June 9-13, 2014 The University of Tennessee at Chattanooga



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Legal Enforcement Efforts


As noted above, although well meaning and oftentimes at least somewhat effective, there are fundamental legal flaws with the legislative steps previously outlined. Despite positive legislative enactments, many victims’ rights continued to suffer a fundamental legal flaw: They were often unenforceable. Thus, while the constitutional amendments & statutes appeared to advance victims’ rights, in practice often they were not “rights” because without remedies rights are empty promises. What is needed is legal advocacy for victims of crime and the funding and support for those who advocate for the enforcement of victims’ rights. Below are some examples of differing mechanisms for engaging legal advocates in the pursuit of enforcement of legal rights for victims through the courts.

Legal Advocates for Victims

Connecticut’s Office of the Victim Advocate [www.ct.gov/ova/site/default.asp], established in 1999 by Connecticut General Statute Section 46a-13b et seq., is an example of victim rights enforcement that may provide direct legal assistance to victims who feel that their rights have been abridged and who seek vindication of those rights. The Connecticut Office of the Victim Advocate:

Monitors and evaluates the provision of services to crime victims and the enforcement of victims’ rights in Connecticut.

Receives complaints from crime victims regarding the provision of rights and services and may investigate such complaints.

Files an appearance in any court proceeding to advocate for victims’ rights when it is alleged that such rights have been or are being violated.

Advances policies throughout the state that promote the fair and just treatment of victims throughout the criminal justice process.

Provides oversight and advocacy when the criminal justice system fails crime victims.

Ensures that the voices of crime victims play a central role in Connecticut’s response to violence and those victimized by crime.

Very unique to this approach is that the office is a state agency that directly represents victims of crime with their complaints against other government entities that have not provided victims with their constitutional and statutory protections and accommodations.

National Crime Victim Law Institute1

The National Crime Victim Law Institute (NCVLI), a nonprofit organization located at Lewis & Clark Law School in Portland, Oregon, is a national organization dedicated to ensuring enforcement of victims’ rights in criminal courts nationwide. NCVLI’s mission is to actively promote balance and fairness in the justice system through crime victim-centered legal advocacy, education, and resource sharing. NCVLI accomplishes its mission through education and training; technical assistance to attorneys; promotion of the National Alliance of Victims’ Rights Attorneys (www.navra.org); research and analysis of developments in crime victim law; and provision of information on crime victim law to crime victims and other members of the public.

While NCVLI does not directly represent crime victims, it ensures enforcement of victims’ rights in criminal cases through two avenues. First, with grants from the Office for Victims of Crime (OVC), NCVLI launched a network of eight legal clinics that provide direct, pro bono legal representation and social service support to victims as they assert and seek enforcement of their rights in state, federal and tribal criminal proceedings. As of fall 2008, with technical assistance from NCVLI, this network had represented over 1000 victims in criminal cases, appearing in court as legal counsel more than 1300 times. Second, NCVLI’s legal team strategically analyzes cases and identifies those that could benefit from participation in an amicus curiae (friend of the court). In these cases NCVLI files briefs which provide the court a national perspective on victim law, and a legal framework to aid advancement of rights. For information about NCVLI or its programs, or to seek technical assistance please go to www.ncvli.org.

State Crime Victim Legal Clinics

As noted above, NCVLI funds 8 clinics to provide direct pro bono legal and social service support to victims. These clinics are located in Arizona, Colorado, Idaho, New Jersey, New Mexico, Maryland, South Carolina and Utah. In addition, OVC directly funds two additional clinics that provide pro bono legal representation. These clinics are located in Ohio and Oklahoma. In addition to representing crime victims, all 11 clinics serve as an important resource to victims, social services providers, courts, and criminal justice professionals by training lawyers, judges, victim advocates and law students on victims’ rights law.

The clinics, listed alphabetically by order of the state in which they are located, are:


  • Arizona Voice for Crime Victims: www.voiceforvictims.org/

  • Colorado Crime Victims Legal Clinic: www.coloradocrimevictims.org//

  • Victims’ Rights Clinic at the University of Idaho: www.law.uidaho.edu/default.aspx?pid=65564

  • The D.C. Crime Victims Resource Center: http://dccrimevictims.org/

  • Maryland Crime Victims’ Resource Center, Inc.: www.mdcrimevictims.org/

  • New Jersey Crime Victim Law Center: www.njcvlc.org/

  • New Mexico Victims’ Rights Project: www.nm-victimsrights.org/home.html

  • Justice League of Ohio: www.thejusticeleagueohio.org/

  • Oklahoma- Native American Victim Rights Law Clinic: www.law.utulsa.edu/indianlaw/

  • South Carolina Crime Victim Legal Network: www.scvan.org/legal/index.html

  • Utah Crime Victims Legal Clinic: www.utahvictimsclinic.org/

The Role of Victim Advocates in Ensuring that Victims Receive Their Rights

A critical role of victim advocates is to ensure that crime victims’ rights are enforced as specified under state and federal laws. Effective victim advocacy requires that victim advocates have a strong working knowledge of victims’ rights laws and how they should be implemented, as well as a strong familiarity with victims’ rights enforcement mechanisms. Victim advocates can do the following:

Maintain copies of all laws pertaining to crime victims’ rights in their respective state or jurisdiction.

