MAJOR CATEGORIES OF VICTIMS’ RIGHTS LAWS
Victims’ rights laws can be generally divided into the following 10 categories:
Right to be treated with dignity and respect.
Right to information and referral.
Right to notification.
Right to be present.
Right to be heard.
Right to reasonable protection from intimidation and harm.
Right to restitution.
Right to apply for compensation (for violent crime victims).
Right to speedy proceedings.
Special rights and protections.
1. Right To Be Treated With Dignity and Respect
The right to be treated with dignity and respect asserts that crime victims will be treated with sensitivity during all phases of justice processes and by all agents of justice systems. This critical right is included in most states’ constitutional amendments that define victims’ rights, most states’ victims’ bill of rights, and the Federal Crime Victims’ Rights Act within the Justice for All Act that became law in 2004.
2. Right to Information and Referral
State and federal statutes provide crime victims with basic rights to be given information about their rights, crime victim compensation, the justice process, and community- and system-based services that are available to help victims cope in the aftermath of crime.
Because there are more than 32,000 constitutional and statutory rights for victims of crime, which differ from state to state and among various justice systems, the right to information varies greatly. There are also more than 10,000 organizations that provide a wide range of services to help victims cope with the physical, financial, psychological, social, and spiritual impact of crime.
Information about the range of victim assistance programs in the United States is described in Appendix F. Information about the range of victims’ rights and services in the United States is described in Appendix G.
3. Right to Notification
Victim notification is considered to be the threshold right from which all other victims’ rights emanate. Timely notification of criminal justice proceedings—from law enforcement through the courts, corrections, and the appellate process—is paramount. If crime victims are unaware that they even have rights, they will be unable to exercise them.
Victim notification (also called notice) is an official means of providing information, in oral, written, e-mail, or automated formats, to a victim of or witness to a crime. This may include notice of statutory and constitutional rights available to the victim, the status of the case and alleged or convicted offender, and all junctures throughout the criminal justice process where crime victims have the right to participate.
It is very important that whatever type of notification methodology is used, it has to be ‘situation specific’ and must be reasonable, accurate, and timely. This is a critical issue for enforcing victims’ rights. For example, if crime victims are not given timely notice of the sentencing hearing, then victims may be unable to exercise their right to provide a victim impact statement.
The 1982 President’s Task Force on Victims of Crime Final Report recommended that victim notification laws be enacted to ensure that victims are provided case status information, prompt notice of scheduling changes for court proceedings, and prompt notice of defendants’ arrest and bond status. Today, all 50 states, the District of Columbia, and the federal justice system have enacted such notification laws.
There are currently more than 65 different points of notification for victims—of their rights, their rights to attend and participate in hearings, and a number of events and activities involving the status of alleged and convicted offenders (see Appendix A).
Six Notification Processes1
Many law enforcement agencies, courts, prosecutors’ offices, and probation agencies have developed victim notification procedures that simplify and streamline the process, often through the use of technology, in order to conserve staff time and agency resources. Victim notification is generally provided in one or more of the following ways:
In person by a justice agency official or victim service provider.
Through technology that places automated calls to victims or allows them to call into a computerized system for case status updates.
Through the use of agency Web sites that document information related to the status of the case and the alleged or convicted offender.
Range of Victim Notification Processes
When victim notification is provided in person, it is essential for justice agencies to document that the notification, as required by law, has been delivered. Some agencies also provide the victim with a follow-up letter that documents and confirms the notification.
Many justice agencies notify victims by telephone, particularly in cases where time is essential, or when a prescheduled hearing or other event has been postponed. Written documentation of telephone notifications is also helpful for case record keeping.
Notification by letter and, in some jurisdictions, by e-mail, is by far the most common method of victim notification. Important considerations in letter and e-mail notifications include the following:
Confirming that the agency has the current address, e-mail address, or telephone number for the victim.
Confirming with the victim that the alleged or convicted offender will not have access to his or her mail or e-mail account and, in cases where this cannot be guaranteed, providing alternate notification processes.
Developing word processing templates for letters and e-mail notifications that facilitate the most time- and cost-effective notification processes.
Developing victim-sensitive notification letters that are easy to understand and that provide a contact for further information and/or assistance. (See a sample letter in Appendix B.)
Informing the victim that all notification letters will be delivered in an envelope that contains the watermark of the justice agency so that it will be opened in a timely manner.
Nonintegrated automated voice response technology provides victims with a personal identification number (PIN) to call a centralized mainframe database—free of charge—to receive updates on their offender’s status. These technologies are modeled after systems designed for people to contact state lotteries to determine if they hold winning tickets. Voice-box technology, however, is not integrated with existing management information systems; such technological isolation renders this approach less effective than integrated systems.
In some states, an innovative version of electronic monitoring—using satellite technology to track an offender’s every move—can provide immediate information when an offender violates any conditions of supervision regarding his or her location (e.g., staying away from specific victims, staying away from schools). The electronic mapping provided through this technology allows justice officials to detect violations and notify a victim when an offender is near him or her and to detect whether the offender is in violation of the conditions of his or her community supervision.
In some jurisdictions, criminal justice agencies (including some jails and courts) offer all public information on the Internet via agency Web sites. This offers public access (including victim access) to information about offenders who are incarcerated or under community supervision (Seymour, 1999).
Statewide Automated Victim Information and Notification
In 2005, Congress established a grant program with the Bureau of Justice Assistance (BJA) to provide initial funding and guidelines to help states plan and implement Statewide Automated Victim Information and Notification (SAVIN) programs. The intent of Congress is to eventually establish a comprehensive, nationwide automated victim information and notification system.
