Chapter 4

The Judiciary

Many victims and their families feel that they are the stepchildren of the
criminal justice system, that their rights and concerns are misunderstood
or ignored. In communities across the nation, victims are denied a voice in
decisions to release defendants on bail despite having legitimate safety
concerns, and they are not notified when defendants are released. Too many
victims also are not notified when the court changes its schedule even
though they have taken time off from work, arranged for child care, and
paid for transportation.

While plea agreements offer an efficient means for court systems to manage
overwhelming case loads, they are routinely finalized without input from,
consultation with, or notification of victims, denying millions of victims
their rights to be informed about and have input into the justice process.
Many victims are still not informed of sentencing hearings or of their
right to submit a statement about the financial, physical, and emotional
impact of the crime despite the enactment of victim impact statement laws
in every state.2 Moreover, the costs of crime can be devastating, but
judges too often overlook victims financial hardship by failing to order
restitution or provide appropriate conditions for its collection.

Judges play a crucial role in the day-to-day implementation of victims
rights. Judges, after all, control the courtroom and make rulings that will
affect the courts observance of victims rights to be present, notified, and
heard. At the same time, judges have an obligation to ensure that the
criminal justice process is impartial and fair, and many judges feel
constrained about giving what they consider to be special treatment to
crime victims.

Addressing these concerns requires a fundamental shift in viewpoint to
allow judges and other court personnel to see the protection of victims
rights and services under law not as special, but as appropriate and just.
The practices and recommendations discussed in this section attempt to do
this while holding true the balance judges must keep among the competing
and often contradictory interests of vigorous prosecution and defense.

Progress Since the Presidents Task Force

The Final Report of the Presidents Task Force on Victims recognized the
important role of judges in ensuring the rights of victims as well as
defendants. The principal Task Force recommendations for the judiciary
included:

 Developing and participating in training programs on the needs and
interests of crime victims.

 Implementing procedures and court processes with sensitivity to the needs
of crime victims, including ensuring that separate waiting areas are
provided for prosecution and defense witnesses and permitting victims and
witnesses to be on call for court proceedings.

 Giving the same weight to the interests of victims and witnesses as that
given to the interests of defendants when ruling on requests for
continuances.

 Facilitating the victims efforts to be present and, where relevant, heard
during essential phases of the proceedings.

 Understanding the impact of crime on victims and ensuring sensitivity to
their needs in the handling of cases.

Many of these recommendations have been addressed by legislative changes at
the state and federal level, as well as by victims rights constitutional
amendments in 29 states. However, it is difficult to measure how well
courts are implementing this legislation and recommendations calling for
judges to recognize and give weight to the needs of victims at appropriate
junctures of the justice process.

Almost immediately after the Task Force issued its recommendations, the
U.S. Department of Justice, the National Conference of Special Court Judges
of the American Bar Association, and the National Judicial College
cosponsored the 1983 National Conference of the Judiciary on the Rights of
Victims of Crime. The participants of the conference represented courts of
general and special jurisdiction in all 50 states, the District of
Columbia, and Puerto Rico. The conference adopted a Statement of
Recommended Judicial Practices which further articulated and provided
specific direction for implementing the recommendations in the Task Forces
Final Report.3 In addition, in 1984, the Attorney Generals Task Force on
Family Violence issued recommendations for the judiciary for dealing
specifically with victims of family violence.4

Since these events, some judicial training programs and conferences such as
those held by the State Justice Institute, the National Judicial College,
and the National Council of Juvenile and Family Court Judges have made a
practice of offering participants educational programs on victim issues.
Recently, the California Judicial College made training on victims rights
mandatory for new judges.

Judicial Concerns About Implementing Victims Rights

Before discussing ways in which judges can help victims have a greater
voice in the justice process, it is important to acknowledge the
traditional concerns of judges about taking a more active role for victims.
In 1997, a focus group of a dozen judges and judicial administrators from
diverse regions of the country identified why many in the judiciary have
not viewed the enforcement of victims rights as part of their courtroom
duties.5

According to the focus group, many judges find it difficult to view victims
as having a legitimate role in the justice process because they are not
official parties to the criminal proceedings.6 Judges are also sometimes
unaware of the laws setting forth victims' rights and the specific services
to which victims are entitled.7 Moreover, judges often worry that paying
special attention to victims other than as witnesses for the prosecution
impinges on the impartiality of the court and creates the appearance of
impropriety.8

Judges typically have little or no training on the impact of violent crime
on victims and their families, how victims feel or experience the criminal
justice system, their grieving or healing processes, and appropriate
judicial conduct toward victims. The judges control of the courtroom and
the rules of evidence are designed to avoid surprises, control all
participants including witnesses and spectators, and minimize emotional
outbursts. Victims expressions of emotional trauma, fear, anger, confusion,
and psychological scarring in the courtroom can be an unsettling prospect
and a threat to courtroom control.

