**[Chapter 4]{.smallcaps}**

**[Navigating the Justice Systems: Criminal, Federal, Juvenile, Military
and Tribal]{.smallcaps}**

Christine N. Edmunds, Anne K. Seymour, and Mario T. Gaboury[^1]

*In the United States, there are many "systems of justice" that seek to
redress the harm caused to crime victims and hold offenders accountable
for their actions. These include the criminal, federal, juvenile,
military, and tribal justice systems. State-level criminal justice
systems are the primary focus of this chapter, since the vast majority
of cases are adjudicated within states through their respective criminal
justice systems. Some of the basic elements of and distinctions among
these different justice systems will be explored, emphasizing the rights
for crime victims in each justice system. One additional justice system
that may provide some redress for victims, but which is not discussed
here as it is outside the criminal system, is the civil justice system.
Information about civil justice for victims may be obtained from the
Office for Victims of Crime (1998).*

For crime victims, the criminal justice system can be extremely complex.
Depending upon the state in which they live, they may have a wide range
of rights that define and protect their interests as victims of crime.
It is critical that victim advocates and crime victims understand the
criminal justice process and victims' rights at each phase of the
process.

This chapter also describes the basic elements of four other key justice
systems in the United States: federal, juvenile, military, and tribal.
Most of the core components of each justice system directly relate to
the basic phases of state criminal justice systems. The legal language
and the procedures are often different and may confuse victim advocates
and crime victims, but most often the core components remain the same.
However, it is important to emphasize that *rights for crime victims
vary greatly across these justice systems*.

For example, the federal criminal justice system operates under a set of
rights and protections for victims of crime, dating back to the initial
passage of the Federal Victim and Witness Protection Act of 1982. These
rights were recently underscored by the Justice for All Act of 2002,
which includes the Crime Victims' Rights Act of 2004. In the military
justice system, many recent military directives have provided rights and
services for victims of crime. All states have juvenile justice systems,
where cases are prosecuted against minors. Among the greatest changes in
victims' rights over the past decade have been those that have provided
rights for crime victims of juvenile offenders. Many states have enacted
laws to ensure that the rights of victims of juvenile offences mirror
the rights of adult offenders, thus ensuring that, regardless of the age
of the offender, crime victims often receive corresponding rights.
Finally, in the many tribal justice systems, victims' rights also vary
greatly, depending upon whether the crime constitutes an offense that is
prosecuted by the federal justice system or the tribal justice system.

**CRIMINAL JUSTICE SYSTEM**

The criminal justice system is our society's method of addressing crime
and promoting public safety. It is designed to prevent and respond to
crime; identify, apprehend, and prosecute persons charged with crime;
and incarcerate and supervise convicted offenders with efforts to
rehabilitate them and hold them accountable for their criminal actions.
The criminal justice system is a sequential process that includes at
least seven key phases:

1.  Law enforcement.

2.  Prosecution.

3.  Judiciary and courts.

4.  Probation.

5.  Institutional corrections.

6.  Parole.

7.  Appellate courts.

While the agencies in each phase have specific roles and
responsibilities in promoting public and victim safety, often their
roles are shared and require ongoing cooperation among agencies to
ensure effective operations and collaborative responses to victims'
rights and needs.

The professionals involved in the criminal justice process have
relationships with and responsibilities to victims and witnesses,
alleged and convicted offenders, and communities that are concerned
about individual and public safety. They are responsible for protecting
individual rights under state and federal constitutions and laws, and
for implementing procedures that are fair and equitable to all parties
involved.

It is important to note that throughout the seven phases of the criminal
justice system, *all* justice agencies have a role and responsibility
to:

-   Provide information about and referrals to available crime victim
    services.

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-   In cases involving violent crime, provide information about the
    Crime Victim Compensation Program and professionals who can help
    victims of violent crime complete an application to cover
    out-of-pocket financial losses directly resulting from the crime.

## 

## Phase 1: Law Enforcement

Law enforcement agencies operate at many levels, which can include:

-   Local (village/town, city, or other municipal police agencies).

-   County (County Police Department or Sheriff's Office, which often
    includes the county jail).

-   State (highway patrol and state police).

-   Federal, military, and tribal law enforcement.

-   Higher education (police forces on college and university campuses).

Law enforcement agencies work to prevent and respond to crime and
protect individuals and property. They are the first responders when a
crime is reported by a victim, witness, or third party with knowledge
that a crime occurred.

Within the law enforcement segment of the criminal justice system, the
range of rights for crime victims may include:

-   Notifying victims of their rights as a victim of crime.

-   Providing the name(s) and contact information for the law
    enforcement official(s) assigned to the case.

-   Notifying victims of the status of the case and alleged offender
    (such as the arrest of a defendant, a bail hearing, and a
    defendant's release on bail).

-   Providing information about protective measures, such as protective
    or stay-away orders that prevent the defendant from contacting the
    victim, and how to obtain such an order.

-   Helping victims whose property is taken as evidence to secure prompt
    return of the property.

**Phase 2: Prosecution**

When law enforcement has investigated a crime and a suspect has been
arrested, the case is then referred to a prosecutor. The prosecutor is
an attorney who works on behalf of the citizens of a state (or acts in
this capacity for federal, military, or tribal justice systems). The
prosecutor decides whether police have collected enough evidence against
a suspect and what crime(s) to charge. The prosecutor can negotiate the
charges and sentences with the defendant and the defendant's lawyer.
Such negotiations may result in a plea agreement. If the case goes to
trial, the prosecutor prepares and presents the case. At sentencing, the
prosecutor gives the judge information, facilitates the victim impact
statement and restitution order, and makes recommendations for the
sentence.

Alleged offenders may be charged for either misdemeanor or felony
offenses:

-   Misdemeanor: a crime that is less serious than a felony and for
    which the punishment can be imprisonment for one year or less,
    usually in a jail or other local facility, and/or a fine.

-   Felony: a serious crime potentially punishable by state or federal
    prison time.

Crime victims' rights will vary, depending on whether the crime charged
is a misdemeanor or felony.

The prosecutor represents the interests of the state at all hearings
throughout the trial process. While the prosecutor does *not* directly
represent the victim, per se, he or she should take into consideration
the victims' needs and concerns, inform them of their rights under law,
and help them exercise these rights.

Within the prosecution segment of the criminal justice system, the range
of rights for crime victims may include:

-   Notifying victims of their rights as a victim of crime.

-   Notifying victims of the status of the case and any related hearings
    or activities.

-   Informing victims of any rights they have to attend and/or
    participate in such hearings as a victim and/or witness.

-   Notifying victims of the status and location of the alleged offender
    (such as detention and release into the community on bail).

-   Providing information about victims' right to protection and
    assisting them with direct help or referrals to obtain protective or
    stay-away orders that prevent the defendant (or others) from
    contacting them.

-   If victims have the right to a speedy trial, ensuring that their
    needs are requested and respected.

-   Intervening with employers, creditors, and/or schools upon request.

-   If any of a victim's personal property has been taken as evidence
    for the trial, providing victims with information about how to get
    their property returned within a reasonable time frame.

-   Consulting with crime victims to receive their input before any plea
    agreement.

-   ***If there is a conviction:***

    -   Informing victims of their right to complete a victim impact
        statement before sentencing that will help the court understand
        the physical, emotional, financial, and spiritual effects the
        crime has had on them and their loved ones.

    -   Informing victims of their right to restitution and giving them
        information about how to document their financial losses
        resulting from the crime so a request for restitution can be
        made as a condition of the sentence.

    -   Providing victims with information about the conditions of the
        sentence; informing them of the agency that will be
        incarcerating or supervising the convicted offender; and
        providing contact information for victim notification,
        restitution, and other assistance.

### Phase 3: Judiciary and Courts

In the criminal justice system, judges are responsible for many
important activities. Most critical of all, the judge must make fair and
unbiased decisions. A judge cannot take sides in a criminal case. He or
she cannot have any personal contact with the victim or members of the
victim's family while the case is ongoing. The judge cannot meet with an
attorney, victim, witness, defendant, juror, or any other person
involved in the case unless the attorneys for both sides are present.

The judge oversees all hearings throughout the trial process. He or she
decides whether or not a defendant can be released on bail; who should
be appointed as defense counsel; how to handle motions on legal issues;
and what evidence to admit in a case, using the law, rules of evidence,
and rules of procedure. The judge also controls the timing of the case
by setting deadlines and holding the prosecution and defense to those
deadlines. Victims and their families often want their case to finish as
soon as possible; however, many things can happen to slow the progress
of a case.

After a trial that results in a conviction or after a defendant pleads
"guilty" or "no contest" to a felony offense, the judge schedules and
presides over a sentencing hearing. Before the sentencing hearing, a
pre-sentence investigation (PSI) report is prepared for the judge that
includes a wide range of information about the convicted offender.
Important information about the victimsuch as the impact of the crime
on the victim and his or her family and any financial losses that can be
addressed by a restitution orderis also included in the PSI report.

At the sentencing hearing, both the prosecution and the defense can call
witnesses to talk about the circumstances of the crime, the effect of
the crime on the victim and the community, and the prospects for the
offender to be rehabilitated.

Victims have the right to be present at the sentencing hearing and to
provide the court with a victim impact statement that describes the
physical, emotional, financial, and spiritual effects of the crime.

