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7 Victims’ Rights and the Criminal Justice System

CHAPTER OUTLINE The Adult Criminal Justice System Versus the

Juvenile Justice System

Toward Greater Formal Legal Rights Within the Criminal Justice System

The Quest for a Constitutional Amendment Guaranteeing Victims’ Rights

The Achievements of the Victims’ Rights Movement Rights Gained at the Expense of Offenders Rights Gained at the Expense of the System Rights Gained at the Expense of Offenders, the System,

or Both

Victims and Prosecutors

Assisting Victims and Other Witnesses for the State Protecting Victims Who Serve as Witnesses for the

Prosecution Dismissing Charges and Rejecting Cases Negotiating Pleas

Victims and Defense Attorneys

Postponing Hearings Cross-Examining Witnesses During Trials

Victims and Judges

Granting Bail

Sentencing Offenders Appealing to the Supreme Court

Victims and Juries

Victims and Corrections Officials

Keeping Track of Offenders and Receiving Reimbursement from Them

Influencing Parole Board Decisions

And Justice for All?

Recognizing “Second-Class” Treatment Summary

Key Terms Defined in the Glossary

Questions for Discussion and Debate

Critical Thinking Questions

Suggested Research Projects

LEARNING OBJECTIVES To realize that some cases of interpersonal violence

and theft will be handled in the juvenile justice system.

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

continued

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THE ADULT CRIMINAL JUSTICE SYSTEM VERSUS THE JUVENILE JUSTICE SYSTEM

This chapter examines what might happen in cases that the police have solved by arresting an adult. As the fate of the accused person is determined by the criminal justice system, victims will interact with prosecutors, defense attorneys, judges, juries, and—if the defendant is convicted—corrections officials. Cooperation is the desired outcome, but conflict might erupt over certain divisive issues

with these criminal justice professionals and the agencies that employ them.

Note that this chapter focuses on how cases are processed by the legal system when adults are arrested by the police. Each state has the authority under the constitution to determine at what age adulthood begins and for which crimes this distinc- tion applies. For example, in New York, state legis- lators decided that persons as young as 16 might be considered as adults, and their cases could be pro- cessed in the adult system. When the police arrest a suspect as young as 13 for murder, he could be con- sidered as sufficiently mature to face adult penalties, such as a life sentence, if the prosecutor chooses to pursue this get-tough option. In nearly all the other states, the age when individuals can be held fully responsible for their criminal behavior is 18.

In each state, arrestees who are not old enough to be considered adults are handled by its juvenile justice system. The nation’s first juvenile court was set up in Cook County Illinois (covering Chicago) in 1899. Most states quickly followed suit. Consequently, ever since the early 1900s, a “double standard of justice” has prevailed. Almost everyone feels that a double standard based on the defendant’s—or the victim’s—race or social class is not fair, but most peo- ple will agree that handling a case differently because the suspect is young and immature is justifiable. For example, if a youngster steals a car, drives off, and later wrecks it and then abandons it, this vehicle theft ought to handled differently than a case in which a grown- up steals a car and drives it off to a chop shop where it is dismantled so that its sheet metal parts can be sold on the black market to repair crash damaged vehicles. Yet, in both cases, a motorist has lost a car to a thief. Similarly, if a 14-year-old breaks into a house to steal things, the authorities will view the crime in a differ- ent light than if an adult burglarized the dwelling, even though the losses experienced by the home- owner might be identical.

This separate system is supposed to operate according to a different set of principles (which in many states emphasize treatment over punishment, and sometimes, “restorative justice,” which is analyzed in Chapter 13). Consequently, not only arrestees but also their victims are handled

LEARNING OBJECTIVES continued

To recognize how the exercise of certain rights might curtail the rights of criminals or criminal justice professionals.

To become aware of the obstacles and shortcomings of relying upon formal legal rights.

To identify the various ways that prosecutors can serve victims who are their clients.

To realize how conflicts can arise between victims and the lawyers assigned by the government to represent them in court proceedings.

To better understand the complexities of the witness intimidation problem.

To appreciate how victims and defense attorneys might become embroiled in conflicts.

To discover how judges make crucial decisions affecting victims.

To become familiar with the many Supreme Court decisions that affect how victims are handled during legal proceedings.

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

To realize how corrections officials make decisions that either help or hurt victims.

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.

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differently. The individuals injured by juvenile delinquents are not permitted to play an active role and can exercise fewer options and rights in family courts or juvenile courts, where judges have much more discretion to shape outcomes. For example, in about one quarter of the states, all the proceedings will be held behind closed doors and victims will be barred from attending. The names of the accused teenagers might not be disclosed in news reports, even if the identities of the persons they robbed, shot, or stabbed are revealed. Young arrestees won’t be released on bail but they are likely to be sent home to their parents or legal guardians, and those who feel directly threatened by their return to the commu- nity (often, teenagers themselves) won’t have input into this decision. Injured parties won’t testify in front of jurors and television cameras because jury trials aren’t held. Youthful offenders “adjudicated” as delinquents probably will be placed on proba- tion, but their victims won’t have much of a say in that outcome either. However, more research needs to be carried out to determine how these procedural differences actually affect the persons these juveniles harm (for example, see Carr, Lord, and Maier, 2003).

What is known is that juveniles account for a considerable proportion of all persons accused of crimes involving interpersonal violence and theft. In 11 percent of the violent crime cases that police cleared, the arrestees were under the age of 18. In 16 percent of the solved property crimes, juveniles were taken into custody, according to the FBI’s Uniform Crime Report for 2013. Therefore, a consid- erable number of victims will discover that their solved cases will be diverted into the juvenile justice system or family courts.

TOWARD GREATER FORMAL LEGAL RIGHTS WITHIN THE CRIMINAL JUSTICE SYSTEM

The struggle to gain guarantees and protections from the government has motivated reformers and dissidents throughout history. Legal rights serve as a

remedy for injustice and abuse as well as a basis for independent and autonomous action. A number of movements seeking liberation, empowerment, equality, and social justice have sought greater rights for their constituencies. The most well- known and influential include the civil rights, women’s rights, workers’ rights, consumers’ rights, students’ rights, children’s rights, gay rights, mental patients’ rights, and prisoners’ rights movements. The victims’ rights movement that arose during the 1960s falls within this reformist tradition.

The legal rights of journalists, political activists, criminal defendants, and convicts have been derived from the safeguards and guarantees specified in the first 10 amendments to the Constitution, which taken together are referred to as the Bill of Rights. But the framers of the Constitution did not enumer- ate any specific rights for crime victims. The pledges, entitlements, privileges, benefits, options, practices, and opportunities for redress commonly referred to as victims’ rights spring from several different sources. A few rights originated as idiosyncratic poli- cies adopted by certain caring and innovative officials, such as police chiefs, district attorneys, trial judges, and probation officers. Other rights were derived from case law based on court decisions. The remain- der was established by laws passed by city and county governments, statutes enacted by state legislatures, acts approved by Congress, and referenda placed on the ballot by advocacy groups and endorsed by voters. As a result, an inconsistent assortment of rights has developed that varies markedly from state to state, jurisdiction (county or municipality) to jurisdiction, and even courthouse to courthouse.

One trend is certain: Since the 1960s, victims’ rights have been proliferating in the legislative arena and expanding geographically because of the suc- cessful campaigns of a social movement. Composed of activists, support groups, concerned professionals (like lawyers and doctors), nonprofit organizations, and coalitions forging broad alliances, this move- ment has won many victories and has changed the way the public, the media, businesses, and elected officials view the crime problem and the individuals who suffer because of it. The driving force behind the movement is the personal commitment of its

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leading grassroots activists. Most are survivors in the best sense of the word—they are individuals who have endured terrible ordeals or are close family members of people who perished; they have sum- moned up the strength to demonstrate exemplary resiliency to overcome adversity, and effectively channeled their grief and anger into constructive outlets. They have struggled for social change and justice so that fewer people in the future will have to suffer what they went through. Some examples of people on the frontlines of reform who were chosen by fate to become organizers and leaders with a new sense of purpose appear in Box 7.1.

A self-reinforcing cycle is operating: As more victims become aware of their rights and begin to

exercise them, these rights become accepted and honored within the criminal justice system. These victories encourage victims and their allies to raise new demands for further rights (Stark and Goldstein, 1985; and Viano, 1987).

Recent improvements in cruise ship passenger safety illustrate this self-reinforcing cycle in action. After a rash of incidents in which passengers were murdered, assaulted, raped, or mysteriously disap- peared at sea, Congress responded to recommenda- tions made by a group of victimized passengers and passed the Cruise Vessel Security and Safety Act in 2010. The law required these huge floating five-star hotels to better address the needs of their customers who were harmed far from home. Ships must have

B O X 7.1 Inspiring Examples of Victim Activism

Mobilizing against drunk drivers

A mother whose teenage daughter was run over by an intoxicated driver starts a group that successfully changes public attitudes about mixing drinking with driving and persuades criminal justice officials that people injured in drunk driving collisions are victims of crimes—not accidents.

Assisting law enforcement agencies to track down fugitives

A father whose son is kidnapped and decapitated by a killer who is never caught hosts a television program that broadcasts cases from police departments’ “most wanted” lists so viewers can phone in tips to capture these suspects.

Covering trials of the rich and famous from a pro-victim angle

A novelist and journalist whose actress daughter is murdered by her ex-lover writes a book about attending her killer’s trial and then hosts a television program that focuses on powerful and privileged people who get in trouble with the law and the people they harm.

Assisting the search for missing children

A father whose 12-year-old daughter was abducted and mur- dered establishes a foundation that helps locate missing children.

Setting up a foundation to protect children from kidnappers

A young woman who was abducted by a husband and wife team and repeatedly raped during her nine months of cap- tivity finally is rescued, goes to college, gets married, writes an autobiography, and establishes a nonprofit organization that teaches children how to take defensive measures to resist a stranger’s aggression.

Establishing one of the first victims’ rights organizations

A wealthy woman may have been poisoned by her husband (his original conviction for attempted murder was overturned and he was acquitted after a second trial; she remained in a coma for 28 years before dying in 2008). Her son and daughter, convinced that their mother’s coma resulted from a crime, use a portion of her fortune to found one of the first organizations that helps all kinds of victims.

Compelling college administrations to publicize information about crimes on campus

The parents of a daughter whose murder in a dormitory was initially downplayed by college authorities set up a watchdog group that convinces Congress to impose crime reporting requirements on image-conscious university administrations.

Campaigning for restrictions on gun availability

A White House press secretary, who was shot in the head by an assassin aiming to kill the president, becomes a leading

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medical personnel on board to treat those who suf- fer sexual assaults and to stockpile rape kits to col- lect and preserve evidence. The industry had to install stronger room locks and peepholes on cabin doors, and surveillance cameras in corridors and lounges, to reduce the risks of crew-on-passenger and passenger-on-passenger interpersonal offenses, and to help solve the crimes that did take place during the journey. Cruise ships also must establish and publicize crime reporting procedures to notify the coast guard and the FBI about incidents at sea when they return to American ports. After the law was passed, the House of Representatives held hearings on whether the act was being effectively implemented, as well as about additional ways to

safeguard the millions of vacationers that the ships carry from port to port each year (Anglen, 2014). Apparently, the crime statistics released voluntarily by the giant corporations operating various cruise lines under differing names understate the true scope of the problems at sea and in ports. Only homicides, suspicious deaths, attacks resulting in bodily injury, sexual assaults, and thefts in excess of $10,000 have to be reported to the authorities, and the coast guard only discloses information about incidents that are no longer being investi- gated by the FBI. Congress discovered in 2013 that only accounts of about 30 crimes were made public out of 950 received, a highly unsatisfactory situation according to the U.S. Government

figure along with his wife in legislative efforts to make it more difficult for emotionally volatile and mentally disturbed people to buy handguns.

A nurse whose husband is shot dead and whose son is severely injured by a man who goes berserk on a commuter train and shoots passengers at random testifies so dramati- cally for stricter controls over handguns and assault weapons before Congress that she is later elected to the House of Representatives.

A college student who survived a campus massacre produces a film about it and campaigns for an improved National Instant Criminal Background Check System to prevent guns on sale in stores from getting into the wrong hands.

Working to help poverty-stricken teenagers

A social worker whose son was riddled with bullets in a senseless street killing becomes an advocate for at-risk teens from abusive and neglectful families similar to those of the two men who murdered her child.

Mobilizing for community notification laws

The parents of a seven-year-old girl who was raped and murdered by a recently released pedophile living across the street help gather support for state and federal legislation that authorizes criminal justice officials to alert the public whenever a convicted sex offender moves into their neighborhood.

Lobbying for additional DNA testing

A woman whose rapist was finally caught after six years because of a DNA cold hit (match) sets up a group that lobbies for more federal funding to pay for the testing of forensic evidence collected from rape victims. Her advocacy efforts are so successful that Congress places her name on legislation intended to eliminate DNA testing backlogs.

Establishing a support group for parents of murdered children

A mother and father whose daughter was slain by her boyfriend set up a self-help group for grieving families that not only serves their emotional needs during their bereavement but also promotes violence prevention activi- ties and lobbies for greater rights for the next of kin within the legal process.

Organizing a national coalition of victim activists

A murdered young woman’s parents establish a network of survivors and activists that pledges to be “of the victims, by the victims, and for the victims” in its support and crime prevention actions.

SOURCES: Weed, 2005; Rondeau and Rondeau, 2006; National Coali- tion of Victims in Action, 2008; Nemy, 2009; Tobias, 2009; Goodman, 2012; Gross, 2013; and Maloney, 2014.

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Accountability Office as well as a victim’s group (Hill, 2014). Over the years, the scope of this orga- nization has broadened from seeking improvements in the safety, security and protection of not only passengers but also of members of the crew, and not only from crime but also from medical emer- gencies (Business Wire, 2014).

The victims’ rights movement has institutional- ized this self-reinforcing cycle of calling attention to a festering problem and then mobilizing a coalition to bring about reforms by setting aside special days, weeks, and even months each year to attract media attention. Events are held to raise public awareness about the plight of particular groups of victims and the rights that have been recently granted to them to ease their suffering and assist their recovery. Besides a high-profile National Crime Victims Week each April, the calendar is now filled with special events that commemorate a wide variety of persons who have been harmed by all sorts of criminals, from

drunk drivers and identity thieves to rapists and murderers (see Box 7.2).

The Quest for a Constitutional Amendment Guaranteeing Victims’ Rights

One goal for those seeking to empower victims that has not yet been achieved is to insert pro-victim language into the Bill of Rights. The Sixth Amend- ment contains provisions that specify how defen- dants are to be handled in court. Activists and advocacy groups first raised the possibility of updat- ing the Sixth Amendment after a presidential task force recommended rewording it in 1982. But in 1986, reformers decided to postpone this plan to inject additional phrases into the Sixth Amendment in favor of concentrating on a “states first” strategy of securing amendments to state constitutions. By 2011, this approach had succeeded in 33 states (NVCAP, 2011). Also, since 1980, almost every

B O X 7.2 Events That Call Attention Not Only to the Plight but also to the Rights of Various Kinds of Victims

Type of Victimization Awareness Time

National Slavery and Human Trafficking Month January National Stalking Awareness Month January National Teen Dating Violence Awareness Week early February National Youth Violence Prevention Week late March National Child Abuse Prevention Month April National Sexual Assault Awareness Month April National Crime Victims Week late April National Peace Officer’s Memorial Day mid-May National Missing Children’s Day late May World Elder Abuse Awareness Day mid-June National Night Out Against Crime early August National Campus Safety Awareness Month September National Day of Remembrance for Murder Victims late September National Crime Prevention Month October National Domestic Violence Awareness Month October National Bullying Prevention Awareness Week early October Days of Activism Against Gender Violence late November Identity Theft Prevention and Awareness Month December National Drunk and Drugged Driving Prevention Month December

SOURCES: Office for Victims of Crime, 2014; and Congressional Victims’ Rights Caucus, 2012.

