Victims' rights include the right to attend criminal proceedings, to be notified of proceedings such as parole hearings, and to be free from harassment. The victims' rights movement became active through the 1980s and 1990s. While the movement did not seek to reduce the rights of the accused, it wanted the system to acknowledge
that victims also have rights. As a result of this movement, by 2000 almost every state (46) had enacted a "Victims' Bill of Rights," and by 2002, 32 states had passed constitutional amendments for victims' rights.
Recent Federal Action
In addition to re-authorizing some $3.3 billion in funding for the Violence Against Women Act, other Federal legislation signed into law from 1999 to 2000 addressed the needs of crime victims.
The Child Abuse Prevention and Enforcement Act (H.R. 764, signed into law March 10, 2000) increased funding for child abuse prevention and victim assistance programs, while the Strengthening Abuse and Neglect Courts Act of 2000 (S. 2272, signed into law on October 17, 2000) provided $25 million in grants to state and local agencies to reduce the backlog of cases and improve efficiency in abuse and neglect courts.
The Insurance Discrimination Provision of the Financial Services Modernization Act (S. 900, signed into law on November 2, 1999) prohibits insurance companies from terminating coverage or raising premiums of victims of domestic violence. The Protecting Seniors from Fraud Act (S. 3164, signed into law on November 22, 2000) authorized $5 million over five years to reduce crime and fraud against the elderly, while Kristen's Act (H.R. 2780, signed into law on November 9, 2000) authorized funding to help organizations find missing adults in cases where foul play is suspected or when the adult suffers from diminished mental capacity.
The Victims of Trafficking and Violence Protection Act (H.R. 3244, signed into law on October 28, 2000) re-authorized the funding of rehabilitation and shelter programs for victims of international trafficking and created new laws criminalizing forms of human trafficking such as slavery, involuntary servitude, peonage, or forced labor. This includes people who are coerced into sexual or other labor by violence, threat of violence, confiscation of legal documents, and other methods. Prison terms for all slavery violations were increased by 10 to 20 years, and life imprisonment was added for violations involving the death, kidnapping, or sexual abuse of the victim. The law also allows the President to withhold financial aid from governments that do not comply with minimum standards to eliminate such trafficking.
In February 2002 the Interagency Task Force to Combat and Monitor Trafficking in Persons, a Cabinet-level organization, was established. This Task Force is headed by the Secretary of State. In December 2002 President George W. Bush issued the National Security Presidential Directive on Trafficking in Persons, which mandated cooperation among federal agencies to assist victims of trafficking and investigate and prosecute traffickers. As of 2003, identified victims of trafficking are provided by the Department of Health and Human Services with financial support, medical care, and counseling.
Victims' Participation at Sentencing
Every state allows courts to consider or ask for information from victims concerning the impact of the offense on their lives. Forty-eight states permit victim input at sentencing. Forty-two of these states allow written victim-impact statements (detailing the effect the crime has on the victim or, in the case of murder, on the victim's family). The Child Protection Restoration and Penalties Enhancement Act of 1990 (PL 101-647) permits child victims of federal crimes to present statements commensurate with their age, including drawings. While most impact statements are used at sentencing and parole hearings, victims often have input at bail hearings, pretrial release hearings, and plea-bargaining hearings.
The state legislatures have been quicker to agree on victims' rights legislation than the federal government. California's Proposition Eight, the state's "Victims' Bill of Rights," includes Penal Code Section 1191.1, which states:
The victim or next of kin has the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution. The court, in imposing sentence, shall consider the statements of victims and next of kin … and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation.…
Edwin Villamoare and Virginia V. Neto, in Victim Appearances at Sentencing Hearings Under the California Victims' Bill of Rights (National Institute of Justice, Washington, D.C., 1987), found that in California there was little effect on the criminal justice system or sentencing when victims appeared at the sentencing proceedings. The victims, rather than wanting to participate in their cases, were generally more concerned with knowing what was going on with their cases. About 80 percent of the victims interviewed indicated that just the existence of the right to participate was most important, not whether they actually made use of that right. Most victims seemed only to want somebody to understand their situation and recognize their rights as victims.