The judge will make a decision about sentencing based upon the facts of
the case, state law, and any sentencing guidelines relevant to the
jurisdiction. The victim can ask for a copy of the sentencing order,
which includes all conditions of the sentence ordered by the judge.

Judges are responsible for ensuring a range of rights for crime victims,
including:

-   Ensuring that victims are informed of their rights.

-   Ordering restitution for crime victims as part of the sentence,
    regardless of whether the defendant was adjudicated through a plea
    agreement or trial and regardless of whether the offender is
    incarcerated or placed on probation.

-   Providing safe and secure waiting areas for crime victims attending
    court proceedings.

-   Taking into consideration victim and community safety in any
    pretrial release hearings.

-   Upon request from the victim, including a no-contact provision as
    part of any pretrial release order, including bail, bond, or release
    on personal recognizance that states that the accused or defendant
    shall not harass, intimidate, threaten, or harm the victim or the
    victim's family.

-   Requesting that prosecuting attorneys demonstrate that reasonable
    efforts were made to confer with the victim before determining plea
    agreements.

-   Ensuring speedy trials for special populations of crime victims
    (such as the elderly or children) in states that have passed such
    laws.

-   Allowing crime victims and their families to be present at court
    proceedings in states that have enacted laws to afford victims this
    right.

-   Allowing victims to be heard at sentencing though victim impact
    statements.

In the post-sentencing period of a criminal case, correctional agencies
are responsible for managing convicted offenders in the community or in
institutions. Sometimes county jails are also considered part of
corrections, although they are used primarily to detain defendants after
arrest and during the trial.

There are two different types of correctional agencies:

-   Community corrections, which include probation and parole
    supervision of offenders in the community, as well as paroling
    authorities that make decisions about whether to allow an
    incarcerated offender to return to the community.

-   Institutional corrections, which include prisons and, in cases of
    prison overcrowding or jurisdictional discretion, county jails.

The purposes of corrections are to promote public safety through the
effective management of offenders; reduce the risk of repeat criminal
behavior through incarceration and community supervision; promote
positive changes in offenders' behavior; and ensure that victims of
offenders under any form of correctional supervision are treated with
respect and provided with rights in accordance with law and services to
help them.

### Phase 4: Probation

Probation is the single most common criminal sanction in the United
States today. The probation agency is responsible for protecting the
community; maintaining public safety through the supervision of
offenders and enforcement functions that uphold the law; and providing
guidance and supervision to offenders that can help them become, and
remain, law-abiding citizens.

The probation department supervises offenders and monitors their conduct
to make sure they are complying with all conditions of supervision. The
department may provide or facilitate services to offenders such as job
training and placement, education, and alcohol or other drug treatment.
If convicted offenders fail to comply with their probation conditions,
the probation officer can arrest them with or without a warrant. The
probation department is also responsible for maintaining contact with
the offender's victim(s) and helping them exercise their rights to
notification, protection, victim impact statements, and restitution.

When a convicted offender is sentenced to probation (which is sometimes
called community supervision), a probation officer will conduct an
assessment to help determine the most effective supervision plan.

Within the probation segment of the criminal justice system, the range
of rights for crime victims may include:

-   Notifying victims of their rights as victims of crime; the name and
    contact information of the probation officer who is supervising the
    offender; and the status of probation supervision and any related
    hearings or activities (such as termination or expiration of the
    sentence, technical violations, or revocation).

-   Notifying victims of the status of the probationer (such as home
    confinement, community supervision, or detention).

-   Notifying victims if the offender requests to serve his or her
    probation sentence in another state and the state that will be
    supervising the offender's probation. This right is enforced by the
    Interstate Compact, through which all 50 states agree to notify
    victims if their offenders ask to serve probation in a state other
    than the one in which the crime was committed.

-   Informing victims of any rights they have to attend, participate in,
    and/or testify at hearings (such as technical violations or
    revocation hearings) as a victim or witness and facilitating their
    attendance and participation.

-   Providing victims with information about their right to protection
    and assisting them with referrals to obtain protective or stay-away
    orders that prevent the probationer from contacting them.

-   Informing victims about the pre-sentence investigation process and
    their role in providing critical information that will contribute to
    the sentencing recommendation.

-   Informing victims of their right to complete a victim impact
    statement before sentencing that will help the court understand the
    physical, emotional, financial, and spiritual effects the crime has
    had on them and their loved ones and to have their statement
    included in the pre-sentence investigation (PSI) report to the
    court.

-   Informing victims of their right to restitution; providing them with
    information about how to document their losses resulting from the
    crime so a request for restitution can be made as a condition of the
    sentence; and monitoring restitution payments made by the offender
    to the court, which will be provided to victims when they are
    received.

### Phase 5: Institutional Corrections

The state Department of Corrections is responsible for incarcerating
offenders who have been convicted of a felony crime. (In cases involving
federal, military and tribal courts, respective correctional
institutions are used.) Through a variety of classification, risk
management, education, and treatment programs, institutional corrections
can effectively manage inmates in a secure environment and contribute to
the overall safety of crime victims and the public.

Some inmates will choose to serve their entire sentence behind bars,
which means that when their sentences expire, they will not be subject
to any supervision in the community. Victims of crime are entitled to
receive information about the status of such offenders while they are
still in prison and when they are released. Other inmates will be
eligible for parole consideration prior to the expiration of the
sentence handed down by the court. In such cases, victims are entitled
to be notified about any possible parole release hearings and to provide
input before or during such hearings.

Information about the name, location, custody level, and first possible
date for considering release of all inmates is available online to crime
victims and the public in most states through their Department of
Corrections Web site, which includes contact information if victims have
any questions or concerns or need additional information about an
inmate's status.

Within the institutional corrections segment of the criminal justice
system, the range of rights for crime victims may include:

-   Notifying victims of their rights as a victim of crime.

-   Notifying victims of the location, status, and custody level of the
    inmate, including notification if the inmate escapes from secure
    custody.

-   Notifying victims of contact information for the institution where
    the inmate is housed.

-   Providing information about a victim's right to protection,
    assisting them with referrals to obtain "no contact" orders that
    prevent the inmate from contacting them, and informing them of
    measures they should take to document and address any unwanted
    contact from an inmate.

-   *If the sentence included an order of restitution*, (in some states)
    informing victims of their right to receive restitution payments
    from the inmate through deposits in a trust account and/or wages
    received from work.

### Phase 6: Parole

When inmates are released from prison, they are reintegrated into the
community through parole. Parole is the supervised release of prisoners
to the community, with conditions attached to the release that are
designed to protect the safety of the public, as well as the victim(s)
of that parolee. Parole is considered part of the prison sentence that
is served in the community. If a defendant is sentenced to "life without
possibility of parole," that means he or she will never be eligible for
parole supervision and will serve the entire sentence in prison.

The paroling authority includes a statutorily designated number of
members that are appointed by and serve at the pleasure of the Governor.
In many states, there is a designated position on the paroling authority
that must be filled by a victim/survivor of crime*.* The paroling
authority makes decisions about whether to grant parole to inmates;
monitors the control of parolees who are released to community
supervision; discharges offenders from parole when they have completed
the terms and conditions of parole supervision; and, in some states,
makes parole revocation decisions if a parolee has violated the terms
and conditions of parole.

### Victim Input at Parole

Victims of crime are allowed to provide information to the paroling
authority about how the crime has affected them since it
occurredphysically, emotionally, financially, and spiritually. This is
called a victim impact statement (VIS). It can be provided to the parole
board before the hearing in a written statement or through a personal
interview with a member of the parole board; before or at the hearing in
an audiotape, videotape, or DVD format; in person at the actual parole
hearing by testifying before the paroling authority or providing a
written statement that will be read at the hearing; or (in some states)
through the use of teleconferencing technology that enables personal
testimony without requiring the victim to be present at the hearing.

### The Paroling Authority and Victims' Rights

Within the paroling authority segment of the criminal justice system,
the range of rights for crime victims may include:

-   Notifying victims of their rights as victims of crime.

-   Notifying victims of their right to attend or participate in
    paroling authority hearings.

-   Providing victims with information to exercise their right to submit
    a victim impact statement to the paroling authority.

-   Providing victims with information about their right to protection
    and assisting them with referrals to obtain protective or no-contact
    orders from law enforcement that prevent the inmate or parolee from
    contacting them.

-   Notifying victims of the decision of the paroling authority (whether
    the offender is denied parole and returned to prison or released on
    parole to the community), and the status of the offender (including
    when he or she will be released from prison).

-   If the offender is released on parole supervision, providing victims
    with contact information for the supervising agency and officer.

-   In some states, if a parolee violates the conditions of parole
    supervision, notifying victims of such violations and providing them
    with the opportunity to attend and/or have input at any parole
    revocation hearing.

### 

### Parole Supervision

When an inmate is released on parole, he or she is supervised and
monitored by a parole officer or agent. Parole supervision centers on
the officer's contact with the offender and his or her family,
employers, friends, and counselor, as well as with the victim of the
crime. The parole officer or agent can obtain a great deal of
information from these sources about whether or not the parolee is
complying with the conditions of parole established by the paroling
authority through a variety of strategies (see the Probation section of
this chapter).