4. Right To Be Present
A victim’s right to be present (often referred to as the right to attend), by the simple meaning of its terms, asserts the right of a victim to be present during criminal justice proceedings. State statutes and even state constitutions have defined the right to be present in varying degrees of specificity. Some legislative mandates state the right in near absolute terms (e.g., “Victims shall have the right to attend all criminal justice proceedings that the defendant has the right to attend”). Others establish a rebuttable presumption regarding a victim’s right to attend, allowing judges considerable discretion in its application.
Some jurisdictions have not specifically defined which proceedings the victim has the right to attend, while others have specifically listed such proceedings. (See Colorado Rev. Stat. §24-4.1-302, 302.5 for an enumerated list of applicable proceedings. See Appendix C for the range of proceedings at which victims may have the right to be present.)
The right to be present may also differ dramatically depending on the proceeding to which it applies. Victims may have the broad right to attend sentencing hearings but a very narrow right to attend the guilt phase of the same trial. In some jurisdictions, the right to be present includes the victim’s option to designate a representative to attend proceedings on his or her behalf or to allow family members to assume that right in cases of homicide.
A much debated issue facing the enforcement of a victims’ right to be present is if this right impedes due process rights of the defendant. According to research conducted by the National Crime Victim Law Institute (NCVLI), a nonprofit organization located at Lewis & Clark Law School in Portland, Oregon , there is not a single case that the victims’ rights to be present impedes defendant’s due process rights.
A crime victim’s right to be present at proceedings or hearings represents a unique opportunity to be part of the criminal justice process. Victims often feel that there is no substitute for witnessing, in person, the administration of justice in their own case. The right to be present is important because:
It helps victims take an active role in securing justice, holding the offender accountable, and promoting safety for themselves and the community.
It reminds the judge, jury, court personnel, and parole boards of the real human consequences of crime in a way that helps foster a more balanced and just system.
It helps keep victims informed about what is happening in their case.
It provides victims with the information needed to ask the prosecutor timely and informed questions about their case and its progress.
Right To Have a Representative Attend on Behalf of the Crime Victim
As a general matter, anyone is allowed to attend a public hearing. State statutes have been passed to allow the crime victim the right to designate a representative if the victim is unable to attend in person or if the individual is the parent or legal guardian of an underage or incapacitated victim.
Generally, state laws specifically state whom the victim can designate to attend proceedings on his or her behalf and under what circumstances.
Federal and state laws have been passed to provide victims the right to attend public court proceedings. Before the enactment of these laws, crime victims were routinely not allowed to attend the trial of their accused perpetrator. The rationale for denying crime victims this right was that victims should be sequestered if they were to serve as potential witnesses. Laws now exempt victims from this rule, which was often misused by the defense to keep crime victims out of the courtroom. In passing court attendance laws, advocates argued that, just as defendants have the right to be present throughout the court proceedings, so should crime victims, whether or not they testify.
Court attendance laws vary across the nation. For example:
A number of state laws stipulate that victims should not be subjected to court exclusion if they are potential witnesses.
Other states laws recognize an “essentially unqualified” right for victims to be present at court proceedings.
Many states laws provide crime victims the same right to attend every proceeding that defendants have a right to attend or state that victims should be sequestered only on the same criteria as defendants. (Seymour and Beatty, in press)
Even with the passage of “right to be present” statutes, there is still great disparity in the implementation of this right nationwide. Not all states have adopted court attendance laws in the criminal and juvenile justice systems. In many states, the right to attend is extended by law to “all crucial proceedings.”
Two states are noteworthy for their court attendance rights. Louisiana law states that victims must testify first and then be allowed to attend court proceedings, therefore getting around the issue of sequestration. In the early 1980s, Alabama became the first state to provide crime victims the right to attend the trial and to allow victims to sit at the prosecutor’s table during the trial.
5. Right To Be Heard
A victim’s right to be heard provides that victims have a voice at critical hearings related to their cases—from bail and bond hearings to sentencing and parole hearings. This right allows victims to express their concerns about the status of their offenders and, in the case of a victim impact statement (VIS), the opportunity to tell the court or paroling authority about the physical, psychological, financial, social, and spiritual impact the crime has had on them and their families.
The right to be heard emanated from the creation of the VIS at sentencing, and it is one of the most fundamental rights extended to crime victims. The right to be heard at sentencing through the use of a VIS dates back to 1976, when James Rowland, a chief probation officer in Fresno County, California, thought it was unfair that his probationers were able to have a pre-sentence investigation (PSI) report completed before the sentence, yet no information was presented at sentencing about the impact of the crime on the victim.
For more than a decade, all 50 states and the federal system have allowed victim impact evidence at sentencing. The majority of states require the sentencing authority to consider the VIS in the sentencing decision (e.g., see Indiana Code §35-35-3-5, Michigan Comp. Laws §28.1287(765), New Jersey Rev. Stat. §52:4B-36). Generally, statutes permit victim impact information in one or more of three forms: oral impact statements, written impact statements, and PSI or pre-adjudication investigation (PAI) reports (in the case of sentencing or adjudication hearings). Most states prescribe what type of information may be included in a VIS. Virtually all states allow victims to include information about the physical, emotional, social, and economic impact the crime has had on them and members of their family (Seymour and Beatty, in press).
Laws Relevant to the Right To Be Heard
In some states, the right to be heard has been extended by statute to include other junctures of the criminal justice system, including the following:
Pretrial release hearings.
Before the disposition of plea agreements.
Before a probation agreement.
Most states also allow victims to be heard before or at hearings related to an offender’s parole or commutation.
