mounting evidence that victims' rights "may improve victims' mental condition and welfare." The victims rights to attend trials, for example, may "facilitate healing of the debilitating psychological wounds suffered by a crime victim." Similarly, a victim's right to make an impact statement before sentencing can be part of a cathartic process. For some victims, making a statement helps restore balance between themselves and the offenders. Others may consider it part of a just process or may want to communicate the impact of the offense to the offender. As a young victim of sexual assault at the hands of their step-father explained, "when I read [the victim impact statement], it healed a part of me to speak to [the defendant] and tell him how much he hurt me." Her sister agreed, explaining "I believe that I was helped by the victim impact statement. I got to tell my step-father what he did to me. Now I can get on with my life. I don't understand why victims don't have the same rights as criminals, to say the one thing that might help heal them." This multiplicity of reasons explains why victims and surviving family members want so desperately to participate in sentencing hearings, even though their participation may not necessarily change the outcome." 10 The other side of this coin is that excluding a crime victim from participation perpetuates the subordinate position that the crime itself placed the victim in, perhaps exacerbating the psychic harm caused by a crime. Two psychiatric experts have explained: The criminal act places the viction in an inequitable, “one-down" position in 6 Edna Erez, Who's Afraid of the Big Bad Victim? Empowerment and Enhancement of Justice, __ CRIM. L. REV. Victim Impact statements as Victim (forthcoming 1999). 7 Ken Eikenberry, The Elevation of Victims' Rights in Washington State: Constitutional Status, 17 PEPPERDINE L. REV. 19, 41 (1989). 8 Id.; see also S. REP. NO. 105-409 at 17.. 9 Chrissie Beeson, Remarks at the Seventh Annual Governor's Conference on Victims, Salt Lake City, Utah (Apr. 28, 1994); cf. Jason N. Swensen, Survivor Says Measure Would Dignify Victims, DESERET NEWS (Salt Lake City), Oct. 21, 1994, at B4 (reporting anguish widow suffered when denied chance to speak at sentencing of husband's murderer). 10 Erez, Who's Afraid of the Victim?, supra note 6 (“the majority of victims of personal felonies wished to participate and provide input, even when they thought their input was ignored or did not affect the outcome of their case. Victims have multiple motives for providing input, and having a voice serves several functions for them"). Dean G. Kilpatrick & Randy K. Otto, Constitutionally Guaranteed Participation in Criminal Proceedings for Victims: Potential Effects on Psychological Functioning, 34 WAYNE L. REV. 7, 19 (1987) (emphasis added). 9913 The victims' right to attend trials provides a good illustration of the frustration victims suffer when their interests are not protected. Without a right to attend trials, for example, “the criminal justice system merely intensifies the loss of control that victims feel after the crime."2 It should come as no surprise that "[v]ictims are often appalled to learn that they may not be allowed to sit in the courtroom during hearings or the trial. They are unable to understand why they cannot simply observe the proceedings in a supposedly public forum.' One crime victim put it more directly: "All we ask is that we be treated just like a criminal."'" The inequity of treatment between defendants and victims can be so pronounced as to make recovery from the crime quite difficult. Drs. Lee Madigan and Nancy C. Gamble have aptly described the feelings of rape victims on discovering that they will not be allowed to attend trial: “Many survivors remarked that this was when they first realized that it was not their trial, that the attacker's rights were the ones being protected, and that they had no control over what happened to their bodies. The structure of the system often results in a second rape.' :." This "second rape" can be devastating for rape recovery efforts, an essential component of which is the need for a victim to feel that she has taken back control over events in her life.1 999 17 The Supreme Court recently explained that "Justice, though due to the accused, is due to the accuser also." To do otherwise is a recipe for alienation of victims from the criminal justice process and is, finally, at odds with fundamental justice." As President Clinton succinctly put it in endorsing the Victims' Rights Amendment, "when sɔmeone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in."20 The Victims' Rights Amendment, as reflected in Senate Joint Resolution 3, guarantees that victims will have the right to be involved in the process by establishing a list of rights of crime victims. Included among ese rights are the right to notice of proceedings, to attend those proceedings, and 12 Deborah P. Kelly, Victims, 34 WAYNE L. REV. 69, 72 (1987). 