CJ/Public Policy Exam 3

history of victim’s place in cj

• early Common Law System (Colonial Period → 1700s)

  • before rise of public prosecutors

  • law enforcement minimal

  • crime viewed as a private wrong rather than a violation of the state

  • victims primarily responsible for seeking justice

• role of the victim

  • victims initiated prosecution and gathered evidence

  • restitution

  • banishment → basically a death sentence at this time

  • corporal punishment → literal death sentence (physical/extreme punishments)

removal of victims

• rise of public prosecutors (1800s → late 1800s) → society is starting to become more complex in every way (ex: bigger cities, more people, etc.)

  • state-appointed prosecutors (district attorneys) began taking over criminal cases

  • many states established prosecutor offices at county level, making prosecution as governmental function

  • courts increasingly saw crime as a public offense rather than a private dispute

• complete shift to state-controlled prosecution (early 1900s → present)

  • by early 20th century almost all US states have formalized public prosecution

  • professionalization of police forces further shifted investigative responsibility away from victims

  • victims’ roles largely reduced to being witnesses in cases prosecuted by the state

the shift of victims’ roles

• wasn’t a major public movement or a public debate

• gradual, structured change due to a combination of practical legal development, state-building efforts, evolving views of justice

  • inconsistent/ineffective enforcement

  • concerns about vigilantism/retaliation

  • rise of “public interest” perspective on crime

  • expansion of governmental/professionalization of law enforcement

  • judicial/legislative reforms

role of victims after shift

• mid-1800s → mid-1900s

  • victim as a passive witness

  • state became sole “victim” in legal terms

  • limited support/services for victims

  • shift toward rehabilitation of offenders

    • policies aimed at reducing recidivism, expanding parole, limiting harsh sentencing

victims’ rights movement

• began in 1970s and gained significant momentum through 1980s/1990s

  • development of “victimology”

  • rise of crime in 1960s/1970s

  • rise of feminist movements

  • growth of victim activism

feminist movement/victim activism

• second wave feminism (1963-1980)

  • advocacy for laws/criminal punishments for SA/DV

• establishment of other victim-centered organizations

  • e.g. Families/Friends of Mission Persons (1974)

  • e.g. Parents of Murdered Children (1978)

  • e.g. Mothers Against Drunk Driving (1980)

• importance of victim widely accepted by 1980s

victim impact statements

• formal statement given by victims (or their families) at sentencing hearings; detailing how crime affected them emotionally, physically, financially

• how victims can influence punishments:

  • judges permitted to consider impact statements for punishment decisions (not guilt)

  • can be used at parole hearings to argue against early release

  • influence on plea bargaining

  • advocacy for sentencing outcomes

  • diversion programs

  • parole hearings

  • Payne vs. Tennessee (1991) → SCOTUS ruled that VIS are constitutional in death penalty cases

Marsy’s Law

• key provisions:

  • notification/participation rights

  • protection from offender

  • input on bail, sentencing, parole

  • legal standing/enforcement

• first passed in CA (2008) as part of CA Victim’s Bill of Rights Act

  • at least 12 states have passed versions of it (FL → 2018)

  • efforts to amend the US Constitution to include law have failed

• Arguments FOR:

  • balances CJ system

  • ensures victim safety

  • increases transparency/communication

• Due Process Concerns:

  • restricting access to evidence: some versions of Marsy’s Law give victims the right to refuse discovery requests, which can prevent the defense from obtaining crucial evidence

  • weakening presumption of innocence: some versions of the law grant victims’ rights that are typically granted after conviction

    • e.g. protection orders, right to be heard at bail hearings

where do victims belong

• some argue that victims will never be fully recognized in the CJ process and better off in restorative justice programs

• restorative justice values: dignity of individuals, participation of offender/victim, reparation

• review of restorative justice literature finds three different frameworks:

  • abolitionism

  • add restorative justice practices to cj

  • integrate restorative justice values in cj system