MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

More States Pass Constitutional Amendments Protecting Crime Victims' Rights

On Tuesday, voters in six states approved Crime Victims' Rights Amendments, continuing a long-term trend towards expanding the crime victim's role in the criminal justice process

With all of the other election news in the past two days, an important long-term development in the criminal justice field may have been overlooked. Voters in six states -- Florida, Georgia, Kentucky, Oklahoma, Nevada, and North Carolina -- all approved amendments to their state constitutions expanding the rights of crime victims. Known as "Marsy's Laws," these amendments provide an enforceable bill of rights for crime victims in the criminal justice process, guaranteeing such things as rights to notice of court hearings, to attend court hearings, and to be heard at particular points in the process. These amendments help to set the stage for a future effort to amend the U.S. Constitution to protect victims rights there as well.

The effort to a pass bills of rights for crime victims can be traced back to 1982, when the President's Task Force on Victims of Crime called for a federal amendment protecting victims. In a report issued that year, the Task Force concluded that the criminal justice system "has lost an essential balance. … [T]he system has deprived the innocent, the honest, and the helpless of its protection.… The victims of crime have been transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed." The Task Force advocated multiple reforms, such as prosecutors assuming the responsibility for keeping victims notified of all court proceedings and bringing to the court's attention the victim's view on such subjects as bail, plea bargains, sentences, and restitution. The Task Force also urged that courts should receive victim-impact evidence at sentencing, order restitution in most cases, and allow victims and their families to attend trials even if they would be called as witnesses. In its most sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims' rights "to be present and to be heard at all critical stages of judicial proceedings."

In the wake of this recommendation for a federal constitutional amendment, crime victims' advocates considered how best to pursue that goal. Realizing the difficulty of achieving the consensus required to amend the United States Constitution, advocates decided to try to initially enact state victims' amendments. They have had considerable success with this "states first" strategy. To date, about 35 states have adopted victims' rights amendments to their own state constitutions protecting a wide range of victims' rights.

The state constitutional amendments were passed in two waves. Beginning with Rhode Island's enactment of a statement amendment in 1986 and Michigan's in 1988, more than 30 states have approved state constitutional amendments in what might be regarded as the first wave of protection of crime victims' rights. The amendments provided a broad range of crime victims' rights in the criminal justice process. And even in states without constitutional protection, statutory protections for victims' rights were enacted. In many states, however, the amendments and statutes lacked effective enforcement mechanisms to ensure that their rights were fully implemented. As Attorney General Janet Reno explained in 1997 after a Justice Department review of the landscape, these state efforts "failed to fully safeguard victims' rights."

One way of improving enforcement of state crime victims' rights enactments is through strengthened state constitutional protections. In 2008, a second wave of state constitutional efforts began. In California, Dr. Henry T. Nicholas (the co-founder of Broadcom Corp.) backed the enactment of "Marsy's Law," named after his sister Marsalee (Marsy) Nicholas. She was stalked and killed by her ex-boyfriend in 1983. Only a week after her murder, Dr. Nicholas and Marsy's mother walked into a grocery store after visiting Marsy's grave and were confronted by the accused murderer. The family had not been told that he had been released on bail. The family also suffered further indignities during the criminal justice process.

Determined to prevent mistreatment of other victims in the process, victims' rights advocates supported a comprehensive rewrite of California's state constitutional amendment protecting crime victims. In November 2008, California voters overwhelming approved Proposition 9, making California's amendment arguably the strongest and most comprehensive in the country. Since then, similar Marsy's Law amendments have been added to the state constitutions of Illinois in 2014 and North Dakota and South Dakota in 2016. This past Tuesday saw amendments added to state constitutions in Florida, Georgia, Kentucky, Oklahoma, Nevada, and North Carolina.