Victims of crime should be aware of the conditions of parole supervision
and the name and contact information for the supervising parole officer
or agent. If a victim is aware of any violations of the conditions of
parole, these should be reported immediately to the parole officer and,
in cases of emergency, to local law enforcement.

### Parole Supervision and Victims' Rights

Within the parole supervision segment of the criminal justice system,
the range of rights for crime victims may include:

-   Notifying victims of their rights as victims of crime.

-   Notifying victims of the name and contact information for the parole
    officer or agent who is supervising the offender.

-   Notifying victims of the status and conditions of parole supervision
    and any related hearings or activities (such as early discharge,
    expiration of parole, or revocation).

-   Informing victims of any rights they have to attend, participate in,
    and/or testify at parole revocation hearings as a victim or witness
    and facilitating their attendance and participation.

-   Notifying victims of the status of the parolee.

-   Notifying victims if the offender requests to be supervised on
    parole in another state and the state that will be supervising the
    offender's probation. (This right is enforced by the Interstate
    Compact, through which all 50 states agree to notify victims if
    their offenders ask to serve their parole in a state other than the
    one where the crime was committed.)

-   Providing information about a victim's right to protection and
    assisting victims with referrals to obtain protective or stay-away
    orders that prevent the parolee from contacting them.

### Phase 7: Appellate Courts

Upon conviction in criminal cases, the convicted offender has
constitutional and other legal rights to appeal. An appeal is a request
by the losing party to have the Court of Appeals or the Supreme Court
review the decisions made in the trial court. Many of the issues raised
on appeal concern how the judge managed the trial. The issues are
technical and usually do not question the defendant's guilt but rather
the procedures used in the court process. For instance, there may be
questions about whether the judge should have allowed certain evidence
to be presented or whether the judge gave improper instructions to the
jury.

# An appellate brief is sent to the state Attorney General by the defendant. In reviewing a case, the appellate court considers only the written record of what occurred at the trial. No new evidence or testimony is given. Only in a small number of cases are oral arguments scheduled. An oral argument is a brief opportunity for each party's attorney to persuade the court and answer any questions. Victims do *not* have to testify during the appellate process.

Ultimately, the appellate court's decision will:

-   Agree with the lower court and uphold the previous decision.

-   Disagree with the lower court and overrule the previous decision.

-   Agree in part, disagree in part, and send the case back for the
    lower court to resolve certain questions.

In 27 states, direct assistance to victims is provided by a designated
victim assistance unit in the Attorney General's office; in eight
states, victim assistance is provided by another unit in the office.
While each state's laws vary, in general victims have the right to be
notified that a case is being appealed; notified of the time, date, and
location of an appeals hearing; and notified about the status and
outcome of an appeal.

**FEDERAL JUSTICE SYSTEM**

Federal and nonfederal courts exist in separate justice systems. Victims
of federal crime can be people who are victimized on federal land
(Indian reservations, national parks, etc.) or victims of federal crime
(e.g., bank robbery). Victims of crime in Indian country may have access
to tribal victim assistance programs. OVC currently funds 30 such
programs, which provide a wide range of services on reservations to
victims of crime.

Crimes committed in Indian country may be prosecuted in both federal and
tribal court, depending on the nature of the crime and whether the
victim and/or perpetrator are Native American. Crimes committed in
Indian country by non-Indians against non-Indians are usually under the
jurisdiction of the state court.

Federal crimes are prosecuted by the U.S. Attorney's Office. The main
person who deals with federal victims is the federal Victim/Witness
Coordinator. If you are involved in a case where there is federal
jurisdiction, it is vital to coordinate with the federal Victim/Witness
Coordinator, located within the U.S. Attorney's Office in your
jurisdiction.

Due to the large number of cases handled by most U.S. Attorneys'
Offices, it can take months or even years for the office to accept or
decline a case for prosecution. If the case is also subject to tribal
jurisdiction, a victim may need to deal with two different court
systems. Victim service providers working with tribal victims need to be
familiar with federal court procedures as well as tribal court
procedures.

Many federal crimes have multiple victims. Terrorism prosecutions, such
as Timothy McVeigh's trial, can involve hundreds of victims. The
Zachariah Moussai case, for example, involved thousands of victims and
witnesses. Financial crimes can also involve hundreds of victims.

The main agency involved in providing support for programs that deal
with victims of federal crime is the Office for Victims of Crime,
Federal Assistance Division (FAD). The FAD is responsible for providing
advocacy, leadership, and policy development guidance to federal
agencies and Indian tribes to assist them in developing direct services
for victims of federal crime. The FAD also coordinates services with
other elements of the Federal Government, such as the Federal Bureau of
Investigation, Drug Enforcement Administration, Department of Homeland
Security, Executive Office for United States Attorneys, Department of
the Treasury, Department of State, the Federal Bureau of Prisons, the
Department of Defense and the military services, the Postal Inspection
Service, the Bureau of Indian Affairs, and other federal agencies with
criminal justice responsibilities. The staff assists the OVC Director in
monitoring agency compliance with the victims' issues contained in
federal statutes and the accompanying Attorney General Guidelines for
Victim and Witness Assistance (AG Guidelines). The FAD also:

-   Identifies service needs of Federal crime victims and recommends
    strategies and program activities to address or improve the needed
    services.

-   Develops training and technical assistance programs for staff of
    federal law enforcement agencies, U.S. Attorneys' offices, and
    American Indian/Alaska Native organizations to enhance their
    capacity to respond to crime victims.

-   Funds demonstration programs with federal agencies with criminal
    justice responsibilities and Indian tribes/tribal organizations to
    develop promising practices that can be replicated by other agencies
    and tribes or tribal organizations.

-   Administers the discretionary grant program of the Children's
    Justice Act Partnerships for Indian Communities, which makes grant
    awards available to Indian tribes to improve the investigation,
    prosecution, and handling of child abuse cases.

-   Administers the Tribal Victim Assistance (TVA) discretionary grant
    program (an expansion of the former Victim Assistance in Indian
    Country grant program), which makes grant awards available to Indian
    tribes and tribal organizations to establish victim assistance
    programs in remote areas of Indian Country.

-   Administers the Counseling for Crime Victims in Indian Country by
    Faith-Based Organizations. The purpose of this initiative is to
    support the provisions of faith-based counseling services to crime
    victims and to support the creation of collaborative models for
    local victim assistance programs to join with faith-based
    organizations, spiritual leaders, and traditional healers in
    American Indian/Alaska Native (AI/AN) communities.

-   Encourages coordination between victim services provided by federal
    agencies and victim services offered by the states' victim
    compensation programs and victim assistance providers.

-   Encourages coordination between victim assistance programs in the
    military services, the FBI, and U.S. Attorneys' Offices to provide
    resources and improve services to victims of crime on military
    installations.

-   Monitors the law enforcement agencies of the Department of Justice,
    the Department's Litigating Divisions, and the U.S. Attorneys'
    Offices for compliance with the Attorney General Guidelines for
    Victim and Witness Assistance (AG Guidelines).

-   Monitors Federal law enforcement agencies outside the Department of
    Justice to encourage adoption of guidelines consistent with the
    federal guidelines for fair treatment of crime victims and
    witnesses.

-   Analyzes, reviews, and comments on proposed federal legislation
    regarding crime victims. (OVC, n.d.)

Federal crimes are prosecuted in one of the 94 United States Attorneys'
Offices throughout the United States, Guam, Puerto Rico, and the Virgin
Islands.

**Major Federal Laws Affecting Federal Crime Victims**

Several significant laws affecting federal victims of crime have been
enacted in the past two decades. Six major federal laws that directly
affect victims in federal courts are:

-   The Victim and Witness Protection Act of 1982.

-   The Crime Control Act of 1990.

-   The Violent Crime and Law Enforcement Act of 1994.

-   The Mandatory Victims Restitution Act of 1996.

-   The Victims' Rights Clarification Act of 1997.

-   The Crime Victims' Rights Act of 2004.

The **Victim and Witness Protection Act of 1982** (VWPA) was enacted Ato
enhance and protect the necessary role of crime victims and witnesses in
the criminal justice process; to ensure that the federal government does
all that is possible within the limits of available resources to assist
victims and witnesses of crime without infringing on the constitutional
rights of the defendants; and to provide a model for legislation for
state and local governments@ (AG Guidelines, 1983). The VWPA was
considered landmark legislation in 1982 because, for the first time,
basic rights for victims of federal crimes were established.

The **Crime Control Act of 1990** contained a wealth of new legislation
and amendments to the existing federal criminal code affecting the
treatment of crime victims, including children.

-   Title V, the Victims= Rights and Restitution Act of 1990, in effect
    created a Federal Crime Victims= Bill of Rights and codified
    services that should be available to victims.

-   Title II, the Victims of Child Abuse Act of 1990, contained
    extensive amendments to the federal rules of criminal procedure
    affecting the treatment of child victims and witnesses in the
    federal system, such as allowing the use of closed-circuit
    television and videotaped depositions of children.

-   Title XXXI, Bankruptcy and Restitution, protected victims by
    preventing drunk driving offenders from discharging debts arising
    from offenses under Chapter 13 of the bankruptcy code.