In addition, one of the most pressing victims’ rights today is the absolute need for crime victims to be heard before criminal cases are resolved through a negotiated plea, including the acceptance of a plea of guilty or nolo contendre. There are many reasons for this, including the following:
Due to the challenging number of cases that must be adjudicated, a large percentage of felony cases are disposed of by plea agreements.
Sentencing is often negotiated as part of the plea agreement.
It is paramount that prosecutors seek victim input before finalizing plea or sentencing agreements. The publication New Directions From the Field: Victims’ Rights and Services for the 21st Century recommends that in “violent crime cases, prosecutors should request judges to postpone any recommendations for sentence until the victim is notified, consulted, and provided with an opportunity to submit an impact statement” (OVC, 1998, p. 87).
Today, enforcement efforts to ensure a victim has a right to be heard are focusing not just at the sentencing and parole stages of the justice process, but earlier, including during the pretrial, such as bond hearings and in the plea process.
Types of Victim Impact Statements1
In general, there are eight types of VIS that may be used across the criminal justice continuum:
Written VIS are included as part of the case file and/or the pre-sentence or pre-adjudication investigation report developed for the court by probation or court officials. They may also be used before or at parole hearings.
Oral VIS (also called “allocutions”) allow the victim to attend the sentencing or adjudication hearing and present his or her impact information in person to the court or paroling authority.
Audiotape VIS are used when a victim possesses stronger oral than written skills; when the victim wants his or her voice to be heard in court or at parole hearings but is unable or unwilling to provide an oral impact statement; and/or when geographic restrictions prevent the victim from attending a sentencing or parole hearing.
Videotape VIS are similar to audiotape VIS but also feature film footage of the victim speaking his or her statement.
Closed-circuit television VIS are used most commonly in child abuse cases when the child victim is fearful of facing the convicted or adjudicated offender in court or at a parole hearing.
Live streaming video VIS via the Internet can be used when geographic distances preclude the victim from actually attending sentencing or parole hearings.
Video teleconferencing is being used in many states by paroling authorities to facilitate the victim’s right to be heard at a site that is separate by sight and sound from the incarcerated offender.
Child VIS offer child victims a method to deliver VIS in measures that are commensurate with their age and cognitive development.
Model Format for Victim Impact Statements (VIS)
This model format (Seymour, 2002) was designed to incorporate both open-ended questions to which the victim can respond with general, personal responses and close-ended questions that are more specific. For each of the 11 questions, a brief description of its intent and purpose follows.
It is important to allow victims as much space as needed to complete their VIS. (See notation at the end of this model format.)
Please describe this offense and how it has affected you and your family.
This question allows victims to describe—in their own words—the specifics of the crime itself (this is particularly important in cases that result in plea agreements). It also gives victims an opportunity to address, in general terms, the overall impact that the crime has had on their family and them.
What was the emotional impact of this crime on you and your family?
This question allows victims to address any significant psychological or emotional effects that may have resulted from the trauma of victimization, including immediate, short-term, and long-term impact.
What was the physical impact of this crime on you and your family?
This question allows victims to address the impact of physical injuries resulting from the crime and its aftermath and how it has affected their lifestyle.
What was the financial impact of this crime on you and your family?
This question allows victims to address any financial losses that directly resulted from the crime that can be incorporated into the prosecutor’s request for restitution. A checklist of information for “Documenting Losses for Victim Restitution,” which can be provided to victims before their preparation of the VIS, is included in Appendix D.
Was there any spiritual impact on you and your family? If so, please describe.
A recent addition to many VIS forms, this question provides victims with opportunities to address how their faith has been affected by the crime.
What concerns (if any) do you have about your safety and security?
Victimology literature suggests that victims may not always disclose their concerns about personal safety. This question allows them to consider and address such concerns and request specific protective measures if needed (see question 7).
Do you want to request a “no contact” order to be in effect during the convicted (or adjudicated) offender’s period of incarceration or community supervision?
For many victims, a no-contact or protective order can offer some peace of mind. If victims request any type of court-ordered protective measure, they should also be provided with information about who can help them seek an order, how it is processed, and whether or not the victim will be notified when the offender is served with the order. (See the next section, “Right to Reasonable Protection From Intimidation and Harm.”)
What do you want to happen now?
This open-ended question gives victims the opportunity to consider and express their general opinions and feelings about now and the future, without any specific guidelines. If victims are provided with information about the range of sentencing or adjudication options, it can help them answer this question.
If community service is recommended as part of the disposition or sentence, would you like to have input into this recommendation?
Some victims feel empowered by their capacity to guide community service recommendations. The probation agency can provide victims with a list of its standard community service placements. In many jurisdictions, offenders perform community service that directly or indirectly benefits victims of crime and those who serve them.
Is there any other information you would like to share with the court regarding the offense and how it has affected you and your family?
This final, open-ended question provides victims with the opportunity to include any information that has not been addressed by the previous nine questions.
Would you like to continue to be notified about the status and location of the convicted offender?
If victims request further notification, they should be provided with specific information about which agency is responsible for notifying them, any enrollment requirements they must fulfill to be notified, and the format in which the notification will come (e.g., telephone, automated computerized telephone calls, letter, e-mail).
6. Right to Reasonable Protection From Intimidation and Harm
The right to reasonable protection provides that justice agencies and agents have a duty to offer victims a range of measures that can enhance their personal safety and prevent an alleged or convicted offender from intimidating, threatening, or harming them.
While no statute, law, or even constitutional amendment can guarantee that victims will be protected from their accused or convicted offenders, numerous states have specifically stated that victims have a right to “reasonable protection” from the offender. More than half the states have passed laws granting victims the right to be reasonably protected from the accused during the criminal justice process.