Moreover, traditional court organization and administration do not
encourage problem solving approaches in cases. Limited resources, crowded
dockets, and statutory requirements to process cases within certain time
limits often cause even well-intentioned judges concern about opening up
the process to victim input. Finally, the focus group noted that many
judges believe that victims increase media and public attention on the
court proceeding, often casting judges in an unfavorable light.

Encouraging Judicial Leadership

Judges are uniquely situated to bring together institutions in the
community, including schools, hospitals, and social service agencies, that
can solve the wide range of problems that bring offenders and the people
they victimize to the justice system. By forging public-private
partnerships, these institutions make maximum use of limited resources.

As community leaders, judges can and should be catalysts for coordinating
the delivery of services to both victims and offenders. When judges take a
problem-solving approach to administering justice, the result is greater
outreach to the community and greater community access to the justice
system.

 The Municipal Court of Tucson, Arizona, was one of several partners
including the police, victim advocates, prosecutors, and health care
professionals in establishing a Community Domestic Violence Awareness
Center. The centers victim advocates provide information on domestic
violence and assist victims in obtaining protection orders, either through
an interactive video system or by personally taking the victim to the city
court. During evening hours, weekends, and holidays, a judge is on duty at
the center, where victims can appear and seek assistance.

 In Santa Clara County, California, and a growing number of other local
jurisdictions, the judiciary has taken the initiative in establishing local
family violence councils to provide a comprehensive response to domestic
violence which addresses prevention, public education, intervention, and
corrections including treatment and rehabilitation.9 Mandated by the
Violence Against Women Act of 1994 as a requirement for communities to
qualify for funding, localities across the nation are now organizing such
councils.10 The councils have led to the creation of new community
partnerships and adjudication alternatives for batterers and enhanced
victim assistance and referral networks.

 In New York, the state has begun an initiative through its Permanent
Judicial Commission on Justice for Children to provide assistance to
children in the courts, particularly children under 5. The Commissions
efforts have focused on promoting early intervention for at risk children
by establishing child care centers in courts across the state that give
children whose parents are in court a safe haven. The child care centers
allow the courts to conduct business more efficiently, but more important,
they provide children sorely needed educational, nutritional, and social
services. The New York State Office of Court Administration has been
instrumental in raising and sustaining support for maintenance and
expansion of the centers. In June 1994, a Court Rule was issued in the
state requiring all new construction or renovation in court facilities to
set aside space for child care.

Judges also have an affirmative obligation to explain to the public what
courts do. One example is Navajo Justice Day, in which the Navajo Tribal
Court sponsors an open house for the community and the media to learn about
all aspects of the judicial system. Another innovative approach is the
Wisconsin Supreme Courts court-community collaboration, which emphasizes
outreach to citizens to inform them about the work of the courts and public
input into how to make the justice system more responsive.11

Restructuring Courts to Solve Problems

The courts traditional emphasis on procedural rights has led judges in many
instances to neglect other aspects of their mandate to do justice. Many
people, including victims, bring problems to the system that need
attention. In some jurisdictions, judges are addressing the needs of
offenders and victims with a new focus on restorative community justice
that involves the community, holds the offender accountable through
punishment and supervision, and helps the victim to heal.

A good example of judicial leadership to help victims through problem
solving is the pioneering use of neighborhood or community impact
statements in cases involving drug crimes. Traditionally, drug crimes have
been considered victimless and courts rarely heard from people affected by
those who sell drugs in their neighborhood. In some jurisdictions, judges
now receive information about how drug trafficking has affected the
communitys quality of life. Neighbors are given the opportunity to provide
information anonymously, and their statements are incorporated into an
overall impact statement for the case. Judges consult these statements when
ordering convicted drug dealers to pay restitution to community groups in
the neighborhood where the offense was committed. Community members are
informed of their right to submit statements through public education and
crime prevention programs as well as flyers distributed in neighborhoods
following a drug arrest.12

For certain kinds of crimes and victims, problem solving may be most
effective in specialized courts. Current examples are drug courts, domestic
violence courts, community courts that handle "quality of life" misdemeanor
crimes, unified family courts that handle all problems relating to the
family including criminal, civil, and juvenile matters, and courts designed
specifically for child victims. The value of specialized courts for victims
and offenders is that delivery of resources such as counseling, treatment,
and job training can be coordinated in one location, allowing the judge to
solve multiple problems in what traditionally were considered separate
court jurisdictions.

