The Crime Victims' Rights Movement's Past, Present, and Future (Part II - the Present)

The modern crime victims' rights movement has been remarkably successful in inserting the victim's voice into criminal justice processes.

This post is the second of three posts, serializing my comprehensive law review article on the crime victims' rights movement. In yesterday's post, I described the movement's roots in the history of private prosecution. This post describes the movement's last several decades, during which the movement has successfully created participatory rights for victims throughout America's criminal justice system.

The modern victims' rights movement began to stir in the late 1960s, coalesced in the 1970s, and gained momentum in the early 1980s. The movement has continued ever  since "as one of the most significant and successful forces for reshaping the criminal justice process."  The movement's birth can be traced to the confluence of five developments: (1) the creation of an academic field of victimology; (2) the introduction of state victim compensation programs; (3) the rise of the women's movement; (4) an increase in crime and an accompanying dissatisfaction with the criminal justice system; and (5) the growth of victim activism.

In late 1982, the President's Task Force on Victims of Crime published a report, calling for victims' rights to be enshrined in criminal justice—and also for adoption of a federal constitutional amendment protecting victims' rights. The Task Force's report catalyzed crime victims' rights efforts across the country. Indeed, the Task Force Report and other similar recognitions of victims triggered "a literal explosion of federal and state action to increase crime victim access to and participation in the criminal justice process."

In 1986, four years after the Task Force released its report, the Justice Department surveyed changes in the criminal justice landscape concerning victims. The Department found that nearly 75 percent of the Task Force's proposals had been implemented to some degree, including the creation of a new Office for Victims of Crime in the Department to help implement the reforms.

Perhaps the most important change sparked by the President's Task Force was the creation of specific crime victims' rights in criminal justice processes. Before 1982, the victims' rights movement had spoken generally about protecting victims' "rights" in criminal cases. Beginning in 1980, states began establishing specific victims' rights by enacting statutory and constitutional victims' bills of rights. Wisconsin was the first state to create a specific list of victims' rights. In 1981, four more states followed suit, and, by 1989, 42 states had enacted statutes called a "victim bill of rights" and most of the remaining states had adopted similar statutory protections.

States also began to add protection for victims' rights in their own constitutions. In 1982, California passed Proposition 8, which was the first state constitutional victims' bill of rights. In a 1984, an ad-hoc gathering of national victim's rights groups decided to first seek constitutional protection for victims' rights in the states before undertaking the significant effort that would be required to pass a federal constitutional amendment—a "states-first approach." The next six amendments that were adopted came from Rhode Island (1986), Florida and Michigan (1988), Texas and Washington (1989), and, perhaps most important, Arizona (1990). These six amendments exhibit a trend from largely aspirational language (Rhode Island's) to more specific guarantees of rights for victims (Arizona's).

These early victims' rights amendments seemed to spur other states to action. In 1991, New Jersey added a state constitutional amendment. In 1992, Colorado, Illinois, Kansas, Missouri, and New Mexico followed suit. In 1993, Wisconsin joined. In 1994, Alabama, Alaska, Idaho, Maryland, Ohio, and Utah added amendments. In 1996, Connecticut, Indiana, Nebraska, Nevada, North Carolina, Oklahoma, South Carolina, and Virginia also added amendments. Oregon passed an amendment that same year, only to see the Oregon Supreme Court overturn it on technical grounds surrounding the initiative process. The court ruling lead Oregon's voters to swiftly reenact an amendment in 1999. In 1998, Louisiana, Mississippi, Montana, and Tennessee approved amendments. Thus, at the turn of the century, 32 states had state constitutional amendments protecting crime victims' rights. As victims' rights advocates had hoped, the state amendments had set the stage for a push to amend the United States Constitution to add a victims' rights provision.

To place victims' rights into the federal Constitution, the National Victims Constitutional Amendment Network and other advocates approached the President and Congress. In 1996, Senators Jon Kyl (a Republican from Arizona) and Dianne Feinstein (a Democrat from California) introduced a federal victims' rights amendment, with the backing of President Clinton. The Amendment was designed to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of victim participation in the administration of criminal justice that was the birthright of every American at the founding of our Nation."

