defendants’ rights. In 1997, Congress passed the Victims’ Rights Clarification Act, asserting that victims should have the right to both attend proceedings and Robert E. Preston, Co-chair, deliver or submit a victim impact statement. This clarification was issued National Victims’ Constitutional in response to a judicial ruling prior to the first trial regarding the Amendment Network bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, that precluded victims who chose to attend the trial from providing a victim impact

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