 In New York City, the Midtown Community Court focuses on petty offenses
such as prostitution, shoplifting, subway fare skipping, graffiti, minor
drug possession, and illegal peddling that victimize the community. In
sentencing defendants who plead guilty in these cases, the court and
community organizations work together to make justice constructive for
offenders as well as restorative to the community. Offenders pay
restitution to the community through community service, but they also
receive help for their problems through substance abuse treatment, health
care, education, and other social services. The court is developing a
process to help facilitate statements from community members on the impact
of these crimes.

 In August 1995, following the enactment of state legislation establishing
family violence cases as a priority for the criminal justice system, 11
county criminal court judges in Dallas County, Texas, created the first
unified family violence court in the state. The court docket is limited to
cases involving family violence offenses, and the prosecuting attorneys
office expanded its family violence division to prosecute these cases
exclusively. Among the many benefits for victims has been a streamlined
application process for protective orders. Because the family and criminal
courts are now together, victims attend all proceedings at one court.
Unifying the courts has also led to more efficient dispositions and an
increase in the expertise of judges and court personnel on the complicated
issue of family violence.13

 In Los Angeles County, the Edmund D. Edelman Childrens Court was
established in 1992 as the nations first dependency court designed
specifically to meet the needs of children going through the court process.
The buildings small courtrooms are less intimidating to children than
traditional courtrooms. Each courtrooms semicircular counsel table is
shaped like a smile, and there are specially designated play areas for
children to help reduce stress and trauma. The courts public areas have
special eating facilities, television sets tuned to the Disney Channel, and
separate diaper changing areas, and a shelter area offers a secure space
for children in out-of-home placement. Safe, friendly, and private play
areas, family visiting rooms, exercise areas, and conference rooms for
children to meet with their attorneys, social workers, or other care
providers are also available. Special initiatives of the court include
counseling services for children and their families, training and
internship programs, and a child-parent art program. The court is supported
by a public and private sector partnership, the Child Victims in Court
Foundation, which has raised over $1 million since the court began
operation.14

The rich American Indian traditions of this countrys tribal justice systems
provide strong models for judicial leadership. In tribal courts, the goal
is to solve problems created by wrongful acts, which are seen as harming
not only the victim, but the offender, the victim and offenders families,
and the entire community as well. In the Navajo Nation, for example,
justice is administered through a peacemaking system in addition to a
western legal process. In this system, victims, offenders, and their
families are brought together to solve all kinds of problems ranging from
nonpayment of child support to theft. But such judicially sanctioned
problem solving need not be limited to small or culturally homogeneous
communities. Peacemaking techniques have been adopted in an Albuquerque
family court where participants are often of different cultures and do not
necessarily share the same values.

A number of Canadian courts use the concept of the Aboriginal sentencing
circle in which the judge, prosecutor, defense attorney, victim, offender,
community members, and service agencies all come together to determine
remedies, sanctions, and treatment programs that are appropriate for the
victim, offender, and community. Moreover, family group conferencing based
on Maori tradition is used throughout the New Zealand juvenile justice
system, and community reparation boards are used in Vermont to craft
appropriate sentences.

All of these restorative justice mechanisms originated in very different
cultures but share common goals: solving problems through a collaborative
process that emphasizes addressing the harm done to the victim; holding the
offender accountable for the harm done; and restoring community
relationships by bringing the victim and offender back into community life.
Significant strides have been made in laying a legislative framework that
provides for greater and more meaningful victim participation in the
criminal justice process. At the same time, judges are hampered by a lack
of experience with and training in the legal rights and legitimate needs of
victims. To overcome the concerns of judges about the full implementation
of victims rights and the victims role in the judicial process, education
and training are critical. Those jurisdictions that have begun to reexamine
the basic way in which justice is administered by giving greater
recognition to the role of the community and the victim in the criminal
justice process should serve as models of how the competing concerns of
those affected by criminal conduct can be justly met.

Recommendations from the Field

for the Judiciary

These recommendations address the judiciarys role in implementing victims
rights laws, and apply equally to judges in civil and criminal courts.
Judges in civil courts, particularly family courts, interact with numerous
crime victims and are often the most important arbiters of justice for
these victims. Indeed, throughout all judicial systems, judges, court
administrators, and court personnel must implement the spirit as well as
the letter of laws protecting victims rights that have been enacted on the
state and federal levels. Judges must enforce victims rights in the
day-to-day operations of the court, particularly by ensuring that victims
have an opportunity for input prior to plea proceedings, during the trial,
and at sentencing. While a lack of adequate funding is sometimes the
problem, more often full implementation is prevented by the lack of
judicial education in victims rights and services, a narrow vision in the
judiciary of the role of the justice system, and the failure of the system
to make victims rights a priority.

