Victimology

Victimology

7 Victims and the Criminal Justice System: Cooperation and Conflict Part 2: Prosecutors, Defense Attorneys, Judges, Juries, and Corrections Officials

CHAPTER OUTLINE 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 recognize 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 affect- ing victims.

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

continued

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This chapter examines what might happen in thecases that the police have solved by making an arrest. As the fate of the accused person is deter- mined 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 profes- sionals and the agencies that employ them. Two overriding objectives of the entire legal process ought to be the restoration of the injured party’s personal dignity, and a symbolic reaffirmation of social solidarity with those innocent persons who were targeted by cold-blooded offenders. One concern that lurks in the background throughout this step-by-step walk through the system is: Are all victims treated the same way, or are some indi- viduals and groups handled with much greater care than others?

Note that this chapter does not explore how victims fare within the juvenile justice system. That is a separate system, which dates back to the early 1900s in most states. It resolves cases in which minors are accused of committing crimes of vio- lence against people of all ages, as well as property and drug crimes, plus status offenses (such as truancy and curfew violations). It is supposed to operate according to a different set of principles (emphasiz- ing treatment over punishment) and consequently

handles victims differently: generally worse because they are not permitted to play much of a role and can exercise fewer options and rights. In 14 percent of the violent crime cases that police cleared, the arrestees were under the age of 18. In 23 percent of the solved property crimes, juveniles were taken into custody, according to the FBI’s Uniform Crime Report (UCR) for 2010. Therefore, a considerable number of victims will discover that “their” solved cases will be diverted into the juvenile justice sys- tem. Persons harmed by these delinquents face a separate set of problems that are beyond the scope of this chapter.

VICTIMS AND PROSECUTORS

Prosecutors are the chief law enforcement officials within their jurisdictions. They represent the inter- ests 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 complainants who are willing to coop- erate and testify as witnesses. County prosecutors, referred to as district attorneys (or state attor- neys), usually are elected officials (but may be appointed by a governor). The lawyers who actu- ally handle criminal cases and personally work with victims are called assistant district attorneys (ADAs) but are also referred to as assistant prosecu- tors or assistant state attorneys in some jurisdictions. Around the nation, approximately 2,340 prosecu- tors’ offices pursue felony cases in state courts of general jurisdiction. These government lawyers representing victims can become injured parties themselves. About 3 percent of the chief prosecu- tors and 6 percent of their ADAs reported that they personally 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 pro- cess. Prosecutors 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

LEARNING OBJECTIVES continued

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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careers and political futures, the well-being of their agencies, and the general good of the entire com- munity and society. Attending to these concerns and juggling these competing interests can cause conflicts to erupt between prosecutors 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 bureaucra- cies, 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 prosecutors and injured parties who are the clients, customers, 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 government, 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 government and charging no fee—might not do a satisfactory 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).

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 adjourn- ments. 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 jurisdictions, they would receive insultingly low witness fees for their time and trou- ble. In certain metropolitan areas, they would receive no compensation at all because no official informed them of their eligibility and of the proper

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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 Associ- ation (NDAA) commissioned a survey to determine the extent to which victims and other witnesses for the prosecution encountered these types of pro- blems. Conducted in Alameda County, California, the survey documented that about 12 percent of vic- tims were never notified that an arrest had beenmade in their case. Nearly 30 percent never got their stolen property back, even though it had been used as evi- dence. About 60 percent of injured persons who were eligible for financial reimbursement were not informed of their right to file a claim. Roughly 45 percent reported that no one had explained to them what their court appearance would entail. About 27 percent of witnesses, including victims, summoned to court ultimately were not asked to testify. Even though 78 percent lost pay to appear, about 95 percent received no witness fees. As a final insult, 42 percent were never notified of the out- come of the case (Lynch, 1976).

