IV. Crime Victims’ Rights in US Domestic LawIn the 18th century, the British legal scholar William Blackstone wrote that “[i]n all cases the crime includes an injury: every public offense is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community.”23 This recognition that both victims and the state are harmed by crime meant that historically in Britain and the United States, victims were able to bring prosecutions themselves, as private prosecutors. In fact, the burden was often entirely on the victim, who had to pay to retain an attorney to have the indictment written and the offender brought to trial.24 The victim had near-total control over the proceedings, but also had the entire burden of pursuing justice. Today the state, through its police and prosecutors, shoulders more of the burden of pursuing justice, but it has been increasingly recognized in the United States that victims’ rights and interests must be upheld as a part of that process. Since its early growth in the 1970s, the crime victims’ movement in the United States has successfully pushed for protection of victims’ rights in state and federal legislation as well as through constitutional amendments and court decisions. As of 2007, all 50 states have statutes protecting victims’ rights, and 33 states have amended their constitutions to enhance and protect victims’ rights.25 US courts have also begun to enforce victims’ rights. For example, in 1991, the US Supreme Court upheld the constitutionality of allowing admission of victim impact evidence during capital sentencing.26 Many other state and federal courts have upheld the rights of crime victims in decisions throughout the country.27 Legislation and court decisions, however, have provided at best inconsistent protection for victims’ rights. First, some state laws have not clarified whether victims of crime can take action to enforce their rights, and if they do take action, what remedies they have. Second, it is often costly for victims to retain counsel in order to seek remedies for rights violations.28 Third, victims and legal professionals may not be aware of victims’ rights laws or the means by which they can be enforced. Enforcement has also been a problem. As one advocate told Human Rights Watch:
At the federal level, between 1980 and 2004, Congress adopted at least seven different pieces of victims’ rights legislation, culminating in the adoption of the Crime Victims’ Rights Act (CVRA) in October 2004. Similar to many state laws, the CVRA provides victims of federal offenses (and victims in the District of Columbia) with rights to:
Under the CVRA, federal government officials are to make their best efforts to see that crime victims are notified of and accorded these rights.31 In addition, victims may assert these rights by filing a motion in the court in which the alleged offender is tried, or in the jurisdiction where the crime occurred even if there is no prosecution pending.32 If the motion is denied, the victim may seek review by the court of appeals through a petition for writ of mandamus.33 The CVRA requires mandatory appellate review of any decisions taken on such a motion.34 Finally, a court’s decision to deny any of these rights may be asserted as an error by the prosecution in the case.35 Only in limited circumstances may a victim move for a new trial on the basis of the denial of these rights.36 Some victims view this federal law as an important complement to state victims’ rights laws. Others are advocating for an amendment to the Bill of Rights in the US Constitution, which would be applicable to the states (unlike the CVRA). Still others see the CVRA as an important tool for victims’ rights, especially since in April 2008 it was implemented in the Federal Rules of Criminal Procedure, which is the rulebook used by all judges in federal criminal cases.37 While advocates may disagree about whether additional statutes or constitutional amendments need to be passed, all agree that more attention needs to be paid to enforcing the victims’ rights laws that already exist so that violations of victims’ rights are prevented and, when violations occur, victims have a remedy. For example, some advocates highlighted for Human Rights Watch the importance of training and ensuring compliance at the state law enforcement agency level. One advocate said, “State agencies can take ‘baby steps’ toward compliance: simply train each office and point out which victims’ rights fall within that office’s functions.”38 Another told Human Rights Watch:
Emphasizing the need to allow courts to remedy violations of victims’ rights in the United States, one federal judge said:
