3666 chap 7

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8/18/2015

Prepared by Emily Berthelot, University of Arkansas at Little Rock

CHAPTER SEVEN VICTIMS AND THE CRIMINAL JUSTICE SYSTEM

1. To realize that some cases of interpersonal violence and theft

will be handled in the juvenile justice system.

2. To become familiar with the legal rights victims have gained in

recent decades.

3. To become aware of the obstacles and shortcomings of relying

upon formal legal rights.

4. To identify the various ways that prosecutors can serve victims

who are their clients.

5. To realize how conflicts can arise between victims and the

lawyers assigned by the government to represent them in court

proceedings.

6. To better understand the complexities of the witness

intimidation problem.

Learning Objectives

8. To appreciate how victims and defense attorneys might

become embroiled in conflicts.

9. To discover how judges make crucial decisions affecting

victims.

10. To become familiar with the many Supreme Court decisions

that affect how victims are handled during legal

proceedings.

11. To explore how jurors might react to victims and their plight.

12. To realize how corrections officials make decisions that

either help or hurt victims.

13. To become alert to the problem that all victims were not

treated equally in the criminal justice process in the past,

and the possibility that differential handling probably still

occurs.

Learning Objectives

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Toward Greater Formal

Legal Rights Within the CJ System

 Victim Rights Flow From . . .

 Policies from innovative CJ system officials

 Case law

 Laws passed by city, county and state government

 Sixth Amendment vs. Seventh Amendment approach for victims

 National Crime Victim’s Rights Act (CVRA)

Victim Rights Categories

 Zero-Sum Game Model

 Victims’ rights gained at the expense of:

 criminals

 criminal justice system

 either offenders or officials

Toward Greater Formal

Legal Rights Within the CJ System

1. Rights Gained at the Expense of

Offenders

 Theory is that victim rights should be at the

expense of offenders’ rights.

 Need to shift balance of power away from

offenders towards victims.

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T A B L E 7.1 Victims’ Rights Gained at the Expense of Suspects, Defendants, and

Prisoners

Toward Greater Formal

Legal Rights Within the CJ System

2. Victim Rights Gained at the Expense of the Criminal Justice System

Theory based on the fact that the social system is partly at fault for crime in America.

 State should be obligated to minimize suffering of victims.

 Victims should be made whole again even if offender not captured.

Toward Greater Formal

Legal Rights Within the CJ System

T A B L E 7.2

Victims’ Rights

Gained at the

Expense of

Criminal Justice

Agencies and

Officials

Toward Greater Formal

Legal Rights Within the CJ System

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3. Rights Gained at the Expense of

Offenders, the System, or Both

 Victim Participates in:

 Bail Setting Arrangements

 Plea Negotiations

 Sentencing Hearing Decisions—

Allocution

 Parole Board Appearances

Toward Greater Formal

Legal Rights Within the CJ System

 Issues:  Do these formal rights apply to individuals who do not

fit the profile of innocent victims?

 No consequences for non-compliance with

aforementioned victim rights.

 Many countries and colonial America allowed for the

victims to hire their own attorney to prosecute.

 Processes result in “differential handling or differential

access to justice.”

 Provide advocates for victims—ex. Guardian ad Litem

Toward Greater Formal

Legal Rights Within the CJ System

Victims and Prosecutors

 Prosecutors are chief law enforcement officer within the jurisdiction.

 How they can serve victims:  Keep victims informed of status of case.  Support victims with judges, bail, continuances,

negotiated pleas, dropped charges, sentences and restitution.

 Protect from harassment, threats, injuries and forms of intimidation and reprisals.

 Resolve as quickly as possible.  Assist victims in recovering property from police.

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Victims and Prosecutors

 Victim Witness Assistance Projects (VWAP)

 To address witness and victim complaints

 Intended to restore victims’ faith in CJ system

 Personal intervention as soon as possible

 Immediate relief to injured parties:

 Hotlines, shelter, food, counseling,

transportation and immediate lock repairs

Victims and Prosecutors

 VWAP Services  Translators

 Recover lost property quickly

 Social service and mental health referrals

 Provide information about reimbursement for losses and compensation benefits

 Keep victims informed of case developments

 1974—35% of DA offices routinely notified felony victims of case outcomes

Victims and Prosecutors

 Protecting Victim Witnesses

 Intimidation

 Criminals, families and acquaintances of offenders, gangs, own family attempting to have victim drop charges—cultural issues.