The enactment of a Federal Crime Victims' Bill of Rights was historic
and paralleled legislative activity in the states. Section 502 of the
Act mandated that federal officials . . . shall make their best efforts
to see that victims of crime are accorded the following rights:

1.  The right to be treated with fairness and with respect for the
    victim's dignity and privacy.

2.  The right to be reasonably protected from the accused offender.

3.  The right to be notified of court proceedings.

4.  The right to be present at all court proceedings related to the
    offense, unless the court determines that testimony by the victim
    would be materially affected if the victim heard other testimony at
    trial.

5.  The right to confer with the attorney for the Government in the
    case.

6.  The right to restitution.

7.  The right to information about the conviction, sentencing,
    imprisonment, and release of the offender (42 U.S.C. Section
    10606(b)).

Four years later, Congress enacted comprehensive crime legislation
entitled the **Violent Crime Control and Law Enforcement Act of 1994**
(Crime Act). In addition to the establishment of new victims' rights,
and the passage of the historic Violence Against Women Act contained
within it, the Crime Act encouraged the federal government to form
partnerships with state and local communities. The specific rights and
services contained in the 1994 Crime Act include:

-   Notice and payment for testing and counseling for sexually
    transmitted diseases for sexual assault victims.

-   The right of a domestic violence victim to be heard at a prerelease
    hearing of the defendant.

-   Allocution at sentencing for victims of crimes of violence and
    sexual abuse.

-   Mandatory restitution for the following victims:

    -   Domestic violence.

    -   Sexual assault.

    -   Sexually exploited and other abused children.

    -   Telemarketing fraud victims.

The **Mandatory Victims Restitution Act of 1996** amends the federal
criminal code to require judges to order mandatory restitution for
victims of violent crime, certain property offenses, fraud, and consumer
product tampering. Restitution may now be granted to victims who are not
victims of the specific offense resulting in conviction, provided that
the parties agree to that in the plea agreement. In addition, procedures
for issuing and enforcing restitution orders were significantly expanded
under the Act. Full implementation of these new provisions will bring
new importance to restitution in federal criminal proceedings.

This Act expands the rights of victims to attend and observe trial,
stating that victims shall not be excluded from the trial of the
defendant because the victim may, during the sentencing hearing, make a
statement or present any information in relation to the sentence. This
right is further expanded in capital cases to deny exclusion in cases
where the victim may, during the sentencing hearing, testify as to the
effect of the offense on the victim and the victim's family.

The **Crime Victims' Rights Act**, Section 3771 (a) of the Justice for
All Act of 2004 (H.R. 5107, Public Law 108-405), amends the federal
criminal code to grant crime victims specified rights, including:

> \(1\) The right to be reasonably protected from the accused.
>
> \(2\) The right to reasonable, accurate, and timely notice of any
> public court proceeding or any parole proceeding involving the crime,
> or of any release or escape of the accused.
>
> \(3\) The right not to be excluded from any such public court
> proceeding, unless the court, after receiving clear and convincing
> evidence, determines that testimony by the victim would be materially
> altered if the victim heard other testimony at that proceeding.
>
> \(4\) The right to be reasonably heard at any public proceeding in the
> district court involving release, plea, sentencing, or any parole
> proceeding.
>
> \(5\) The reasonable right to confer with the attorney for the
> Government in the case.
>
> \(6\) The right to full and timely restitution as provided in law.
>
> \(7\) The right to proceedings free from unreasonable delay.
>
> \(8\) The right to be treated with fairness and with respect for the
> victim's dignity and privacy.

The Act adds new victims' rights and modifies some existing rights. Most
notable is the new right of victims to be reasonably heard at any public
proceeding involving release, plea, or sentencing. The Act also requires
prosecutors to advise victims that they can seek the advice of an
attorney with respect to the rights established by the Act. Although the
Act does not provide grounds for a new trial, it allows victims to file
motions to reopen a plea or a sentence in certain circumstances.

An OVC Fact Sheet about the Justice for All Act and Crime Victims'
Rights Act can be accessed at
[www.ojp.usdoj.gov/ovc/publications/factshts/justforall/welcome.html](../www.ojp.usdoj.gov/ovc/publications/factshts/justforall/welcome.html).

**2005 Attorney General Guidelines for Victim and Witness Assistance**

The new edition of the Attorney General Guidelines for Victim and
Witness Assistance, published in 2005, facilitates the critical work of
the U.S. Department of Justice on behalf of crime victims. It
incorporates the many provisions for crime victims' rights and remedies
that have been enacted since the publication of the last edition of the
Guidelines in 1995, including the Justice for All Act of 2004. It also
includes new guidance on assisting the victims of certain crimes, such
as human trafficking and identity theft, which may give rise to unique
challenges. According to U.S. Attorney General Alberto R. Gonzales:

> We at the Department of Justice have a duty not only to uphold the
> rights of individuals who are accused or convicted of a crime but to
> protect the rights of the victims of crime. Dedicated professionals
> throughout the Department of Justice work to vindicate the rights of
> crime victims under law, to offer them aid through the Crime Victims'
> Fund, and generally to ease their interaction with the criminal
> justice system. Crime victims deserve no less (2005, p. 2).

A copy of the 2005 Attorney General Guidelines can be accessed at
[www.usdoj.gov/olp/final.pdf](../www.usdoj.gov/olp/final.pdf).

**Resources for Federal Victims of Crime**

The OVC's Federal Assistance Division (FAD) is responsible for providing
advocacy, leadership, and policy development guidance to federal
agencies and Indian tribes to assist them in developing direct services
for victims of federal crime. FAD also coordinates services with other
federal agencies with criminal justice and victim-related
responsibilities (including the federal agencies described below as well
as the Drug Enforcement Administration, Department of Homeland Security,
Department of State, agencies of the Department of the Treasury,
Department of Defense and the military services, the Postal Inspection
Service, and the Bureau of Indian Affairs, among others). Information
about OVC FAD and links to other relevant federal agencies can be
accessed at: www.ojp.usdoj.gov/ovc/welcovc/fcvd/welcome.html.

Each U.S. Attorney's Office has a victim-witness coordinator who can
provide information to victims of federal crime or serve as a resource
regarding the federal criminal justice system. A direct link to each
U.S. Attorney's Office can be accessed at:
www.usdoj.gov/usao/offices/index.html.

In January 2002, the Federal Bureau of Investigation (FBI) established
an Office of Victim Assistance (OVA) at its headquarters. The mission of
OVA is to ensure that victims of crimes investigated by the FBI are
afforded the opportunity to receive the services and notification
required by federal law and the Attorney General Guidelines on Victim
and Witness Assistance. The FBI has 112 full-time Victim Specialist
positions to assist victims of federal crime that are investigated by
the division or field office where they work. Information about the FBI
OVA can be accessed at: www.fbi.gov/hq/cid/victimassist/home.htm.

The U.S. Department of Justice has instituted the Office of the Victims'
Rights Ombudsman within the Executive Office of the U.S. Attorneys to
receive and investigate complaints filed by crime victims against its
employees. The Office was established by the Crime Victims' Rights Act
of 2004 (see above). Information about the Office of the Victims' Rights
Ombudsman can be accessed at ww.usdoj.gov/usao/eousa/vr/index.html.

The U.S. Department of Justice Victim Notification System (VNS) is a
cooperative effort among the FBI, U.S. Attorneys' Offices, and the
Federal Bureau of Prisons. The automated system provides information and
notification to federal victims of crime in English and Spanish. VNS
provides victims with information about scheduled court hearings, and an
offender's custody status (such as incarceration, placement in community
corrections centers, furlough, release, or death). Additional
information about VNS can be accessed at:
www.usdoj.gov/usao/nd/victimwitness/brochures/vns.html.

**JUVENILE JUSTICE SYSTEM**

There are significant differences between America=s juvenile justice and
adult criminal justice systems. These differences stem from the
underlying philosophical distinction of the juvenile court, which is to
assist young people in need of services and capable of rehabilitation,
rather than to prosecute them for crimes. It is helpful to know and
understand these differences, as they result in distinct terminology as
depicted in Exhibit IV-1.

**[Exhibit IV-1]{.smallcaps}**

Terminology Used in the Criminal Justice and Juvenile Justice Systems

  -----------------------------------------------------------------------
  **Criminal Justice System**         **Juvenile Justice System**
  ----------------------------------- -----------------------------------
  Prosecutors                         Court advocates

  Charge                              Petition for a hearing

  Trial                               Hearing

  Conviction                          Adjudication

  Sentence                            Disposition

  Guilty verdict                      Finding

  Sentence                            Placement

  Parole supervision                  Aftercare

  Criminals/delinquents               Wards/kids

  Getting locked up                   Placement

  Crimes                              Incidents
  -----------------------------------------------------------------------

It is extremely important that victim advocates become familiar with the
statutory provisions, procedural operation, and terminology of the
juvenile justice system within their respective jurisdictions, as there
are wide variations here.

**Victims' Rights in Juvenile Cases**

The basic victims' rights afforded to victims of adult criminal
offenders are available to victims of juvenile offenders in many
jurisdictions, including the rights to be treated with dignity and
respect; receive notification and information; be afforded reasonable
protection; be heard (victim impact statements); receive restitution; be
provided with information and referrals; and be provided with
information about how to apply for victim compensation (the latter in
violent crime cases). However, enforcement of such rights is not always
consistent. It depends on the statutory language that creates the
juvenile court and often depends on whether juvenile judges allow
victims access to the court when their interests conflict with those of
the juvenile offender.