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state legislature has passed packages of statutes called a “Victim’s Bill of Rights.” The common threads running through these amendments and Bill of Rights packages were these promises to victims: to be handled with fairness, respect, and dignity; to be notified in a timely manner about, to be pres- ent and to be heard at important judicial proceed- ings; to promptly get back stolen property that was recovered and held as evidence; to be protected from intimidation and harassment; and to receive restitution or compensation (NCVC, 2011c).

A large but insufficient number of Republicans and Democrats in both the House and the Senate over the years have voiced support for adding to the wording of the Sixth Amendment, as have Presi- dents Bill Clinton and George Bush.

Proponents of this movement to update the Bill of Rights argued that these federally backed promises would rectify a constitutional imbalance—its enu- meration of many rights for suspects, defendants, convicts, and inmates versus its silence on victims’ issues. A reworded Sixth Amendment could serve as an equalizer that could end institutionalized second-class treatment. However, the degree of opposition is substantial, even from pro-victim quarters. Civil liberties groups voice a different set of concerns. Adding pro-victim measures to the Sixth Amendment could undermine the presumption of innocence before the defendant’s guilt has been estab- lished. Empowering victims actually strengthens the coercive powers of the government (police, prosecu- tion, corrections) to detain, punish, imprison, and even execute its citizens. (Senate Committee, 2003).

In 2004, advocates in Congress of a constitu- tional amendment adopted a compromise strategy and passed the Crime Victim’s Rights Act (CVRA) by a vote of 96 to 1. Also known as the Justice for All Act, the CVRA was anticipated to be a formula for success and a model for the states. It resembled the proposed amendment but applied only to the federal criminal code. The act stated that victims of federal offenses have the right to be treated with fairness and with respect for their dignity, privacy, and safety. It pledged that victims would have the right to confer with prosecutors, to be notified about proceedings, and to be heard on issues

involving release, negotiated pleas, and sentences. Victims also would have the right to full and timely restitution. Employees of the Department of Justice and other federal agencies as well as federal judges must undertake their best efforts to ensure that these enumerated rights are made known and implemented. The CVRA has the potential to bring about fundamental changes in the Federal Rules of Criminal Procedure that would thor- oughly integrate victims into all stages of the justice system’s decision-making process, if it is vigorously enforced. If the CVRA proves to be ineffective in the years ahead, then the campaign to amend the Sixth Amendment to the Constitution would resume, its backers vowed (Senate Committee, 2003; Morgenstern and Fisher, 2005; Wood, 2008; and Cassell, 2010).

The Achievements of the Victims’ Rights Movement

The rights that crime victims have fought for and secured are so numerous and varied that they must be grouped for comparison and analysis. One way to categorize these newly achieved rights is to note which groups of victims directly need, want, and benefit from a specific right. For example, in 1984, Wisconsin was the first state to adopt a Child Victims’ Bill of Rights. Among other provi- sions, it stipulated that all legal proceedings must be carefully explained to the young complainant in language he or she can understand.

Another way to keep track of rights is to note at which stage of the criminal justice process these options can be exercised. For example, the right to be present at all court proceedings (with the presid- ing judge’s approval) begins at arraignment when bail is considered. At the other end of the spectrum, the right to address the parole board arises years after the convict has been imprisoned. Still another way to classify victims’ rights is to note at whose expense they were gained. Conflicts among indivi- duals, groups, and classes permeate society. Rights gained by one group or class enhance its position with respect to its competitors or adversaries. In this zero-sum game model, three categories of

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victims’ rights can be discerned: those gained at the direct expense of criminals (more precisely: arrestees, defendants, convicts, inmates, probationers, and par- olees); those gained at the expense of the criminal justice system (agency budgets and the privileges and convenience of law enforcement, judicial, and cor- rections officials); and those gained at the expense of either offenders or officials, depending on how vic- tims exercise their newly authorized influence.

Rights Gained at the Expense of Offenders

Some advocates argue that victims’ rights ought to be gained at the expense of offenders’ rights. Too much concern has been shown for the rights of criminals, they say, and not enough for the plights of the innocent people they harm. In the unend- ing battle between lawbreakers and law-abiding citizens, the “bad guys” have gained certain advantages within the legal system over the “good guys.” To restore some semblance of evenhanded- ness to the scales of justice that have been tipped or tilted in favor of the wrong side, victims need rights that can match, counter, or even trump the rights of offenders. In this context, reform means reversing certain court decisions and legal trends and shifting the balance of power away from wrongdoers and toward the parties they injured (see Hook, 1972; Carrington, 1975; and Presi- dent’s Task Force, 1982).

Collisions between the rights of victims versus those of suspects, defendants, convicts, probationers, parolees, and prisoners can arise over many issues.

Those who emphasize punishing offenders on behalf of the individuals they harmed assume that the interests of victims and government officials largely coincide: apprehension, prosecution, conviction, and imprisonment. Victims’ rights gained at the expense of offenders’ rights would include provisions that facilitate conviction of the accused without unreasonable delays, close legal loopholes that enable the defendants to escape their just deserts, increase the likelihood of incarceration, and eliminate unwarranted acts of leniency toward these prisoners, such as early release from confinement. The President’s Task Force on Victims of Crime (1982) proposed many

recommendations of this nature, and some were enacted in California in 1982. Other gains that victims might secure at the expense of convicts would be the right to preview and perhaps object to the terms of a proposedpleaagreement,andtotherecommendations in a presentence report (Cassell and Joffee, 2011).

Some provisions that have been characterized as pro-victim reforms and fit within this punitive and retribution framework are listed in Table 7.1.

Critics of this approach of enhancing victims’ rights at the expense of suspects, defendants, con- victs, inmates, probationers, and parolees raise a number of objections. First, making convicts suffer more does not mean that the people they hurt suf- fer less. Second, many of these measures do not really empower victims but simply strengthen the government’s ability to control its citizens. Civil libertarians who fear the development of a repres- sive police state warn that the implementation of antidefendant, pro-police, and pro-prosecutor mea- sures undermines cherished principles: the pre- sumption of innocence and the state’s burden of proof. These due process safeguards are subverted when defendants are denied pretrial release, when improperly obtained evidence is used against them, and when the victims’ desires for revenge are manipulated by the government to enhance its punitive powers (see Henderson, 1985; Fattah, 1986; Hellerstein, 1989; Hall, 1991; Abramovsky, 1992; Simonson, 1994; and Dubber, 2002).

Rights Gained at the Expense of the System

Some rights that victims gain should come at the expense of justice system officials and agencies that have neglected the needs and wants of their ostensi- ble clients for far too long, advocates say. Society, or more precisely the social system, is partly at fault for the crime problems that plague communities. The state, therefore, is obligated to minimize suffering and to help injured parties recover and become whole again through government intervention, even if offenders cannot be caught or convicted. A preoccupation with punishing lawbreakers must not overshadow the need to assist and support the people they harmed. New laws must guarantee that

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standards of fair treatment be met that respect the dignity and privacy of injured people. Because extra effort, time, and money must be expended to provide services that were not formerly available on a routine basis, these rights can be considered to have been gained by victims at the expense of the prerogatives of officials (including detectives, assistant district attor- neys, and probation officers) and the budgets of agen- cies (such as court systems and parole boards).

Rights gained at the expense of officials and agencies first were enacted in 1980, when Wisconsin’s state legislature passed a comprehen- sive Bill of Rights for victims and witnesses. The President’s Task Force (1982) endorsed similar proposals that were incorporated into federal statutes when Congress approved the Victim/ Witness Protection Act. Many states have pro- claimed similar assurances, either through specific laws or via more comprehensive legislative packages (see Table 7.2).

In addition to gaining rights at the expense of the criminal justice system, victims have also achieved some protection from the whims of employers in the private as wellasthe public sectors.Since thestartof the new century, a number of states have passed statutes prohibiting employers from threatening, penalizing, or firing victims of sexual assault, domestic violence, and stalking who must take time off from their jobs (work leave) to attend to legal or therapeutic matters (Brown, 2003; and Bulletin Board, 2004).

Rights Gained at the Expense of Offenders, the System, or Both

The boldest demands raised by advocacy groups within the victims’ rights movement concern power. Some victims want to influence the outcome of the criminal justice process at key stages from bail hearings to jury selection to sentencing. Instead of being relegated to the role of passive observers,

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

Subject Right of Victims

Denial of bail To be protected from suspects whose pretrial release on bail might endanger them

Protection from further harm

To be reasonably protected during the pretrial release period from the accused through orders of protection and by increased penalties for acts of harassment and intimidation

Defenses To be assured that defendants cannot avoid imprisonment by pleading not guilty by reason of insanity, through the substitution of guilty and mentally ill, which requires treatment in a mental institution fol- lowed by incarceration in prison

Privacy To be assured that medical records and statements divulged to counselors remain confidential even if requested by the defense during the discovery phase of court proceedings

Evidence To be assured that defendants cannot benefit from the exclusion of illegally gathered evidence by having all evidence obtained by the police in good faith declared admissible in trials

Offender’s age To be assured that juvenile offenders do not escape full responsibility for serious crimes by having such cases transferred from juvenile court to adult criminal court

Restitution To receive mandatory repayments from convicts who are put on probation or parole unless a judge explains in writing the reasons for not imposing this obligation

Appeals To appeal sentences that seem too lenient

Notoriety for profit To have any royalties and fees paid to notorious criminals confiscated and used to repay victims or to fund victim services

Abuser’s tax To have penalty assessments collected from felons, misdemeanants, and traffic law violators to pay for victim services, compensation, and assistance programs

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

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they want to be active participants in the events that shape the outcomes of their cases. This point of view leads to the provision that the injured parties should be present and heard whenever suspects, defendants, and convicts are present and heard.

Participatory rights that victims gain may come at the expense of offenders, agency officials, or both, depending on how this leverage actually is applied. Victims can be seen as allies of the govern- ment and as junior partners on the same side as the police and the prosecution in the adversarial system.

Therefore, empowering them means strengthening the coalition of forces seeking to arrest, detain, con- vict, and punish persons accused of wrongdoing. Enhancing the powers of a potentially repressive state apparatus alarms civil libertarians concerned about safeguarding constitutional rights and maintaining checks and balances. But if victims are visualized as independent actors, then they may not agree with the courses of action taken by their ostensible governmental allies. Calls to empower them might provoke resistance from

T A B L E 7.2 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,

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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.

VICTIMS AND PROSECUTORS

Prosecutors are the chief law enforcement officials within their jurisdictions. They represent the interests of the county, state, or federal government. But their agencies also supply the lawyers that deal directly with victims. Therefore, prosecutors’ offices can be viewed as public law firms offering free legal services to com- plainants who are willing to cooperate and testify as witnesses. County prosecutors, referred to as district attorneys (or state attorneys), usually are elected

B O X 7.3 Legislation Introduced in Congress Sponsored by the Crime Victims Caucus

Bills were introduced in the House and Senate from 2009 to 2014 to:

Set up a national database about missing persons and unidentified human remains

Protect youngsters from people with criminal back- grounds who seek to provide child care services

Authorize the use of tax records to help locate a missing or abducted child

Assist child welfare agencies to train employees in identifying and counseling children at risk of becoming victims of human trafficking

Compel parents, legal guardians, or caregivers to quickly notify authorities if a child dies or is considered missing and in grave danger

Make affinity scams as well as fraudulent Internet, television, mail, and telemarketing schemes aimed at senior citizens a federal crime

Set up a national Silver Alert communication network to help locate missing senior citizens

Set up a national Blue Alert system to quickly disseminate information to the public that an on-duty law enforcement officer has been murdered or seriously wounded or is missing after responding to an emergency call, and to provide a description of the suspect

Make the U.S. Department of Defense improve its preventive measures and responses to sexual assault and domestic violence, including the establishment of a sexual assault victim advocate in military units who can receive confidential information

Prevent backlogs of DNA evidence collected from sexual assaults from accumulating at state and local law enforce- ment agencies and to avoid charging victims for the expenses arising from forensic examinations and rape kits

Expand provisions about family and medical leaves to enable workers to address the plight of relatives who suffer con- sequences from domestic violence, sexual assault, and stalking

Require institutions of higher learning to include in their campus crime reports incidents involving dating violence, stalking, and domestic violence

Make stalking (with intent to kill, injure, harass, or intimidate) across state lines a federal crime

Be informed in a timely manner about any negotiated plea Protect money earmarked for the federal Crime Victims

Fund derived entirely from fines, forfeitures, and other penalties from being used for other purposes or from being cut

SOURCE: Adapted from the Congressional Victims’ Rights Caucus Legislation Compendium for 2011 and 2014 (VRC.org, 2014).

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officials (but may be appointed by a governor). The lawyers who actually handle criminal cases and per- sonally work with victims are called assistant dis- trict attorneys (ADAs) but are also referred to as assistant prosecutors or assistant state attorneys in some jurisdictions. Around the nation, approximately 2,340 prosecutors’ offices pursue felony cases in state courts of general jurisdiction. These government law- yers representing victims can become injured parties themselves. About 3 percent of the chief prosecutors and 6 percent of their ADAs reported that they per- sonally had been assaulted in 2005, according to a nationwide survey (Perry, 2006).

To a great extent, victims are on the same side as the government in the criminal justice process. Prose- cutors and victims therefore are natural allies who ought to cooperate with each other. Prosecutors might want to do what is best for victims, but they also are concerned about their careers and political futures, the well-being of their agencies, and the gen- eralgoodoftheentirecommunityandsociety.Attend- ing to these concerns and juggling these competing interests can cause conflicts to erupt between prosecu- tors and the injured parties they purport to represent.

Prosecutors’ offices can and should serve vic- tims in a number of different ways. First of all, they can keep their clients informed of the status of their cases, from the initial charges lodged against defendants to the release of convicts on parole. Sec- ond, ADAs can help the individuals they represent achieve justice by conveying to the attention of judges their clients’ views on questions of bail, con- tinuances, dismissed cases and dropped charges, negotiated pleas, sentences, and restitution arrange- ments. Third, they can take steps to protect their clients from harassment, threats, injuries, and other forms of intimidation and reprisals. Fourth, ADAs can try to resolve cases as quickly as possible with- out unnecessary delays and help their clients mini- mize losses of time and money by notifying them of upcoming court appearances and scheduling changes. Fifth, ADAs can assist victims in retrieving stolen property recovered by police and seized as evidence (President’s Task Force, 1982).

Sometimes prosecutors are able to balance the interests of the government, their own bureaucracies,

and their clients without much conflict. But in certain cases, prosecutors cannot do what is best for all of their constituencies simultaneously. Conflicts can arise between the aims of the government and the outcome desired by those who were harmed. Conflicts also can emerge between the bureaucracy that employs prose- cutors and injured parties who are the clients, custo- mers, or consumers of their services. Finally, prosecutors advancing their careers may not follow unpopular courses of action favored by their clients.

In all of these potential conflicts, if prosecutors must sacrifice the interests of any party, it is most likely to be those of the victim, and not of the gov- ernment, their bureaucracy, or their own careers. Victims can feel betrayed if their lawyers do not look after their needs and wants. Or to put it another way, a lawyer—assigned without choice by the gov- ernment and charging no fee—might not do a satis- factory job from a client’s standpoint.