While each of the amendments is tailored to local state conditions, they are all animated by the core value the crime victims have an important role to play in criminal proceedings. And that role can best be protected by a specific list of a right for crime victims. Nevada's version of the amendment illustrates the point. While in 1996 Nevada added a brief list of rights for crime victims (essentially just the rights to be present, notified, and heard), two days ago Nevada expanded protections for crime victims, by adding a much more comprehensive list of rights, a listed here:

Each person who is the victim of a crime is entitled to the following rights:
(a) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment and abuse, throughout the criminal or juvenile justice process.
(b) To be reasonably protected from the defendant and persons acting on behalf of the defendant.
(c) To have the safety of the victim and the victim's family considered as a factor in fixing the amount of bail and release conditions for the defendant.
(d) To prevent the disclosure of confidential information or records to the defendant which could be used to locate or harass the victim or the victim's family.
(e) To refuse an interview or deposition request, unless under court order, and to set reasonable conditions on the conduct of any such interview to which the victim consents.
(f) To reasonably confer with the prosecuting agency, upon request, regarding the case.
(g) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other postconviction release proceedings, and to be present at all such proceedings.
(h) To be reasonably heard, upon request, at any public proceeding, including any delinquency proceeding, in any court involving release or sentencing, and at any parole proceeding.
(i) To the timely disposition of the case following the arrest of the defendant.
(j) To provide information to any public officer or employee conducting a presentence investigation concerning the impact of the offense on the victim and the victim's family and any sentencing recommendations before the sentencing of the defendant.
(k) To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant and the release of or the escape by the defendant from custody.
(l) To full and timely restitution.
(m) To the prompt return of legal property when no longer needed as evidence.

As I have written elsewhere, these new state victims' rights amendments continue to build momentum towards an eventual effort to amend the United States Constitution to protect the rights of crime victims. The state amendments take advantage of the great laboratory of the states, proving that protections for crime victims improve their treatment in the system while not hampering defendants' rights. If Tuesday's votes are any indication, perhaps in the not-too-distant future Congress will begin the laudable effort of crafting a federal amendment extending rights to victims in the U.S. Constitution as well.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • DiegoF||

    To refuse an interview or deposition request, unless under court order, and to set reasonable conditions on the conduct of any such interview to which the victim consents.

    To take just one unacceptable aspect of this ridiculous "rights" movement, why should this witness alone have such a right, among all witnesses who might be subjected to discovery, among all witnesses who enter any aspect of the justice system? If anything I'd feel more sympathetic to a party who wasn't trying to bring the power of the state against another citizen, just minding his own business before his private life became subject to public record against his will. Such parties rarely are going to earn any mercy from a prosecutor trying to make a case when they are not the victims.

    Suddenly we are starting to mess with the very core principles of our justice system. And not even during the '80s; now that the crime rate has plummeted! Perhaps it's a miracle the toxic, deranged demagogue John Walsh has taken this long to get this particular one of his moral panics into nationwide policy with bipartisan support. And maybe what we have needed in terms of "victim's rights" was an amendment protecting alleged victims from Janet Reno.

  • Remember to keep it all polit||

    There is the similarly biased

    To have the safety of the victim and the victim's family considered as a factor in fixing the amount of bail and release conditions for the defendant.

    Why is the general public's safety not included?

    I agree with some aspects in theory, such as being notified of parole hearings, etc. But why do victims need special attention? Why is not general public notification not enough? The answer is usually that having to check public notices regularly puts extra stress on victims, but that neglects that the general public *does* have an interest in knowing that dangerous likely-to-repeat criminals are up for parole. Then there's the extra stress involved in making sure the various government agencies have your up-to-date contact info -- does it violate victims' rights to have to take that step too, or does victims' rights require the government to just "know" how to find victims who have been trying to get lost to make it harder for criminals and their associates to find them?

  • BillyG||

    Probably because prior victims, especially as witnesses, are more likely to be further targeted by the accused than a random person.

  • Paul Cassell||

    As to why victims should have a right to decline an interview request, rape victims and child sexual assault victims (to provide straightforward examples) will be much more likely to be traumatized by a deposition than would other witnesses. Indeed, in some cases, creating trauma is the clear goal of defendants.

    And as to whether subjecting crime victims to a deposition, for example, is a "core principle" of our justice system, only a small minority of states currently allow depositions. Typically information about the victim's testimony is provided in other ways that are not subject to abuse. Constitutionalizing that standard approach is hardly "messing" with core principles.

  • Remember to keep it all polit||

    Are you saying that rape victims and child assault victims (to provide straightforward examples) should always be believed, and those they accuse should never be able to confront their accusers or challenge the accusation?