Statutes and policies related to victim protection provisions take many forms. One category of these statues and policies relates to providing information that may directly affect victim safety or, conversely, to protect information that might compromise such safety. Another category addresses safety issues related to the release of accused or convicted offenders. A third category provides legal recourse for victims through protective orders, and a fourth category establishes policies and practices that enhance victim safety in the courthouse (Seymour and Beatty, in press).
Today, the right to protection from intimidation, harassment, and retaliation by accused and convicted offenders has become even more critical. Justice system officials find it more difficult to obtain convictions when crime victims and witnesses are afraid to testify.
Victims’ rights laws address safety concerns in various ways, including the following:
Victims’ bills of rights generally require victims to be notified at the onset of the judicial process about legal action they can take to protect themselves from intimidation and harassment, such as orders of protection or restraining orders.
Many states have enacted laws requiring courts to establish safe and secure waiting areas for crime victims and witnesses to reduce the potential intimidation and harassment from a defendant or his or her family and friends. Courthouses across the country have improved security. When new courthouses were recently designed in the state of Connecticut, for example, separate and secure waiting areas for victims were incorporated into the architectural plans.
Many states have also established specific offenses for the harassment of victims and witnesses and make such harassment grounds for bail revocation and reincarceration.
Many states have enacted protection statutes that mandate that judges issue no- contact orders as a condition of pretrial and posttrial release, with the same type of victim protection afforded by parole boards.
States also have passed laws that require automatic revocation of pretrial or supervised posttrial release if the defendant or convicted offender harasses or intimidates a victim or witness.
Many state laws have given courts the authority to detain defendants who pose a danger to victims or community safety.
Crime Victims and Safety Concerns
Victims of crime may have important concerns about their personal safety and that of their family and loved ones. Often, victims’ concerns about safety arise from many circumstances, including the following:
The trauma of victimization.
Real or implied threats made by the alleged or convicted offender and his or her colleagues.
Not knowing or understanding their rights to protection as defined under law.
Not knowing about the range of services available to identify and address their safety concerns.
When victims have concerns about their safety and identify these concerns to criminal justice and victim assistance officials, a variety of approaches can be developed to promote safety for the victim within the criminal justice system, as well as at home and in the community.
While state and federal laws provide crime victims with the right to receive orders of protection from potential intimidation and harassment by the defendant or convicted offender, the practical reality is that such orders are difficult to enforce. Some have referred to orders of protection as “paper promises.” Various methods can be used to enhance the effectiveness of orders of protection. For example:
All protection orders should be maintained in a central, automated database so that law enforcement and other justice officials have immediate access to the information.
Violations of protection orders should be consistently and quickly sanctioned, and all protective orders should be enforced within states and across state lines.
One of the most important provisions of the 1994 Violence Against Women Act (VAWA) was to allow interstate enforcement of orders of protection. Before the passage of this important statute, law enforcement did not have the power to arrest anyone for violating a protection order issued in a jurisdiction outside their state.
Specific Suggestions for Ensuring Victim Safety
Crime victim protection rights begin with ensuring that victims are knowledgeable about the complete range of victim protection rights available. Advocates should ensure that crime victims know the following:
The right to reasonable protection from the accused or convicted offender means that victims can request that the court, correctional agency, probation agency, or paroling authority issue a protection or no-contact order. This means that for a designated period of time, the offender will be under a criminal justice system order to refrain from contacting the victim.
Victims can also request contact information for the specific criminal justice agency and official(s) who are responsible for offender supervision or incarceration.
While orders of protection cannot guarantee victims’ personal safety and security, it is important that victims are informed of the specific conditions of the order and that justice agencies confirm that it has been served to the offender (i.e., that he or she is in possession of the order).
A no-contact order is just one possible condition of community supervision that addresses safety issues. Others include confiscation of firearms or other dangerous weapons, intensive probation, electronic monitoring, and protection orders for specific venues. A list of conditions of offender supervision that are related to victim protection is included in Appendix E.
It is also helpful for advocates to assist victims in making decisions and considering actions that can enhance their personal safety and security—at home, at work, and in the community.
Many victim assistance programs help victims develop safety plans that give them a sense of control and involvement in their personal protection.
7. Right to Restitution
Restitution is the oldest victim right. The concept of restitution dates back thousands of years. Restitution statutes were among the first victims’ rights laws passed in the 1960s and 1970s.
Restitution is part of a criminal sentence that is applied to offenders in an attempt to restore—to the extent possible—the crime victim to his or her pre-offense state. It also serves to prevent unjust enrichment of the offender.
The Role of Restitution1
The consequences of violent crime are predominantly viewed in the context of offenses committed against the state, and punishment is often referred to as “paying a debt to society.” The most obvious and real impact of crime is visited not on such an abstract entity as the state, but on actual living people who suffer the real harm that crime inflicts—physically, emotionally, spiritually, and financially.
Victim advocates and others have argued that victims, by virtue of the fact that they suffer the real harm of crime, are the parties with the greatest moral, if not legal, authority to demand that their rights and interests be addressed by the criminal justice system—that their wounds be healed, both figuratively and literally. Though physical, emotional, and financial injuries have no simple salve that any system, criminal or otherwise, can offer as a cure-all, such injuries share one common aspect—costs. In the real economic sense of the word, costs include the following circumstances:
Physical injuries often require costly medical care and physical therapy.
Psychological and emotional injuries often require ongoing counseling and therapy.
Victims also suffer direct economic losses as a result of property damage, theft, lost wages, and expenses related to their participation in the justice process.
Given the limited resources of many crime victims, the economic consequences often push victims to and over the brink of bankruptcy.