Judiciary Recommendation from the Field #1

The voices and concerns of crime victims should be recognized and
institutionalized within the justice system. Judges should advise victims
of their rights as routinely as they advise defendants of their rights.

All jurisdictions have statutory provisions spelling out the rights of
victims, and 29 states have underscored these rights with the passage of
state victims rights constitutional amendments. The judiciary has a major
responsibility for ensuring that victims are acknowledged, informed, heard,
and treated fairly and with dignity. The first step is to recognize that
the interests and needs of prosecutors and victims are not always
identical. It would be educational for all participants in the courtroom to
hear judges acknowledge victims and inform them of their rights. Oral
advisement and videotaped and written materials can be used to explain the
justice system and the proper role of victims in it. Judges must also
ensure that victims are aware of rights for which prosecutors and probation
officers have implementation responsibility, such as notification of
hearing dates, case disposition, victim impact statements, and offender
release.

Every courts administrative staff should have a victim coordinator, even in
jurisdictions in which the prosecutor or probation office operates a
victim/witness program. Victims and their advocates, including
court-appointed special advocates and guardians ad litem for children,
should have a formal voice in the court planning process. Special attention
should be given to ensuring that multicultural and multilingual individuals
serve in the courts to enhance the courts responsiveness to and
understanding of the needs of the various ethnic and language groups in the
community.

Judiciary Recommendation from the Field #2

Judges and all court personnel at all levels of the court system must
receive initial and continuing education on the law concerning victims
rights, the impact of crime on victims and their families, and how the
judiciary can implement the spirit as well as the letter of these rights.
This education must include training on the special needs of some victim
populations such as victims with disabilities and non-English speaking
individuals.

The importance of educating judges and court personnel about the proper
role of victims in the justice system cannot be overemphasized. Just as
doctors need training in interacting appropriately with patients and their
families, judges and court personnel need training in understanding the
impact of crime on victims and their families and the role of the justice
system in their grieving and healing process. Training can help judges and
court personnel appreciate the potential of the justice system to
exacerbate victims' emotional injuries by failing to accord them respect,
provide them with information, or allow them to participate.

Judicial education about victims should articulate why victim participation
is a difficult subject for the judiciary. There must be thoughtful dialogue
about issues relating to impartiality and opportunities for judges to not
only learn the law but also reexamine basic notions about how justice is
administered in our society.

Education of the judiciary about victim participation must be reinforced
with interaction with victims themselves. Judges and court personnel need
to hear from victims and their families. They should be encouraged to think
about the role of victims in the larger judicial process in addition to
their role in each case. Open dialogue among judges about victim
participation should be encouraged institutionally, and this discussion
must also occur between judges and court personnel, other members of the
criminal justice system, the bar, the public at large, and crime victims.
Education about these issues should begin as soon as possible in a judges
career, preferably in law school, and continue throughout the judges
service. Education on crime victims issues must be provided to civil court
judges, particularly those in family or dependency courts, as these judges
regularly interact with hundreds of crime victims.

A model curriculum should be developed for the judiciary that links
information about the rights and needs of victims to standard programs
about trial management, criminal procedure, juvenile justice, and family
law. When judges learn, for example, about their discretion in excluding
witnesses from the courtroom they should also learn about the importance to
victims and their families of being present for hearings and trials. When
judges learn about setting bail and issuing restraining orders, they should
also be apprised of research indicating when domestic violence is most
lethal. Programs about child victims and victims of family violence, sexual
assault, and hate crimes are good vehicles to educate the judiciary about
victim issues. Judges should assume responsibility for obtaining current
information about victim-related laws and any subsequent amendment of those
laws.

In addition to general training, judges assigned to criminal courts, and
particularly to specialized courts such as domestic violence courts, should
receive intensive training in the impact of such crimes on victims, the
dynamics between victims and offenders, and issues when judging the
credibility of victims such as child victims and victims of domestic
violence and sexual assault. Interdisciplinary training is essential. To
truly act as problem solvers, judges must be aware of medical,
psychological, and child development issues. Innovative ways need to be
explored to allow judges with expertise in these areas to share that
expertise with their colleagues through mentoring, partnering of courts,
and use of experts who ride the circuit. All training curriculums must
address the needs of multicultural and multiethnic groups, and all training
initiativesnot just that on multicultural issuesshould use the skills of
racially, ethnically, and culturally diverse trainers.

Court administrators must ensure that judges are provided ongoing,
comprehensive training on victims issues, and that the specialized training
described above is incorporated into training plans and budgets.

Judiciary Recommendation from the Field #3

Judges should facilitate the rights of crime victims and their families to
be present at court proceedings unless the defendant proves that their
presence would interfere with the defendants right to a fair trial.