Update the laws yearly, adding any new amendments to existing victims’ rights laws or new laws enacted.

Check to see if the state VOCA administrator, Attorney General’s Office, Governor’s Office, state Victims’ Rights Coalition, or other entity has compiled a list of the laws pertaining to victims’ rights. Many states now offer compilations of victims’ rights laws either online or in printed directories.

Become familiar with advances in case law on behalf of victims by visiting the National Crime Victim Law Institute website (www.ncvli.org) and other resources.

Identify whether your state has any of the major enforcement mechanisms or advocates, such as, an Ombudsperson’s Office, a Statewide Coordinating or Review Committee, a Legal Advocacy Office for Victims, or a Legal Clinic, etc.

If your state does not have a viable enforcement mechanism in place, advocate for one!

It is important for victim advocates to read the actual victims’ rights laws rather than rely on others to explain the rights. Once an advocate develops a working knowledge of victims’ rights laws, then a trusted prosecutor, judge, or other legal professional can help the advocate understand the nuances of the law.

Advocates also need to determine whether the law specifies timeframes for implementation of certain rights, such as timely notification, and to have a working knowledge of the justice agency responsible for implementing the right. Some state laws do not specify who should be responsible for implementing the right. In this case, advocates should find out what agency (or agencies) in their state or community is taking on the responsibility of implementing the right.

Cross-training among justice agencies about crime victims’ rights is critical. Victim advocates can organize and support such training for justice professionals in their communities to ensure that those responsible for providing victims’ rights are familiar with and well trained on the law, as well as any recent legal changes.

Finally, victim advocates should determine whether a statewide agency or office has been established to serve as an ombudsman for the implementation and enforcement of victims’ rights. It is important for advocates to get to know this agency and how its staff can assist advocates in ensuring that crime victims receive their rights.



References

Miller, T., M.A. Cohen, and B. Wiersema. January 1996. Victim Costs and Consequences: A New Look. Washington, DC: National Institute of Justice, U.S. Department of Justice.

National Association of Crime Victim Compensation Boards. May 30, 2001. FAQ: Benefits. Retrieved May 2, 2005. from www.nacvcb.org/faq/3.html.

National Center for Victims of Crime. n.d. Retrieved September 4, 2007, from www.ncvc.org.

Office for Victims of Crime. May 1998. New Directions from the Field: Victims’ Rights and Services for the 21st Century. Washington, DC: Author.

Right to Protection from Unreasonable Harm: (See, for example, Alaska Stat. §12.61.010, Hawaii Rev. Stat. §801D-4, Mississippi Code Ann. §99-36-5, Missouri Rev. Stat. §595.209, Nebraska Rev. Stat. §81-1848, New Hampshire Rev. Stat. Ann. §21-M:8-k, New Jersey Rev. Stat. §52:4B-36, Oklahoma Stat. tit. 19§215.33, South Dakota Codified Laws §23A-28C-1, Tennessee Code Ann. §40-38-102, Washington Rev. Code §7.69.030, Wisconsin Stat. §950.05.) An additional eight states have granted this right via a constitutional amendment. (See Alaska Const. Art. 1, §24; Illinois Const. Art. 1, §8.1; Michigan Const. Art. I, §24; Missouri Const. Art. 1, §32; New Mexico Const. Art. II, §24; Ohio Const. Art. 1, §10a; Texas Const. Art. I, §30; Wisconsin Const. Art. I, §9m).

Seymour, A. 1999. Promising Practices and Strategies for Victim Services in Corrections. Washington, DC: Office for Victims of Crime and National Center for Victims of Crime.

Seymour, A. 2002. Victim Impact Statement Resource Guide. Washington, DC: Justice Solutions.

Seymour, A., and D. Beatty. In press. Judicial Education Project Curriculum. Washington, DC: Justice Solutions et al. and Office for Victims of Crime, U.S. Department of Justice.

Appendix A

Victims’ Statutory Rights to Notice:
Rights, Hearings, and Events*

*Updated June 1, 2005, by Justice Solutions, Washington, DC.



Notification of Rights

  • Right to compensation.

  • Right to restitution.

  • Right to notice of events and proceedings.

  • Right to attend proceedings.

  • Right to be heard at proceedings.

  • Right to consult with prosecutor.

  • Right to protection from offender.

  • Right to information on how to request or exercise the above rights.

  • Right to information on how to obtain information about case status.

  • Right to the name and telephone number of a contact person in the system.

  • Right to referrals to victim assistance.

  • Right to an explanation of the legal process and/or court proceedings.

Notification of Hearings

  • Bail hearings.

  • Bail review/modification hearings.

  • Grand jury hearings.

  • Other pretrial hearings.

  • Hearings on acceptance of diversion.

  • Hearings on acceptance of a plea bargain.

  • Trials.

  • Sentencing.

  • Postsentencing hearings.

  • Restitution hearings.

  • Appellate proceedings.

  • Probation revocation hearings.

  • Probation modification hearings.

  • Temporary release hearings.