In the late 1990s and early 2000s, Senators Kyl and Feinstein made various efforts to pass a federal amendment. While these efforts were unsuccessful, the result was the federal Crime Victims' Rights Act (CVRA). The CVRA originated in an April 2004 decision by Senators Kyl and Feinstein to seek a comprehensive federal statute rather than immediately pushing for a federal constitutional amendment. The movement supported their tactical decision. In exchange for backing off from the federal amendment in the short term, victims' advocates received near universal congressional support for a "broad and encompassing" statutory victims' bill of rights. This "new and bolder" approach not only created a string of victims' rights but also remedies for violations of victims' rights and funding for victims' legal services. Since the CVRA's enactment in 2004, victims have increasingly asserted rights in federal cases. And, when their rights have not been respected, some victims have used the CVRA provisions allowing enforcement actions in trial and appellate courts. I've previously blogged about my Epstein case and my on-going Boeing case, which are examples of CVRA enforcement actions.

After the federal CVRA was enacted in 2004, victims' advocates began to look at how to improve state enactments. As with federal enactments, a primary concern was the enforcement of victims' rights. Modern victims' rights enactments known as "Marsy's Law" were part of the story. The namesake for this effort was Marsy Nicholas, a 21-year-old senior at the University of California at Santa Barbara. In multiple ways, the criminal justice system served to escalate the pain and trauma of Marsy's family. Through Marsy's brother, Dr. Henry T. Nicolas, this tragedy gave birth to the Marsy's Law initiative—Proposition 9, the California Victims' Bill of Rights Act of 2008. The initiative sought to enshrine substantive and enforceable victims' rights in the California Constitution. When voters approved the initiative in November 2008, it became the nation's most comprehensive constitutional victims' rights enactment.

After success in expanding victims' rights in California, a newly created organization—Marsy's Law for All—set out to provide meaningful and enforceable victims' rights in all other states and, ultimately, to amend the federal Constitution to enshrine victims' rights. From 2008 to today, Marsy's Law for All efforts have succeeded in placing modern and enforceable crime victims' rights into the state constitutions of ten states (California, Illinois, North Dakota, South Dakota, Ohio, Oklahoma, Nevada, Kentucky, Florida, Georgia, North Carolina, and Wisconsin). Because these include some of the nation's most populous states, one in three Americans now lives in a state with Marsy's Law provisions. Marsy's Law has created model language for state constitutional amendments, which will likely serve as the template for future victims' rights enactments. Of course, in some other states (e.g., Arizona), effective and enforceable victims' rights enactments already exist. Thus, while a "third wave" of victims' rights does not yet cover the entire country, the tide is rising.

But, more broadly, another part of the success of the modern crime victims' rights movement was the widespread cultural acceptance of victims' rights. Today, as a criminal case moves forward, the public expects that victims will play a role in the process.

For example, the victims' rights movement has successfully enshrined in the nation's criminal justice system a crime victim's right at sentencing to give a "victim impact statement." Many examples of victim impact statements could be cited, such as the Larry Nassar sentencing, as I've blogged about here and here. But the overarching point is that victim impact statements are now commonplace and seemingly uncontroversial. Indeed,  the American Law Institute's Model Penal Code now provides for victim impact statements. And while a handful of critical academics are poised to pounce on any empirical evidence that victim impact statements increase sentencing severity, these critics remain disappointed: the available empirical evidence does not support the conclusion that victim impact statements lead to harsher sentences, much less harsher sentences based on race or other impermissible factors.

From the public's perspective, the widespread use of victim impact statements is as it should be. No longer can it be accurately said (if it ever could) that victims lack "any interest" in criminal proceedings. Instead, victims now clearly possess recognized interests in the proceedings: e.g., a right to present information relevant to sentencing. The crime victims' rights movement has thus clearly succeeded in returning victims to playing an important role in criminal justice.

You can download my full article here. I will be presenting the article as a keynote address at the University of Pacific Law Review's Annual Symposium on Friday, starting at 8:30 a.m. Pacific time. You can find more information about how to watch the symposium here. Tomorrow's post will conclude this series by discussing the crime victims' rights movement's future.