**Juvenile Offender Confidentiality**

Perhaps the most frequent conflict between juvenile offenders and their
victims is the issue of confidentiality, a hallmark of the traditional
juvenile court system. Most states have included provisions in their
juvenile justice statutes that mandate confidentiality for the juvenile
offender. These laws were enacted to avoid stigmatizing the youthful
offender with every expectation that such information would serve only
to impede rehabilitative efforts. Consequently, information regarding
the name and age of the offender is sometimes unavailable to the victim
from law enforcement and juvenile court records.

Juvenile court proceedings are often confidential and generally exclude
all persons other than court personnel from the actual hearing. In most
states, the records of juvenile court proceedings are sealed after the
offender has reached adulthood, and the dispositions of juvenile cases
cannot be considered in any future criminal proceedings against the
offender as an adult. However, recent public policy trends give certain
organizations and individuals (including victims) access to juvenile
information and records. Some states allow victims access to specific
information about the status of the case and the offender, while
excluding the general public from such access. Others make most
information about juveniles a matter of public record.

Victim service providers must be familiar with confidentiality laws
pertaining to youthful offenders, as they affect crime victims' rights
to receive notification; be protected from intimidation, harassment, or
harm; make victim impact statements; and seek restitution.

Other substantive and procedural issues of importance to victims
include:

-   The age for juvenile court jurisdiction is generally under 18 but
    can vary and may apply to older individuals if there is evidence
    that they lack maturity or social development. Conversely, some
    jurisdictions provide that young offenders may be tried as adults
    under certain circumstances.

-   Many states incarcerate juvenile offenders for a period of up to no
    more than the age of 25. Others have enacted statutes that provide
    for the transfer of serious youthful offenders after a given age to
    the adult penal system to finish the remainder of their designated
    period of detention/incarceration.

-   Most states employ a progressive array of sanctions for juvenile
    offenders. Some "diversion" or alternative programs include parent
    and child counseling, police youth activities, community service,
    drug prevention education, and informal probation. Such programs are
    generally used with first-time nonviolent offenders. Often these
    programs will impose restitution as a provision of diversion.
    Victims should seek input into any decision to divert a case.

-   Probation is the sanction used most often in both criminal and
    juvenile justice cases. This sanction of community supervision is
    imposed by the juvenile court. Probation is generally characterized
    by requirements, known as Aterms and conditions of probation,@ which
    delineate expected behavior that the probationer must adhere to for
    a given period of time.

-   Often, juvenile courts will commit offenders to community treatment
    programs. Such residential counseling centers and drug treatment
    programs are designed to hold offenders accountable while helping
    them learn the life skills necessary to reintegrate into society.
    The programs may be located in the local community or in adjoining
    jurisdictions or states.

-   With the exception of serious, habitual, and violent offenders,
    youth detention facilities are generally considered the disposition
    of last resort for young offenders in the juvenile justice system.
    It is important for victims to understand that most youthful
    offenders are eventually returned to the community.

-   Many states are enacting statutes or administrative policies that
    afford victims opportunities to participate in juvenile parole
    hearings. In determining whether an individual should be released
    from custody, each juvenile parole board considers many factors,
    including the offender=s progress toward educational or vocational
    goals and his or her overall behavior while incarcerated. In
    addition, the juvenile paroling authority considers the seriousness
    of the original offense for which the person was incarcerated, the
    overall impact upon his or her release into the community, and the
    youthful offender=s financial and legal obligations, including
    victim restitution. This information is included in victim impact
    statements, among other resources.

-   Similar to probation in its design and functioning, parole
    supervision (also called aftercare) is granted to juveniles who are
    released after having served a period of institutionalized detention
    or incarceration. Parole officers can be a valuable asset to victim
    service providers in ensuring that youthful offenders refrain from
    contacting or harassing the victim in any way and fulfill their
    court-ordered restitution obligations.

**Victim Services in Juvenile Court**

A significant trend since the early 1990s has been the development of
victim assistance programs within juvenile courts. Similar to
victim/witness programs in the criminal justice system, these programs
provide a wide range of information, support services, advocacy, and
referrals to victims of youthful offenders. The National Council of
Juvenile and Family Court Judges has identified nine critical elements
that comprise a comprehensive victim services program within the
juvenile justice system:

1\. A complete understanding of the mandates of the statutes applicable
in the state.

-   Victims' rights statutes.

-   Juvenile code/statute and confidentiality restrictions.

-   Related statutes (e.g., child orders of protection).

2\. A complete understanding of the operations of juvenile/family court.

-   Division of responsibilities within the court system.

-   Roles and responsibilities of court personnel.

-   Accessing case information within the system.

3\. Knowledge of what aspects of the statute are currently being met and
by whom. Basic victims' rights should include:

-   Explanation of the juvenile justice system.

-   Notification of hearings/proceedings.

-   Establishment of a safe victim waiting room.

-   Submission of a written or oral victim impact statement.

-   Orders of restitution.

-   Measures of victim protection.

4\. Identification of personnel in the system who support the precepts
of victims= rights in conjunction with the protections to be afforded to
juvenile offenders.

-   Building relationships based upon an understanding of victimization.

-   Identifying specific concerns or reservations staff may have
    regarding implementation of victims' rights.

5\. Determination of the role of victim service professionals within the
system.

-   Staff member of the juvenile justice system (assigned position).

-   Contracted individual whose responsibilities and involvement in
    court cases is well-defined; what protection is necessary for
    juvenile confidentiality (statutory restrictions).

6\. Referral of victims to victim service professionals.

-   Review of police reports submitted with admission of juvenile
    offender to detention facility.

-   Referral of victims by court personnel (utilizing referral form).

-   Self-referral by victims.

-   Referral of victims from community resources.

7\. Development of services to be provided to victims and subsequent
training to be provided to juvenile court staff:

-   Explanation of the juvenile court process, terminology, and
    procedures, and roles of various court staff.

-   Crisis intervention, supportive counseling relevant to victimization
    issues.

-   Availability of Crime Victims= Compensation.

-   Access to community resources through networking (e.g., counseling)
    and subsequent referral, as appropriate.

-   Preparing and accompanying victims to hearings.

-   Assisting with the completion of victim impact statements.

-   Providing notification of all court dates (if required).

-   Advocating for victims with law enforcement agencies in order to
    obtain report information for the victim and to encourage the law
    enforcement agency to refer the case to the court.

-   Accompanying victims to line-ups held in detention facility.

-   Establishing protocol for assisting families in which the
    victimization is sibling on sibling.

-   Providing assistance with restitution information.

-   Notifying victims of disposition of case.

8\. Participation on various committees within the juvenile justice
system when victim assistance is pertinent to the assignment of that
committee.

-   Public relations/community education.

-   Training committees (e.g., police, court personnel).

-   Any protocol committees involving victim-related issues (e.g.,
    notification of release from secured facility, victim/offender
    mediation).

9\. Program development and program evaluation.

-   Determine source(s) of funding for the program.

-   Develop surveys for court personnel feedback.

-   Develop protocols for involving volunteers/student interns as victim
    advocates.

**MILITARY JUSTICE SYSTEM**

Members of the U.S. military are subject to the same rules of behavior
as the civilian population but are also governed by the Uniform Code of
Military Justice.

**Uniform Code of Military Justice**

The Uniform Code of Military Justice (UCMJ), enacted by Congress,
contains substantive and procedural laws governing the military justice
system. The President prescribes procedural rules and punishments for
violations of crimes in the Manual for Courts-Martial (MCM). For
example:

-   Investigations of serious offenses involving military personnel such
    as rape, indecent assault, drugs, or larceny are usually conducted
    by a criminal investigative agency, such as the Army's Criminal
    Investigation Command (CID).

-   For less serious offenses and most military-connected crimes, the
    authority rests with military or security police investigators.

-   In cases involving very minor offenses, the immediate commander of
    the military member suspected will conduct or cause to be made a
    preliminary inquiry. Lawyers, known as judge advocates, are actively
    involved in advising commanders throughout the process.

Unlike civilian communities, military commanders exercise discretion in
deciding whether an offense should be charged and how the offenders
should be punished. The disposition decision is one of the most
important and difficult decisions facing a commander. The commander has
a number of options available for the resolution of disciplinary
problems. Commanders may choose to:

-   Take no action when a preliminary inquiry indicates that the accused
    is innocent of the crime or that the only evidence is inadmissible.

-   Initiate administrative action against a service member. This action
    is not punitive; instead, it is meant to be corrective and
    rehabilitative. Administrative actions include measures ranging from
    counseling or a reprimand to involuntary separation.

-   Dispose of the offense with nonjudicial punishment. Article 15,
    UCMJ, provides a means of handling minor offenses requiring
    immediate corrective action. Rather than a judge, the commander
    conducts the hearing. In order to find the service member guilty,
    the commander must be convinced beyond a reasonable doubt that the
    service member committed the offense.

-   The commander may dispose of the offense by court-martial. If the
    commander decides that the offense is serious enough to warrant
    trial by court-martial, the commander may exercise this option,
    preferring and forwarding charges.