Assisting Victims and Other Witnesses for the State

The difficulties, inconveniences, and frustrations faced by people serving as witnesses for the prose- cution have been well-known for decades. As far back as 1931, the National Commission on Law Observance and Enforcement commented that the administration of justice was suffering because of the economic burdens imposed on citizens who participated in trials. In 1938, the American Bar Association noted that witness fees were deplorably low, courthouse accommodations were inadequate, intimidation went unchecked, and witnesses’ time was often wasted. In 1967, the President’s Commis- sion on Law Enforcement and Administration of Justice reached similar conclusions. In 1973, the Courts Task Force of the National Advisory Com- mission on Criminal Justice Standards and Goals noted that the failure of victims and witnesses to appear at judicial proceedings when summoned was a major reason for cases being dismissed. Non- cooperation was attributed to the high personal costs of involvement incurred by citizens who ini- tially were willing to meet their civic obligations (see McDonald, 1976).

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In the past, victims serving as prosecution wit- nesses often were mistreated in a number of ways. They would be subpoenaed to appear at a court- room, grand jury room, or prosecutor’s office. They would wait for hours in dingy corridors or in other grim surroundings. Busy officials would ignore them as they stood around bewildered and anxious. Often, they wouldn’t be called to testify or make statements because of last-minute adjournments. Accomplishing nothing, they would miss work and lose wages, be absent from classes at school, or fail to meet their responsibilities at home. In most jurisdic- tions, they would receive insultingly low witness fees for their time and trouble. In certain metropolitan areas, they would receive no compensation at all because no official informed them of their eligibility and of the proper application procedures. Their experiences often could be characterized as dreary, time-consuming, depressing, exhausting, confusing, frustrating, and frightening (Ash, 1972).

In 1974, the National District Attorneys Association (NDAA) commissioned a survey to determine the extent to which victims and other witnesses for the prosecution encountered these types of problems. The survey documented that about 10 percent never were notified that an arrest had been made in their case. Nearly 30 percent never got their stolen property back, even though it had been used as evidence. About 60 percent of injured persons were not informed of their right to file a claim for financial reimbursement. Roughly 45 percent reported that no one had explained to them what their court appearance would entail. About 25 percent of witnesses, including victims, summoned to court ultimately were not asked to testify. Even though nearly 80 percent lost pay to appear, about 95 percent received no witness fees. As a final insult, around 40 percent were never notified of the out- come of the case (Lynch, 1976).

To address these problems, the Law Enforcement Assistance Administration funded the first Victim/ Witness Assistance Projects (VWAPs) through the NDAA. Pilot programs were set up in prosecu- tors’ offices in California, Illinois, Utah, Colorado, Kentucky, Louisiana, Pennsylvania, and New York during the mid-1970s (Schneider and Schneider,

1981; and Geis, 1983). Since then, most prosecutors’ offices have established VWAPS. A nationwide survey determined that victim advocates made up 6 percent of all the persons working for prosecutors’ offices. Large offices in big cities employed 13 advocates on average, although the median in all offices, large and small, was just one person (Perry, 2006).

Several assumptions underlie the growth and development of these programs. One is that providing serviceswillelicitgreatercooperationfromvictimsand witnesses. Presumably, well-briefed, self-confident witnesses who have benefited from such programs will be more willing to put up with the hardships of testifying in court, leading to lower dismissal rates and higher conviction rates, the standards by which prose- cutors’ offices are judged. Also, offering services to a groupperceivedtobehighlydeservingofgovernmen- tal assistance will be good for community relations. Public confidence and faith in the criminal justice sys- tem will thus be restored, resulting in higher levels of cooperation within jurisdictions that have these pro- grams (Rootsaert, 1987).

Most VWAPs are charged with the laudable but vaguely defined mission of helping victims, aiding wit- nesses, and furthering the goals of law enforcement. In the best programs, agency personnel intervene as soon as possible after an offense is committed, providing immediate relief to the injured parties through services that include hotlines; crisis counseling; and emergency shelter, food, transportation, and immediate lock repairs. Some projects provide translators, guidance about replacing lost documents, and assistance in get- tingbackstolenpropertyrecoveredbythepolice.Most make referrals to social service and mental health agen- cies for those needing long-term care and counseling. All programs furnish information about opportunities for reimbursement of losses and eligibility for compen- sation benefits (see Chapter 12). A few offer mediation services for victims who seek to reconcile their differ- ences with their offenders (see Chapter 13). To encourage witness cooperation, pamphlets are distrib- uted about the adjudication process (with titles like “What Happens in Court?” and “Your Rights as a Crime Victim”).Througha case-monitoringandnoti- fication system, the staff keeps victims and other wit- nesses advised of indictments, postponements and

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continuances, negotiated pleas, convictions, acquittals, and other developments. Linked to the notification system is a telephone alert or on-call system to prevent unnecessary trips to court if dates are changed on short notice, which also avoids wasting the time of police officers who serve as witnesses.

Some programs also have set up reception centers exclusively for prosecution witnesses in courthouses to provide a secure waiting room so that offenders and their families and friends won’t get any last-minute opportunities for intimidation. Transportation to and from court, escorts, and child care frequently are avail- able. Help in obtaining witness fees also is provided. The staff in some programs may go as far as to intercede with employers and landlords and other creditors who might not appreciate the stresses and financial difficul- ties witnesses face (Schneider and Schneider, 1981; Geis, 1983; Weigend, 1983; and Rootsaert, 1987).

Requirements about notification, protection (such as separate waiting areas in courthouses), and intercession (with employers and creditors) increase the justice system’s workloads and costs. A nationwide survey of prosecutors’ offices at the end of the century discovered that most district attorneys reported that new victims’ rights laws had imposed significant unfunded burdens on their limited budgets in the form of additional staff and more mailings and phone contacts (Davis, Henderson, and Rabbitt, 2002).

Some signs that VWAPs are reducing the mis- treatment of victims are evident. In 1974, only 35 percent of the offices of district attorneys routinely notified victims of felonies of the outcomes in their cases; 97 percent of these offices did so by 1992, according to the National Prosecutor Survey Pro- gram (Dawson, Smith, and DeFrances, 1993).

The establishment of VWAPs has raised some constitutional and ethical concerns. To deny ser- vices to a victim whose cooperation is not needed (or who desires to pursue a case that the prosecu- tor’s office wants to drop) would be unfair but not illegal, since the aid is granted as a privilege rather than as a right. To deny similar services (free park- ing, child care, last-minute phone calls canceling a scheduled appearance) to witnesses for the defense would violate notions of fairness within the adver- sary system. As long as the defendant is presumed

innocent unless proven guilty, evenhanded treat- ment of all witnesses should prevail. Rapport between victims and VWAP personnel that becomes too close can cause another problem: The testimony given in court can be considered coached or rehearsed if it departs from the original statements the complainants and witnesses made and covers up contradictions in order to make the most convincing case against the defendant.

Protecting Victims Who Serve as Witnesses for the Prosecution

A 19-year-old alleges he was shot in the face in a playground by a 21-year-old (a repeat offender who has a history of intimidating witnesses). The accused is jailed. A month before the trial, someone fires close to 20 bullets into the 19-year-old’s mother’s home while he is away and three children and a grandchild are inside. The 19-year-old, who has been living with out-of-town relatives, decides not to testify as a witness for the prosecution. “I’m scared for my family. I’m sorry for the danger I put them in. They don’t deserve this. If I testify and put him away for good, what does that even do? He’s in jail now, and somebody still shot at my family.” (Newall, 2011)

People who are unsure about whether to report crimes, press charges, and testify in court certainly could be dissuaded by chilling tales like this one. Victims who agree to serve as prosecution witnesses need to be protected from intimidation and reprisals. The gravest dangers are faced by indi- viduals harmed by drug-dealing crews, defectors from street gangs and mob syndicates, and battered women trying to break free from abusive mates. Intimidation can range from nuisance phone calls, stalking, and explicit threats of physical attacks to property damage (vandalism) and even deadly assaults. Offenders or the defendants’ friends or rela- tives can attempt to scare victims during face- to-face confrontations that can take place in police stations and courthouses, as well as in neighbor- hoods and homes. The fear of reprisals can cause a victim to ask that charges be dropped, or simply to not show up to testify, or to recant earlier testimony

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when cross-examined. When intimidation suc- ceeds, prosecutors are forced to drop charges, judges dismiss cases, juries fail to convict, and guilty parties go free (Gately, 2005).

Because complainants’ perceptions of the risks of cooperation determine whether they will testify in court, the primary responsibility for safeguarding the well-being of witnesses for the state falls to the lawyer handling the case for the government. When prosecutors don’t react to acts of intimida- tion by providing police protection, one of the vic- tim’s worst fears is confirmed—namely, that the criminal justice system can’t provide security from further harm and that the only way to avoid repri- sals is to stop cooperating. If left unaddressed, these incidents convey the message that complainants are on their own, and they signify to offenders that witness tampering is worth a try. It may have the desired effect, and usually it carries little risk of additional penalties (see Docksai, 1979; President’s Task Force, 1982; Davis, 1983; and Healy, 1995).

Just how serious is the problem of intimidation? How many complainants suffer acts of intimidation after seeking help from the authorities? How many crimes go unreported because the victim fears retal- iation? The annual rates of nonreporting due to fear of reprisal are measured by the NCVS. Each year only a small percentage of respondents admit to interviewers that worries about retaliation stopped them from informing the police about violent crimes. Fear inhibits around 10 percent of all rape victims each year from trying to get their attackers in trouble with the law. Worries about what the offender might do are less of a deterrent to report- ing in cases of simple assaults, aggravated assaults (like shootings and stabbings), and robberies (BJS, 2008c). (The percentages can fluctuate considerably from year to year because the number of survey respondents who were harmed in these specific ways is extremely small, statistically speaking.) As for changes over time, intimidation levels appar- ently have not changed substantially over the past few decades; if anything, the percentages might be rising when it comes to robbery and minor assaults. The situation certainly is not improving. However, based on this evidence from NCVS findings from

the 1980s up to 2008, overall, it appears that this problem actually is not of major importance.

But these statistics might yield false impressions. Measuring intimidation is very difficult, in part because would-be complainants (and witnesses) who are successfully intimidated might be too afraid to disclose their plight not only to detectives and prosecutors but also to NCVS interviewers. Also, intimidation can be based on “what if…” fears even if offenders don’t actually threaten reprisals. The actual number of nonreporting and noncoo- perating individuals really cannot be accurately determined. Various studies have yielded contradic- tory findings about how often injured parties are effectively intimidated by the persons that they accuse of harming them (see Fried, 1982; and Glaberson, 2003).When investigative journalists contended that witness fear was a factor in virtually every violent crime prosecution in Philadelphia, a senator proposed to make witness intimidation into a federal offense (Phillips and McCoy, 2010).

Several aspects of the intimidation problem still need further study. Which groups are more vulner- able to fears of reprisals than others (in terms of age, sex, race/ethnicity, immigration status, and prior involvement with the justice system either as a complainant or as a defendant)? What behaviors or consequences are considered to be most threat- ening? What form of retribution do victims fear more, acts directed against themselves or their loved ones? Why do some persons brave the risks despite efforts to silence them? What services do some injured parties insist must be provided in order for them to be willing to cooperate and tes- tify? Where do the complainants live and work vis- à-vis the intimidators who threaten them? At what times of day or at what stages in the legal process (before or after lineups or court proceedings), and places (schools, job sites, recreational areas) do they feel most vulnerable? Are issues of shared responsi- bility, prior victim–offender relationships, family ties, and neighborhood subcultures significant fac- tors in the intimidation equation (see Dedel, 2006)?

The problem of intimidation goes beyond direct threats. Would-be complainants may experi- ence strong pressures from families and friends not

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to come forward and tell police what happened. As one journalist dramatically put it, in many urban neighborhoods, “talking to the law has become a mortal sin, a dishonorable act punishable by social banishment—or worse” (Kahn, 2007). Subjected to this “cultural intimidation” by their community to not “snitch,” to the authorities, the casualties of beatings, stabbings, and shootings may be forced to either settle the score privately or to let the mat- ter rest. But that only perpetuates a cycle of attacks and retaliatory strikes as part of a neighborhood sub- culture of violence that adds to the level of danger and misery in high-crime areas, especially in poverty-stricken inner-city areas. Government offi- cials and community activists need to counteract this drift toward “do-it-yourself” acts of revenge that are deemed to be “street justice” (see Chapter 13) by developing creative ways to protect those who are urged by officials to cooperate with law enforcement agencies and the prosecution (Kahn, 2007).

This often-cited example shows how a person who did her civic duty by cooperating with the authorities ended up murdered, along with her family, sparking a public outcry for more effective witness protection strategies:

A woman repeatedly files complaints with the police against the dealers who sell drugs in front of her row house in a tough urban area. One night, an angry 21- year-old dealer kicks open her front door and throws a firebomb inside. The woman, her husband, and her five children are burned to death in the resulting inferno. The dealer is sentenced to life behind bars without parole, and local residents hold a vigil each year to commemorate her courage and sacrifice. After remaining boarded-up for years, the row house is renovated and turned into a “safe haven community center” named after her. It offers a computer lab, an arts and crafts program, and other activities to children who live nearby. A bright blue light flashes 24 hours a day, reminding passers-by—as well as street-level dealers—that a surveillance camera is trained on that corner. (Simmons, 2007)

Much of the intimidation problem can be traced to officials who have shirked their responsi- bilities to victims. Police officers might con victims

into cooperating by making empty promises of added protection, knowing full well that their precincts don’t have the resources to provide such special attention. Because attrition lightens their workload, ADAs might allow cases to collapse when key witnesses and complainants fail to appear after being subpoenaed—perhaps due to intimida- tion. Judges may not be vigilant for the same reason: Intimidation leads to nonappearances and ultimately dismissals, which reduces caseloads. To reduce fears about reprisals, the American Bar Asso- ciation’s Committee on Victims (1979) put forward five recommendations decades ago, but these mea- sures still have not been implemented in many jur- isdictions. The ABA urged that legislatures should make attempts at intimidation a misdemeanor. Police forces ought to set up victim/witness protec- tion squads. Judges should issue orders of protection and consider violations as grounds for contempt- of-court citations and revocations of bail. Also, judges should grant continuances rather than drop all charges against defendants if complaining wit- nesses mysteriously fail to appear when subpoenaed. Prosecutors must avoid carelessly revealing infor- mation concerning the whereabouts of victims, even after cases are resolved.

Prosecutors always have had to coax victims and other witnesses to cooperate by offering them pro- tective services until the trial is over, or even longer. However, inadequate funding limits the ability of prosecutors’ offices to offer these protective measures to all who need them (New York State Law Enforcement Council, 1994). Also, some victims understandably are reluctant to accept offers of pro- tection if it means uprooting their families and virtu- ally starting their lives over, as this case illustrates.