When multiplied by the number of crime victims nationwide, the total cost of crime is staggering. The National Institute of Justice (NIJ) estimates that the cost of crime in terms of medical expenses, lost earnings, and public assistance tops $105 billion per year (Miller, Cohen, and Wiersema, 1996). When researchers added pain, suffering, and reduction of quality of life, the estimate reached an astounding $450 billion (Miller et al., 1996). Yet, as this study points out, “most of these costs are shouldered by the victims and public or private victim service providers” and not by those who committed the criminal acts.
Restitution is intended to shift some of that burden back to where it is most appropriate—the convicted criminal offenders (Seymour and Beatty, in press).
Today, all states have passed restitution laws that provide crime victims the right to receive financial recompense from their offender. Restitution can be ordered in federal and state criminal and juvenile courts. However, these laws vary greatly across the nation. In general, restitution can be ordered in the following cases:
Property crime involving the theft of goods or stolen or damaged property.
For victims and survivors of violent crime and for homicide victims for current and future expenses related to the crime.
Theft of services, fraud, forgery, and violation of vehicle and traffic laws.
Restitution is not a punishment or an alternative to fines, sanctions, or interventions with the offender. Rather, restitution is a debt owed to victims. Recently, judges have begun to order community restitution in which the convicted or adjudicated offenders pay back the community through service or fines. However, restitution is often overlooked and minimized by the justice system due to the many myths that surround the concept, such as offenders not having money to pay or that it is too difficult to collect.
Traditionally, restitution has been defined as a monetary payment by the offender to the victim for the harm resulting from the offence. Early restitution laws limited restitution to those crime victims who suffered physical injury or financial loss as a direct result of crime and were eligible to receive restitution for out-of-pocket expenses. However, restitution laws have greatly evolved, and the definitions of who qualifies and the types of losses covered have broadened. For example:
In addition to the crime victim, some states allow family members, victims’ estates, and victim service agencies and private organizations that provide assistance to victims to be eligible for restitution.
States have expanded their definitions of the types of compensable losses that can be paid for by restitution, including psychological treatment, sexual assault exams, HIV testing, and occupational or rehabilitative therapy, as well as lost profits, moving and meal expenses, case-related travel expenses, and burial expenses.
Restitution can include both monetary payments and in-kind services to the victim.
One of victims’ key concerns is the ordering of restitution by judges. State laws have addressed the issue of mandatory restitution in a variety of ways, including the following:
Approximately half of state victims’ rights laws require that mandatory restitution should be made to crime victims.
Many state laws provide that mandatory restitution should be ordered by judges unless compelling reasons to the contrary are stated on the record.
In the 32 states that have passed victims’ rights constitutional amendments, at least 10 of the amendments require that judges order mandatory restitution for crime victims.
Today, effective restitution programs involve several justice agencies. For example:
Law enforcement must inform victims of their right to restitution.
Prosecutors must request that judges order restitution and not reach plea agreements without requesting restitution.
Judges should order restitution or explain in writing why they did not.
Institutional corrections should collect and disburse restitution.
Probation and parole agencies must collect and disburse restitution.
Supervision and/or sanctions should be extended until restitution is paid in full.
States should extend probation or parole until all restitution is paid in full.
Sanctions should be placed on offenders who refuse to pay restitution.
Restitution can become a civil lien.
Restitution can be collected to reimburse state compensation programs.
Documenting Losses for Victim Restitution
A critical role for victim advocates is helping victims to document their losses for the purpose of restitution. A checklist that can be easily adapted to any jurisdiction or justice system to help victims consider the range of losses that may be covered by restitution is included in Appendix D.
8. Right To Apply for Compensation
Victim compensation programs may reimburse crime victims for crime-related expenses that are not covered by collateral sources—such as medical costs, mental health counseling, funeral and burial costs, and lost wages or support. However, to qualify for compensation, certain requirements must be met.
Every state has a crime victim compensation program that can provide substantial financial assistance to crime victims and their families. While no amount of money can erase the trauma and grief victims suffer, this aid can be crucial in the recovery process. By paying for care that enhances victims’ physical and mental health, and by replacing lost income for victims who cannot work or for families who lose a breadwinner, compensation programs help victims rebuild their lives and their financial stability.
State laws dictate the range of compensation benefit levels available to crime victims. Almost all states have minimum loss requirements. All states have maximum benefit levels, usually ranging from $10,000 to $25,000 (National Association of Crime Victim Compensation Boards, 2005). Claimants use the compensation funds over the long term.
As a result of the passage of the Victims of Crime Act (VOCA) in 1984—and to qualify for VOCA funding—compensation programs must agree to consider for eligibility all U.S. citizens who are victims of crimes within their states, regardless of the residency of the victim. In addition, compensation programs also must cover their own residents who are victims of terrorism in foreign countries and crimes falling under federal jurisdiction within the states, such as crimes occurring on Indian reservations, national park lands, or military bases.
Once a victim of violent crime has been informed of his or her right to apply for compensation, it is important to understand eligibility requirements. While these vary from state to state, the victim generally must:
Be innocent of criminal activity or significant misconduct that caused or contributed to the victim’s injury or death.
Report the crime promptly to law enforcement. (Many states have a 72-hour standard, but nearly all states have “good cause” exceptions applied liberally to children and incapacitated victims and in other special circumstances.)
Cooperate with police and prosecutors in the investigation and prosecution of the case. (Some states make exceptions.)
Submit a timely application to the compensation program (generally 1 year from the date of the crime, although a number of states have longer time frames, and most can waive these requirements when appropriate) and provide other information as requested by the program.
Have a cost or loss not covered by insurance or some other readily available collateral resource.