To address these problems, the LawEnforcement Assistance Administration funded the first Victim/ Witness Assistance Projects (VWAPs) through the NDAA. Pilot programs were set up in prosecutors’ 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 establishedVWAPS.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 services will elicit greater cooperation from victims and 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 group perceived to be highly deserving of governmen- 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 witnesses, and furthering the goals of law enforce- ment. In the best programs, agency personnel inter- vene as soon as possible after an offense is committed, providing immediate relief to the injured parties through services that include hotlines; crisis counsel- ing; and emergency shelter, food, transportation, and immediate lock repairs. Some projects provide trans- lators, guidance about replacing lost documents, and assistance in getting back stolen property recovered by the police. Most make referrals to social service and mental health agencies for those needing long- term care and counseling. All programs furnish infor- mation about opportunities for reimbursement of losses and eligibility for compensation benefits (see Chapter 12). A few offer mediation services for vic- tims who seek to reconcile their differences with their offenders (see Chapter 13). To encourage wit- ness cooperation, pamphlets are distributed about the adjudication process (with titles like “What Happens in Court?” and “Your Rights as a Crime Victim”). Through a case-monitoring and notification system, the staff keeps victims and other witnesses advised of indictments, postponements and continuances, negotiated pleas, convictions, acquittals, and other developments. Linked to the notification system is a telephone alert or on-call system to prevent unnec- essary 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 cen- ters exclusively for prosecution witnesses in court- houses 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

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care frequently are available. Help in obtaining witness fees also is provided. The staff in some pro- grams may go as far as to intercede with employers and landlords and other creditors who might not appreciate the stresses and financial difficulties wit- nesses face (Schneider and Schneider, 1981; Geis, 1983; Weigend, 1983; and Rootsaert, 1987).

Some signs that VWAPs are reducing the mistreatment of victims are evident. In 1974, only 35 percent of the offices of district attorneys routinely notified victims of felonies of the out- comes in their cases; 97 percent of these offices did so by 1992, according to the National Prose- cutor Survey Program (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, even-handed 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 state- ments 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 relatives 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 testi- mony when cross-examined. When intimidation succeeds, 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

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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 retali- ation? The annual rates of nonreporting due to fear of reprisal are measured by the NCVS and are pre- sented in Table 7.1. Each year only a small percent- age 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 deter- rent to reporting in cases of simple assaults, aggra- vated assaults (like shootings and stabbings), and robberies. (The percentages can fluctuate consider- ably 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 apparently have not changed substantially over the past few dec- ades; 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, 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 repri- sals. The actual number of nonreporting and non- cooperating individuals really cannot be accurately determined. For example, investigative journalists contended that witness fear was a factor in virtually every violent crime prosecution in Philadelphia. In response to this dire prediction about the antici- pated collapse of many prosecutions, a senator pro- posed 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

T A B L E 7.1 Trends in Fear of Reprisal as a Cause of Nonreporting, United States, Selected Years, 1980–2008

Percentage of Nonreporting Victims Who Feared Reprisals

Type of Crime 1980 1984 1988 1992 1996 2001 2006 2008

Rape 12 11 10 7 12 8 17* 11 Robbery 6 3 7 6 4 6 6* 10 Aggravated assault 6 7 5 6 6 6 11 6 Simple assault 3 4 4 3 3 4 6 7

NOTES: Percentages represent the proportions of respondents citing “fear of reprisal” as the primary reason for not reporting a crime to police that they did disclose to NCVS interviewers.

*indicates that this figure is based on a small number of cases and might be unreliable.

SOURCES: BJS, NCVS, Criminal Victimization in the United States, selected years, 1980–2008.

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feel most vulnerable? Are issues of shared responsi- bility, prior victim–offender relationships, family ties, and neighborhood subcultures significant factors in the intimidation equation (see Dedel, 2006)?

Various studies have yielded contradictory findings about how often injured parties are effec- tively intimidated by the persons that they accuse of harming them. The willingness of complainants to cooperate with prosecutors was not seriously undermined by attempts at intimidation, and these attempts did not influence conviction rates to any statistically significant extent, according to a sample of about 1,000 New Yorkers interviewed at the start of the 1980s (Fried, 1982). But when the same agency conducted another study about 10 years later, the researchers arrived at a different conclusion: attempts to intimidate often succeeded. New Yorkers who were threatened were more than twice as likely to ask that charges be dropped as those who were not contacted by defendants. Individuals who had close prior relations (romantic involvements or family ties) with defendants were more likely to receive menacing looks, to be warned about bodily harm or damage to property, or to be assaulted than those who lodged com- plaints against complete strangers (“Study Shows Intimidation,” 1990). Between 1980 and 2003, at least 19 witnesses to serious crimes, some of whom were warned to “lie or die,” were permanently silenced by lethal attacks in New York City (Glaberson, 2003). Police departments and prosecu- tors’ offices certainly have not eliminated fear of reprisals as a genuine concern, and that continuing threat holds down cooperation rates, solution rates, and conviction rates.