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Victims and Prosecutors

 Prosecutor should offer victim:  Protective services

 Phone number change

 Door locks/alarms

 Improved police patrols

 Orders of Protection

 New home or relocate

 Victim Witness-Protection Program

Victims and Prosecutors

 Dismissing or rejecting charges based on several issues:

 Lack of evidence, unreliable witnesses

 Police officials, others in prosecutor’s office, defense attorneys, judges, community leaders, media, and vocal interest groups can all affect prosecutor’s decision

 Surveys revealed that nearly half of all cases that were solved by arrest were not carried forward (either rejected at screening by prosecutors, dismissed in court by judges, or diverted out of the system) (Boland and Sones, 1986; and Boland, Mahanna, and Sones, 1992).

Victims and Prosecutors

 Negotiating Pleas

 Defendant agrees to plead guilty in exchange for some kind of consideration (usually a reduction in charges).

 95% of convictions secured by accused admitting guilt—often reduced from felony to misdemeanor.

 In anticipation of the above, police and prosecutors engage in:  Bedsheeting  Overcharging

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Victims and Prosecutors

 Plea negotiations result in:

 Reducing court caseloads

 Definite conviction (which might not happen if the case goes to trial)

 Preventing victims from testifying to reduce emotional distress

 Children

 Rape victims

Victims and Prosecutors

 Plea negotiations continued:

 Reducing the prosecution feeling threatened by involvement of victims— revenge motive

 No opportunity for victims to have a defined role

 No mechanisms for victims to challenge decisions of prosecutor

Victims and Defense Attorneys

 Defense Attorney  Natural enemy to victim  Attempts to protract the process, discredit witnesses  Sixth Amendment guarantees a “Speedy Trial”—

states have time limits for trial after arrest  Efforts to delay wear down witnesses, affect

memory of witnesses, find info about witnesses and victims

 Eventually encourages victim to drop or reduce charges

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Victims and Defense Attorneys

 General Rule: The more serious the

charge, the longer it takes to go to

trial.

 Sixth Amendment provides that

defendants have the right to confront

their accusers.

 Trials are relatively rare events.

Victims and Defense Attorneys

 Due to competition between sides,

courtroom tactics seem harsh and mean-

spirited.

 Cast aspersions on character of victim

 Often trashes victim in controversial cases

Victims and Judges

 Most conflict results during bail setting and sentencing.

 Eighth Amendment prohibits excessive bail.

 More than half of victims of serious crimes face the prospect that the offender harming them will be out on bail prior to case being resolved.

 Denying of bail results in offender going to jail and being punished before conviction.

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Victims and Judges

 Sentencing can be influenced by victims in two ways:

1. Conveying their requests in writing to the judge

2. Expressing their views orally in person at sentencing hearing (allocution)

 Victim Impact Statements (VIS) can provide valuable information to a judge.

 Often included in a pre-sentence investigation and reviewed by judge prior to sentencing

Victims and Judges

 U.S. Supreme Court ruled that VIS were not admissible in the penalty phase of a murder trial (Booth v. Maryland, 1987).

 Court reversed itself in 1991, Payne v. Tennessee, stating VIS was admissible during penalty phase if execution was an option for a jury.

 Practice of using VIS not widespread for judges.

 See Box 7.4 for more U.S. Supreme Court rulings regarding victims—majority of these decisions rejected victim arguments.

Victims and Juries

 Sixth Amendment guarantees a defendant that he will

be judged by a jury of his peers.

 Issues and questions regarding the victim-juror

relationship:

 Victims influence outcomes because of emotions

 Which jurors will accept and trust victim testimony

 Jurors could be victims of serious crime themselves

 Jurors may consider victim’s characteristics and status when

making accusations and determining sentence

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Victims and Corrections Officials

 Victims more likely to have contact with probation and parole agents than prison officials.

 Victims want two things from agents:

 Know when offenders are on probation or parole; protected from harassment or harm

 If court ordered restitution, want it on time

 Corrections to keep victim advised of offender’s address—VINE System.

Victims and Corrections Officials

 Parole boards often receive criticism from both victims and victim

groups.

 Typically opposed to “early release”

 Want to abolish

 Support determinate sentencing

 Parole Boards to provide victims opportunity to appear at parole

hearing—very few victims take advantage.

 VIS is included in offender’s file for the parole board to review in

making release decisions.

“AND JUSTICE FOR ALL”

 14th Amendment promises “equal protection under the law” for all citizens.

 Is justice blind to all groups in the pursuit of justice?

 Are all victims handled equally?

 See Box 7.5—Which Victims Get Better Treatment?

 “Differential handling” needs to be researched again to see if still persists today.

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Findings of policy decision impacts

 No substantial changes in outcomes resulting from implementation of victim rights.

 “Insiders” resist interference by outsiders (victims).

 No constitutional standing for victims, which prevents them from suing for damages for the rights being ignored or violated by CJ system.

 Changes mere “lip service, paper promises, cosmetic changes without much substance.”

 By 2011, there were 12 legal clinics across the country to boost the degree of compliance by uninformed CJ officials.