A victim advocate or other helping professional can further explain victims’ roles to them, including the type of documentation that is required for an application, how decisions are made by compensation programs, and the length of time it may take to receive a decision and/or remuneration. Judges should encourage victims to contact a victim advocate or state victim compensation program for additional information or assistance.
Compensation programs can pay for a wide variety of expenses and losses related to criminal injury and homicide. Beyond medical care, mental health treatment, funerals, and lost wages, a number of programs also cover moving or relocation expenses, transportation to medical providers, crime-scene cleanup, rehabilitation (including physical therapy and occupational therapy), modifications to homes or vehicles for paralyzed victims, the cost of housekeeping and childcare services, and fees for attorneys who help victims apply for compensation (usually in limited amounts and sometimes only for appeals).
Personal property stolen, lost, or damaged during the crime is not covered, with a few limited exceptions (Florida, New Jersey, and New York). All states will cover medically necessary equipment, such as eyeglasses or hearing aids. Only three states currently pay for costs associated with pain and suffering (Hawaii, Rhode Island, and Tennessee).
All compensation programs are “payers of last resort.” Other collateral sources of payment to the victim—such as medical or auto insurance, employee benefit programs, Social Security, and Medicaid—must be accessed first before the programs will consider payment. In addition, if the victim recovers any money from the offender or any other party liable for the victim’s expenses, the compensation program must be paid back for that portion of the expenses the program covered, unless the victim’s total out-of-pocket losses exceed the amount both paid by the program and recovered from another source.
9. Right to Speedy Proceedings
A victim’s right to proceedings without unreasonable delay means that a court is required to consider any adverse impact a delay may have on the well-being of the victim when considering a motion for a delay or continuance.
Many states have passed laws that give crime victims the right to request a speedy trial, just as defendants have a similar right that is clearly defined in the U.S. Constitution. There have been horror stories of intentional delays and continuances initiated by the defense to delay the trial until the victim is no longer able or willing to testify. Elderly victims, victims with life-shortening illnesses, and child victims are examples of victim population groups for whom speedy trial rights are particularly important. Some states have passed speedy trial laws for these specific groups.
One of the greatest hardships victims endure in the criminal justice process is the delay of scheduled proceedings. Repeated continuances cause serious hardships and trauma for victims as they review and relive their victimization in preparation for trial, only to find the case has been postponed. The impact of continuances is particularly difficult for victims whose memories may fade over time or whose health may deteriorate.
The schedules and concerns of victims should be taken into consideration by judges before they grant continuances. A disposition free from unreasonable delay helps to ensure that victims, as well as defendants, receive speedy trials and that the impact of delay on victims is considered by judges in response to requests for continuances.
10. Special Rights and Protections
The following three victims’ rights laws fall under the category of special rights and protections.
Most states have enacted laws that prohibit employers from taking adverse action against victims who must miss work to participate in the justice process, although these laws do not provide monetary compensation for victims who participate. These laws are designed to prevent employers from firing or penalizing victims when they take time off from work to attend preliminary hearings, trials, sentencing hearings, parole hearings, and so forth. If victims are also witnesses, they will qualify for standard witness fees according to individual state laws and policies.
The rationale in passing employer intercession laws is that crime victims should not be discriminated against on the job because they have to take time off to participate in the justice process. The publication New Directions From the Field: Victims’ Rights and Services for the 21st Century (OVC, 1998) provides the following suggestions on how this right should be implemented:
While protections for jurors are limited, victims should have, at minimum, the same levels of protections as jury members. To the extent possible, employers should be required to work with employees and their unions to ensure that victims maintain their employment after absences due to attendance at criminal and juvenile justice proceedings. Victims should continue to receive salaries or wages, reduced by any witness fees received, for a designated period of time. Afterwards, they should be able to use vacation and sick leave. In addition, judges should be encouraged to take employment concerns of victims and their employers into consideration when scheduling proceedings. (p.26)
Prompt Property Return
Procedures for the swift return of property to victims and witnesses should be developed at the federal, state, and local levels to serve as models for law enforcement agencies nationwide. Emergency funds should be made available to victims to replace essential items. Laws providing victims the right to have their property returned within a reasonable period of time should be enacted in all states and on the federal level.
Law enforcement agencies should place high priority on the speedy return of victims’ property. They should augment their property identification procedures by providing written instructions to victims to help them assist in the description and retrieval of property held as evidence. When it is not possible to release property held as evidence, an emergency fund should be available in every community to cover the cost of replacing essential property, such as a warm winter coat. Victims should never be charged for the storage of their property, and they should be reimbursed for property that is lost, sold, or damaged while held as evidence.
Victims’ Right to Privacy
Generally the question of victims’ right to privacy covers two specific subject matter areas of particular interest to crime victims. The first involves the protection of the victim’s contact information (e.g., home and work address, telephone number, e-mail). The second relates to the protection of information about the identity of the victim. These two privacy rights differ significantly not only as to the subject matter but also as to the prospective audience from which the information is intended to be withheld. More significantly, they differ as to the purpose for which they were created (Seymour and Beatty, in press).
Privacy rights related to contact information were created primarily to prevent defendants or their agents from discovering the location of the victim to further victimize, harass, or intimidate the victim or his or her immediate family members. In other words, the primary purpose of privacy rights concerning the victim’s contact information is to protect the safety of the victim.
In the second instance, privacy rights to prevent the disclosure of the victim’s identity to the public are intended to address the embarrassment, loss of dignity, and stigma that could result from the publication of deeply personal facts about the victim or details related to the crime itself.
Strategies to Strengthen Victims’ Rights1
At the founding of our country, private prosecution was the norm. In this previous system of justice, crime victims were responsible for investigating and prosecuting crimes against them, and the harm from crime was predominately thought of as a private harm. Over the years, the office of the public prosecutor was born and rose in prominence, as did the idea that harm from crime was not just a private harm but also was a social harm.