    EVERY prosecution -- rape, robbery, or whatever -- has a choice: prosecute and re-open wounds, or wipe your memory. Why is rape so special?

  • DiegoF||

    Only a minority of states routinely use depositions at all during criminal trials, if I am not mistaken. The movement away from them was not without controversy in terms of defendant's rights, but at least there is not a baffling effort to treat victims as some sort of perversely favored and pampered type of witness.

  • NToJ||

    This is craven pandering.

  • bernard11||

    yes.

  • Bob from Ohio||

    Pandering to who?

  • NToJ||

    Voters. Who could be against victim's rights?

  • MatthewSlyfield||

    Anyone who's ever been prosecuted for a crime they didn't commit.

  • Bob from Ohio||

    I don't know how you amend a state constitution without appealing to voters.

  • Sarcastr0||

    Your switch from pandering to appealing is a pretty neat trick, Bob. Those are not the same thing.

  • Bob from Ohio||

    Its not pandering though.

  • Remember to keep it all polit||

    Another aspect to these "victim rights" is the undue favoritism given to victims. One of the rationales for state criminal prosecution instead of having the victims prosecute is that it reduces the revenge factor. Yet here we put it back in by letting the victims have special priority in parole hearings. Not only does this give criminals extra reason to get back at the victims, it makes it harder for victims to move on from the crime and try to resume a normal life, which I always thought was also one of the rationales behind government criminal prosecution.

    All of those "victim rights" should apply to everyone. Keeping contact info private, protecting victims, knowing the case status. Nothing in that list strikes me as only applying to victims.

  • Rossami||

    While I am sympathetic for the victims and agree with a few of the protections listed above, there are enough troubling aspects in this example to again reinforce Ted Frank's Law (which, loosely restated, is the strong presumption that any law named after a victim is poor public policy).

  • Smooth Like a Rhapsody||

    Hear, hear.

  • JonFrum||

    I didn't know there was a name for it, but I certainly believe it. I would vote against any legislation that has a person's name applied to it on principle. No you may not manipulate me.

  • Bob from Ohio||

    (l) and (m) in the Nevada law are good, the rest are just feel good slogans

    "fairness and respect" to "dignity" is great but how is it enforced exactly?

  • Number 2||

    "Each person who is the victim of a crime is entitled to the following rights:
    (a) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment and abuse, throughout the criminal or juvenile justice process."

    Intimidation, harassment and abuse by whom, I wonder. Would vigorous cross examination by defense counsel constitute "intimidation, harassment and abuse?" How about a defense premised on the notion that the victim's conduct in some way invited or caused the alleged crime? Would that constitute "intimidation, harassment and abuse?" Where will the line be drawn between "protecting victim's rights" and unduly interefering with the accused's right to present a defense?

  • jdgalt1||

    As far as it goes, this is a quite laudable effort, although I would rephrase Nevada's list to use the word "accuser" rather than "victim" (since "victim" must either imply a presumption that the accused is guilty, or else can be read as not enforceable until a conviction has established the fact that the accuser is a victim).

    I would also extend at least item (i), and if acquitted (l) and (m), to protect the accused as well as the accuser (with restitution covering both any direct damage done by police, and the likely loss of his job, home, and reputation as soon as the accusation became public), this right being actionable against the accuser, the government, and any individual government agents who may have abused their powers.

    (Yes, I'm aware of the existing language entitling accused persons to a speedy trial, but I've never heard of it actually having teeth. A clause requiring immediate release and dismissal-with-prejudice when an accused has been held without trial for half as long as the maximum sentence, or six months, whichever is less, would do wonders in disposing of this disgrace.)

  • Krayt||

    Is there a reason this should happen at the federal level? I am terrified of any amendments that increase the power of the government, especially ones that, if bungled (or creatively reinterpreted decades down the road by "changing values") might impinge on core amendments or rights.

    "Free from harrassment" + a ruling that harrassment is medically measurable + rhetoric about not being bound by previous generations, and anti-harrassment censorship escapes the campus and business world into the wild, sans explicit change to the First Amendment.

    Sure, it seems to take the form of release notifications and the withholding of addresses...for now.