The problem of intimidation goes beyond direct threats. Would-be complainants may experi- ence strong pressures from families and friends not 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 beefed up wit- ness 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 pre- cincts don’t have the resources to provide such spe- cial attention. Because attrition lightens their

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workload, ADAs might allow cases to collapse when key witnesses and complainants fail to appear after being subpoenaed—perhaps due to intimidation. Judgesmay not be vigilant for the same reason: intim- idation leads to nonappearances and ultimately dis- missals, which reduces caseloads. To reduce fears about reprisals, theAmerican Bar Association’s Com- mittee on Victims (1979) put forward five recom- mendations decades ago, but these measures still have not been implemented in many jurisdictions:

1. Legislatures should make attempts at intimida- tion a misdemeanor.

2. Police forces ought to set up victim/witness protection squads.

3. Judges should issue orders of protection and consider violations as grounds for contempt- of-court citations and revocations of bail.

4. Judges should grant continuances rather than drop all charges against defendants if com- plaining witnesses mysteriously fail to appear when subpoenaed.

5. Prosecutors must avoid carelessly revealing information 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 mea- sures 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 vir- tually 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 program. The program would pay for 120 days of temporary hous- ing, moving expenses, storage costs, and two months’ rent. But the family would have to agree never to return to the neighborhood where they 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 cooperating 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 conditions of bail, and enforce speedy trial provisions and wit- ness tampering statutes. Compelling victims to tes- tify by holding them as material witnesses or threatening them with contempt of court usually is ineffective. Unfortunately, criminal justice agen- cies sometimes are intimidated themselves from

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doing more—they fear being held liable in terms of civil lawsuits—if their efforts fall short of protecting the injured party from suffering further harm (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 victims will not achieve the goals they sought when they reported the crime, whether they were looking for maximum punishment as revenge, compulsory treatment 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 forward, ADAs must take into account many other considerations besides the victims’ wishes: How are cases of this kind usually handled in this jurisdiction? 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 com- plainant 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 deter- rent to others who are contemplating committing the same type of offense (an application of the theory of general deterrence)? Would punishment discour- age the offender from repeating this illegal act (an application of the theory of specific deterrence)? Would pressing charges and seeking conviction enhance the community’s sense of security and boost confidence in the criminal justice system? Could the accused cooperate with the authorities as a police informant or as a key witness for the prose- cution 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 pur- sued by another branch of government or in a differ- ent jurisdiction? Are appropriate pretrial diversion programs available that provide treatment to wrong- doers as an alternative to adjudication? And last but certainly not least, would a victory in this case sub- stantially 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

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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.

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 hold- ing a public trial. The typical outcome of the “bar- gaining” (as most observers and participants derisively refer to the offers and counteroffers) is that the defendant agrees to waive his constitutional rights to a trial in front of a jury of his 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 particu- lar counts (accusations of harm against specific vic- tims). Often, the consideration is a promise or a recommendation for a lesser punishment: a sus- pended sentence, probation, a fine, or incarceration

for an agreed-upon period of time that is less than the maximum permitted by the law. An overwhelming 95 percent of all convictions were secured by the accused admitting guilt (possibly just to a misde- meanor instead of the original felony charge) rather than by a jury rendering a guilty verdict, according to a study of cases adjudicated in the 75 busiest urban U.S. counties during 2006 (Cohen and Kyckelhahn, 2010).