A mother’s house is riddled with bullets because her son is willing to testify against a young man who allegedly shot him. The district attorney’s office offers to move her and her family to another town with the help of the state’s witness relocation pro- gram. The program would pay for 120 days of temporary housing, moving expenses, storage costs, and two months’ rent. But the family would have to agree never to return to the neighborhood where they

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have other family members and friends. The mother turns down the government’s offer. Her fiancé explains, “That house is everything she’s earned in life. It’s hard for her to turn her back on it.” Noting that she has nearly finished paying off the mortgage after living in her home for 16 years and raising seven children in it, she despairs, “It just doesn’t work for us. We will do our best to hang in there, I guess.” When she tells her son to keep away from the neighborhood, he decides he won’t testify. (Newall, 2011)

The establishment of witness-protection pro- grams on the state and federal levels represents the government’s greatest possible commitment to address the threat of reprisals. These secretive pro- grams provide tight security to victims, witnesses, and their immediate families. Their services are intended primarily to safeguard witnesses willing to testify against criminal organizations like mob families, street gangs, and drug trafficking networks. Often the beneficiaries are not really victims but lawbreakers like mob turncoats, former drug deal- ers, and defectors from street gangs. The federal Witness Security Program promises relocation, new identities, new jobs, and payment of moving expenses (U.S. Marshals Service, 2011). Successful relocation, even if at a temporary shelter or safe house and on an emergency basis, requires a multi- agency response that usually involves police, prose- cutors, public housing agencies, and social service providers. Lesser measures require sturdier locks, alarm systems, stepped-up police patrols, and escorts; efforts to avoid publicly identifying coop- erating witnesses so they won’t be labeled as “rats” or “snitches”; measures to limit contacts with potential intimidators (through unlisted numbers, caller ID, and call blocking); and supportive services through existing VWAPS. Also, the authorities must admonish potential intimidators, assist victims to obtain restraining orders and no-contact condi- tions of bail, and enforce speedy trial provisions and witness tampering statutes. Compelling victims to testify by holding them as material witnesses or threatening them with contempt of court usually is ineffective (Dedel, 2006).

In sum, jurisdictions that fail to adequately confront the problem of victim and witness intimi- dation will suffer from high levels of retaliatory vio- lence, low levels of public confidence in the ability of the criminal justice system to protect them, low reporting rates, subpar clearance rates, and reduced conviction rates.

To be fair and balanced, one additional type of intimidation must be addressed. One-sided formu- lations of the intimidation problem imply that it is improper for anyone other than law enforcement agents to contact witnesses and victims. But an important principle of the adversary system is that a person accused of a crime has a constitutional right to confront his accusers. Therefore, defense attorneys must be allowed to interview witnesses and compel them to testify truthfully. But reluctant witnesses who have information that will help the case of the accused also can be intimidated—not by the threat of violence but by worries about unfa- vorable media coverage and by fear of harassment by the authorities, especially in highly publicized “must-win” cases (see American Bar Association Committee on Victims, 1979).

Dismissing Charges and Rejecting Cases

Crime victims, police officers, and prosecutors are all supposed to be on the same side within the adversary system. Yet their alliance—based in the- ory on a common commitment to convict people guilty of crimes—often unravels. Victims may feel rebuffed and abandoned when prosecutors dismiss or reduce charges and counts against suspects. A decision not to go forward means no further official action will be taken, and injured parties will not achieve the goals they sought when they reported the crime, whether they were looking for maxi- mum punishment as revenge, compulsory treat- ment of the offender, or court-ordered restitution.

To prosecutors, these decisions, even if they infuriate victims, are unavoidable. It is impossible for prosecutors to fulfill their legal mandate to enforce every law and to seek the conviction of all lawbreakers. When evaluating the cases brought before them by police and deciding whether to go

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forward, ADAs must take into account many other considerations besides the victims’ wishes: How are cases of this kind usually handled in this jurisdic- tion? What are the odds of a conviction rather than an acquittal? Are there serious doubts about the guilt of the accused? How credible and how cooperative are the victim and other witnesses? Does the complainant have any improper motives for pressing charges? Was the evidence obtained according to constitutional guidelines, or will it be tossed out of court under the exclusionary rule? Is the whole undertaking worth the state’s limited resources? How much will it cost in time and money to resolve the matter? Would indictment, prosecution, and conviction of the defendant serve as a general deterrent to others who are con- templating committing the same type of offense (an application of the theory of general deterrence)? Would punishment discourage the offender from repeating this illegal act (an application of the the- ory of specific deterrence)? Would pressing charges and seeking conviction enhance the community’s sense of security and boost confidence in the crimi- nal justice system? Could the accused cooperate with the authorities as a police informant or as a key witness for the prosecution in other cases in return for leniency? Would pressing or dropping charges set off protests from powerful interest groups in the community? If this office declines to prosecute, would the case be pursued by another branch of government or in a different jurisdiction? Are appropriate pretrial diversion programs avail- able that provide treatment to wrongdoers as an alternative to adjudication? And last but certainly not least, would a victory in this case substantially advance the careers of the ADA handling the case and of the prosecutor heading up the office? (see the National Advisory Commission, 1973; Sheley, 1979; and Boland and Sones, 1986).

When all these factors are taken into account, it is clear that the victim is only one of several key players who influence the decisions of prosecutors. Police officials, other colleagues in the prosecutor’s office, defense attorneys, judges, community lea- ders, journalists covering the story, and vocal inter- est groups all affect prosecutorial decision making.

Cases that have been solved by arrests might not be pursued for a number of reasons. Prosecutors might screen them out because of perceived weak- nesses that undercut the chances of conviction. Judges might dismiss charges on their own initiative if they feel that the evidence is weak. In general, jurisdictions in which prosecutors weed out many cases before going to court have low case-dismissal rates at later stages of judicial proceedings. Where prosecutors toss out few cases, judges throw out many more. Periodic nationwide surveys of overall felony case processing 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). Clearly, the outcomes of these decisions could cause a great many victims to become dissatisfied with the adjudication process.

One measure that would substantially empower injured parties would be to permit private prosecution—allowing them to hire their own lawyers to act as prosecutors—to initiate charges, handle plea negotiations, and present cases at trials. This option is allowed in other countries and was a standard procedure in colonial America. By the end of the 1990s, only a few jurisdictions still authorized a victim’s attorney to directly ask a judge or grand jury to initiate proceedings against a defendant (see Beloof, 1999). However, if this reform were implemented, only the prosperous would be able to afford such personalized justice.

Negotiating Pleas

The vast majority of cases that are carried forward (not diverted to treatment programs, screened out by prosecutors, or dismissed by judges) are resolved by out-of-court settlements known as negotiated pleas. Plea negotiation is the process in which the ADA and the defense counsel meet in private to hammer out a compromise and thereby avoid holding a public trial. The typical outcome of the “bargaining” (as most observers and participants derisively refer to the offers and counteroffers) is that the defendant agrees to waive his or her

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constitutional rights to a trial in front of a jury of his or her peers and instead confesses in return for some consideration from the government. Many types of concessions from the prosecution are possible, such as dropping certain charges (often the more serious ones carrying the most severe penalties) or the dismissal of particular counts (accusations of harm against specific victims). Often, the consider- ation is a promise or a recommendation for a lesser punishment: a suspended sentence, probation, a fine, or incarceration for an agreed-upon period of time that is less than the maximum permitted by the law.

Over 95 percent of all felony as well as just about all misdemeanor convictions were secured by the accused admitting guilt rather than by a jury rendering a guilty verdict or by a judge’s deci- sion (bench trial), according to a database of cases adjudicated in the 75 busiest urban U.S. counties in 2009 (Reaves, 2013).

Plea negotiation, even though it has been widely condemned for decades, appears to be the only practical way of handling a huge volume of cases. If all the defendants detained in a jail demanded their constitutional right to be judged by a jury of their peers after a trial, the local courts would be paralyzed by gridlock.

Because doing away with deals and induce- ments is unrealistic, some victims want to play active roles in the plea negotiations that resolve their cases. They justify their quest for empower- ment by emphasizing that they were the ones directly involved and personally harmed, and thus it is their case. Unless they are allowed to play a role in this process, they will be effectively shut out of any meaningful participation in the resolution of their cases.

But this demand and formulation of the issue has evoked considerable resistance from prosecu- tors. They feel threatened by the inclusion of vic- tims (whom they supposedly represent, in addition to the state) at such meetings. They object because victims might try to use the administrative machin- ery as an instrument of revenge and might put for- ward unreasonable demands for the imposition of maximum penalties. Deals would fall through, and

risky and costly trials would result (McDonald, 1976; and Rothfeld, 2008).

In general, victims still do not have a right to participate in or even be consulted during the pro- cess of plea negotiation. Few jurisdictions grant vic- tims a clearly defined role, and most state laws still do not provide them with any formal mechanisms to challenge the decisions of the prosecuting attor- neys who act in their names as well as on behalf of the people. No state legislation empowers complai- nants to dictate the terms or to nullify a proposed deal. The terms to confer or to consult are interpreted as merely to notify, inform, or advise. Victims have a right only to make their opinions known and to offer comments, and prosecutors merely have an obligation to consider their views and bring them to the attention of the judge. The terms of the settlement and the sentencing recommendations ultimately are still matters of prosecutorial profes- sional discretion. Most state laws flatly declare that there are no consequences for noncompliance with these rights, and that failure to observe the pledges about opportunities for input shall not be grounds for changing the sentence. Hence, victims only have a voice, not a veto, and even then still are frequently completely excluded from the negotia- tion process (NCVC, 2002d).

Many victims are convinced that criminals gain an advantage when they accept plea bargains offered by the prosecution. Actually, the expression plea bargain gives the erroneous impression that defendants who cop a plea invariably get a break or good deal that permits them to escape the more severe punishment they deserve. Actually, police officials and prosecutors routinely engage in bedsheeting and overcharging so that they will have more bargaining chips in anticipation of the negotiations that will follow. Bedsheeting is the practice of charging a defendant with every appli- cable crime committed during a single incident. For example, an armed intruder captured while burglar- izing an occupied home could face charges of crim- inal trespass, breaking and entering, burglary, attempted grand larceny, and carrying a concealed weapon, in addition to the most serious charge of all, robbery. Overcharging means filing a criminal

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indictment for an offense that is more serious than the available evidence might support (for example, charging someone with attempted murder after a fistfight). Some of these charges could not be proven in court, but defendants and their lawyers might be too cautious to gamble and call a prose- cutor’s bluff. For these reasons and others, most accused individuals who plead guilty in return for concessions receive the penalties that they probably would have received if convicted after a trial (Rhodes, 1978; Beall, 1980; and Katz, 1980).

Resolving cases by negotiating pleas rather than by holding full-scale trials certainly saves tax- payers the expenses incurred from building more courthouses, hiring more judges, bailiffs (court officers), and defense attorneys (for indigents). But out-of-court settlements attained through nego- tiations might be in the best interests of certain victims. Plea negotiation spares victims the ordeal of testifying in court and undergoing hostile ques- tioning during cross-examination by defense attorneys. For some victims, testifying in painful detail means reliving the horror of the crime, as in this trial:

A tearful victim tells a jury how she had fallen asleep cuddling her toddler while her husband was working late. She awoke when she heard a prowler enter through a kitchen window, but remained still. Unfortunately he spotted her, pulled out a knife, and put the blade to her daughter’s throat. Faced with a nightmare choice, she quietly submitted and was raped. “It was disgusting,” she testifies. On cross- examination, she admits that she can’t identify the accused because the intruder covered her head with a sheet (but his DNA was lifted from the bedding). (Ginsberg, 2005)

Concerns about emotional distress suffered by a victim on the stand are voiced most often in cases of forcible rape and child molestation. Other types of complainants also may be particularly reluctant to undergo cross-examination if the facts of the case portray them in a negative light or reveal aspects of their private lives that they do not want exposed to the world via media coverage (especially in jurisdic- tions where trials can be televised).

VICTIMS AND DEFENSE ATTORNEYS

Victims and defense attorneys are on opposite sides and therefore are natural enemies within the adver- sary system. Whether hired privately for a fee or provided free to indigents, these lawyers have a duty to advise suspects, defendants, and convicts about legal proceedings and the options they can exercise. Defense lawyers have an obligation to zealously represent their clients’ best interests, which usually translates to getting out of trouble with the law entirely, or at least being sentenced to less than the maximum punishment.

Conflicts often break out between victims and defense lawyers over two matters: how long the process takes and the number of court appearances needed, as well as the line of questioning directed at victims who testify in court when they appear as prosecution witnesses. From a victim’s view, defense attorneys might engage in two abusive practices: asking judges for postponements of their clients’ cases to wear victims down and using unfair tactics to undermine the credibility of complainants when they appear as prosecution witnesses.

Postponing Hearings

The Sixth Amendment to the Constitution guaran- tees the accused the right to a speedy trial. Hence, problems of congested court calendars and needless delays usually have been approached from a defen- dant’s standpoint. Many states and the federal courts have set limits on the amount of time that can elapse between arrest and trial (not counting con- tinuances requested by defense attorneys). But complainants serving as government witnesses also suffer from the uncertainty that envelops unre- solved cases, and they share a common interest with defendants in having legal matters settled in as short a time as possible.

If accused people have been released on bail, however, defense lawyers may have an incentive to stall proceedings to “buy time on the streets” and to wear down witnesses for the prosecution. As delays mount and complainants appear in court unneces- sarily, they and other crucial prosecution witnesses

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may lose patience with the protracted deliberations of the legal system. Their commitment to see the case through to its conclusion may erode. Stalling succeeds when a complainant or another key wit- ness gives up in disgust and fails to appear in court as required. For example, a victim who lost her hand- bag to an unarmed bandit might miss so many days from work that the lost wages far exceed what the robber took, so she may eventually drop out. Stal- ling for time might also pay off if victims or other witnesses for the prosecution forget crucial details, move away, become ill, or die in the interim. At that point, the defense attorney can move for a dismissal of charges (Reiff, 1979). Prosecutors can also manipulate continuances for their own ends. If defendants are in jail rather than out on bail, then government attorneys may stretch out proceedings to keep them behind bars longer and as a way to pressure them to give in and accept unfavorable plea offers. In the process, the defendant’s right to a speedy trial could be violated.

Postponements can prolong and intensify the suffering of complainants. In order to be available if called to testify, they might have to arrange repeatedly for child care, miss school or work, cancel vacations, and break appointments, only to discover (often at the last minute) that the hear- ings have been rescheduled. To defeat this wear- the-victim-down strategy, some defense motions for postponements could be opposed more vigor- ously by prosecutors. Similarly, requests for a post- ponement should be rejected by judges if they suspect the defense’s call for a continuance is a stalling tactic (President’s Task Force, 1982). To prevent complainants and police officers from showing up in court on days when hearings have been postponed, victim/witness assistance pro- grams in prosecutors’ offices operate last-minute notification systems.

As a general rule, the more serious the charges against the defendant are, the longer it takes to resolve the case. Cases resolved by negotiated pleas don’t take as long as cases resolved by trials (Boland et al., 1992). Researchers determined that murder cases in state courts took an average of more than one year to be resolved, rape cases required

about 245 days, and robbery cases went on for more than 150 days from arrest to sentencing, according to a study of nearly 50,000 felonies pro- cessed in the nation’s 75 largest counties during 2009 (Reaves, 2013). However, in some high- crime areas, huge backlogs cause even greater delays, prolonging the anxiety of both complainants and defendants waiting for the final outcome of their conflicts.

Cross-Examining Witnesses During Trials

If they can’t wear down victims by stalling, defense attorneys might try to discredit them, along with other prosecution witnesses, before or during a trial. Attorneys for the accused are duty- bound to seek evidence that contradicts or under- mines what the accusers contend. In addition to a speedy trial, the Sixth Amendment to the Consti- tution gives defendants the right to confront their accusers. The burden of proof falls on the prose- cution, and the defendant is considered innocent unless proven guilty. The accuser must be pre- sumed to be mistaken until his or her credibility is established beyond a reasonable doubt. The strategy of portraying the victim in a negative light (as a person who makes charges that should not be believed) is employed frequently in rape and sexual assault cases where credibility is a cru- cial issue, as this example shows.