Thirty-four states have given victims the right to attend either the
defendants trial specifically or the criminal proceedings generally.16
Furthermore, nearly half of the states guarantee it in their constitutions.
In most cases, this right is limited by the requirement that it apply only
to proceedings in which the defendant is also present. In addition, the
majority of the states that allow for the victims right to attend the trial
also give judges wide discretion in excluding a victim from the courtroom
in order to preserve the defendants right to a fair trial or based on the
victims dual status as a witness.

Practical considerations also prevent victims from attending legal
proceedings. In high-profile or multiple-party cases, there are often not
enough seats in the courtroom reserved for the victims and members of their
immediate family. Judges must make a point of setting aside adequate space
in their courtrooms for crime victims and make better use of technology to
expand victims access to proceedings. The power of technology to aid
victims was shown recently when closed-circuit television allowed hundreds
of victims and survivors of the bombing of the Alfred P. Murrah Federal
Building in Oklahoma City to observe the trial in Denver, Colorado, from an
auditorium in Oklahoma City.

Judiciary Recommendation from the Field #4

Judges should consider victim and community safety in any prerelease or
postrelease decision. As part of any pretrial release order, including
bail, bond, or personal recognizance, judges should include a no-contact
provision stating that the accused or defendant shall not harass,
intimidate, threaten, or commit physical violence against the victim or
victim's family.

Judges should invite victim input, whenever possible, regarding the release
of the accused. When bail is allowed, when appropriate it should be
conditioned on the defendants restricted access to victims or prosecution
witnesses. If judges find probable cause that the defendant has harassed,
intimidated, threatened, or committed physical violence against the victim
or the victim's immediate family, judges should revoke the defendants bond
or personal recognizance and order that he or she be taken into custody.

Judiciary Recommendation from the Field #5

Before imposing a sentence, judges should permit the victim, the victims
representative, or, when appropriate, representatives of the community to
present a victim impact statement.

Today, all states, the District of Columbia, and the federal government
have enacted victim impact statement laws to allow judges to weigh the
financial, physical, and emotional impact of a crime on its victim in
establishing appropriate sentencing for the defendant. The U.S. Supreme
Court has upheld the constitutionality of victim impact statements at
sentencing, even in the most difficult decisions, capital offenses. Victim
impact statements are an important source of information for judges in
ordering restitution to the victim. In addition to statements from
individual victims, community impact statements have been used in
drug-related crimes to provide the courts with information on the impact of
the crime for those living in drug-ridden neighborhoods.

Judges should require the inclusion of victim impact statements, including
community impact statements where appropriate, in all dispositional
hearings, especially plea agreements and sentencing. Judges should allow
for the submission of victim impact evidence both orally and in writing.
Additionally, judges should allow victims to submit victim impact evidence
via audiotape, videotape, or other electronic means, especially when the
victim is a child, elderly, or disabled, or where travel to the court would
be burdensome. To facilitate input from victims who face communication
barriers, judges should make every attempt to locate foreign or sign
language interpreters. Finally, judges should require prosecutors to
describe on the record their efforts to contact and seek input from
victims.

Judiciary Recommendation from the Field #6

Judges should facilitate the input of crime victims into plea agreements
and resulting sentences, and they should request that prosecuting attorneys
demonstrate that reasonable efforts were made to confer with the victim.

Requiring offenders to acknowledge guilt and take responsibility for their
actions is important to the victims healing process and the offenders
rehabilitation. It is significant for victims healing that the judge
acknowledge at the time of sentencing that victims have been injured,
solicit specific information from victims on the crimes impact on their
lives, and explain the terms of the offenders sentence.

Judges decisions will be better informed if victims are given an
opportunity to provide comments about the plea agreement. In general,
judges should require that reasonable efforts be made to confer with the
victim, notify the victim of the time and date of the plea hearing, and
inform the victim of his or her right to be present and heard. Whenever
possible, the court should be informed of the victims opinion concerning
plea agreements. With the vast majority of cases disposed of through plea
agreements, the debate on victims rights needs to be refocused on this
critical juncture of the criminal justice system.17 Exceptions to this
practice should only be made under extraordinary circumstances such as in
cases involving many victims or confidential informants.

Victim input into the plea process is critical because the rapid growth in
caseloads over the past two decades has forced courts to use more efficient
means of concluding cases. Resolving criminal cases through plea
agreements, which are quicker than formal trials, has become standard
practice in courts today. In 1994, 64 percent of felony cases in state
courts nationwide were disposed of through guilty pleas, while only 7
percent were disposed of by trial. The remaining cases were resolved by a
decision by the prosecutor not to continue or by the court to drop all
charges.18

With criminal caseloads expected to increase even more in the decade ahead,
the pressure on the judiciary, prosecution, and defense to dispose of cases
through plea agreements will likely also increase. The great irony for
victims is that this is an area of the criminal justice process in which
victims are given fewest opportunities for participation. Nationwide,
victims are often not notified about plea negotiations nor asked to provide
input into the plea agreement.