There are three levels of court-martials: summary, special, or general:

-   A summary court-martial is designed to dispose of minor offenses.
    Only enlisted service members may be tried by summary court-martial.
    A single officer presides over the hearing. The accused has no right
    to counsel but may hire an attorney to represent him or her.

-   A special court-martial is an intermediate level composed of either
    a military judge alone or at least three members and a judge. An
    enlisted service member may ask that at least one-third of the court
    members be enlisted. There is both a prosecutor, commonly referred
    to as the trial counsel, and a defense counsel. In addition, the
    accused may be represented by civilian counsel, at no expense to the
    government, or by military counsel requested by the individual.

-   A general court-martial is the military's highest level trial court
    and tries service members for the most serious crimes. The
    punishment authority of the general court-martial is limited by the
    maximum authorized punishment for each offense in the Manual for
    Courts-Martial.

Each court-martial differs in the procedures, rights, and possible
punishment that can be adjudicated.

**DoD Victim and Witness Assistance Programs**

DoD Directive 1030.1, Victim and Witness Assistance and DoD Instruction
1030.2, Victim and Witness Assistance Procedures implement statutory
requirements for victim and witness assistance and provide guidance for
assisting victims and witnesses of crime from initial contact through
investigation, prosecution, and confinement. Together, the Directive and
Instruction provide policy guidance and specific procedures to be
followed for victim and witness assistance in all sectors of the
military. They apply to the Office of the Secretary of Defense and the
following military components:

-   The Chairman of the Joint Chiefs of Staff.

-   The Unified Combatant Commands.

-   The Inspector General of the Department of Defense.

-   Department of Defense Field Activities and Defense Agencies.

-   The military services, including the Coast Guard (when operating as
    a service in the Navy).

The Directive includes a Bill of Rights that closely resembles the
Federal Crime Victims' Bill of Rights. DoD officials are responsible for
ensuring that victims of military crimes are afforded the rights to:

-   Be treated with fairness and respect.

-   Be reasonably protected from the offender.

-   Be notified of court-martial proceedings.

-   Be present at court-martial proceedings.

-   Confer with the government attorney.

-   Available restitution.

-   Know the outcome of the trial and any release from confinement.

The DoD victim and witness assistance programs cover the entire military
justice process from investigation through prosecution and confinement.
In providing services and assistance to victims, the DoD programs
emphasize an interdisciplinary approach involving law enforcement,
chaplains, family advocacy personnel, emergency room staff, family
service center staff, equal opportunity staff, judge advocates, unit
commanding officers, and corrections personnel.

**Family Advocacy Program**

Each branch of the military services has a Family Advocacy Program that
operates in accordance with DoD Directive 6400.1. These programs are
designed to prevent child and spouse abuse, to promote early
identification and intervention in cases of alleged child and spouse
abuse, and to provide programs of rehabilitation and treatment for child
and spouse abuse problems. Each branch of service maintains a central
registry containing data on reports of alleged child and spouse abuse.
If more than one child is a victim of sexual abuse in an out-of-home
care setting, DoD may convene a multidisciplinary team of specially
trained personnel to provide technical assistance.

**Sexual Harassment and Counseling Hotline**

The Army, Navy, Marines, and Air Force provide hotlines for victims of
sexual harassment to provide counseling and assist them in discreetly
reporting crimes to appropriate officials.

**Navy's Sexual Assault Victim Intervention Program (SAVIP)**

The Navy SAVIP was established in 1994 as a comprehensive, standardized,
victim-sensitive system response to sexual assault. The program provides
sexual assault awareness and prevention education programs and victim
advocacy and intervention services; and collects accurate data on sexual
assault in the Navy. There are 28 SAVIP coordinators working in 26
Family Service Centers.

Descriptions of these DoD victim assistance initiatives can be accessed
at [www.dod.mil/vwac/](../www.dod.mil/vwac/). In addition, this Web site
includes information about victim and witness assistance, victim/witness
forms, training materials relevant to DoD guidance and policy,
victim/witness assistance, and links to victim and witness points of
contact for the DoD, including:

-   Department of the Air Force.

-   Department of the Army.

-   Coast Guard.

-   Marine Corps.

-   Department of the Navy.

-   Office of the Secretary of Defense.

**Special Compensation Programs in the Military**

**Transitional Compensation \[10 U.S.C. '1059\]**

Federal law authorizes payment of monthly transitional compensation for
abused family members. DoD Instruction 1342.24, Transitional
Compensation for Abused Dependents, implements this law and is designed
to partially alleviate the financial hardship to the abused dependents
for coming forward with the information needed to take action against
the alleged abuser. Dependents of members of the Armed Forces are
eligible for transitional compensation if the military member was:

-   Separated from active duty under a court-martial sentence resulting
    from a dependent-abuse offense.

-   Administratively separated from active duty if the basis for
    separation includes a dependent-abuse offense.

-   Sentenced to forfeiture of all pay and allowances by a court-martial
    which has convicted the member of a dependent-abuse offense.

**Payments from Retired Pay for Abused Dependents \[10 U.S.C.
'1408(H)\]**

Federal law also authorizes payments of portions of retired pay to help
alleviate the financial hardship to abused dependents for coming forward
with information needed to take action against the military sponsor. In
order to receive payments from retired pay, the spouse or former spouse
must obtain a civilian court order (typically done as part of a legal
separation or divorce action) setting forth the spouse's portion of the
military member's retired pay. The spouse or former spouse must have
been married to the abusive member for at least 10 years during which
the member performed at least 10 years creditable service toward
retirement (the 10-year periods must overlap). The spouse may not
receive payments under both this program and the Transitional
Compensation Program.

**Property Claims Article 139, UCMJ**

Under Article 139, UCMJ, commanders may direct that service members pay
victims for willful damage or theft of property. The damage or theft
must have been intentional and not caused inadvertently or thoughtlessly
through simple or gross negligence.

**Foreign Claims Act**

Under some circumstances, the Foreign Claims Act authorizes payment of
claims for property damage, personal injury, or death caused by military
personnel to a foreign inhabitant in a foreign country. Under the Act,
the United States can pay for intentional acts committed by service
members abroad. Victims must file a claim under the Act within 2 years
of the damage or injury.

**Restitution from the Offender**

The Uniform Code of Military Justice does not authorize restitution as a
form of a court-martial sentence. DoD policy, however, encourages
military prosecutors, in appropriate cases, to include a requirement to
pay restitution as a condition of a pretrial agreement. Payment of
restitution to a victim may also be included as a condition of parole.

**Compensation for Military Victims under State Programs**

Victims of crimes committed by military personnel may be eligible for
compensation from state compensation programs. Since state compensation
programs are "payers of last resort," they do not cover cost paid for by
Acollateral resources" such as military benefits, medical and automobile
insurance, or other public assistance programs.

**TRIBAL JUSTICE SYSTEM**

Three major federal laws have governing jurisdiction over crimes
committed in Indian country:

-   PL 83-280 IndiansBCriminal Offenses and Civil CausesBState
    Jurisdiction, 18 U.S.C. '1162 (Supp. 1968), which grants six states
    jurisdiction over crimes committed in all or part of Indian country
    within the state, except those locations normally included under
    federal jurisdiction.

-   The Major Crimes Act, 18 U.S.C. '1153 (Supp. 1986), which applies to
    crimes committed in Indian country, except for crimes committed in
    PL 280 states.

-   The General Crimes Act, 18 U.S.C. '1152, which applies to all crimes
    committed by non-Indians against Indians in Indian country and
    subject to exclusive federal jurisdiction regardless of the
    seriousness of the offense.

A summary of the federal, state, and tribal criminal jurisdictions in
Indian Country is provided in Exhibit IV-2.

