Victims Rights Gained at the Expense of Criminal Justice Agencies and Officials

Victims Rights Gained at the Expense of Criminal Justice Agencies and Officials

Subject Rights of Victims

General rights To be read their rights as soon as a crime is reported, or to be provided with written information about all obligations, services, and opportunities for protection and reimbursement

Case status To be kept posted on progress in their cases; to be advised when arrest warrants are issued or suspects are taken into custody

Court appearances To be notified in advance of all court proceedings and of changes in required court appearances

Secure waiting areas

To be provided with courthouse waiting rooms separate from those used by defendants, defense witnesses, and spectators

Employer intercession

To have the prosecutor explain to the complaining witness’s employer that the victim should not be penalized for missing work because of court appearances

Creditor intercession

To have the prosecutor explain to creditors such as banks and landlords that crime-inflicted financial losses require delays in paying bills

Suspect out on bail To be notified that a suspect arrested for the crime has been released on bail

Negotiated plea To be notified that both sides have agreed to a plea of guilty in return for some consideration

Sentence and final disposition

To be notified of the verdict and sentence after a trial and of the final disposition after appeals

Work release To be notified if the convict will be permitted to leave the prison to perform a job during specified hours

Parole hearings To be notified when a prisoner will be appearing before a parole board to seek early release

Pardon To be notified if the governor is considering pardoning the convict

Release of a felon To be notified when a prisoner is to be released on parole or because the sentence has expired

Prison escape To be notified if the convict has escaped from confinement

Return of stolen property

To have stolen property that has been recovered and held as evidence returned expeditiously by the police or prosecution

Restitution To repay victims first from any funds collected by the court from the convict before any other legal obligations or fines are paid off

Compensation To be reimbursed for out-of-pocket expenses for medical bills and lost wages arising from injuries inflicted during a violent crime

SOURCES: BJS, 1988; MADD, 1988; NOVA, 1988; and NVCAP, 2008.

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criminal justice professionals who fear that their agency’s mission will be compromised and its budget strained, and that their personal privileges and discretionary authority will be jeopardized (see Karmen, 1992; and Marquis, 2005).

The critical junctures for victim input are arraignments where bail is set, plea negotiations, sentencing hearings, and parole board appearances.

It is often asserted or assumed that victims’ highest priority is retribution and that they are likely to seize every opportunity to press for harsher handling of offenders. Vengeful victims might insist that defen- dants not be offered low bail or generous concessions in return for guilty pleas, that sentences imposed on convicts be as severe as the law allows, and that parole boards reject prisoners’ petitions for early release.

In contrast, victims might have different priori- ties and find themselves at odds with the authorities over how to handle particular cases. For instance, a battered woman’s greatest concern might be securing treatment for a violence-prone lover. If so, she might favor diversion of the case from the criminal justice system to allow the wrongdoer to enter a rehabilita- tion program. Burglary victims focused on receiving full and prompt reimbursement of their financial losses might favor an alternative to incarceration, such as restitution as a condition of probation.

Thus, involving the victim in the decision- making process constrains the free exercise of dis- cretion formerly enjoyed by prosecutors’ offices, judges, probation departments, and parole boards. What victims seek when they exercise participatory rights–whether mild or severe punishment, treat- ment for the offender, or restitution – their wishes might not align with the inclinations of the prose- cutor or the judge or members of the parole board.

Pledges about the chance to participate in cru- cial decisions raise several contentious philosophical and policy questions. Should such formal rights also be extended to someone who does not fit the profile of an innocent, law-abiding, mature victim of a seri- ous crime? For example, should assault victims from unsavory backgrounds—who have arrest records as street gang members, drug dealers, mobsters, and prostitutes, or are currently serving time behind bars—be permitted a say in plea negotiations and

sentencing? If so, should their requests carry less weight? Should victimized children have input? Should people who represent the victim (in their capacity as next of kin, executor of the estate of the deceased, the legal guardian of a minor, lawyer for the family, or volunteer advocate) be granted participatory rights? Should participatory rights be restricted to victims of serious crimes such as felonies or, even more narrowly, only to persons physically injured by violence? And what happens when these participatory rights are violated? What remedies should victims have when criminal justice agencies fail to involve them in the decision-making process or don’t live up to the standards for fair treatment?

The lack of enforcement mechanisms highlights another related problem: the absence of clear lines of responsibility for implementation. Which officials or agencies can be held accountable for keeping victims informed of their rights? For example, does the duty of notifying the victim about the right to allocution before sentencing fall to the police offi- cer or civilian employee who records the initial complaint; to the assistant district attorney who prosecutes the case; to the probation officer who prepares the presentence investigation report; or to the clerk in the office of court administration who schedules the postconviction hearing? And how many times must the responsible official attempt to contact a victim before giving up and declaring that a good-faith effort was made?

Providing all complainants with advocates from the outset would be one way to make sure that injured parties find out about all their rights and options and exercise them as best they can. But as yet, no jurisdiction has institutionalized and univer- salized the practice by assigning an advisor to every complainant who wants one, in the same way that lawyers are routinely provided to all suspects, defendants, and convicts.

Furthermore, if victims were read their rights the same way officers read suspects their Miranda warn- ing prior to interrogation, complainants would learn that they have a right to remain vocal about how they are treated and about what they believe should happen at bail hearings, plea negotiations, sentencing hearings, and parole board meetings (see Karmen,


Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203

1995). Complainants would also learn, from advo- cates, that they have a right to consult with a lawyer and to refuse to answer questions or disclose any per- sonal information that was not directly relevant to the investigation (and usually protected by privacy privi- leges) about subjects such as sexual history, sexual orientation, medical or mental health records; or dis- close information in conversations with doctors, therapists, spouses, attorneys, or religious counselors. At the outset, victims would be warned that any dis- closures about personal matters would come to the attention of not only the prosecutor but also the defense counsel, the defendant, expert witnesses, and the judge, in addition to the media and the pub- lic, during court proceedings (see Murphy, 1999; Cassell, 2010; and Wood, 2008).

There is no shortage of new ideas about what ben- efits, services, and rights ought to be developed to address unmet needs. In city councils, state legislatures, and the halls of Congress, new bills are constantly being

introduced. Most do not get much support the first or second time around, but as time passes additional spon- sors are found and constituencies are organized to lobby for their approval. A listing of bills that were introduced in Congress by Republicans and Demo- crats who have formed a “victims’ rights caucus” dur- ing sessions 2009 to 2014 appear in Box 7.3.

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