A number of state constitutional amendments and statutes mandate victim
input into the plea bargaining process. Arizona law, for example, requires
that the court not accept a plea agreement unless:

 The prosecuting attorney advises the court that before requesting the
negotiated plea reasonable efforts were made to confer with the victim;

 Reasonable efforts are made to give the victim notice of the plea
proceedings and to inform the victim that the victim has the right to be
present and, if present, to be heard; and

 The prosecuting attorney advises the court that to the best of the
prosecutors knowledge notice requirements were complied with and the court
was informed of the victims position, if known, regarding the negotiated
plea.19

For the benefit of both offenders and victims, consideration should be
given to not accepting no contest pleas.

Judiciary Recommendation from the Field #7

As leaders within the justice system, judges must ensure that victims
rights legislation is fully implemented.

Judges should work closely with the bar to encourage dialogue with lawyers
and the community about the problems of victims within the justice system.
Judges should foster education and an understanding that solving victims
problems does not mean denying rights to offenders. Being leaders within
the community means that judges have a responsibility to hear the publics
views about the criminal justice system, understand community needs, and
encourage public involvement in the criminal justice system. The philosophy
of community involvement underlying community courts should be incorporated
into all courts.

The chief justice of each state should personally take responsibility for
encouraging dialogue on these subjects. The implementation of victims
rights should be placed on the agendas of the Conference of Chief Justices
and the Conference of State Court Administrators. The Model Code of
Judicial Conduct and state codes of judicial conduct should be examined to
ensure that judges are encouraged to treat victims fairly. The Conference
of Chief Justices and the Conference of State Court Administrators should
hold educational panels on victim issues at their annual meetings. Each
chief justice should ensure that the judicial recommendations contained in
this report are disseminated to every judicial officer within his or her
state and that appropriate and continuing educational programs on victim
issues are undertaken.

Victim issues are important for federal as well as state court judges.
Victims of crime appear in federal courts in cases involving white collar
crime, terrorist bombings, civil rights crimes, interstate child support
and domestic violence offenses, and crimes committed in Indian Country, on
military reservations, and in other federal enclaves. Victims also appear
in civil cases involving civil rights, sexual harassment, and employment
discrimination. Victim issues should be on the agenda of the Judicial
Conference of the United States, the Federal Judicial Center, and the
Administrative Office of the United States Courts. All judicial agencies
should develop continuing training programs for judges and all court
personnel on victims rights and services.

The presiding judge in each court is particularly important as a leader and
inspiration among his or her peers, a spokesperson for the justice system
within the community, and a liaison and collaborator with other branches of
government. Judges and courts should see themselves and be seen by the
community as peacemakers and problem solvers. This message should be taken
to law schools, the bar, and to the community at large. Special steps
should be taken to ensure that this outreach involves all sectors of the
community including culturally or linguistically distinct groups.

Victims and victim advocates should be informed of available recourse to
judicial oversight groups such as judicial disciplinary committees should
they believe a judge has denied a victims rights in court. The California
Commission on Judicial Performance has demonstrated the efficacy of this
remedy and has twice brought public censure on judges who failed to honor
crime victims statutory rights. Disciplinary committee members should
receive ongoing training in victims issues and in substantive victims
rights.

Judiciary Recommendation from the Field #8

Judges should play a leadership role in ensuring that police, prosecutors,
defense counsel, judges, and court administrators receive joint training so
that all have a comprehensive picture of what happens to a victim as he or
she navigates through the criminal justice system.

Judges should give special consideration to how defense attorneys and the
bar at large can best be educated about crime victims and how courts can be
reoriented to be problem solvers for both offenders and victims.
Appropriate postadjudication victim-offender mediation programs should be
encouraged, but only with adequate safeguards for the physical and
emotional well-being of victims and their families, and only if requested
by the victims. The defense bar and public defenders as well as prosecutors
should be fully involved in the planning and implementation of specialized
courts. Multicultural issues should be incorporated into all trainings.

Judiciary Recommendation from the Field #9

Judges have a responsibility to manage their cases and calendars to make
victim involvement as feasible as possible. Modern technology should be
used to give victims greater access to the justice system and should
include multilingual services at no cost to victims.

