BYU Law Review Volume 2005 | Issue 2 Article 1 5-1-2005 The Third Wave of Crime Victims' Rights: Standing, Remedy, and Review Douglas E. Beloof Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Criminal Law Commons, and the Legal Remedies Commons Recommended Citation Douglas E. Beloof, The Third Wave of Crime Victims' Rights: Standing, Remedy, and Review, 2005 BYU L. Rev. 255 (2005). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2005/iss2/1 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 1BEL-FIN 8/9/2005 2:18:25 PM The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review Douglas E. Beloof.∗ I. Introduction and Background ............................................................ 256 A. Introduction: Crime Victims’ State Constitutional Rights Are Often Illusory................................................................. 256 B. Background........................................................................... 261 II. How Victims Are Denied Standing.................................................. 273 A. Real Rights Require Standing, Adequate Remedy, and Review.................................................................................. 274 B. The Discretion Problem........................................................ 276 1. Discretion: mandated and enabled rights........................ 276 2. Discretion and particular victims’ rights ........................ 295 3. Discretion and broad victims’ rights............................... 297 C. The Remedies Problem......................................................... 298 1. The inferior remedies...................................................... 298 2. The superior remedy of voiding...................................... 301 a. Double jeopardy limits on voiding and reconsideration ..................................................... 303 b. Express state, constitutional, and court-placed limits on voiding and reconsideration .................. 312 D. The Review Problem............................................................ 319 1. Ripeness and mootness problems and the problem of prohibiting stays ........................................................... 319 2. Express limits on review .............................................. 321 III. The Many Dysfunctions of Illusory Rights .................................... 327 A. No Standing Turns Judicial Hierarchy Upside Down........... 327 B. No Standing Upsets the Hierarchy of Laws .......................... 329 C. No Standing Corrupts Adversity ........................................... 332 ∗ Associate Professor of Law, Lewis & Clark Law School; Director, National Crime Victim Law Institute. This article is dedicated to Professor Douglas Newell, teacher, mentor, and friend, in gratitude for his faith and support. Thanks Doug. This article is also dedicated to United States Senators Jon Kyl and Dianne Feinstein for their advocacy in bringing about the third wave of victims’ rights. 255 1BEL-FIN 8/9/2005 2:18:25 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2005 D. No Standing Cripples Rights Enforcement ........................... 333 E. Victims’ Advocacy in Favor of Defendants Is Constrained. 335 F. No Standing Degrades Constitutional Rights....................... 335 IV. The Third Wave of Victims’ Rights ............................................... 337 A. Establishing Standing in the States....................................... 339 1. Solving the discretion problem....................................... 339 2. Solving the remedies problem ........................................ 340 3. Solving the review problem............................................ 341 B. Establishing Standing by Federal Constitutional Amendment .......................................................................... 345 C. Congressional Strategies for the Third Wave....................... 348 V. Conclusion ....................................................................................... 349 Appendix I 351 Appendix II........................................................................................... 359 I. INTRODUCTION AND BACKGROUND A. Introduction: Crime Victims’ State Constitutional Rights Are Often Illusory In Maryland, a day care provider shook a young couple’s baby to death, but the couple was unable to attend the trial, despite the fact that all other nonwitness members of the public could do so.1 The young couple had state constitutional rights to attend the trial and address the court at sentencing, but the trial court denied their rights.2 In Utah, a child was seriously sexually abused, and the perpetrator was charged with felony sex crimes. But a plea deal and hearing went forward with no opportunity for the victim to address the court in opposition to the plea,3 even though the mother of the little boy who was sexually abused had a state constitutional right to address the court to oppose the plea bargain.4 1. Rippeon v. State, No. 2554, (Md. Ct. Spec. App. July 9, 2002), cert. denied, 810 A.2d 962 (Md. 2002) (copy of unreported opinion on file with author). 2. Id 3. State v. Casey, 44 P.3d 756, 757–58 (Utah 2002). 4. UTAH CONST. art. I, § 28(1) (“To preserve and protect victims’ rights to justice and due process, victims of crime have these rights, as defined by law: (a) To be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process . .”). 256 1BEL-FIN 8/9/2005 2:18:25 PM 255] The Third Wave of Crime Victims’ Rights The offender pled to a misdemeanor and was given a minimal sanction.5 Similarly, in Florida, the victim of a multimillion dollar jewelry heist was not provided notice of, or the opportunity to speak at, the thief’s plea and sentencing hearing. The owner of the stolen jewelry had a constitutional right to speak at sentencing, but did not get that opportunity.6 Each court denied all of these victims their state constitutional rights. Their rights were illusory because the victims were unable to enforce them, as they lacked standing to enforce them, remedy for their violation, or review by a higher tribunal.7 The crime victims’ rights movement worked to enact rights in two waves. The first wave provided victims with statutory rights.8 Unsatisfied with the response of the legal culture to statutory rights, the crime victims’ movement began to work to enact state constitutional rights.9 The achievements of these victims’ rights pioneers are nothing short of astonishing. The second wave resulted in thirty-three state constitutional amendments that contain some kind of victims’ rights provision.10 In the mid-1900s, before the advent of victims’ rights, victims were lawfully exiled from criminal processes and rarely notified of important events.11 Against an entrenched legal culture that 5 . Casey, 44 P.3d at 757–58. 6. Ford v. State, 829 So. 2d 946, 947 (Fla. Dist. Ct. App. 2002). 7. Even illusory rights provide limited benefits. For instance, some government officials will probably ensure that many victims in their jurisdiction get rights. That some victims have rights is an improvement. Nevertheless, a study on the issue found that notice of a plea bargain was given to 63.4% of white victims and 42.5% of nonwhite victims in states deemed by that study to be strong victims’ rights states. See NAT’L VICTIM CTR., COMPARISON OF WHITE AND NON-WHITE CRIME VICTIM RESPONSES REGARDING VICTIMS’ RIGHTS (1997), reprinted in DOUGLAS E. BELOOF, VICTIMS IN CRIMINAL PROCEDURE 690–93 (1999). Thus, a remarkably high percentage of victims are not notified of their rights, much less given the opportunity to exercise them. Moreover, it appears that minority victims are less likely to have an opportunity to exercise their rights than other victims. This state of affairs is unacceptable. After all, the purpose of rights is to ensure that everyone has an equal opportunity to exercise them. 8. Don Siegleman & Courtney W. Tarver, Victims Rights in State Constitutions, in 1 EMERGING ISSUES STATE CONSTITUTIONAL LAW 163–73 (1988). 9. See, e.g., PRESIDENT’S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT 114 (1982), available at http://www.ojp.usdoj.gov/ovc/publications/presdntstskforcrprt/87299.pdf (recommending a federal constitutional amendment as necessary to change the legal culture). 10. See Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 UTAH L. REV. 289 app. A. 11. Former Federal Rule of Evidence 615, enacted in 1975, provided parties with the right to exclude all witnesses (including victims) from any criminal proceeding. Taking the lead of Rule 615, the states also typically gave parties the same right to exclude witnesses. For the history of victim attendance in criminal trials and Rule 615, see Douglas E. Beloof & Paul G. Cassell, Victim Attendance at Trial: The Re-emerging National Consensus, 9 LEWIS & CLARK L. REV. (forthcoming 257 1BEL-FIN 8/9/2005 2:18:25 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2005 completely excluded victims from the criminal process,12 these pioneers established critical beachheads for the victims’ rights movement. As impressive a feat as securing these beachheads was, the first and second wave of statutory and constitutional victims’ rights have not been