A 20-year-old woman and a 61-year-old man briefly chat as their flight takes off. Then she puts her feet up on an empty seat between them and falls asleep. When she awakens, she finds that her legs are on his lap. Claiming that he had slipped his hand inside her shorts and molested her, she pushes him away, calls the flight attendant over, and has him arrested when the airplane lands. Weeks later, his attorney informs the prosecution that he has obtained a Facebook post which shows that within a few hours after the alleged sexual assault, the supposedly traumatized young woman had contacted her brother about mundane matters, like what she had eaten that day. The young woman realizes that she mistakenly “friended” someone who later turns out to be connected to the defendant’s son, and reports that she feels

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revictimized by this invasion of her privacy. Court proceedings will determine whether the defendant’s constitutional right to confront his accuser trumps the victim’s right under the rape shield law to be free from inquiries into her past sexual behavior and lifestyle, and whether communications disseminated by social media like Facebook and Twitter are public infor- mation or private matters. (McDonald, 2011)

Because defense attorneys are obliged to be vig- orous advocates for their clients, they may advance arguments at a trial or during plea negotiations that the defendant is in fact innocent. In casting doubt on the version of events cobbled together by police and the prosecution, defense attorneys draw upon their skills and training to undermine the accusatory testi- mony of victims. Under the adversary system, each side puts forward its best case and assails the version of events presented by the opposition. Cross- examination is the art of exposing the weaknesses of witnesses. The intent is to impugn credibility by revealing hidden motives, lapses of memory, unsavory character traits, embarrassing indiscretions, prejudices, or dishonest inclinations.

Cross-examinations can be ordeals for wit- nesses. But if defense attorneys were not allowed to sharply question prosecution witnesses, then the right of defendants to try, through their lawyers, to refute the charges against them would be under- mined. The concerns of complainants and other witnesses (including defense witnesses who are cross-examined by prosecutors) of being embar- rassed on the stand under oath must be balanced against the public humiliation suffered by defen- dants who are arrested and put on trial.

The defense attorney goes up against a formi- dable professional foe when the witness for the government is an expert in forensic science or forensic psychology, or is a seasoned law enforce- ment officer (although the credibility of police tes- timony has become the subject of much debate). But when the full brunt of the defense’s well- honed counterattack is directed at a novice, the complainant, the potential for adding insult to injury reaches disturbing proportions. At its best, the confrontation in the courtroom puts the victim

as eyewitness to the test. At its worst, the victim is a target to be injured again by being made to look like a liar, a fool, or an instigator who got what he or she deserved.

Because defense attorneys have a duty to vig- orously represent the best interests of their clients, their courtroom tactics might seem harsh. To rattle a witness, discredit damning testimony, and sow seeds of doubt and confusion among jurors, they may have to resort to theatrics and hyperbole. The Code of Professional Responsibility that guides legal strategies permits a zealous defense to gain an acquittal or a lenient sentence, but it prohibits any line of questioning that is intended solely to harass or maliciously harm a witness. Experts and the public often disagree over whether a defense attorney or prosecutor crossed the line and acted unethically by badgering a witness during a cross- examination. Cases that provoke the greatest con- troversy are those in which defense attorneys cast aspersions on the character of victims or blame them for their own misfortunes (Shipp, 1987).

Trials are relatively rare events, so most victims are not called to testify and undergo cross- examination. Because the outcomes of trials are uncertain and involve risks, attorneys for both sides usually prefer to strike a deal out of court. However, statistically speaking, most trials are successful from the point of view of victims and prosecutors: Defen- dants usually are found guilty.

The percentage of criminal indictments that result in trials before juries or in bench trials before judges varies according to two factors: the jurisdiction and the nature of the charges. Some prosecutors are more willing to put defendants on trial. Cases involving serious felony charges such as murder, rape, aggravated assault, and robbery go to trial more often than cases involving lesser crimes such as burglary or auto theft. Rape com- plainants are the most likely to be subjected to hostile cross-examination by defense attorneys. But only about 5 percent of rape cases were resolved through trials with the help of the complainants’ testimony in the nation’s largest prosecutorial jurisdictions in 2000 (Rainville and Reaves, 2003).

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In murder trials, families and friends of the deceased find it particularly upsetting if defense attorneys attack the attitudes and actions of the deceased persons to try to justify or exonerate the behavior of the accused killers. Unlike cross- examinations, these attempts to sully the reputation (or trash the memory) of murder victims are pecu- liarly one-sided affairs. The deceased subjects of nasty insinuations are not around to rebut the inflammatory things that the alleged offenders say about them during trials. The defense attorney pic- tures the accused as respectable and believable and the departed as a person of ill repute, as the two cases below show. In the first case, which was highly publicized, the preppy’s defense was that his partner enjoyed engaging in sex that was dan- gerously rough.

An 18-year-old dies of strangulation late at night in a public park in the arms of a six-foot-four 19-year-old she was dating. He tells police that she passed away accidentally as he protected himself during “rough sex play.” His lawyer subpoenas her diary, in which she allegedly graphically described aggressive sexual exploits with other young men—but later, it turns out that the diary doesn’t contain such information. Some members of the jury are swayed by the defense’s arguments. The jury remains deadlocked for days. Before it can render a unanimous verdict, a last-minute plea is negotiated that permits the defendant to admit guilt to the lesser charge of manslaughter instead of murder. At a press conference, the father denounces the defense’s portrayal of his dead daughter, and calls it a bizarre pack of lies. After serving 15 years, the killer is released. He later develops a heroin habit and gets convicted of selling cocaine. He is sentenced to 19 years behind bars. (Hackett and Cerio, 1988; Lander, 1988; and Eligon, 2008)

Similarly, in another case that was widely cov- ered in the news media, the defense attorney for a famous TV detective portrayed the dead wife in such a highly negative way that jurors might con- sider her undeserving of any sympathy.

An actor is on trial for shooting his wife. According to the prosecutor, he referred to her as a “pig” whom he

wanted to “snuff.” The defense attorney raises doubts about each of the prosecution’s specific charges, and portrays the murdered woman as a “sleazy grifter” who recruited rich and famous men by sending them form letters attached to nude pictures of herself. The defense claims she told friends that she always wanted to marry a celebrity. Calling her a “scam artist,” the defense tells the jury that she used at least a dozen aliases and left behind 10 former husbands. She allegedly pressured the 71-year-old star into a loveless marriage by getting pregnant in order to get at his money. The jury decides he is not guilty of murder and is deadlocked over the charge that he sought to hire a TV stuntman to kill her. (LeDuff, 2005; and AP, 2005)

VICTIMS AND JUDGES

Judges are supposed to act as referees within the adversary system. Defendants often consider them to be partisans representing the state and favoring the prosecution. Angry victims, however, fre- quently see judges as guardians of the rights of the accused rather than protectors of injured parties. Victims who have been mistreated by the offender, police officers, the prosecutor, and the defense attorney expect that the judge will finally accord them the evenhanded justice they seek. But con- flicts between victims and judges can erupt over bail decisions and sentencing.

Granting Bail

Police officers often resent the granting of bail as a repudiation of their hard work and the risks they took to apprehend perpetrators. To them, releasing defendants on bail is tantamount to turning danger- ous criminals loose. Victims also can be outraged by judges’ decisions to grant bail to defendants whom they consider to be the culprits who harmed them and who may come back to get even with them for informing the police.

The Eighth Amendment to the Constitution prohibits the setting of excessive bail. Whether it establishes a chance to be bailed out as an affirmative

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right, however, is a subject of scholarly debate and considerable public concern. State and federal courts routinely deny bail to defendants accused of first- degree murder. In noncapital cases, bail can be denied to jailed suspects who have a history of flight to avoid prosecution or who have tried to interfere with the administration of justice by intimidating a witness or a juror. Otherwise, defendants generally are given the chance to raise money or post bond to guarantee that they will show up at their hearings and trials.

The amount of bail is usually determined by the judge and is set according to the nature of the offense and the record of the defendant. The pros- ecutor usually recommends a high figure while the defense attorney argues for a sum that is within the defendant’s reach. Making bail is a major problem for defendants who are poor and have no prosper- ous friends or relatives. Across the country, houses of detention are crammed with people unable to raise a few hundred dollars to purchase their free- dom until their cases are resolved. Nationwide, a little more than half of all victims of violent crimes faced the prospect that the person accused of harm- ing them would be let out on bail in the 75 largest counties in 2009 (Reaves, 2013).

The question of bail versus jail raises a number of troubling issues. When accused people are denied bail and subjected to preventive detention, or are unable to raise the necessary amount, they are sent to jail and thereby immediately undergo punishment before conviction. The living conditions in houses of detention are usually far worse than in prisons, which hold convicted felons. Yet the release of a defendant who is genuinely guilty and may strike again poses an immediate danger to the entire community and a direct threat to the complainant who will serve as a witness for the state. A possible solution to this dilemma is for the judge to impose and strictly enforce as a condition of bail that the defendant must avoid all contact with the complainant and other prosecution witnesses or else forfeit the privi- lege of pretrial release.

Statutes in California, Oregon, Texas, Missouri, and Mississippi specifically instruct judges to take the victim’s safety into account

when determining the conditions of an arrestee’s pre-trial release. In cases with unusual dangers and high rates of repeat offenses, such as accusations of domestic violence, child abuse, stalking, sex offenses, and violations of orders of protection, defendants might be denied pre-trial release in many states. Victims have a right to attend and speak out at bail hearings in Alaska, Arizona, California, Missouri, Oregon, South Carolina, Tennessee, Utah, and Washington. Electronic monitoring devices that are activated if the defendant approaches can be provided to victims in Arkansas, Connecticut, Illinois, Louisiana, Michigan, Mississippi. Oklahoma, Tennessee, and Texas (NCSL, 2013).

Sentencing Offenders

After a defendant is convicted—by an admission of guilt as part of a negotiated plea or by a jury verdict after a trial—the judge has the responsibility of imposing an appropriate sentence. Judges can exer- cise a considerable amount of discretion when pro- nouncing sentences unless there are mandatory minimums or explicit guidelines. Sentences can involve incarceration, fines, enrollment in treat- ment programs, community service, and obligations to repay victims. The particular objectives that guide sentencing are specific deterrence, general deterrence, incapacitation, retribution, rehabilita- tion, and restitution.

The substantial variation among judges in the severity of punishment they mete out in comparable cases is termed sentence disparity. Civil libertarians find great disparities troubling because judges might be expressing their social prejudices, to the extent that they deal more harshly with certain groups of offenders. Convicts might view sentence disparities as a sign of unjustifiable arbitrariness. Crime control advocates consider wide ranges as evidence that judges on the low end are too soft or lenient toward offenders. Activists in the victims’ rights movement find the spectrum of possible punishments as a motivation to press for greater input in sentencing.

Historically, excluding victims from the sentenc- ing process has been justified on several grounds.

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If the purpose of punishing offenders is to deter others from committing the same acts, then sanctions must be swift, sure, and predictable, and not subject to uncertainty and modification by injured parties. If the objective is retribution, then lawbreakers must receive the punishments they deserve and not the penalties their victims request. If the goal of sentenc- ing is to rehabilitate offenders, then the punitive urges of the people they harmed cannot be allowed to interfere with the length and type of treatment prescribed by experts (McDonald, 1979).

The potential impact of victims’ desires on sentencing is limited because so many other parties already shape those decisions. Victims who want to help determine their offenders’ sentences have to compete for influence with other individuals and groups that routinely affect judicial discretion. State legislatures pass laws that set maximum and minimum limits for periods of confinement and for fines. Prosecutors make recommendations based on deals arrived at during plea negotiations and draw upon the courtroom work group’s mutual understandings about appropriate penalties for specific crimes in that jurisdiction at that time (the going rate). Defense attorneys use whatever leverage they have on behalf of their clients. Defendants determine their own sentences to some degree by their demeanor, degree of remorse, prior record of convictions, and other mitigating or aggravating personal characteristics and circumstances. Probation officers conduct background investigations and make recommen- dations to guide judges. Parole boards determine the actual time served when they release convicted felons from prison ahead of schedule or keep them confined until their maximum sentences expire. Corrections officers influence whether or not con- victs earn “good-time” reductions and parole by filing reports about cooperative or troublesome behavior. The news media can shape case out- comes by their coverage or lack of it. The public’s reactions also can affect the handling of cases, prompting harshness or leniency. And ultimately, state governors can shorten terms of imprisonment and even stop executions by issuing pardons or commuting sentences. Therefore, the victim’s

notion of what would be an appropriate sentence is just one of many.

If victims want to compete against this con- stellation of forces and play a role in shaping sen- tences, they can make their wishes known in two ways: by conveying their requests to judges in writing or by expressing their views orally (allo- cution) at sentencing hearings. Written victim impact statements enable judges to learn about the actual physical, emotional, and financial effects of the offense on the injured parties and their families. Questionnaires ask (under the threat of penalties for perjury) about wounds, medical bills, counseling costs, other expenses, insurance reimbursements, and lifestyle changes resulting from the crime. Statements of opinion ask victims what they would consider to be fair and just. In most jurisdictions, the victim impact statement is incorporated into the presentence investigation report (PSIR) prepared by a pro- bation officer.

Allocution enables injured parties to directly convey to the judge (and the public) the extent of their suffering and their beliefs about what an appropriate sentence might be. Whereas written impact statements are permitted in all 50 states and the District of Columbia, allocution at sen- tencing hearings is allowed at the judge’s discre- tion. Because of allocution’s highly subjective and emotional content, civil libertarians feared that direct appeals to judges could undermine the judi- ciary’s professional objectivity by injecting inflam- matory considerations into the proceedings that could jeopardize a convict’s Eighth Amendment rights to be spared from cruel and unusual punish- ments (see Frey, 2009). But victims now have the right to speak at sentencing in most states, and what they say if often highly emotional, as this case reveals:

An 11-year-old girl is kidnapped and held for nearly two decades by a middle-aged married couple with demented religious beliefs. She is repeatedly raped and gives birth to two children, when she is 13 and again at age 16. At the couple’s sentencing hearing, her statement is read: “There is no God

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in the universe who would condone your actions. You stole my life and that of my family… But, you do not matter any more.” The kidnapped girl’s mother rises and speaks of her own suffering, “I thought I was going insane, my baby was gone. It was you … that broke my heart. I hate you both.” The judge sentences the man to 431 years, and his wife to 36 years to life. The wife tells the judge, “I deserve every moment of it.” (McKinley, 2011)

The invention and adoption of impact state- ments and the granting of the allocution privilege were important victories for the victims’ rights movement. Prior to their acceptance and imple- mentation, injured parties had to rely on prosecu- tors to present their views and to fully describe their wounds and losses. But advocates argued that the situation was unbalanced. Convicted per- sons did not have to depend solely on their lawyers to speak for them. They were permitted to directly address the court before their sentences were handed down. Yet two lives—the injured party’s as well as the wrongdoer’s—were profoundly shaped by the sentence, which represented an official evaluation of the degree of harm inflicted. Judges couldn’t make informed decisions if they heard from only one side: the defendants them- selves and their lawyers, families, friends, and other character witnesses. Notions of fairness dic- tated that individuals who were harmed also be allowed to write or speak about their experiences before sentences were determined (President’s Task Force, 1982).