Many victim reforms such as reducing delay, allowing input into the process
at points other than sentencing, and controlling the examination of
witnesses are dependent on active case and courtroom management by the
judge. The need for efficiency should not be used as an excuse not to
inform and involve victims. Victim involvement does require time, but a
properly managed court and calendar can accommodate reasonable victim
participation. Judges set expectations for attorneys and other participants
in the justice system. The local legal culture will respect and comply with
victim involvement if it is expected and validated by the judiciary.

With appropriate safeguards for statutorily required confidentiality,
modern technology should be used to bring more information about crime
victims and offenders in particular cases to judges. Technology should be
used to link all agencies within the criminal justice system to ensure that
court orders issued to the same family do not conflict. Teleconferencing
and closed-circuit television should be used to minimize inconvenience and
trauma to victims. Information kiosks, educational videos, and other
educational tools should be used to educate victims about the justice
system and the process and procedure they should expect. Judges should
coordinate with other criminal justice agencies in the development of a
centralized case tracking system that will provide victims with notice at
every stage of the criminal justice process.

The availability of interpreters and accessibility to the justice system
are important issues for the public, and for victims and their families in
particular. Judges should never assume that disabled crime victims and
their family members would prefer not to or cannot attend court
proceedings. Courts should provide victims with interpreters for all
proceedings whenever needed and possible, and at least one courtroom in
each courthouse should have the capability for real-time transcription for
hearing-impaired victims.

Judiciary Recommendation from the Field #10

Judges should order restitution from offenders to help compensate victims
for the harm they have suffered. If extraordinary and compelling reasons
make restitution impractical or inappropriate, judges should explain in
writing and on the record why they did not order it.

Judges should order restitution 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. Courts should make
every attempt to ensure the enforcement of restitution orders. Judges
should also explain to crime victims the purpose of ordering restitution as
part of a sentence, how it is collected and disbursed, and the avenues
available to hold offenders accountable for payment. Victims should be
advised not to have unrealistic expectations about receiving restitution
payments from indigent offenders.

In addition, judges should ensure that restitution orders become automatic
liens against the defendant by ordering restitution as a civil judgment
where permitted by law. The judgment can then be enforced by the government
or by the victim or the victims beneficiary in the same manner as a civil
action. In cases in which more than one defendant is convicted of the
criminal offense, the defendants should be held jointly and severally
liable for the judgment. There is a growing trend to enforce restitution
orders as civil liens. Currently, a majority of states have laws that
permit the courts to enforce restitution orders as civil judgments, either
at the time of the order or at the end of an offenders probationary period.
In some states, the laws also allow the authorities to seize an offenders
property and financial assets through the use of garnishment or attachment
orders when the offender has failed to satisfy the courts order.20

Judiciary Recommendation from the Field #11

Judges should play a leadership role in ensuring that separate and secure
waiting areas are available in all courthouses for prosecution and defense
witnesses to minimize the contact of victims with defendants, their
relatives, and friends before, during, and immediately after court
proceedings.

The 1982 Presidents Task Force recommended that judges or their court
administrators establish separate waiting rooms for prosecution and defense
witnesses to reduce victim intimidation.21 However, the practical reality
of too many overcrowded courthouses across the country has prevented the
full implementation of this important recommendation. As new courthouses
are designed, the safety of victims must be taken into consideration.

Judiciary Recommendation from the Field #12

Codes of Judicial Conduct should be amended to reflect the fact that crime
victims play a pivotal role in the criminal justice system.

Judges throughout this country are guided by their respective Codes of
Judicial Conduct. These codes are not intended to be exhaustive guides for
the conduct of judges. They are intended instead as guidelines to assist
judges in establishing and maintaining the highest standards of judicial
conduct. The Code of Conduct for United States Judges applies to all
federal judges and serves as a model for state Codes of Judicial Conduct.

The following specific recommendations, highlighted in bold, are offered as
amendments to the Code of Conduct for United States Judges:22

Canon 3(A)(3)23 should be amended to provide that:

A judge shall be patient, dignified and courteous to litigants, jurors,
victims of crime, witnesses, lawyers and others with whom the judge deals
in an official capacity, and should require similar conduct of lawyers, and
of staff, court officials and others subject to the judges direction and
control.

Canon 3(A)(4)24 should be amended to provide that:

A judge shall accord to every person who has a legal interest in a
proceeding, including victims of crime, or that persons lawyer, the right
to be heard according to law.

Other jurisdictions should modify their respective codes of conduct
accordingly.

Judiciary Recommendation from the Field #13

Judicial assignments to specialized courts or family law or juvenile courts
should be based on experience and interest, not on lack of seniority or
punishment.