The following section details the provisions contained in international law and other standards that apply to victims of crime and analyzes the degree to which the United States is upholding them. 23 William Blackstone, Commentaries on the Laws of England, vol. 4 (1769), p. 5. 24 William F. McDonald, “Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim,” American Criminal Law Review, vol. 13 (1976), p. 652. 25 According to the US National Conference of State Legislatures, “Every state provides some legal rights to victims in their state codes; however, recognition by citizens and legislators of the importance of elevating the rights and needs of victims has led 33 states to amend their constitutions to include rights for victims. The victims’ rights constitutional amendments are intended to ensure that the rights and protections afforded to victims of crime are on par with those of the criminal defendant. Most state amendments articulate the right of victims to be informed, present and heard at important criminal justice proceedings, as well as the right to be treated with fairness and respect. Others also give the victim the right to restitution from the offender or include the right to reasonable protection from the accused. Although historically victims are relied upon to report the crime, testify and facilitate prosecution, constitutional victims' rights amendments have been put in place to recognize the importance of victim rights and services in that process without denying defendants any fundamental constitutional rights to a fair trial and fair treatment throughout. Whether state constitutional victims' rights amendments or statutory victims' bill of rights, both vehicles illustrate state commitments to providing victims with an appropriate role and much-needed procedural rights in the criminal justice process.” National Conference of State Legislatures, “Victims’ Rights Laws in the States,” March 14, 2007, http://www.ncsl.org/programs/cj/guidebillofrights.htm (accessed August 27, 2008). 26 Payne v. Tennessee, 501 U.S. 808 (1991). Human rights law recognizes the inherent dignity and the equal and inalienable rights of all people, including those who have committed terrible crimes. It prohibits torture and other cruel, inhuman or degrading punishments. Human Rights Watch believes these rights cannot be reconciled with the death penalty, a form of punishment unique in its cruelty and finality, and a punishment inevitably and universally plagued with arbitrariness, prejudice, and error. For these reasons, Human Rights Watch advocates abolition of the death penalty. 27 For example, one author, reflecting on the state constitutional amendments providing for broad crime victims’ rights, writes: “[w]ith only one exception [Rhode Island], state courts have interpreted these broad victims’ rights to have substantive meaning.” Douglas E. Beloof, “The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review,” Brigham Young University Law Review, vol. 1, no. 2 (2005), p.264 (internal citations omitted). 29 Human Rights Watch telephone interview with Jennifer Bishop Jenkins, victims’ rights advocate, Chicago, Illinois, August 28, 2007. Jenkins’ sister, Nancy Bishop Langert (who was pregnant at the time), was shot to death along with her husband, Richard Langert, in suburban Chicago in 1990. Jenkins is a member of Murder Victims’ Families for Human Rights, and she maintains a website regarding crime victims’ rights in Illinois: http://www.illinoisvictims.org/ (accessed August 27, 2008). 30 18 U.S.C. sec. 3771 (a), Crime Victims’ Rights Act (2004). 31 Ibid., subsec. (b). 32 Ibid., subsec. (d)(3)(a). 33 Ibid. 34 Ibid. 35 Ibid., subsec. (d)(4). 36 Ibid., subsecs. (d)(5), (6). 37 Chief Justice John G. Roberts, Jr., United States Supreme Court, “Amendments to the Federal Rules of Criminal Procedure adopted by the Supreme Court of the United States, pursuant to sec. 2072 of Title 28, United States Code,” April 23, 2008, http://www.supremecourtus.gov/orders/courtorders/frcr08p.pdf (accessed June 30, 2008). 38 Human Rights Watch telephone interview with Meg Garvin, Portland, Oregon, October 2, 2007. Meg Garvin is the executive director of the National Crime Victim Law Institute housed at Lewis and Clark Law School. 39 Human Rights Watch telephone interview with Doug Beloof, Portland, Oregon, October 2, 2007. Doug Beloof is a professor of law at Lewis and Clark Law School and is a leading legal scholar and advocate on victims’ rights in the United States. 40 Human Rights Watch telephone interview with Hon. Paul Cassell, Salt Lake City, Utah, September 25, 2007. Judge Cassell resigned from the United States District Court for the District of Utah, effective November 5, 2007, in order to focus more on his work related to implementation and enforcement of crime victims’ rights. Geoffrey Fatah, “Youngest Federal Judge Resigns,” Deseret Morning News, Salt Lake City, Utah, September 22, 2007. Cassell is a leading legal scholar and advocate on victims’ rights in the United States. |