13 Marlene A. Young, A Constitutional Amendment for Victims of Crime: The Victims' Perspective, 34 WAYNE L. REV. 51, 58 (1987). Id. at 59 (quoting crime victim). 15 LEE MADIGAN & NANCY C. GAMBLE, THE SECOND Rape: SOCIETY'S CONTINUE BETRAYAL OF THE VICTIM 97 (1989). 16 See LINDA E. LEDRAY, RECOVERY FRom Rape 125 (2d ed. 1994) (“Taking back control from him" is an important step in the recovery process). 17 Payne v. Tennessee, 501 U.S. 808, 827 (1991) (quoting Snyder v. Massachusetts, 291 U.S. 97 122 (1934) (Cardozo, J.); see also Morris v. Slappy, 461 U.S. 1, 14 (1983) (“In the administration of criminal justice, courts may not ignore the concerns of victims."). 18 See generally GEORGE P. FLETCHER, WITH JUSTICE FOR SOME: VICTIMS' RIGHTS CRIMINAL TRIALS (1995). 19 See Paul S. Hudson, The Crime Victim and the Criminal Justice System: Time for Change, 11 Pepperdine L. Rev. 23, 34 (1984) (“justice cannot be done without taking the victim's interest in account, and... far from being irrelevant, victim participation in and support of the criminal justice system is essential for the system to operate effectively."). 20 Statement by the President, Mar. 20, 1997. to be heard at appropriate proceedings. The Victims' Rights Amendment would extend to victims of violent crimes the right to notice of important events in the criminal justice process, including the right "to reasonable notice of... any public proceedings relating ot the crime. This right to be kept informed about the progress of 1921 a case is the foundation on which other rights build, for without notice of proceedings it is impossible for victims to begin to assert their rights. A recent Department of Justice report concluded that “[t]he right for crime victims to be notified about public court proceedings in a timely fashion is fundamental to their exercise of other rights such as the right to be present and heard. Without timely notification of proceedings, victims cannot exercise other participatory rights." Victim advocates have long recognized the hardship that failure to notify victims can cause. A witness from Parents of Murdered Children (POMC) recently testified that many of the calls their national office receive involved "concerns aris[ing] from not being informed about the progress of the case. . . . Because they do not know what is going on, victims frequently must take it upon themselves to call... the prosecutor, or the courts for information about their case. All too often, such calls have to be made when victims' families are in a state of shock or are grieving from the loss of their loved ones. Victims' families should not have to bear the added burden of trying to obtain information. It should be their automatic right."22 The Victims' Rights Amendment would also extend to victims of violent crimes the right "not to be excluded" from public proceedings related to the offense. The President's Task Force on Victims of Crime held hearings around the country in 1982 and concluded that victims should have the right to attend criminal justice proceedings, such as trials: The crime is often one of the most significant events in the lives of victims and This recognition of a victims right to attend in reflected in victims rights amendments around the country. In Missouri, for example, a victim has “the right to be present at all criminal justice proceedings at which the defendant has such right."24 The Victims' Rights Amendment also extends to victims the right to be heard at appropriate points in the process. The Amendment identifies three specific junctures in the process where a 21 U.S. DEP'T OF JUSTICE, OFFICE FOR VICTIMS OF CRIME, NEW DIRECTIONS FROM THE FIELD: VICTIMS' RIGHTS AND SERVICES FOR THE 21ST CENTURY 12-13 (1998). 22 The Victims' Bill of Rights Amendment: Hearings Before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. 35-36 (April 23, 1996) (statement of Rita Goldsmith). 23 PRESIDENT'S TASK FORCE OF VICTIMS OF CRIME, FINAL REPORT 80 (1982). victim statement is permitted. First, the Amendment extends the right to be heard to "public proceedings to determine a release from custody." This will allow, for example. a victim of domestic violence to warn about possible violence if the defendant is released on bail. At the same time, however, it must be emphasized that nothing in the Amendment gives victims the ability to veto the release of any defendant. The ultimate decision to hold or release a defendant remains with judge or other decisionmaker. The Amendment will simply provide the judge with more information on which to base that decision. Proceedings that will "determine a release from custody" include not only bail hearings but other hearings involving release decisions, such as parole and coinmutation hearings and any other hearing that will determine a release. Victim statements to parole boards are particularly important because they "can enable the board to appreciate fully the nature of the offense and the degree to which the particular inmate may threaten the victim or others upon release."25 Second, the right to be heard also extends to any proceeding involving the acceptance of a negotiated plea. Under the present rules of procedure in most states, every agreement between a defendant and the state to resolve a case before trial must be submitted to the trial court for approval. 