The expression plea bargain gives the errone- ous 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 overchar- ging 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 applicable crime committed during a single incident. For example, an armed intruder captured while burglarizing an occupied home could face charges of criminal trespass, breaking and entering, burglary, attempted grand larceny, and carrying a concealed weapon, in addition to the most serious charge of all, robbery. Overchar- ging means filing a criminal indictment for an offense that is more serious than the available evi- dence might support (for example, charging some- one 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 prosecutor’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). 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

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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. But this demand and formulation of the issue has evoked considerable resistance from prosecutors.

It is often presumed that the adversarial model characterizes the actual workings of the adjudica- tion process. In the hard bargaining between pros- ecution and defense, the ADA must be able to produce a cooperative witness eager to testify in order to convince the defendant to cave in, negoti- ate a plea, and confess guilt to at least some of the charges. But the reality of the situation might be that the courtroom work group (composed of the judge, ADA, and defense counsel) shares a mutual interest in processing large numbers of cases expeditiously. Victims serving as witnesses for the prosecution are outsiders whose presence and involvement is often unwanted by these insi- ders because it will slow down their assembly-line practices that resolve cases quickly. Victims see their situations as unique events that deserve careful con- sideration, not as routine occurrences to be rapidly disposed of according to some formula based on that jurisdiction’s current going rate (typical pen- alty or sentence for the type of crime in question, routinely agreed upon by the insiders) (see Walker, 2010).

Predictably, prosecutors, defense attorneys, and judges make dire predictions about what would happen if victims (and police officers and defendants as well) joined them at the table at pretrial confer- ences. These insiders contend that the candid dis- cussions necessary to foster settlements would be inhibited by the presence of outsiders and that vol- atile confrontations between victims and defendants would break out. Furthermore, both victims and defendants could misconstrue the role of judges and accuse them of improper conduct, and as a result the dignity of judges would be diminished by their open involvement in negotiations in front of outsiders (Heinz and Kerstetter, 1979). Prosecu- tors in particular feel threatened by the inclusion of victims (whom they supposedly represent, in addi- tion to the state) at such meetings. They object

because victims might try to use the administrative machinery as an instrument of revenge and might put forward unreasonable demands for the imposi- tion of maximum penalties. Deals would fall through, and risky and costly trials would result (McDonald, 1976).

In general, victims do not have a right to partici- pate in or even be consulted during the process of plea negotiation. Few jurisdictions grant victims a clearly defined role, and most state laws still do not provide them with any formal mechanisms to chal- lenge the decisions of the prosecuting attorneys who act in their names as well as on behalf of “the people.” The Supreme Court has issued several rul- ings that specifically deny complainants the right to challenge the decisions prosecutors make about han- dling their cases. (See Box 7.1 on pages 208–209.)

Many victims are convinced that criminals gain an advantage when they accept plea bargains offered by the prosecution. Actually, resolving cases by negotiating pleas rather than by holding full-scale trials might be in the best interests of cer- tain victims. Besides ensuring a conviction, plea bargaining spares victims the ordeal of testifying in court and undergoing hostile questioning 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 (whose DNA was lifted from the bedding) because the intruder covered her head with a sheet. (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

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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, which includes most states).

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 unnecessarily, they and other crucial prosecution witnesses may lose patience with the protracted deliberations of the legal system. Their commit- ment to see the case through to its conclusion may erode. Stalling succeeds when a complainant or another key witness gives up in disgust and fails to appear in court as required. For example, a vic- tim who lost her handbag 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. Stalling for time might also pay off if victims or other witnesses for the prose- cution 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 continu- ances 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 pro- cess, the defendant’s right to a speedy trial could be violated.

Postponements can prolong and intensify the suf- fering 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 hearings have been rescheduled. To defeat this wear-the-victim-down strategy, some defense motions for postponements could be opposed more vigorously by prosecutors. Similarly, requests for a postponement 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 programs in prosecutors’ offices operate last-minute notification systems.