Just because activists in the victims’ rights movement succeeded in securing the right to submit an impact statement or to speak in person at a sentencing hearing does not mean that these practices have become widespread and effective. On the contrary, studies have concluded that few victims took advantage of these opportunities, that when they did their participation had very little influence, and that they did not necessarily feel better after voicing their views at sentencing hearings (Villmoare and Neto, 1987; and Frey, 2009).

When a sentence is handed down, it is possible that the victim is misled into thinking that it is more severe than it actually is. Therefore, the victims’ rights movement has urged states to impose a truth-in-sentencing rule that would require judges to calculate and announce the earliest possi- ble date (actual time served) that a convict could be released from confinement, taking into account time off for good behavior behind bars and parole immediately upon eligibility (Associated Press, 1994b). For example, during the 1980s, felons sent to prison by state court judges across the coun- try served an estimated 38 percent of their maxi- mum sentences. A harsh federal truth-in-sentencing law, passed in 1987 and adopted since then in most states, requires felons to serve at least 85 percent of their court-imposed sentences (Langan, Perkins, and Chaiken, 1994). A study of more than 300 victims of felonies in eight jurisdictions across the country established that most of them were dissatis- fied with the sentences judges handed down in their cases. Eighty-six percent agreed with the state- ment that guilty offenders are not punished enough (Forst and Hernon, 1984). In 2012, the actual median time served by murderers was a little less than 13 years; robbers were kept behind bars for almost three years; and rapists were released on average after four years (Carson, 2014).

Studies of victims’ attitudes toward sentences and of actual time served raise a crucial question: Just how much punishment is enough? Victims might feel that the offenders convicted of harming them don’t stay in prison long enough. But no for- mula or equation exists to calculate the gravity of an offense and translate this rating into the proper amount of time a perpetrator should be incarcer- ated. Profound disagreements divide people over the issue of whether certain murders should carry the death penalty or life imprisonment without parole. Usually overlooked, however, are the dra- matic differences in maximum penalties from state to state for lesser crimes such as rape, robbery, or burglary. Clearly, legislators who have the authority to set the upper limits for penalties can’t agree on the maximum length of prison time that one person who harms another really deserves. It is impossible

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to conclude with any degree of objectivity that a particular offender “got off too lightly” when the maximum sentences differ so sharply from one jurisdiction to another (see Katz, 1980).

Victims do not always call for the judge to impose the toughest penalties permissible by law, as this unusual case underscores:

A carload of teenagers gleefully hurl a frozen turkey out the window and speed off unconcerned as it bashes the windshield of the vehicle behind them. The heavy object breaks every bone in the driver’s face, shatters her eye socket, and knocks her unconscious. After many operations and months of reconstructive surgery, she submits a victim impact statement. It urges the district attorney and the judge to sentence the apologetic and remorseful 19- year-old ringleader to the minimum punishment, six months in the county jail and five years of probation, and not the maximum possible sentence of 25 years in prison. She concludes, “God gave me a second chance at life, and I passed it on.” After she recovers, she spends much of her time speaking to teenagers about how a thoughtless decision can wreck their lives. (Finn, 2005; and Chang, 2006)

A bitter controversy rages over whether members of the immediate family of a murder victim should be permitted to try to influence the jury’s sentencing decision in bifurcated capital trials during the penalty phase (after the defendant has been convicted and faces the possi- bility of execution). The following case brought before the Supreme Court was at the core of the debate over the admissibility of highly emotional information from victim impact statements or via allocution.

In the midst of a drug-induced frenzy, a man stabs to death a mother and her two-year-old daughter. During the penalty phase of the trial, the grand- mother describes to the jury how the three-year-old boy who survived the attack still cries mournfully for his mother and little sister. The jury sentences the convict to die in the electric chair. (Clark and Block, 1992)

Victims’ rights groups and prosecutors’ orga- nizations argued that it was illogical to demand that a jury focus all of its attention on the defen- dant’s difficult circumstances and other mitigat- ing factors and then ignore the turmoil of those who were close to the deceased. But civil rights and civil liberties groups argued that the introduction of impact statements could be highly inflammatory and prejudicial in capital cases, diverting the jury’s attention toward the victim’s character (how much or how little the dead person would be missed and mourned) and away from its duty of evaluating the defen- dant’s blameworthiness and the circumstances of the crime. The first time the high court consid- ered a case that raised this issue, it voted to exclude impact statements. But when this issue came up for a second time, the majority of jus- tices ruled that close relatives could testify during the penalty phase of a capital case (Clark and Block, 1992).

Appealing to the Supreme Court

On rare occasions, a case involving a crime victim raises significant legal issues that have not yet been addressed and resolved by an earlier judicial ruling. In these instances, victims and their supporters, as well as prosecutors and defense attorneys, have turned to the U.S. Supreme Court to make wise and fair decisions that will serve as a precedent for future cases to follow.

The Supreme Court is the highest appellate body in the judicial system. It hears only those cases on appeal from federal and state courts that appear to raise important principles of constitutional law. Its nine justices are appointed by the president (who must secure the approval of the Senate) for life so that they can make decisions without fearing repercussions from powerful outside pressure groups. When a majority of Supreme Court justices (five or more) agree on a decision, that ruling sets a precedent that must be followed in all lower courts throughout the nation. These landmark decisions also guide the procedures followed by police departments, prosecutors, trial judges, corrections

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officials, and other agencies within the criminal justice system.

Over the past several decades, a number of deci- sions handed down by the Supreme Court have affected the rights and interests of crime victims (see O’Neill, 1984). Some of these far-reaching rul- ings are summarized in Box 7.4. In most of these landmark decisions, the Court rejected arguments raised by victims and their supporters.

Note that many of these decisions were decided by just one vote, indicating that a near majority of the justices holding differing political ideologies and priorities voiced strong dissenting opinions.

VICTIMS AND JURIES

The jury system, pioneered hundreds of years ago in England, has been hailed as an inspiring example of participatory democracy because ordinary citizens— not government officials, scientific experts, or criminal justice professionals—decide whether an individual is guilty as charged.

The Sixth Amendment guarantees defendants that they will be judged by a jury of their peers who live in the jurisdiction where the alleged offense took place. Exactly what that means (espe- cially the interpretation of the term peers) is a sub- ject of ongoing controversy and has led to many court decisions over the years. In order to choose the 12 people (plus alternates) who will listen to the testimony and evaluate the evidence before delib- erating and then rendering a verdict, a complicated set of procedures and steps that vary from state to state (and the federal government) must be fol- lowed in a sometimes protracted and costly process. In general, the adversarial system empowers the prosecutor as well as the defense attorney to exer- cise a certain number of challenges for cause (they must explain why) plus peremptory challenges (no reason needs to be given), in order to eliminate particular potential jurors. Supposedly both of these opponents are seeking thoughtful, reasonable, open-minded individuals who start out as impartial. In reality, the prosecution would prefer to launch

the trial with jurors leaning toward conviction while the defense would hope to seat individuals already skeptical of the government’s version of events who will ultimately thwart the achievement of a unanimous verdict. Therefore, picking those who will sit in judgment is a crucial stage in which each side tries to uncover the biases of pro- spective jurors in that day’s pool of citizens called for jury duty (the venire) by carefully questioning them (the process of voir dire).

From a victim-centered perspective, several issues and questions arise: First of all, do victims influence the outcomes of trials either by displaying emotions (that they are appropriately upset, in pro- portion to the suffering they endured) or by acting so restrained that they come across as less deserving of sympathy and vindication (see Rose, Nadler, and Clark, 2006)? Second, which kinds of jurors will be most likely to accept and trust the testimony of the victim, who is serving as a witness for the prosecu- tion, that the person on trial is truly the one who allegedly committed a harmful act? Third, are those jurors who have been on the receiving end of serious crimes themselves (or who have suffered because of what happened to loved ones) more likely to vote for conviction during jury delibera- tions than the others who have heard the same arguments advanced by the prosecution and chal- lenged by the defense? Finally, when jurors not only decide whether the accused is guilty beyond a reasonable doubt but also determine what the sentence should be—as in bifurcated death penalty trials—do they factor in the victim’s characteristics and status?

The decision making of the members of a jury that takes place behind closed doors precludes researchers from reconstructing who voted to con- vict or acquit, and why. So most studies either focus on simulated trials in front of mock juries, or they seek out statistical patterns running through the verdicts of many similar cases.

The decision to accept or reject a particular prospective juror is made on the basis of each coun- sel’s stereotypes, hunches, and accumulated wisdom from past experiences as a trial lawyer. But picking a jury has evolved from an “art” to a “science” with

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B O X 7.4 Supreme Court Decisions Directly Affecting Victims

Decisions Advancing Victims’ Interests and Rights

Victimized Children Can Testify via Closed-Circuit Television In 1990, in a 5–4 decision (Maryland v. Craig), the Supreme Court held that it was constitutional for a state to pass a law that shields a child who accuses an adult of sexual abuse from a face- to-face confrontation during a trial. The child’s testimony and the defense attorney’s cross-examination can take place in another room and can be shown to the jury over closed-circuit television if the prosecutor can convince the judge that the young witness would be traumatized by having to testify in the defendant’s presence. The majority felt that the state’s interest in the physical and psychological well-being of the abused child may outweigh the defendant’s Sixth Amendment right to face his or her accuser in person (Greenhouse, 1990).

Rape Victims’ Past Experiences Can Be Kept out of Court In 1991, the Supreme Court ruled by a 7–2 vote that the rape shield laws passed in all 50 states were constitutional. The laws allow judges to suppress as irrelevant attempts by the defense to introduce allegations about past sexual experi- ences of rape victims (Rauber, 1991).

Victim Impact Statements Can Be Used in Capital Cases In 1987 (Booth v. Maryland), the Supreme Court overturned a death sentence because the jury during the penalty phase of the trial heard a particularly heartrending impact statement about how the murder of an elderly couple shattered the lives of three generations of their family. The majority ruled that the use of such inflammatory impact statements created a constitutionally unacceptable risk that juries might impose the death penalty in an arbitrary and capricious manner, swayed by the social standing and reputation of the deceased person. The majority believed that the victim’s worth was not an appropriate factor for a jury to consider when weighing the killer’s fate—imprisonment or execution—because it would undermine the guarantee of equal protection (Triebwasser, 1987b). But in 1991 (Payne v. Tennessee), the Court reversed itself and ruled that prosecutors could introduce victim impact statements and that the survivors of murder victims could testify. The majority held that courts have always taken into account the harm done by defendants when determining appropriate sentences (Clark and Block, 1992).

Victims’ 911 Emergency Calls Can Be Used as Evidence If They Can’t Testify at a Trial In 2006, (Davis v. Washington), all nine justices agreed that a victim’s 911 call describing a crime in progress and identify- ing the assailant can be entered as evidence in court pro- ceedings, without violating the defendant’s Sixth

Amendment right to confront his accuser, if the complainant can’t or chooses not to testify (Greenhouse, 2006).

People Concerned About Crime Have a Right to Keep Handguns in Their Homes In 2008 (District of Columbia et al. v. Heller), five justices interpreted the Second Amendment as granting individuals who fear that criminals might invade their residences the right to own loaded handguns to defend themselves, their families, and their property, even in large cities with very strict gun control laws. The dissenters cited the dangers of accidental domestic fatalities and the need to protect children from access to firearms (Greenhouse, 2008; Wasserman, 2008).

A Victim’s Dying Words Can Be Reported to a Jury In 2011 (Michigan v. Bryant), six of the eight justices inter- preted the Sixth Amendment’s confrontation clause as per- mitting a dying man’s identification of his assailant to police officers to be admissible as evidence against the defendant in a murder trial (Liptak, 2011).

Police Can Collect DNA from Arrestees to Use to Solve Crimes Like Rapes In 2013 (Maryland V. King), by a vote of 5–4, the Court granted the police authority to take DNA samples derived from cheek swabs from the persons they arrest to see if a match will reveal their participation in a crime, especially in cases of sexual assault where such forensic evidence plays a key role in identifying an assailant (RAINN, 2014).

Decisions Opposing Victims’ Interests and Rights

Government Has No Constitutional Duty to Protect Individuals In 1989 (De Shaney v. Winnebago County Dept. of Social Ser- vices), six of the nine justices decided that a government agency could not be sued for failing to intervene (on behalf of a child repeatedly beaten and permanently injured by his father) because the state does not have a special obligation to protect individuals from harm by other private persons (U.S. Supreme Court, 1989).

Victims Can’t Sue Police Departments for Failing to Enforce Orders of Protection In 2005 (Gonzales v. Castle Rock Police), the Supreme Court by a 7–2 margin ruled that a victim of domestic violence did not have the right to sue her local police department for failing to enforce a restraining order against her husband who sub- sequently murdered their three children. The Court upheld the principle that police departments are not liable to law- suits challenging the way officers exercise discretion in the

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performance of their duties, unless there is evidence of extreme negligence (Bunch, 2005).

Victims Cannot Compel Prosecutors to Take Action Against Suspects A number of decisions handed down in 1967, 1973, 1977, 1981, and 1983 have established that attorneys general and district attorneys have absolute discretion over whether to charge defendants with crimes and what charges to press or drop. Victims cannot compel prosecutors to take particular actions, and courts cannot intervene in this decision-making process (see Stark and Goldstein, 1985).

Victims of Rape and Domestic Violence Can’t Sue Attackers in Federal Court In 2000 (United States v. Morrison), the Supreme Court by a 5– 4 margin struck down a provision of the 1984 Violence Against Women Act, which had granted injured parties in domestic violence and rape cases the additional option of suing their assailants for monetary damages in federal court. The majority voted to uphold the doctrine of state sovereignty over gender- based violence rather than extend federal authority via the interstate commerce clause (Biskupic, 2000).

Newspapers Can Publish the Lawfully Obtained Names of Rape Victims In 1989, a majority of six justices argued that the First Amendment’s guarantee of freedom of the press protected a newspaper from liability for printing the name of a woman who already was identified as a rape victim in publicly avail- able police reports. However, the decision did not declare unconstitutional state laws in Florida, Georgia, and South Carolina that prohibit the publishing of a rape victim’s name as an invasion of privacy (Greenhouse, 1989).

Offenders Can Escape Paying Restitution to Victims In 1989 (Pennsylvania Dept. of Public Welfare v. Davenport), the Court ruled 7–2 that if convicts declare bankruptcy, they can avoid paying court-ordered restitution because restitution obligations are dischargeable debts. In 1990 (Hughey v. United States), the Court ruled that a federal judge cannot order a defendant to pay restitution to a victim if the charge involving that victim was dropped as part of a nego- tiated plea. The Court based its ruling on a provision of the federal Victim and Witness Protection Act of 1982 (Eddy, 1990).

Victims Can’t Easily Claim Income Gained by Notorious Offenders In 1991 (Simon & Schuster v. New York Crime Victims Board), the Supreme Court struck down New York’s 1977 “Son-of-Sam” statute, which served as a model for 41 other state laws. The law

confiscated fees and royalties offenders gained from selling their inside stories to book publishers or moviemakers and permitted victims to claim that money. The unanimous opinion held that the state’s worthwhile goals of ensuring that criminals do not profit from their crimes, and of transferring the proceeds to victims, did not justify infringements on the First Amendment right of free speech (Greenhouse, 1991).

Victims of Identity Theft Can’t Have Extra Time to Sue Credit Bureaus In 2001 (TRW v. Andrews), the Supreme Court ruled that people who find out that impostors have ruined their financial reputa- tions have only two years from the time the mistake about their real creditworthiness was made to file damage lawsuits against the major credit bureaus that generate ratings, even if they don’t discover these errors in sufficient time (Savage, 2003).