PAYNE V. TENNESSEE.
In 1991 the United States Supreme Court, in Payne v. Tennessee (501 US 808), ruled that the family of a murder victim could provide victim-impact evidence during the sentencing portion of the trial.
Pervis Payne was convicted of two counts of first-degree murder for killing Charisse Christopher and her two-year-old daughter, and one count of assault with intent to commit murder for attempting to kill her three-year-old son, Nicholas. In arguing for the death penalty,
the prosecutor had presented statements from the victims' family. He stated that while there was nothing the jury could do for Charisse Christopher and her daughter, there was something that could be done for Nicholas.
In the Payne opinion, written by Chief Justice William Rehnquist, the Supreme Court majority overturned its earlier decisions in two similar cases, Booth v. Maryland (482 US 496, 1987) and South Carolina v. Gather (490 US 805, 1989). In these two cases the Court held that under the Eighth Amendment ("cruel and unusual punishment shall not be inflicted") a jury could not consider a victim-impact statement in a capital case (one punishable by death). The Supreme Court had found in Booth that
The capital defendant must be treated as a 'uniquely individual human being' and, therefore, the Constitution requires the jury to make an individualized determination as to whether the defendant should be executed based on the character of the individual and the circumstances of the crime.
In Payne, the majority found that a victim-impact statement in no way limited the defendant's right to plead his or her case, adding that "victim's impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." The High Court concluded that prohibiting victim-impact statements unfairly weighted the case in favor of the defendant.
Justices John Paul Stevens and Thurgood Marshall, with Justice Harry Blackmun joining, dissented. Fearing that the Court was overturning constitutional liberties, Justice Stevens wrote,
Until today our capital punishment jurisprudence has required that any decision to impose the death penalty be based solely on evidence that tends to inform the jury about the character of the offense and the character of the defendant. Evidence that serves no purpose other than to appeal to the sympathies or emotions of the juror has never been considered admissible.
According to Stevens the majority had obviously been moved by an argument that had strong political appeal but no proper place in a reasoned judicial argument.
As noted in FYI: Rights of Survivors of Homicide (1999), a publication of the National Center for Victims of Crime (NCVC), various states have statutes allowing victims' family members to be present at executions. As of December 1998 at least 13 states had statutes allowing immediate family members of victims to witness executions: Alabama, Arkansas, California, Delaware, Kentucky, Louisiana, Mississippi, Nevada, Ohio, Oklahoma, South Carolina, Tennessee, and Washington. Other states, though they do not have formal statutes, have informal policies permitting victims' families to view executions: Florida, Illinois, Montana, North Carolina, Pennsylvania, Texas, Utah, and Virginia. Most states limit the viewing to immediate family members and may limit the total number of viewers.
In Delaware in January of 1996 two sons of a victim watched the hanging of their father's murderer. In 1997 relatives of victims murdered in three different states watched the execution of an Ohio man, Michael Lee Lockart. In February of 1998 family members of the two murder victims of Texan Karla Faye Tucker witnessed her execution by lethal injection. These family members declared that seeing the execution helped put closure to their tragedy. Other witnesses to such executions, however, report that they have yet to find closure.
Just how many victims' immediate family members (over age 18) can be present at executions varies from state to state, depending on the statutes in place. In most states, the number is limited. Some states allow only a few to attend, while others set no limits. Accommodating those family members wishing to be present becomes complicated when executions involve notorious criminals, especially mass murderers.
Such was the case of Timothy McVeigh, who was sentenced to death for bombing the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995, killing 168 people and injuring many others. Prior to McVeigh's execution, set for June 11, 2001, more than 250 survivors and victims' relatives asked to witness the execution. In order to accommodate so many, a lottery was established to select 10 victims/family members to watch the sentence performed. Others wishing to see the execution were able to watch the event in a federal prison in Oklahoma City on closed-circuit television.
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