26 If the court believes that the agreemen, is not in the interest of justice, the court may reject it.27 Unfortunately, victims do not also have the opportunity to present to the judge information about the propriety of the plea agreements. Indeed, it may be that in some cases "keeping the victim away from the judge... is one of the prime motivations for plea bargaining."28 Yet victims have compelling reasons for some role in the plea bargaining process. As one of the nation's leading experts on crime victims' rights recently observed. The victim's interests in participating in the plea bargaining process are many. The fact that they are consulted and listened to provides them with respect and an acknowledgment that they are the harmed individual. This in turn may contribute to the psychological healing of the victim. The victim may have financial interests in the form of restitution or compensatory fine. . . . [B]ecause judges act in the public interest when they decide to accept or reject a plea bargain, the victim is an additional source of information for the court. 29 It should be noted that nothing in the Victims' Rights Amendment requires a prosecutor to consult 25 Frances Bernat et al, Victim Impact Laws and the Parole Process in the United States: Balancing Victim and Inmate Rights and Interests, 3 INT'L REV. OF VICTIMOLOGY 121, 134 (1994). 26 See generally DOUGLAS E. BELOOF, VICTIMS IN CRIMINAL PROCEDURE: A CASEBOOK 46264 (1999) (helpfully discussing this issue). 27 See, e.g., UTAH R. CRIM. P. 11(e) (“The court may refuse to accept a plea of guilty ...."); State v. Mane, 783 P.2d 61, 66 (Utah Ct. App. 1989) (following Rule 11(e) and holding “[n]othing in the statute requires a court to accept a guilty plea ...."). 28 HERBERT S. MILLER ET AL., PLEA BARGAINING IN THE UNITED STates 70 (1978). with a victim before agreeing to a plea bargain. The language is specifically limited to a victim's right to be heard at "proceedings to determine . . . an acceptance of a negotiated plea." A meeting between a prosecutor and a defense attorney to negotiate a plea is not a "proceeding" involving the "acceptance" of a plea, and therefore victims are conferred no right to attend the meeting. In light of the victim's right to be heard regarding any deal, however, it may well be the prosecutors would undertake such consultation at a mutually convenient time as a matter of prosecutorial discretion. Again, it should be noted that victims are only given a voice in the plea bargaining process, not a veto. The judge is not required to follow the victims suggested course of action on the plea, but simply has more information on which to base such a determination. Third, the Victims' Rights Amendment also extends the right to be heard to proceedings to determine a sentence. Defendants have the right to directly address the sentencing authority before sentence is imposed.30 The Victims' Rights Amendment extends the same basic right to victims. Victims have found that making statements at sentencing brings a sense of healing and closure, as explained earlier. Moreover, allowing victims to be heard provides useful information to the sentencing judge and provides a sense of fundamental fairness. As the President's Task Force on Victims of Crime concluded: Victims of violent crime should be allowed to provide information at two levels. One, the victim should be permitted to inform the person preparing the presentence report of the circumstances and consequences of the crime. Any recommendation on sentencing that does not consider such information is simply onesided and inadequate. Two, every victim must be allowed to speak at the time of sentencing. The victim, no less than the defendant, comes to court seeking justice. When the court hears, as it may, from the defendant, his lawyer, his family and friends, his minister, and others, simple fairness dictates that the person who has borne the brunt of the defendant's crime be allowed to speak.31 31 The victims' right to be heard under the Amendment is subject to limitations. A victim does not have the right to speak at proceedings other than those identified in the amendment. For example, the victim has no right to speak at the trial. Given the present construction of these proceedings, there is no realistic design for giving a victim an unqualified right to speak. At trial, however, victims will often be called as witnesses by the prosecution and, if so, they will testify as any other witness would. In short, the proposed Victims' Rights amendment would constitutionally recognize that victims have important interests in the criminal justice and have a vital role to play in criminal justice decisions if the process to be perceived as fair and just. 31 PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT 77 (1982). |