Private prosecution persisted well into the 19th century, often co-existing with public prosecution. In some locations today, private prosecution continues for misdemeanor crimes, and in other locations, citizens have access to grand juries such that they can present their case to that body. As is often true of pendulums, the pendulum of our criminal justice system swung far away from its early victim-centric criminal justice system that allowed for substantive victim participation, toward an exclusive public prosecution/social harm approach to criminal justice. This nearly exclusive reliance on public prosecution has diminished and also has engendered the modern crime victims’ rights movement.
Key Events in Victims’ Rights Enforcement
The case of Linda R.S v. Richard D. is one of critical moments in the history of victims’ rights enforcement. In 1972, the Supreme Court considered whether an unmarried woman could seek to enjoin the prosecutors’ office from discriminately applying a statute criminalizing the nonpayment of child support by refusing to prosecute fathers of children born to unmarried women, Linda R.S. v. Richard D., 410 U.S. 614 (1972). The Court’s narrow holding was that the victim could not demonstrate a sufficient nexus between the prosecutor’s alleged discriminatory enforcement of the statute and the woman’s failure to secure child support payments from the father, and therefore, the victim did not have standing to seek the relief she requested. In dicta, the Court acknowledged the then-prevailing view that “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” In law, when you have no “judicially cognizable interest” you have no right to ask the court for redress of your grievance. The Court’s statement could be interpreted to mean that victims of crime have no interest or right to participate in the prosecution of their offender, which is a shocking proposition to a victim of crime. Importantly, Linda R.S. went on to provide a foundation for remedying the above-described situation by stating in a footnote that Congress, and by logical extension state legislatures, could “enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Id. at 617 n.3.
Another critical moment in the history of victims’ rights enforcement is Federal Rule of Evidence 615 (the rule of sequestration). In 1975, Federal Rule of Evidence 615 (the rule of sequestration), was adopted. This rule required automatic exclusion of witnesses if requested by either the prosecutor or defendant. Shortly after Rule 615’s adoption, most states adopted a rule of sequestration similar to the federal rule. As a result, crime victims were routinely identified as potential witnesses, whether there was a real intention to call them or now, thus resulting in their systematic exclusion from trial.
In response to the pendulum’s swing, and with more societal concern for the victims of crime, the modern victims’ rights movement was born. This movement sought first, enforceable rights for crime victims; and second, social services for crime victims, such as crime victim advocates and other service providers.
A foundational document in the development of the crime victims’ movement was the 1982 President’s Task Force on Victims of Crime. The task force set out 68 recommendations for how rights and services for crime victims could be substantially improved in this country’s justice systems. Notably, among the recommendations of the Task Force was to amend the Sixth Amendment to the United States Constitution so that “victims in every criminal prosecution shall have the right to be present and heard at all critical stages of judicial proceedings.” The Task Force recommended the passage of this federal constitutional amendment to create specific, constitutional rights for crime victims. The Sixth Amendment provides specific rights and protections for those accused of crime, yet offers no rights for crime victims.
In the mid 1980s, a constitutional amendment strategy was adopted to seek state constitutional amendments first to establish a strong nationwide base of support before pursuing a federal constitutional amendment. Today, 32 states had adopted constitutional amendments, with the overwhelming support of voters. Notably, these constitutional provisions vary in the number of rights afforded (e.g., only California explicitly provides for restitution) as well as enforceability. All states and the federal government have passed crime victims’ rights legislation. At the federal level, Congress passed the first of several pieces of crime victims’ rights legislation in 1982, the Victim and Witness Protection Act, and subsequently passed a series of laws, successively giving greater legislative recognition to the rights of crime victims. Generally, victims’ rights are aimed at protecting victim privacy, protection, and participation. In 1983, the American Bar Association issued its Fair Treatment of Crime Victims and Witnesses. The Fair Treatment Guidelines set forth 13 guidelines establishing “courtesies and considerations” owed to victims and witnesses in the criminal justice process, seeking, in part, to remedy the then-existing “nonstatus” of crime victims.
A national advocacy effort to pass a federal constitutional amendment began in earnest. In 1991, a resolution was first introduced in Congress to create federal constitutional rights for crime victims. Over the course of the next decade, numerous congressional hearings were held, and many victim advocacy groups worked very hard for the passage of the amendment. By 2004, the effort had failed. Instead, the Justice for All Act was passed, which provided specific rights for crime victims and some remedies for the enforcement of victims’ rights.
There are many significant reasons to enact constitutional rights for crime victims. Currently, there are no consistent and comprehensive rights for crime victims in every state or at the federal level. Constitutional rights would also help ensure that the nation’s courts “engage in a careful and conscientious balancing of the rights of victims and defendants” (OVC, 1998, p. 9). In addition, constitutional rights would help guarantee that crime victims have the opportunity to participate in all proceedings related to crimes against them.
Many victim advocates believe that a victims’ rights constitutional amendment is the “only legal measure strong enough to rectify the current inconsistencies in victims’ rights laws that vary significantly from jurisdiction to jurisdiction on the state and federal levels” (OVC, 1998, p. 10). In addition, most agree that it is the “only legal measure strong enough to ensure that the rights of victims are fully enforced across the country” (OVC, 1998, p. 10).
Today, 33 states have passed constitutional amendments that provide specific rights for crime victims. The goal of passing state constitutional amendments has been to strengthen existing victims’ rights statutes and provide a more forceful tool for enforcement of these rights.