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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, Mahanna, and Sones, 1992). Researchers determined that murder cases in state courts took an average of just about one year to be resolved, rape cases required 228 days, and robbery cases went on for 144 days from arrest to sentencing, according to a study of more than 50,000 felonies processed in the nation’s 75 largest counties during 2006 (Cohen and Kyckelhahn, 2010). However, in some high-crime areas,hugebacklogs causeevengreaterdelays, prolong- ing 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 undermines what the accusers contend. In addition to a speedy trial, the Sixth Amendment to the Constitution gives defendants the right to confront their accusers. The burden of proof falls on the prosecution, and the defendant is considered innocent unless proven guilty. The accuser must be presumed to be mis- taken until his or her credibility is established beyond a reasonable doubt. The strategy of portray- ing 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 crucial 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 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 information or private matters. (McDonald, 2011)

Because defense attorneys are obliged to be vigorous advocates for their clients, they may advance arguments at a trial or during plea negotia- tions 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 accu- satory testimony 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

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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 pub- lic 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 controversy 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 suc- cessful from the point of view of victims and pro- secutors: defendants 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 jurisdic- tion and the nature of the charges. Some prosecu- tors are more willing to put defendants on trial. Cases involving serious felony charges such as mur- der, rape, aggravated assault, and robbery go to trial

more often than cases involving lesser crimes such as burglary or auto theft. Rape complainants 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).

In murder trials, families and friends of the deceased find it particularly upsetting if defense attor- neys 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 mem- ory”) of murder victims are peculiarly 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 pictures 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 dangerously 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)

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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; 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 even-handed 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, releas- ing defendants on bail is tantamount to turning

dangerous criminals loose. Victims also can be outraged by judges’ decisions to grant bail to defendants whom they see as the culprits who harmed them.

The Eighth Amendment to the Constitution prohibits the setting of excessive bail. Whether it establishes a chance to be bailed out as an affirma- tive 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 2004 (Kyckelhahn and Cohen, 2008).

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 condi- tions 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

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the judge to impose and strictly enforce as a condi- tion of bail that the defendant must avoid all con- tact with the complainant and other prosecution witnesses or else forfeit the privilege of pretrial release.

Sentencing Offenders

After a defendant—by an admission of guilt as part of a negotiated plea or by a jury verdict after a trial— is convicted, 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 treatment programs, community service, and obligations to repay victims. The particular objectives that guide sentencing are specific deterrence, general deter- rence, incapacitation, retribution, rehabilitation, and restitution.

The substantial variation among judges in the severity of punishment they mete out in compara- ble cases is termed sentence disparity. Civil liber- tarians 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 sen- tencing process has been justified on several grounds. 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 sentencing 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 sen- tencing 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 andminimum limits for periods of confinement and for fines. Prose- cutors make recommendations based on deals arrived at during plea negotiations and draw upon the court- room work group’s mutual understandings about appropriate penalties for specific crimes in that juris- diction at that time (“the going rate”). Defense attor- neys use whatever leverage they have on behalf of their clients. Defendants determine their own sen- tences to some degree by their demeanor, degree of remorse, prior record of convictions, and other miti- gating or aggravating personal characteristics and cir- cumstances. Probation officers conduct presentence investigations and make recommendations 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 maxi- mum sentences expire. Corrections officers influence whether or not convicts earn “good-time” reductions and parole by filing reports about cooperative or trou- blesome behavior. The news media can shape case outcomes by their coverage or lack of it. The public’s reactions also can affect the handling of cases, prompt- ing harshness or leniency. And ultimately, state gov- ernors can shorten terms of imprisonment and even stop executions by issuing pardons or commuting sen- tences. Therefore, the victim’s notion of what would be an appropriate sentence is just one of many.

If victims want to compete against this constel- lation of forces and play a role in shaping sentences, they can make their wishes known in two ways: by conveying their requests to judges in writing or by expressing their views orally (allocution) at sentenc- ing 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

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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 presen- tence investigation report (PSIR) prepared by a probation 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 sentenc- ing hearings is allowed at the judge’s discretion. Because of allocution’s highly subjective and emo- tional content, civil libertarians feared that direct appeals to judges could undermine the judiciary’s professional objectivity by injecting inflammatory considerations into the proceedings that could jeop- ardize a convict’s Eighth Amendment rights to be spared from cruel and unusual punishments (see Frey, 2009).