The Statute of Limitations on Child Sexual Abuse Charges Cannot Be Extended In 2003, the Supreme Court struck down a California law that had lengthened the state’s statute of limitations to enable criminal prosecutions of alleged molesters whose accusers came forward many years after the events took place. How- ever, the decision did not block victims from pursuing law- suits in civil court (Garvey and Winton, 2003).

Victims of Child Pornography Have to Return to State Courts to Seek Restitution In 2014, (Paroline v. United States) by a five to four decision, the Court affirmed that a child whose sexual abuse appeared in pornography was entitled to financial compensation under the federal Crime Victims Restitution Act for direct, foreseeable, significant, and repeated harm from the viewing of these images. But the higher court reversed a state court decision and held that only a trial court, on a case-by-case basis, had the authority, using its discretion and sound judgment, to determine the appropriate amount of restitution from the offender for imposing this mental anguish on the victim (NCVLI, 2014).

Insufficient Proof That the Lives of Murdered Black People Count for Less In 1987 (McCleskey v. Kemp), in upholding a death penalty conviction, the Supreme Court rejected a statistical analysis that seemed to show that the deaths of black victims were not taken as seriously as the deaths of white victims by criminal justice deci- sion makers—prosecutors, juries, and judges. The Court ruled that a pattern—in which offenders convicted of killing white people were 11 times more likely to be sentenced to die than those found guilty of murdering black victims—was not compel- ling evidence of intentional discrimination in violation of the Eighth and Fourteenth Amendments (Triebwasser, 1987a).

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the advent of consultants who use statistical meth- ods, especially findings from surveys of the local residents’ attitudes and biases, to predict which kinds of people are more likely to convict or acquit in a case based on similar facts and accusations.

One bit of conventional wisdom taught to lawyers is that prospective jurors who disclose that they have been victims in the past can be expected to consciously or subconsciously identify with the injured party who is serving as a star witness for the prosecution. This tendency is presumed to be espe- cially strong if the crime committed against them resembles the charge that the defendant is facing in the upcoming trial (Gobert and Jordan, 2009). Judges often ask venire members about their own past experiences with criminals and send home vic- tims who admit that they will have trouble being open-minded about the presumption of innocence. Although no jurisdiction has strict laws that address the issue of jury ineligibility because of prior vic- timization, eliminating victims from the pool often might be justified on an individual basis but imprac- tical as a general procedure since being harmed by criminals is such a common experience. Former victims are indeed more likely to vote to convict than other jurors, according to the findings of a simulation in which 2,400 people were asked to decide guilt or innocence after watching a one- hour mock trial about a burglary of a dwelling (Culhane, Hosch, and Weaver, 2004).

Concealing a hidden bias due to past experi- ences can get a juror in trouble, as the following case demonstrates:

A young man is serving as a juror in a capital murder case in which a former Marine is accused of stabbing a woman to death. He confides in a court bailiff that he doesn’t think he can be impartial because two of his family members had been killed in robberies. The bailiff informs the judge, who angrily asks the young man why he didn’t reveal these troubling relation- ships on a detailed questionnaire or to the two attorneys who vetted him. The judge lectures him about the disruption his tardy disclosure has caused, and warns, “I’m not going to put you in jail, but you’re going to forfeit your jury fee ($90). Now, get

out of here before I change my mind!” The prosecutor and the defense attorney urge the judge not to declare a mistrial and start over, and both agree to continue with just 11 jurors. (Emily, 2010)

The findings of several other studies shed addi- tional light on the victim–juror relationship.

In death penalty cases, prosecutors, judges, and juries seem to be influenced by the race of the victim as much as by the race of the defendant. Blacks who murder whites and whites who dispatch whites are much more likely to be sentenced to die by juries than whites who slay blacks or blacks who kill blacks, according to a statistical study entered as evidence in a case that led to a landmark decision by the Supreme Court (see Baldus, 2003). Murder victims’ families (referred to as “co-victims”) find death penalty cases understandably burdensome and emotionally frustrat- ing because the legal process marginalizes them, leav- ing them with a very limited role to play in resolving their traumatic loss. During bifurcated capital trials, prosecutors often urge murder victims’ families to attend all the proceedings, and if a conviction takes place, to testify during the penalty phase to provide victim impact evidence that might influence jurors to choose execution over life imprisonment (Karp and Warshaw, 2009). Just as first responders (like police officers and emergency technicians) and caregivers (such as doctors, social workers, and advocates) can suffer vicarious traumatization, so too can sensitive jurors succumb to the stresses generated by gruesome evidence and harrowing testimony and by emotion- ally draining arguments during protracted jury delib- erations behind closed doors (Robinson, Davies, and Nettleingham, 2009).

VICTIMS AND CORRECTIONS OFFICIALS

Corrections officials include jail and prison war- dens and guards, and probation and parole officers. Victims whose cases led to successful prosecutions occasionally seek their cooperation but may find themselves in conflict over issues of safety and money.

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Keeping Track of Offenders and Receiving Reimbursement from Them

Victims are more likely to have contacts with county probation departments than with county jail, state prison, or state parole authorities. Of those found guilty in state courts, more felons are sentenced to probation for up to several years than are sent to jail for up to a year or to prison for longer stretches (Brown and Langan, 1998).

Victims want two things from probation and parole officers. When offenders are placed on proba- tion or are released on parole after serving time in prison, victims want to be protected from harassment and further harm. They can feel especially endan- gered by a vengeful, violent ex-offender if their cooperation and testimony was a crucial factor leading to conviction. And if making restitution is a condition of probation or parole, victims want to receive these payments right on schedule. Probation and parole officers share these goals but often find their caseloads so overwhelming that they cannot enforce these requirements effectively.

Corrections officials must safeguard the well- being and best interests of victims by keeping them notified of the inmates’ whereabouts, parole board appearances, and release dates, according to legisla- tion in most states. Correctional agencies can go fur- ther and develop victim safety plans that make sure prisoners on temporary leave (on furlough, work release, or educational release) or who escape from an institution do not threaten, track down, stalk, and attack the people they injured who helped to send them away (see National Victim Center, 1990; and Gagliardi, 2005).

When victims discover from other sources that their offenders (especially those guilty of aggravated assault, armed robbery, rape, or sexual molestation) are back on the streets, conflicts can erupt with corrections officials who did not meet their notification obligations. A widely used computer-based notification system enables cor- rections officials to alert registered victims about their jail or prison inmates’ whereabouts, including their release on bail; attendance at classes or work outside the institution; completion of sentence;

placement on probation or parole; or their escape from custody (Harry, 2002).

Influencing Parole Board Decisions

Statistically, few victims ever deal with members of parole boards because only small percentages of offenders are caught, convicted, and sent away to prison for years. However, parole hearings have received a great deal of attention from the victims’ rights movement because they determine the fates of inmates who have inflicted serious harm.

By definition, parole means an early release for felons before the maximum or upper limits of the judges’ sentences have been served. Prisoners become eligible for parole after serving a specified proportion of their sentences, but parole is not automatic. After hearings, parole boards turn down most convicts, keeping them incarcerated for many more years. (However, even without parole, early release is still possible because most correctional institutions subtract time off for good behavior.)

The board grants conditional liberty to con- victs who have earned the privilege of parole. They may return to their communities but must abide by restrictions on their conduct. Parolees who violate the rules can be returned to prison to finish up the remainder of their unexpired full sentences at the discretion of administrative judges after revocation hearings.

Victims with a punitive outlook will want parole boards to vote to keep convicts behind bars for their entire sentences. Victims seeking reim- bursement will want boards to grant parole to con- victs but impose strict restitution obligations on them. Victims concerned about offender rehabilita- tion will want boards to impose treatment obliga- tions as a condition of parole.

Because many parolees commit additional crimes after serving time, boards granting early release have come under intense scrutiny and even criticism. Although the origins of parole date back to the mid-1800s, convicts are finding it much more difficult to earn early release these days. Tra- ditionally, three rationales justify setting up boards

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to grant the privilege of a shortened sentence to selected prisoners. The first is that ex-convicts can make smoother transitions from a tightly controlled prison regimen to civilian life with the guidance of parole officers. Second, corrections officers can control the behavior of inmates more effectively if a possibility of early release looms as a reward for continuous good behavior. The third justification is that parole enables correctional authorities to better manage the flow of prisoners into and out of insti- tutions, ensuring that sufficient cell space is available for new arrivals.

Prisoners’ rights groups have rejected the notion that parole is a form of benevolence that serves as an incentive for rehabilitation. They have criticized the practice as a way of extending the length of time ex-convicts are under governmental control; as a device to prolong punishment; and as a source of anxiety and uncertainty. These groups have called for the abolition of the practice of parole and have suggested determinate or fixed sen- tences of shorter duration as a replacement for indefinite sentences with widely varying minimums and maximums (Shelden, 1982).

Crime control organizations also have demanded an end to the parole system but for dif- ferent reasons. They perceive parole boards as grant- ing undeserved breaks and unwarranted leniency because dangerous criminals are let out prematurely. They want parole ended and replaced with definite sentences of longer duration (President’s Task Force, 1982). Victims, too, may bitterly resent the practice of parole if it reduces sentences of incarceration that they originally considered too short. If parolees harass victims or fail to pay them restitution in a timely manner, then parole board decisions will be resented for these additional reasons (see Herdt, 2013).

As a result of the widespread dissatisfaction with parole, the federal prison system and a number of state systems have phased it out. In other juris- dictions, parole is granted less often. The reliance on parole reached its peak in 1977, when as many as 72 percent of prisoners returning to society were granted conditional liberty with community super- vision. The proportion of inmates achieving discre- tionary early release had dropped to 35 percent in

2006 (Glaze and Bonczar, 2007). Over 850,000 for- merly incarcerated adults were out on parole in 2013 (Herberman and Bonczar, 2014), although some of them, such as drug dealers, had not been sentenced for interpersonal violence. However, since trends in the data reveal that more than one-third of prisoners still do not serve their maxi- mum terms, and hundreds of thousands of convicts were under the supervision of parole officers, it is clear that victims retain an interest in exercising their rights before parole boards.

Although procedures to standardize and rationalize parole board decision making have been implemented, measures also have been adopted to open up the process by providing notice to and soliciting input from groups that were formerly excluded. In 43 states, legislation expressly grants victims (and often law enforce- ment officers, prosecutors, and judges) the right to attend parole hearings (usually held inside pris- ons in remote locations) and to personally inform board members of their views. Alternatively, they can submit written or videotaped impact state- ments. Board members can serve victims by invit- ing them to participate in decision-making processes, by warning them in advance that the persons they helped send to prison are being let go, and by ordering the convicts to pay restitution as a condition of release. In some states, restitution is a mandatory requirement for parolees unless the board excuses them from it (National Victim Center, 1990; and Parker, 2009). Understandably, the next of kin of murder victims often argue, “don’t release the convict on parole,” as this case demonstrates:

An off-duty police sergeant spots an armed robbery- in-progress at an ATM. The robber, a drug addict who has previously served time for two manslaugh- ters, fires at the policeman and kills him; the officer’s bullet is deflected by the robber’s zipper, and he escapes. An innocent man confesses to the crime. When the actual killer eventually is captured, prose- cutors are compelled to negotiate a plea of 15 years to life. After the 15 years are up, the slain officer’s father has to attend parole board meetings every two

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years. The father, a retired DEA agent who carried out 3,000 arrests without once firing his service revolver, tells the parole board in a written statement, “Anyone who sets this creature free, from this day on, know that innocent blood is on your hands. This is no longer about vengeance. Nothing I say can bring my son back.” When the board turns down the convict’s application for parole for the third time, the father declares, “There’s no celebration. It is what it is.” (McShane, 2011a; 2011b)

As with sentencing, the potential impact of victim input on decision making about parole is limited. The boards receive statements not only from victims, but also from prosecutors, judges, and other concerned parties. They interview the inmates and review their criminal records and the prison files summarizing their behavior behind bars. Most of the time, the decisions arrived at by boards are not determined by the wishes of victims but rather by intense political pressures to keep convicts confined longer or by pragmatic administrative considerations to let some out ahead of schedule to make room for new arrivals.

Victimologists have carried out occasional stud- ies to see how the reforms are actually working. In Texas, only about 20 percent of eligible people filed victim impact statements (Schmidt, 2006). Similarly, most failed to appear and speak out at sentencing hearings (Forer, 1980). Those who did exercise their in-person allocution rights exerted very little influence, especially when convicts faced determinate (fixed) sentences (Villmoare and Neto, 1987; Walsh, 1992). A survey of New Yorkers turned up no clear evidence that those who filed victim impact statements experienced a greater sense of involvement or were more satisfied with the city’s justice system and the disposition in their cases (Davis and Smith, 1994).

However, when victims submitted impact state- ments to Pennsylvania parole boards, inmates were less likely to be granted early release (Parsonage, Bernat, and Helfgott, 1994). And when California prosecutors introduced victim impact statements during the penalty phase in capital murder trials, the additional evidence raised the likelihood that the jury

would impose execution rather than sentence the killer to life in prison without the possibility of parole (Aguirre et al., 1999). According to a federally spon- sored survey of departments of corrections in various states, 98 percent reported that they were notifying victims of parole dates and release dates (Gagliardi, 2005).

AND JUSTICE FOR ALL?

The Fourteenth Amendment to the Constitution promises equal protection under the law for all citizens: Federal and state criminal justice systems ought to regard social factors such as class, race, nationality, religion, and sex as irrelevant to the administration of the law (blind justice). Tradition- ally, criminologists and political activists have exam- ined whether this important principle of equal protection really governs the way suspects, defen- dants, and convicts are treated by officials and agen- cies. The main focus of concern has been whether poor or minority offenders are subjected to discrim- inatory treatment. Whether certain kinds of victims are handled in a discriminatory manner is an equally significant concern but it has escaped notice.

It is often said that the United States is a coun- try “ruled by laws, not men.” This maxim implies that the principles of due process and equal protec- tion limit the considerable discretionary powers of criminal justice officials. Due process means pro- cedural consistency (following all the required steps) and equal protection require that different categories of people be treated similarly. Yet enough discretion remains at each stage in the crim- inal justice process to generate unequal outcomes. Of course, those who do exercise discretion can and do justify their actions. Explanations range from practical considerations about time and money to philosophical rationales about the true meaning of justice. Nevertheless, the actions they take generate, maintain, and reveal double standards, or more accurately (because sometimes more than two groups are involved) differential handling, rang- ing from exemplary service and support for some to second-class treatment for others.

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Recognizing “Second-Class” Treatment

The wife of a wealthy doctor disappears while walk- ing her dog. The police launch a massive search, hold a press conference, assign two dozen detectives to work full time to canvass the affluent neighborhood, circulate flyers, and try to pick up her trail with a bloodhound. Her body later is found floating in the river, but it cannot be determined if she fell in, jumped in, or was pushed. Less than two months later, a shy and studious African American college student never returns from running an errand in a working-class immigrant neighborhood. Her mother calls 911 the next morning, and two officers fill out a missing persons report—reluctantly, saying that because she is 21 years old, they really are not sup- posed to. Once 24 hours have elapsed, a detective marks the case closed. The family appeals to local elected officials, and after a few days the police department reopens the case. But it is too late— during that time two kidnappers who torture and rape her in a dingy basement a few blocks away decide to kill her. A federal judge permits the victim’s mother to file a lawsuit alleging bias in the police depart- ment’s response, based on the race, class, and age of the missing person. (Gardiner, 2008)

Many social institutions have two or more tracks and deliver unequal services to their clients or consumers. For instance, the health care system does not treat all patients the same; some get higher quality medical attention than others. Similarly, the school system does not provide all students with equal educational opportunities. Some are chal- lenged, nurtured, and as a result excel, while others are discouraged, neglected, and consequently fail to reach their academic potential.