Despite the passage of significant victims’ rights legislation in the past decades, there is a failure of enforceability of many victims’ rights laws. This failure was keenly demonstrated by United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997). In McVeigh, a number of the victims of the Oklahoma City bombing sought to exercise their federal statutory right to attend the criminal trial of McVeigh, and to subsequently testify at the sentencing proceeding if McVeigh was convicted. The trial court prohibited the victims’ attendance at trial if they opted to appear and testify at sentencing. The victims sought review from the appellate court, and the Tenth Circuit Court of Appeals upheld the trial court, pointing to the statute’s requirement of only “best efforts,” and finding that the statute did not grant the victims standing to seek review of denials of their rights. Id. at 335.
This ruling meant that while victims of the bombing had, on paper, the rights to both attend the proceedings and to be heard at the sentencing, when the trial court denied these rights there was nothing the victims could do. Consequently, in 1995, the leaders of the National Victims Constitutional Amendment Network (a group of pro-victims’ rights advocates) called on Congress to take action on the final recommendation of the President’s Task Force: adoption of a federal constitutional amendment affording rights to victims of crimes.
The history of the move for a federal constitutional amendment is detailed and ongoing. Here are some of the highlights.
On April 22, 1996, during the 104th Congress, a constitutional amendment was introduced. The proposed amendment contained seven rights, and a subsequent version included crime victim standing to enforce the articulated rights.
The 104th Congress did not pass the amendment, but in the years between 1996 and 2004 resolutions calling for a federal constitutional amendment creating rights for crime victims were introduced in nearly every Congress, and congressional hearings on the resolutions were held numerous times.
Other Key Developments in Enforcement of Victims’ Rights
All is not bleak with respect to the enforcement of victims’ rights laws. There are many shining examples of innovative efforts to better ensure that victims’ rights are protected. For example:
Maryland passed a statute that enables victims of violent crimes to apply for “leave to appeal” any final order that denies victims their basic rights. (See Maryland Code Ann., Art. 27, §776 , [ND p 43/90].)
Arizona enacted a law that “grants victims the right to challenge post-conviction release decisions resulting from hearings at which they were denied the opportunity to receive notice, attend, or be heard” (Arizona Rev. Stat. Ann., §13-4437 [West 1991], [ND p 43/91]).
Arizona law gives victims the right to sue for money damages from any government entity responsible for the “intentional, knowing or grossly negligent violation” of victims’ rights (Arizona Rev. Stat. Ann., §13-4437 [West 1991], [ND p 43/91]).
Court-ordered injunctions and writs of mandamus are available to force criminal justice personnel to respond to willful violations of victims’ rights laws.
Several states have an Office of the Crime Victims Ombudsman, which is charged with investigating statutory violations of victims’ rights laws and mistreatment of victims by criminal justice officials.
Colorado has a statewide coordinating committee that serves as an ombudsman for victims’ rights implementation.
Wisconsin law offers penalties for the willful violation of crime victims’ rights.
Beginning in 2003, the Office for Victims of Crime has funded the National Crime Victim Law Institute to establish and oversee a network of pro bono legal clinics nationwide that help victims assert and seek enforcement of their state and federal victims’ rights. The first of these clinics, Arizona Voice for Crime Victims, continues to be a model for others. Together these clinics have represented more than 1,200 victims in criminal proceedings, made more than 1,300 court appearances, and filed more than 665 court documents on behalf of victims.
In 2004, Congress passed and the president signed into law the “Scott Campbell, Stephanie Roper, Wendy Preston, Lourarna Gillis, and Nila Lynn Crime Victims’ Rights Act Federal Crime Victims’ Rights Act of 2004,” 18 U.S.C. § 3771 (CVRA). The CVRA provides victims of federal offenses with eight rights and explicitly provides trial-level standing for victims to individually assert those rights, as well as the right of victims to seek rapid and mandatory appellate review of any denial of their rights. This law is codified in Title 18the criminal codeof the United States Code, so that it resides side-by-side with the majority of other provisions governing federal criminal processes. Following passage of the CVRA, one federal court stated, “The criminal justice system has long functioned on the assumption that crime victims should behave like good Victorian childrenseen but not heard. The [CVRA] sought to change this by making victims independent participants in the criminal justice process.” Kenna v. United States Dist. Ct. for the Cent. Dist. of Cal., 435 F.3d 1011, 1013 (9th Cir. 2006).
In 2008, the people of Oregon passed two new constitutional amendments making explicit that their existing constitutional victims’ rights could be individually enforced by the crime victim in the criminal case.
In November of 2008, as this chapter was going to press, an important new development occurred. Marsy's Law, California's new Victims’ Rights Amendment, passed. This law is one of the most comprehensive piece of victims’ rights legislation in the nation. California, victims will have meaningful and enforceable rights, including the rights:
To notice of all proceedings
To be present whenever the defendant has the right to be present
To be heard at critical stages … before the defendant is released after arrest, before a plea bargain is accepted by the court, before any sentence is imposed, before there is a parole, and any time their rights are at issue.
To have their safety considered before any release decisions are made and to know when the offender is being released or has escaped
To protect their confidential records
To refuse to submit to interrogations by the defendant or his lawyer before trial
To confer with the prosecutor
To be free from intimidation, harassment, or abuse, and to be treated with fairness and respect
To a speedy trial and to reasonable finality. Victims would have an independent right to enforce these rights in any court.
It will require that victims be informed of their rights just like the defendants are given their Miranda rights.
It will provide the means to stop the regular nightmare of repeated opportunities for clearly dangerous offenders to be re-considered over and over again for parole.
It will secure for victims a meaningful opportunity to participate in parole proceedings and will set their safety and the safety of the public as the critical standard before release decisions are made.