**[Exhibit IV-2]{.smallcaps}**

**[Summary Table of Criminal Jurisdiction in Indian
Country]{.smallcaps}**

+---------+--------------------+--------------------+-----------------+
| **      | **Federal          | **Tribal           | **State         |
| Persons | Jurisdiction**     | Jurisdiction**     | Jurisdiction**  |
| Inv     |                    |                    |                 |
| olved** |                    |                    |                 |
+=========+====================+====================+=================+
| Indian  | Major Crimes Act.  | Tribal courts may  | None, except    |
|         | The U.S. can       | have concurrent    | under PL 280 as |
| O       | prosecute 16       | jurisdiction over  | amended or      |
| ffender | listed offenses.   | crimes under the   | other federal   |
| v.      | Among these,       | Major Crimes Act.  | statute or by   |
| Indian  | burglary,          | For all other      | tribal vote     |
| Victim  | involuntary        | offenses, tribal   | pursuant to 25  |
|         | sodomy, and incest | courts have *sole* | U.S.C.'1321.    |
|         | are defined and    | jurisdiction       | The tribe *may* |
|         | punished in        | (except where      | retain          |
|         | accordance with    | federal statute    | concurrent      |
|         | the state law; all | specifically       | jurisdiction.   |
|         | others are defined | provides           |                 |
|         | by federal         | otherwise).        |                 |
|         | statute.           |                    |                 |
+---------+--------------------+--------------------+-----------------+
| Indian  | Major Crimes Act   | Tribal courts may  | Same as above.  |
|         |                    | have concurrent    |                 |
| O       | General Crimes Act | jurisdiction over  |                 |
| ffender |                    | crimes under the   |                 |
| v.      | Assimilative       | Major Crimes Act.  |                 |
| Non     | Crimes Act         | They do have       |                 |
| -Indian |                    | concurrent         |                 |
| Victim  |                    | jurisdiction over  |                 |
|         |                    | offenses that can  |                 |
|         |                    | be prosecuted by   |                 |
|         |                    | the U.S. under the |                 |
|         |                    | General Crimes     |                 |
|         |                    | Act. Except for    |                 |
|         |                    | major crimes,      |                 |
|         |                    | tribes may preempt |                 |
|         |                    | federal            |                 |
|         |                    | prosecution. For   |                 |
|         |                    | any other offenses |                 |
|         |                    | (as defined by     |                 |
|         |                    | tribal codes),     |                 |
|         |                    | tribal courts have |                 |
|         |                    | exclusive          |                 |
|         |                    | jurisdiction.      |                 |
+---------+--------------------+--------------------+-----------------+
| Indian  | The U.S. probably  | Same as above.     | Same as above.  |
| O       | can prosecute      |                    |                 |
| ffender | under the General  |                    |                 |
|         | Crimes Act, as     |                    |                 |
| Vic     | explained above,   |                    |                 |
| timless | or under the       |                    |                 |
| Crime   | Assimilative       |                    |                 |
|         | Crimes Act.        |                    |                 |
+---------+--------------------+--------------------+-----------------+
| Non     | General Crimes     | Tribal courts have | Probably no     |
| -Indian | Act, plus a        | no jurisdiction to | state           |
| O       | substantive        | prosecute          | jurisdiction    |
| ffender | offense defined by | non-Indians,       | except under PL |
| v.      | federal statute or | unless Congress    | 280, as         |
|         | a substantive      | delegates such     | amended, or     |
| Indian  | offense defined by | power to them.     | with tribal     |
| Victim  | state law          |                    | consent         |
|         | incorporated by    |                    | pursuant to 25  |
|         | the Assimilative   |                    | U.S.C.'1321.    |
|         | Crimes Act.        |                    |                 |
+---------+--------------------+--------------------+-----------------+
| Non     | No federal         | Same as above.     | State courts    |
| -Indian | jurisdiction       |                    | have            |
| O       | except for         |                    | jurisdiction    |
| ffender | distinctly federal |                    | over all        |
| v.      | offenses.          |                    | offenses        |
|         |                    |                    | defined by      |
| Non     |                    |                    | state law and   |
| -Indian |                    |                    | involving only  |
| Victim  |                    |                    | non-Indians.    |
+---------+--------------------+--------------------+-----------------+
| Non     | General Crimes     | Same as above.     | State courts    |
| -Indian | Act, plus a        |                    | probably have   |
| O       | substantive        |                    | concurrent      |
| ffender | offense defined by |                    | jurisdiction    |
|         | federal statute or |                    | with the U.S.,  |
| Vic     | a substantive      |                    | although the    |
| timless | offense defined by |                    | law is unclear. |
| Crime   | state law          |                    |                 |
|         | incorporated by    |                    |                 |
|         | the Assimilative   |                    |                 |
|         | Crimes Act. The    |                    |                 |
|         | law is still       |                    |                 |
|         | unclear on whether |                    |                 |
|         | federal            |                    |                 |
|         | jurisdiction is    |                    |                 |
|         | exclusive or       |                    |                 |
|         | concurrent with    |                    |                 |
|         | the state's        |                    |                 |
|         | jurisdiction.      |                    |                 |
+---------+--------------------+--------------------+-----------------+

(Adapted from the National Indian Justice Center Legal Series, Petaluma,
CA.)

**Structure of Tribal Justice Systems**

The overall history, structure, and jurisdiction of American Indian
justice systems have been greatly affected by the experience of Indian
Nations with the federal government. As a result, tribal courts and
victim response systems vary considerably. Some Indian Nations have
justice systems that mirror the structure of American courts, while
others have retained their indigenous justice forums. Some tribal courts
have developed separate court components, such as traffic, civil, small
claims, family, and juvenile court divisions.

Most indigenous justice systems include victim-sensitive components in
their structure. Recently, more of the American style tribal justice
systems have developed support services such as victim-witness services,
probation departments, correctional alternatives, and other programs to
address the needs of victims and communities. Many Indian justice
systems are enhancing victim services with policy and protocol revision
and development.

Indian Nations continue to possess four key characteristics of their
sovereign status:

1\. A distinctive permanent population.

2\. A defined territory, with identifiable borders.

3\. A government exercising authority over territory and population.

4\. The capacity to enter into government-to-government relationships
with other nation-states ( Valenia-Weber and Zuni, 1995).

Indian Nations retain the authority to determine the legal structure and
forums to use in administering justice and to determine the relationship
of the legal structure with other governing bodies. They also exercise
personal jurisdiction over both member and nonmember Indians,
territorial jurisdiction over their lands, and subject matter
jurisdiction over such areas as criminal, juvenile, and civil matters.
While limited by the Indian Civil Rights Act in sentencing, Indian
Nations have concurrent jurisdiction over the felony crimes enumerated
under the Major Crimes Act.

**Tribal Justice Forums**

The impact of federal Indian policies, Supreme Court decisions, and the
historical trauma of conquest, colonization, and modernization explains
the variations in tribal justice forums. Current tribal forums have in
some way been affected by a combination of all these influences. As a
result, Indian Nations have developed tribal courts that are hybrids,
borrowing and implementing different approaches to administering justice
(Vicenti, 1995). Since European contact, Indian Nations have struggled
to retain their sovereign powers, especially in maintaining the type of
forums they use to address the internal affairs of their people and
communities. In many tribal communities, dual justice systems exist, one
based on an American paradigm of justice and the other based on an
indigenous paradigm. Varying combinations of the following forums
outlined in Exhibit IV-3 may be used by Indian Nations (Melton, 1998).

**[Exhibit IV-3]{.smallcaps}**

**[T]{.smallcaps}**ribal Justice Forums

  ------------------------------------------------------------------------
  **Family and     **Traditional     **Courts of Indian **Tribal Courts**
  Community        Courts**          Offenses**         
  Forums**                                              
  ---------------- ----------------- ------------------ ------------------
  Established by   Established by    Established by the Established by the
  unwritten        the tribal        Secretary of       tribal council,
  customary law    council and       Interior under     usually under the
  and traditions.  tribal religious  Title 25, Code of  authority of the
                   leaders according Federal            tribe=s
                   to unwritten      Regulations (CFR). constitution.
                   laws.                                

  Subject only to  Subject only to   Subject to the     Subject to the
  the authority of the authority of  authority of the   authority of
  traditional clan the tribal        tribal council     tribal council or
  systems and/or   council and       *and* the Interior law and order
  family elders,   religious         Department. The    committees. Tribal
  based on         leaders.          council may adopt  constitutions may
  consensus of                       ordinances or      require Interior
  participants.                      resolutions        Department
                                     affecting the CFR  approval of
                                     Court, but the     council ordinances
                                     Interior           or resolutions
                                     Department must    affecting the
                                     approve them.      tribal court.

  Procedures and   Procedures and    Procedures and     Procedures and
  offenses defined offenses defined  offenses defined   offenses defined
  according to     according to      in Title 25, CFR.  by tribal council
  unwritten,       unwritten,        Judges may develop in codes,
  customary laws,  customary laws,   Rules of Court for ordinances, or
  traditions, and  traditions, and   conduct of         resolutions.
  practices.       practices.        hearings and       Tribal judges may
                                     trials.            develop Rules of
                                                        Court for conduct
                                                        of hearings and
                                                        trials.

  Presided over by Judges are        Judges are         Judges may be
  family elders,   governors or      appointed by the   elected by the
  chosen elders,   chief executive   Commissioner of    tribal membership
  or adults from   officers of the   Indian Affairs,    or appointed by
  the community or pueblo who serve  subject to         the tribal council
  by traditional   without pay. They approval by the    if paid by the
  tribal officials are appointed by  tribal council,    tribe.
                   the pueblo        and are paid with  
                   council, which is federal funds.     
                   composed of                          
                   ex-governors and                     
                   tribal religious                     
                   leaders.                             

  Decisions        Appeals of        Appeals of CFR     Appeals of tribal
  usually cannot   decisions by the  Court decisions    court decisions
  be appealed, but pueblo governor   may be heard by an may be heard by a
  matters may be   are heard usually appellate court    tribal appellate
  pursued through  by the pueblo     composed of judges court, composed of
  formal tribal    council.          appointed under    judges, or by the
  courts.                            the CFR.           tribal council.
  ------------------------------------------------------------------------

**Enhancing the Response to Crime Victims in Indian Country**

There is a resurgence among Indian people to strengthen, reimage, and
retraditionalize their tribal justice systems, often within the context
of restorative justice. Many supporters of restorative justice recognize
that it is an ancient philosophy that only gained its impetus in
mainstream society in the 1970s and 1980s, especially to deal with young
offenders (Bazemore and Umbreit, 1994).

In many Indian communities, tribal leaders, criminal and juvenile
justice practitioners, and policymakers, in collaboration with victim
advocates, are assessing the impact of violent crime and the tribal
response to victim and witness needs. This self-assessment has caused
many Indian people to revisit and rediscover their historical and
traditional ways of dealing with crime and violence in their
communities. It is important then to understand what promise lies in the
indigenous justice paradigm that is different from the traditional
criminal justice paradigm in mainstream society.