  • santamonica811||

    " In its most sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims' rights "to be present and to be heard at all critical stages of judicial proceedings."

    How would this square with the crucial safeguard that witnesses (generally-speaking) are not permitted to be in the courtroom during certain parts--especially when other testimony/evidence is being produced--in order to avoid the obvious resulting problems? Would this not apply until after a particular witness testified--that she then would be allowed to sit in for the rest of that hearing/trial? What if a defendant later needed to recall her? What if the prosecution needed to recall her? How would you protect the process and un-ring that bell...from her being exposed to all the evidence she saw/heard between testimony One and testimony Two?

  • buddhastalin||

    The problem with this ballot measure is that voters will approach it as if to answer the question "Are you for victim's rights?" The actual question, however, is whether you want platitudes, contradictory language to existing provisions, redundant provisions to existing laws, well-intentioned but misplaced aspirations, mandates for some-or-other future times and new causes of action for the courts to grapple with to become law.

    This is a general problem with ballot measures. People think they are being asked questions like "Are you for educating the children?" whereas the real question is "Should the 5000 words printed in the voter guide that you didn't read and couldn't understand even if you did become law?"

  • buddhastalin||

  • Krayt||

    ===the real question is "Should the 5000 words printed in the voter guide that you didn't read and couldn't understand even if you did become law?"===

    That's on a good day. On a bad day, the governmental frauds have phrased the question so a no approves the change.

    Several elections back in Michigan, Detroit was famously going bankrupt, and the state government took over using a state law. It was quite expansive. Some didn't like it, so got a ballot initiative to overturn the law (leaving a similar but much weaker law in place.)

    The ballot measure listed everything the existing law did, and asked if you approved it, making it seem like it was the change, so voting no was rejecting the change. But you were approving the change by voting no.

  • CJColucci||

    Why constitutional amendments? Why can't any of this be done by statute?

  • loveconstitution1789||

    Laws get changed against the special interests depending on which political party is in charge.

    State Constitutional amendments theoretically slow down the change ability.

  • CJColucci||

    That's not a bug, it's a feature. There is a lot of feel-good, unspecific staff in here that experience may inform us is a bad idea, or that court interpretations may lead to unwanted results. I see no reason to set these experiments in stone from the get-go.

  • JonFrum||

    As with hate crime legislation, I think this is a bad idea on general principle. Why should laws only apply to a special class of people? If someone has a right to be on bail, I see no reason you should have a right to not see them. Harrassment is already against the law. This is a sort of heckler's veto, only in actions.

    If a person has murdered a child, ALL of us suffer. I can't imagine why the parent's pain should change the outcome of a trial. If the kid was an orphan, should the sentence be LESS?

  • BillyG||

    If someone has a right to be on bail, I see no reason you should have a right to not see them.

    So restraining orders are not a thing to you?

    If a person has murdered a child, ALL of us suffer.

    How? What's your loss? In the event of family bonds, there's a link. In the event some random person dies, I suffer no loss.

    I can't imagine why the parent's pain should change the outcome of a trial.

    You're correct, there should be no change in outcome, if by outcome you mean determiniation of guilt/acquital. What it does is allow closure for those harmed by an act and for them to advocate at sentencing. Mittigating cicumstances, aggravating circumstances, all that.

  • loveconstitution1789||

    Restraining orders are unconstitutional violations of freedom of assembly, speech, and the press.

  • Sarcastr0||

    Your your extreme logic, so is jail.

  • loveconstitution1789||

    The thing to watch out for is "victims" controlling the criminal justice process.

    Having a criminal justice system that separates the biases of victimhood are very important as it created the notion that "Justice is blind".

    Many cultures used to/still have revenge justice.

  • Tony||

    It's insane that a libertarian publication is endorsing this nonsense.

    Is the most draconian criminal justice system in the civilized world not enough?

  • Jon Fleischman||

    When someone becomes a victim they are thrust into the criminal justice system typically by no choosing of their own. Suddenly they have to deal with the government. Police. Prosecutors. Judges. Bureaucrats. These rights protect victims during that interaction. What us more fundamental in our constitution than safeguarding citizens against potential abuse by the government?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online