A systematic examination of how cases are pro- cessed by the criminal justice system must address a crucial question. Now that victims have rights and are no longer routinely overlooked, do some get better service than others?

Criminologists have documented the discrep- ancy between official doctrines and actual practices. For example, race and class ought to be extraneous factors in a system of “blind justice,” but, in reality, they are useful predictors of how officials respond

to offenders. When victimologists pieced together scattered research findings about how different cat- egories of victims were treated, a comparable pic- ture emerged. Certain victims were more likely to be given first class or VIP treatment, while others tended to be neglected, abused, and treated as second-class complainants by the same agencies and officials. In other words, how a case was han- dled was determined by the victim’s as well as the offender’s social standing, in addition to the cir- cumstances surrounding the crime.

The findings of many independent studies car- ried out decades ago are summarized in Box 7.5. They yield a profile of the groups of people who in the past tended to be treated far better or much worse than others. Victims who were innocent and from respectable backgrounds and privileged strata were more likely to receive better service from police officers, prosecutors, juries, and judges. Individuals whose backgrounds were tarnished or who came from disadvantaged groups were less likely to get favorable treatment.

Many social handicaps that have held people back in life also impede their ability to receive fair treatment as crime victims. The same discretionary powers that result in overzealous law enforcement in some communities contribute to lax enforce- ment in others. Apparently, calls for help from members of groups that traditionally have suffered discrimination were not perceived as entirely legiti- mate or as compelling by some at the helm of the criminal justice system. The credibility of complai- nants from disadvantaged backgrounds often was eroded by a belief that these same people were the wrongdoers in other incidents. Such stereotyp- ical responses by the authorities poisoned relations between the two camps.

From bitter experience, individuals from the lower strata, and “out groups” marginalized because of their unconventional lifestyles have anticipated that their requests for intervention would be greeted with suspicion or even hostility. They expected perfunctory treatment at best. As a conse- quence, they have turned to the criminal justice system only under the most desperate circumstances (Ziegenhagen, 1977).

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The manner in which police and prosecutors respond to homicides provides some clear examples of differential handling. When a “very important person” is murdered, the police department comes under tremendous pressure from the media, elected officials, and powerful constituencies within the public to arrest someone quickly. To give an

illustration, a highly publicized robbery and murder of a foreign visitor was so threatening to Florida’s multibillion-dollar tourist trade that local business interests and the Chamber of Commerce generated tremendous pressure to apprehend whoever was preying upon vacationers (see Rohter, 1993; and Boyle, 1994). But when an “undesirable” is slain,

B O X 7.5 Which Victims Get Better Treatment?

Arrests

Suspects are more likely to be taken into custody if the victims:

■ Request that officers make an arrest in a deferential, nonantagonistic manner (Black, 1968)

■ Convince the police that they themselves were not involved in any illegal activity before the incident (La Fave, 1965)

■ Prove to officers that they are not a friend, relative, or neighbor of the suspect (Goldstein, 1960; La Fave, 1965; Black, 1968; Reiss, 1971; and Giacinti, 1973)

Prosecutions

Charges are more likely to be lodged against defendants if the victims:

■ Are middle-aged or elderly, white, and employed (Myers and Hagan, 1979)

■ Have high status in the community (“Prosecutorial discretion,” 1969)

■ Are women and the offender is a male stranger (Myers, 1977)

■ Are women without a reputation for promiscuity (Newman, 1966)

■ Are not known to be homosexual (Newman, 1966)

■ Are not alcoholics or drug addicts (Williams, 1976)

■ Have no prior arrest record (Williams, 1976)

■ Can establish that they weren’t engaged in misconduct themselves at the time of the crime (Miller, 1970; Neubauer, 1974; and Williams, 1976)

■ Can prove that they didn’t provoke the offender (Newman, 1966; Neubauer, 1974; and Williams, 1976)

■ And the offender are not both black and are not viewed as conforming to community subcultural norms (Newman, 1966; McIntyre, 1968; Miller, 1970; and Myers and Hagan, 1979)

Convictions

Judges or juries are more likely to find defendants guilty if the victims:

■ Are employed in a high-status job (Myers, 1977)

■ Are perceived as being young and helpless (Myers, 1977)

■ Appear reputable and have no prior arrest record (Kalven and Zeisel, 1966; and Newman, 1966)

■ Had no prior illegal relationship with the defendant (Newman, 1966)

■ In no way are thought to have provoked the offender (Wolfgang, 1958; Kalven and Zeisel, 1966; and Newman, 1966)

■ Are white and the defendants are black (Johnson, 1941; and Allredge, 1942; Garfinkle, 1949; and Bensing and Schroeder, 1960)

■ And the offender are not both black and are not viewed as acting in conformity to community subcultural norms (Newman, 1966; McIntyre, 1968; Miller, 1970; and Myers and Hagan, 1979)

Punishments

Judges will hand down stiffer sentences to defendants if the victims:

■ Are employed in a high-status occupation (Myers, 1977; and Farrell and Swigert, 1986)

■ Did not know the offender (Myers, 1977)

■ Were injured and didn’t provoke the attack (Dawson, 1969; and Neubauer, 1974)

■ Are white and the offenders are black (Green, 1964; Southern Regional Council, 1969; Wolfgang and Riedel, 1973; and Paternoster, 1984)

■ Are females killed by either males or females (Farrell and Swigert, 1986)

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overworked and understaffed homicide detectives may carry out only a superficial, routine investiga- tion. For example, the fatal shooting of a street- level prostitute or drug peddler would attract little public notice or official concern and certainly wouldn’t merit the establishment of a task force of detectives to track down the killer who carried out what the police mockingly term a “misdemeanor homicide” (see Simon, 1991; and Maple, 1999).

On the other hand, when a member of the police force is slain, the homicide squad will work day and night to follow up every possible lead in order to catch the killer and reinforce the message that the death of an officer will not go unpunished. To illustrate how law enforcement agencies assign capturing the killer of “one of their own” the high- est priority, consider this comparison: In 1992, police departments across the country solved 65 percent of murders and 91 percent of the killings of fellow officers (FBI, 1993). Similarly, during 1998, 93 percent of line-of-duty officer killings were cleared, compared to 69 percent of civilian murders across the nation (FBI, 1999). And in 2007, right after homicide solution rates sank to an all-time low of 61 percent, 50 out of 51 murders of police officers were cleared by the arrest of a suspect or by exceptional means (the perpetrator was justifiably killed by the dying officer or by other officers, or the assailant afterward committed suicide or died under other circumstances) (FBI, 2008a).

Most of the research cited in Box 7.5 uncover- ing evidence of differential handling was conducted before the victims’ rights movement scored sweep- ing legislative victories. Therefore, victimologists need to carry out a new round of investigations to discover whether the past inequity of differential handling persists to this day, or whether the lofty goals of “equal protection under the law” and “jus- tice for all” are becoming more of a reality in state criminal justice systems across America. As social scientists continue to evaluate the effectiveness of informational and participatory rights that have been granted in recent decades, they are likely to discover evidence of differential access to justice: that certain groups of people are more likely than others to be informed of their rights, to exercise

them, and to use them effectively to influence the decision-making process (see Karmen, 1990).

Even though many legislatures have added vic- tims’ rights amendments to their state constitutions or have passed a victims’ bill of rights, much educa- tional work needs to be done, a study conducted by the National Center for Victims of Crime (NCVC, 1999) concluded. It surveyed victims in two states considered to have strong pro-victim protections and in two states where their rights on paper were limited. Overall, those whose cases were processed by the justice systems of states with strong protection fared better, but even they were not afforded all the opportunities they were supposed to get. In the two states that theoretically guaranteed many rights, more than 60 percent of victims interviewed were not notified when the defendant was released on bail, more than 40 percent were not told the date of the sentencing hearing, and nearly 40 percent were not informed that they were entitled to file an impact statement at the convict’s parole hearing. Of those who found out in time, most (72 percent) attended the sentencing hearing and submitted an impact statement, but relatively few went to bail or parole hearings. Only about 40 percent of the local officials surveyed in the two strong protection states knew about the new laws enumerating victims’ rights (Brienza, 1999; and NCVC, 1999).

Overall, a survey of cases handled by prosecu- tors across the country at the end of the twentieth century failed to find evidence of substantial changes in outcomes resulting from the passage of victims’ rights legislation (Davis et al., 2002).

As a consequence of constraints and obstacles that undermine the effective implementation of victims’ rights, some movement activists remain pessimistic, even cynical about the much-heralded reforms that supposedly grant empowerment. Mere pledges of fair treatment do not go far enough. Being notified about the results of a bail hearing, plea negotiation session, sentencing hearing, or parole board meeting falls far short of actually pur- suing one’s perceived best interests. Attending and speaking out is no guarantee of being taken seri- ously and truly having an impact. Victims still have no constitutional standing, which means that

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they cannot go to civil court and sue for monetary damages if their rights are ignored or violated, and they cannot veto decisions about bail, sentences, and parole that are made in their absence without their knowledge and consent (Gewurz and Mercurio, 1992). Lofty pronouncements that the rights of victims to fair treatment will be carefully respected by officials might prove to be lip service, paper promises, and cosmetic changes without much substance (Gegan and Rodriguez, 1992; and Elias, 1993). However, because recent federal legis- lation grants victims the right to appeal rulings that appear to violate their rights, advocates have con- vinced the Department of Justice to sponsor victim law clinics to work to boost the degree of compli- ance by uninformed criminal justice officials (Schwartz, 2007; and Davis and Mulford, 2008). As of 2011, 12 legal clinics across the country served victims seeking to have their rights respected and enforced in court proceedings (NCVLI, 2011).

What is the ultimate goal of victims’ rights advo- cates? What some seek might be called a system of “parallel justice.” In the aftermath of serious crimes, “justice is served” when offenders are punished and isolated behind bars, and then rehabilitated and even- tually reintegrated into society by reentry programs. But there is no comparable societal response for vic- tims, which would begin with an acknowledgement that what happened to them was wrong, and would culminate with efforts to assist them to rebuild their lives. The guiding principle of parallel justice is that a society has an obligation to its victims too: to help them to heal, regain a sense of security, protect them from further harm, and reintegrate back into the life they were leading before the crime occurred. The public must be mobilized to support a comprehensive approach to making victims whole again that supple- ments the efforts of government agencies with

additional forms of support from private and non- profit groups such as community organizations. Local resources must be marshaled to provide a menu of services that can address both the immediate and the long-term welfare of individuals harmed by interpersonal violence (Herman, 2010).

In order to better provide practical assistance and financial compensation for their losses and expenses, the governmental response should include a nonad- versarial conference in which victims explain what happened to them, the unwanted event’s impact, and what they need to get their lives back on track. The conference should result in an official validation that they have been wronged. Case managers should determine how best to enable them to rebuild their lives with the help of an array of services such as day care, job training, housing, or counseling. Offenders can play a role in constructing a parallel justice system for victims by making restitution and performing community service as part of their own reentry pro- cess (Herman, 2000, 2010; and NCVC, 2008).

One necessary step for an action plan to rebal- ance one-sided criminal justice procedures that exclude victims would be to set up an independent office or commissioner or ombudsperson. This inde- pendent body could monitor actual case outcomes to make sure that individual victims are getting the services and opportunities they are supposed to, according to new laws. It could also identify short- comings in existing procedures that need to be fixed through legislation. Another step forward would entail setting up permanently funded institutes for victims’ rights and services, preferably based at uni- versities that would be centers for research and development. The institutes could assemble data, carry out surveys, and conduct and evaluate social experiments about advocacy and innovative services in order to identify best practices (see Waller, 2011).

SUMMARY

Whether they want to see their attacker punished via incarceration, given effective treatment in some rehabilitation program, or ordered to make restitu- tion, victims might find themselves in conflict

rather than in cooperative relationships with prose- cutors, judges, and corrections officials.

Victims want prosecutors’ offices to provide them with lawyers who will represent their interests

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faithfully, but they may be disappointed if the assistant district attorneys assigned to handle their cases don’t take steps to protect them from reprisals, don’t consult with them during plea negotiations, or fail to gain convictions from juries after trials. Victims are not sur- prised if defense attorneys try to wear them down by stalling tactics and try to impeach their testimony by asking hostile questions during cross-examinations at trials. Victims hope that judges will be evenhanded but can become upset if judges set bail low enough for defendants to secure release and then threaten them, and if judges impose sentences that do not reflect the gravity of the offenses that harmed them. Victims

want corrections officials to keep them posted con- cerning the whereabouts of convicts, protect them from reprisals after release, and effectively supervise restitution arrangements that might have been imposed as conditions of probation or parole.

Several decades ago, before the rise of the victims’ movement, insensitive mistreatment by agencies and officials within the criminal justice process was common. Victims from privileged backgrounds clearly were treated much better than others. Researchers need to document whether the system now delivers equal justice for all or if the problem of differential handling persists.

KEY TERMS DEFINED IN THE GLOSSARY

allocution, 230

assistant district attorneys, 217

bedsheeting, 224

bifurcated capital trials, 232

consideration, 224

cop a plea, 224

differential access to justice, 242

differential handling, 239

district attorneys, 216

due process, 239

equal protection under the law, 239

going rate, 230

overcharging, 224

plea bargain, 224

plea negotiation, 223

presentence investigation report, 230

private prosecution, 223

second-class treatment, 239

sentence disparity, 229

truth-in-sentencing rule, 231

victim impact statements, 230

Victim/Witness Assistance Projects (VWAPs), 218

victims’ rights, 207

zero-sum game model, 211

QUESTIONS FOR DISCUSSION AND DEBATE

1. Argue that victims should not be allowed to participate in plea negotiations.

2. Argue that victims should have much more of a voice in determining sentences.

3. Argue that victims should not be allowed any input into parole board decisions.

4. Describe how certain decisions by the Supreme Court have had an effect on the rights and best interests of victims.

CRITICAL THINKING QUESTIONS

1. Explain how certain rights might be considered to be gained at the expense of either criminals or criminal justice officials, depending on the way victims exercise them.

2. Identify a group of victims who do not deserve first-class handling by prosecutors, in the opinion of many people.

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3. If victims are unable to participate because of their very serious wounds, or are too young to make such important decisions, who—if anyone—should exercise their rights in their name? Be specific, and give plausible scenarios.

4. Why hasn’t a victims’ rights amendment been added to the Constitution? Look through

speeches given by Presidents Clinton and Bush and delivered by members of Congress, and then find out the objections of opponents who defeated this campaign to recast the Sixth Amendment.

SUGGESTED RESEARCH PROJECTS

1. Draw up a checklist of all the ways a prosecu- tor’s office can provide assistance and support to victims of violent crimes. Find out which of these services are offered by the district attor- ney’s office in your jurisdiction, and compare the two lists.

2. For some of the landmark decisions of the U.S. Supreme Court listed in Box 7.4 that had an impact upon victims, find out the facts of the case, the legal reasoning that was accepted by the majority of justices, and the arguments that

were put forward in the dissenting minority position.

3. See if there is any evidence in recent articles in newspapers and magazines that wealthy and powerful figures who were victims of inter- personal violence or theft got first-class VIP treatment.

4. See if you can find out whether victims harmed by delinquent youth can exercise any rights in the juvenile and family courts in your local jurisdiction.

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