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 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 sen- tences 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 statements and the granting of the allocution privilege were important gains for the victims’ rights movement. Prior to their acceptance and implementation, victims had to rely on prosecutors to present their views and to fully describe their plights. But advocates of victims’

rights argued that the situation was unbalanced. Con- victed persons 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 themselves and their lawyers, families, friends, and other character witnesses. Notions of fair- ness dictated that suffering individuals also be allowed to write or speak about their experiences before sen- tenceswere determined (President’s Task Force, 1982).

Just because activists in the victims’ rights movement succeeded in securing the right to sub- mit an impact statement or to speak in person at a sentencing hearing does not mean that these prac- tices 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 their allocutions (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 possible 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 country served an estimated 38 percent of their maximum sentences. A 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 victims were dissatisfied with the sentences judges handed down in their cases.

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Eighty-six percent agreed with the statement that “guilty offenders are not punished enough” (Forst and Hernon, 1984).

The persistence of this widespread impression raises a crucial question: Just how much punish- ment is enough? Victims might feel that the offen- ders convicted of harming them don’t stay in prison long enough. But no formula or equation exists to calculate the gravity of an offense and translate this rating into the “proper” amount of time a perpe- trator should be incarcerated. Profound disagree- ments divide people over the issue of whether certain murders should carry the death penalty or life imprisonment without parole. Usually over- looked, however, are the dramatic 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 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).

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 cap- ital 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.

During a drug-induced frenzy, a man stabs to death a mother of two toddlers as well as her two-year-old daughter. During the penalty phase of the trial, the grandmother 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 murderer convict to die in the electric chair. (Clark and Block, 1992)

Victims’ rights groups and prosecutors’ organi- zations argued that it was illogical to demand that a jury focus all of its attention on the defendant’s difficult circumstances and other mitigating factors and then ignore the suffering of the survivors of 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 considered a case that raised this issue, it voted to exclude impact statements. But when this issue came up a second time, the majority of justices ruled that sur- vivors 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 constitu- tional 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 out- side 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 land- mark decisions also guide the procedures followed by police departments, prosecutors, trial judges, corrections officials, and other agencies within the criminal justice system.

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Over the past several decades, a number of decisions handed down by the Supreme Court have affected the rights and interests of crime vic- tims (see O’Neill, 1984). Some of these far- reaching rulings are summarized in Box 7.1. In most of these landmark decisions, the Court rejected arguments raised by victims and their supporters.

VICTIMS AND JURIES

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

The Sixth Amendment guarantees a defendant that he will be judged by a jury of his peers who live in the jurisdiction where the alleged offense took place. Exactly what that means (especially the inter- pretation of the term “peers”) is a subject 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 rendering a verdict, a complicated set of procedures and steps that vary from state to state (and the federal government) must be followed 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 par- ticular 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 skep- tical 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 prospective 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)? Secondly, 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 pros- ecution, 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 suf- fered because of what happened to loved ones) more likely to vote for conviction during jury deliberations than the others who have heard the same arguments advanced by the prosecution and challenged by the defense? Finally, when jurors not only decide whether the accused is guilty beyond a reasonable doubt but also determine what the sen- tence should be—as in bifurcated death penalty trials—do they factor in the victim’s characteristics and plight?

The confidential decision making of the mem- bers of a jury that takes place behind closed doors precludes researchers from reconstructing who voted to convict or acquit, and why. So most stud- ies 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 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 law- yers is that prospective jurors who disclose that they

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B O X 7.1 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 testi- mony 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 hav- ing 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 state- ment 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 pro- tection (Triebwasser, 1987b). But in 1991 (Payne v. Tennes- see), the Court reversed itself and ruled that prosecutors could introduce victim impact statements and that the sur- vivors 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).

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 chil- dren 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).

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

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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 sover- eignty 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 negotiated 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 crim- inals 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. However, the decision did not block victims from pursuing lawsuits in civil court (Garvey and Winton, 2003).

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 decision 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 compelling evidence of intentional discrimination in violation of the Eighth and Fourteenth Amendments (Triebwasser, 1987a).

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have been victims in the past can be expected to consciously or subconsciously identify with the injured party who is serving as a prosecution witness. This tendency is presumed to be especially 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 victims 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 victimization, elim- inating victims from the pool often might be justified on an individual basis but impractical 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).

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