  • Parole hearings.

  • Parole revocation hearings.

  • Parole modification hearings.

  • Pardon/commutation proceedings.

  • Hearings on defendant’s competency to stand trial.

  • Hearings on defendant’s release from mental institution.

  • Cancelled or rescheduled hearings.

  • Execution (in capital cases).

Right to Notice of Events

  • Arrest of the offender.

  • Bail or other pretrial release of offender, and conditions of release.

  • Indictment.

  • Dismissal of charges.

  • Dropping of case.

  • Plea negotiations.

  • Plea bargain.

  • Outcome of trial.

  • Sentence of offender.

  • Appellate request (by offender or by the state) for convicted offender’s DNA testing.

  • Filing of an appeal.

  • Outcome of appeal.

  • Location of incarcerated offender.

  • Earliest possible release date for incarcerated offender.

  • Probation of offender.

  • Probation revocation/reinstatement of suspended sentence.

  • When offender is in “out to court” status.

  • Transfer of offender from corrections to another jurisdiction (e.g., mental institution, INS custody, etc.).

  • Furlough.

  • Work release.

  • Transfer from one prison facility to another.

  • Change of security status.

  • Parole.

  • Parole revocation.

  • Pardon/commutation of sentence.

  • Escape.

  • Recapture.

  • Death of offender.

  • Execution of offender (in capital cases).

  • Offender’s release from mental institution.

  • Clemency.

  • Commutation.

Appendix B

Sample Victim Notification Letter

Criminal justice agencies can develop “merge letters” for every possible point of notification to victims. While the technical process of developing automated letters is quite simple, the development of victim-sensitive language is more challenging. This letter, which was developed for the publication Promising Practices and Strategies for Victim Services in Corrections (Seymour, 1999), has been adapted to reflect court- and probation-related notification.

Dear Mr./Ms. [name]:

Thank you for registering for victim notification services from the [name of agency]. I am very sorry that you were victimized, and I assure you that my agency and staff will do everything we can to assist you.

You will receive notice of [list types of notice that the victim is eligible for here]. OR This letter is to inform you of the [type of hearing] related to your case, which is scheduled for [day, date, time, location, and any other relevant information about victim participation]. OR This letter is to inform you of the status of the defendant/convicted offender, who is [information about status and location].

It is important that you notify our agency of any change in your address, telephone number, e-mail address, or other relevant contact information, so that we can notify you in an efficient manner. I have enclosed a card with our department’s address, as well as our telephone number for our Victim Assistance Program.

If our agency can provide you with additional information, answer any questions, or offer referrals to victim services in our community, please contact [name], [title] in our Victim Services Program at [telephone number].

I appreciate your consideration of this information, and I hope we can continue to meet your needs as much as possible.

Sincerely,

[name]


[title]

Enclosure: Informational Card



Appendix C

Victims’ Right To Be Present and Attend Hearings

Victims may have the right to be present for the following proceedings:



  • Bail hearings.

  • Bail review/modification hearings.

  • Grand jury hearings.

  • Other pretrial hearings.

  • Hearings on acceptance of diversion.

  • Hearings on acceptance of a plea bargain.

  • Trials.

  • Sentencing.

  • Postsentencing hearings.

  • Appellate proceedings.

  • Probation revocation hearings.

  • Probation modification hearings.

  • Temporary release hearings.

  • Parole hearings.

  • Parole revocation hearings.

  • Parole modification hearings.

  • Clemency/pardon/commutation proceedings.

  • Hearings on defendant’s release from mental institution.

  • Cancelled or rescheduled hearings.

  • Execution (in capital cases).



Appendix D

Documenting Losses for Victim Restitution

The information in this appendix is excerpted from the chapter “Victim Restitution” in Promising Practices and Strategies for Victim Services in Corrections (Seymour, 1999, p. 355-372).

To ensure accurate and complete restitution orders, victims are required to document their losses in writing for the court or paroling authority. It is important to provide victims with guidelines about the types of documentation that are needed to depict their out-of-pocket and projected future expenses.

Some considerations for guidelines that should be provided in writing to victims include, but are not limited to the following:



  • Employer statements (letters or affidavits) that document unpaid time off from work the victim took as a result of injuries from the crime, or involvement in justice processes.

  • Documentation of any workers’ compensation claims submitted and/or claims payments received by the victim.

  • Copies of bills for services directly related to victims’ financial recovery from the crime.

  • Any receipts for items or services.

  • Documentation that estimates the value of stolen property.

  • Photos of valuables that were stolen.

  • Copies of any documentation often provided by local law enforcement agencies (records of serial numbers, photos, etc.) that is intended to aid victims in the recovery of stolen property.

  • Any law enforcement records that indicate the status of stolen property (property recovered, recovered but damaged, etc.).

  • Copies of victims’ applications to and/or copies of checks received from the state victim compensation fund.

  • Copies of insurance claims and related correspondence between the victim and his/her insurance company, as well as copies of checks the victim may have received to cover losses.

Immediate Losses

During the pre-sentence investigation, victims should be asked to report information about their losses by completing or updating a financial worksheet and providing documentation as described above.

The range of these losses can include the following:

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