**Indigenous Peacekeeping Systems**

Indigenous peacekeeping systems involve a holistic approach that
connects all the affected persons on a continuum of shared and balanced
power and responsibility. These systems are based on customary laws,
practices, and traditions that require the involvement of the
individuals in the conflict, their families, and, when necessary, tribal
officials. They use nonadversarial processes that facilitate discussion
between people in conflict in a safe environment that promotes
resolution of underlying problems and keeping relationships intact. The
methods used are based on restorative, distributive, and reparative
justice concepts and principles of peace, healing, and living in harmony
with all beings and with nature. This group approach contradicts what is
often considered an adversarial system that is focused on the individual
offender and limits participation to strangers who have little or no
investment in the offender, the victim, the community, or the
relationships involved. The paradigm differences are outlined in Exhibit
IV-4.

**[Exhibit IV-4]{.smallcaps}**

**[Differences in the Paradigms of Justice]{.smallcaps}**

  -----------------------------------------------------------------------
  **American Justice Paradigm**       **Indigenous Justice Paradigm**
  ----------------------------------- -----------------------------------
  Vertical.                           Holistic.

  Communication is rehearsed.         Communication is fluid.

  English language is used.           Native/tribal language is used.

  Written statutory law learned from  Oral customary law learned as a way
  rules and procedure, written        of life by example.
  record.                             

  Separation of powers.               Law and justice are part of a
                                      whole.

  Separation of church and state.     The spiritual realm is invoked in
                                      ceremonies and prayer.

  Adversarial and conflict oriented.  Builds trusting relationships to
                                      promote resolution and healing.

  Argumentative.                      Talk and discussion are essential.

  Isolates behavior, freeze-frame     Reviews problem in its entirety;
  acts.                               contributing factors are examined.

  Fragmented approach to process and  Comprehensive problem solving.
  solutions.                          

  Time-oriented process.              No time limits on the process; long
                                      silences and patience are valued.

  Exclusive---limits participants in  Inclusive of all affected
  the process and solutions.          individuals in the process and
                                      problem solving.

  Representation by strangers.        Representation by extended family
                                      members.

  Focus on individual rights.         Focus on victim and communal
                                      rights.

  Punitive---removes offender.        Corrective---offenders are
                                      accountable and responsible for
                                      change.

  Prescribed penalties by and for the Customary sanctions used to restore
  state.                              victim-offender relationship.

  Right of accused especially against Obligation of accused to verbalize
  self-incrimination.                 accountability.

  Vindication to society.             Reparative obligation to victims
                                      and community, apology, and
                                      forgiveness.
  -----------------------------------------------------------------------

8 This chart represents differences noted by Ada Pecos Melton and
Christine Zuni.

**Unique Victimization Issues in Indian Communities**

Victimization issues in Native American communities need to be
understood from historical, political, economical, environmental, and
social perspectives. The impact of violence and victimization is not
limited to individual victims but extends to families and communities.
Violence and victimization issues are not limited to current problems.
The impact of historical trauma and cultural oppression by the dominant
society has greatly contributed to the social problems existing in
Indian communities today, including the new crime phenomena presented by
Indian gangs, sex offenders and the escalation of violence against
women. Acknowledgment of the historical experiences of Indian Nations is
an important factor in understanding how social problems occur and how
they can be addressed in tribal communities.

The following issues have been consolidated from various focus groups
conducted with Indian and non-Indian criminal and juvenile justice
practitioners, policymakers, and citizens by American Indian Development
Associates from January 1997 to December 1998. This material provides a
perspective of the range of issues that Indian justice systems must
address to meet the needs of Indian crime victims effectively.

**Limited Resources for Victims.** Most Indian communities are rural and
geographically isolated, which limit the resources that come into the
community or that can be provided by the tribal government. Generally,
victims live in the same community as the offender or perpetrator and
are limited in their willingness and/or ability to relocate within or
outside their tribal community. Many victims lack financial and family
resources to move elsewhere; elderly victims are especially reluctant to
leave. Victims= rights are compromised when victims, rather than
perpetrators, are the ones who are removed from their community or are
coerced to leave for safety and protection. This contributes to a lack
of confidence in the ability of the tribal response systems to provide
public safety and protection to citizens who are victimized. As a
result, tribal citizens alienate themselves due to the fear that their
needs cannot be met on the reservation.

**Inadequate Law Enforcement Services Diminish Victims' Confidence in
the System.** Lengthy police response time exacerbates victim trauma and
injury. Inadequate financial support for law enforcement services in
Indian communities inhibits timely police response to crime and
provision of adequate assistance, protection, and safety to victims.
Many Indian Nations do not have "911" emergency response numbers
available. These conditions weaken the effectiveness of responses. As a
result, witnesses and victims are often reluctant to talk because there
is time and opportunity for intimidation to occur from the perpetrator.

**Limited Training for Service Providers.** Often tribal police, social
services, probation, and other court-related service providers are not
adequately trained in victim response, and therefore are limited in
their ability to identify specific needs and provide adequate assistance
to victims. Strained budgets limit the ability to provide ongoing
specialized training in such areas as sexual assault, child abuse, gang
violence, and intimidation.

**Lack of System Reliability.** Victims often do not have confidence in
the tribal system response system due to the lack of infrastructure,
such as protection codes, adequate staff, facilities to hold offenders,
or capacity to provide safe havens or shelters for victims. This lack of
confidence continually prevents victims from seeking help. As a result,
many suffer in silence and remain victims. System reliability is further
hindered by the lack of coordinated approaches and responses among the
various tribal, state, and federal governments that can become involved
in victim-related cases.

**REFERENCES**

# Attorney General Guidelines. 1983. Washington, DC: U.S. Department of Justice.13. 

Bazemore, G.,and M. Umbreit. 1994. *Balanced and Restorative Justice:
Program Summary.* Washington, DC: U.S. Department of Justice, Office of
Juvenile Justice and Delinquency Prevention.

Gonzales, Alberto R. 2005. *Attorney General Guidelines for Victim and
Witness Assistance.* Washington, DC: U.S. Department of Justice.

Melton, A. P. November-December 1998. "Indigenous Justice Systems and
Tribal Society." *Judicature* 79(3).

Office for Victims of Crime. August 1998. "New Directions from the
Field: Victims' Rights and Services for the 21st Century: Civil
Remedies." *OVC Bulletin 17*. Washington, D.C.: U.S. Department of
Justice.
www.ojp.usdoj.gov/ovc/new/directions/pdftxt/bulletins/bltn17.pdf.

Office for Victims of Crime. n.d. "Federal Assistance Division (formerly
FCVD)." Retrieved June 19, 2006, from
www.usdoj.gov/ovc/welcovc/fcvd/welcome.html.

Valencia‑Weber, G. and C. Zuni. 1995. *Domestic Violence and Tribal
Protection of Indigenous Women in the United States,* Chicago: St.
John=s University Law Review.

Vicenti, C. November‑December 1995. "The Reemergence of Tribal Society
and Traditional Justice Systems." *Judicature* 79(3).

# Acknowledgments 

The criminal justice portion of this chapter is excerpted from the
"Crime Victims' Rights Handbook" developed by the Victims' Rights
Education Project, sponsored by the National Victims' Rights
Constitutional Amendment Network (NVCAN) with support from OVC, and
written by Justice Solutions Senior Advisor Anne Seymour. In developing
this handbook, nine key sources were used for research and reference.
The authors are grateful for the excellent guidance that these documents
provided.

Alaska Judicial Council. 1998. *Criminal Justice Guide*. Anchorage, AK.

American Probation and Parole Association. 1995. *Crime Victims'
Handbook.* Lexington, KY.

New Hampshire Department of Corrections. n.d. *Time in Prison.* Concord,
NH: State of New Hampshire.

Seymour, Anne K., 1999, *Victim Services in Corrections,* Washington, DC
: Office for Victims of Crime, U.S. Department of Justice.

Seymour, Anne K., Mario Gaboury, and Christine Edmunds. 2000. "Dynamics
of the Criminal Justice System." *National Victim Assistance Academy
Text*. Washington, DC: U.S. Department of Justice, Office for Victims of
Crime.

Vermont Center for Crime Victim Services n.d. *You Are Not Alone: An
Informational Guide for Victims and Survivors of Crime in Vermont.*
Waterbury, CT.

Virginia Department of Corrections. "Probation and Parole Frequently
Asked Questions." Commonwealth of Virginia.
[www.vadoc.state.va.us/offenders/community/faqs.shtm](http://www.vadoc.state.va.us/offenders/community/faqs.shtm),
accessed September 3, 2007.

Wisconsin Department of Justice Office of Crime Victim Services. 1992.
*Guide to Victims' Rights.* Madison, WI.

Wyoming Office of the Attorney General. n.d.. *Victim/Witness Handbook.*
Cheyenne, WY.

[^1]: The authors of this chapter are Christine N. Edmunds, Deerfield
    Beach, FL; Anne K. Seymour, Justice Solutions, Washington, DC; and
    Mario T. Gaboury, Ph.D., JD, University of New Haven, CT.