There is a perception among some members of the judiciary that the work of
family or juvenile courts is of less distinction or merit than that of
other courts. As a result, assignments or appointments to these courts
typically do carry the same stature in judicial circles and are less well
paid. Judges in other courts may have little understanding of the nature
and complexity of the issues involved in juvenile or family court cases,
limiting their ability to recognize and address these issues when they
arise in their own court.

To the extent that there is a goal of exposing all judges to all
assignments, adequate education and mentoring should accompany rotational
assignments. Rotations should be long enough to allow the new judge to
become thoroughly familiar with the assignment and the law. Judicial
salaries should be equalized. In particular, lower salaries should not be
paid to judges sitting in juvenile or family law courts.

Judiciary Recommendation from the Field #14

Judges must take a leadership role in conceptualizing and advocating that
the justice system encompass not only traditional adjudication and
punishment but also holistic problem solving and treatment for victims as
well as offenders. Principles of restorative community justice and
therapeutic jurisprudence should be incorporated into court systems with
due regard for differing cultures and ethnic groups.

Courts must reexamine the ways in which they do business and consider
innovative means of achieving justice through the involvement of the
community and victims. A reorientation toward problem solving, as opposed
to only adjudication, requires a much broader allocation of jurisdiction
among judges. In family violence cases, for example, such a reorientation
may require a single court to exercise criminal, civil, as well as juvenile
jurisdiction to address all of a family's problems. This expanded
jurisdiction gives the court the authority to hold the batterer accountable
through treatment as well as punishment and protect and treat both adult
and child victims of violence.

Reorienting courts toward problem solving expands the systems definition of
victim in the context of a particular set of issues. Again using family
court as a model, victims would now include children who witness violence
in their family as well as those who are themselves battered and sexually
assaulted. Moreover, judicial problem solving expands our definition of
restitution. The new objective is to help the victim achieve healing as
well as to hold the offender accountable. In addition to full monetary
restitution, courts must make counseling, social services, drug and alcohol
treatment, and job training available, when appropriate, to victims and
offenders.

The Judicial System Today

State courts serve as the primary institution for adjudicating criminal and
civil disputes in the United States. There are 16,400 state trial courts
operating in the 50 states, District of Columbia, and Puerto Rico.25 Of
these courts, 13,874 are limited jurisdiction courts and 2,513 are general
jurisdiction courts. In 1994, 27,194 trial judges served in state courts.26

In the federal judicial system, 94 district courts and 12 regional courts
of appeals adjudicate approximately 310,000 criminal and civil cases each
year.27 Approximately 1,991 judges comprise the federal judiciary28 and
there are approximately 325 tribal courts in the nations tribal justice
system.29

Pressures on the Court System

One of the greatest challenges facing the nations judiciary over the past
decade has been the huge growth in the number of serious cases before the
courts.30

 In 1995, 86 million new cases were filed in state courts, including
approximately 20 million civil and domestic relations cases, 13 million
criminal cases, 2 million juvenile cases; and 51 million traffic and
ordinance violations.

 Between 1984 and 1995, criminal caseloads rose 38 percent, juvenile
caseloads rose 55 percent, and domestic relations caseloads rose 70
percent. In contrast, the U.S. population increased roughly 10 percent over
the same period.

 Felony filings in general jurisdiction courts increased 70 percent
between 1984 and 1994.

 Total criminal case filings in the United States reached an all-time high
in 1995 of more than 13 million casesa 38 percent increase since 1984.

 The most rapid growth in domestic relations cases occurred in the area of
domestic violence, with filings in 1995 increasing over 99 percent since
1989.

 On the federal level, U.S. District Courts faced a significant increase
of criminal cases filings from 1980 to 1994, rising from 27,968 to
45,774.31

Endnotes

1 Presidents Task Force on Victims of Crime, Final Report, Washington,
D.C.: U.S. Government Printing Office, December 1982:72.

2 National Victim Center, 1996 Victims Rights Sourcebook: A Compilation and
Comparison of Victims Rights Laws, Arlington, VA: National Victim Center,
1997: 9.

3 National Conference of the Judiciary on the Rights of Victims of Crime,
Statement of Recommended Judicial Practices, Washington, D.C.: U.S.
Department of Justice, National Institute of Justice, 1985.

4 Attorney Generals Task Force on Family Violence, Final Report,
Washington, D.C.: September 1984: 33-34.

5 The Judicial Focus Group on Victims Issues, which met in Washington D.C.
on January 27-28, 1997, consisted of prominent members of the judiciary and
judicial administrators. They included the Honorable Mary C. Morgan (ret.),
the Honorable Richard Andrias, the Honorable A. Franklin Burgess, Jr., John
Feinblatt Esq., the Honorable Lois Haight, the Honorable Suzanne W. Knauf,
the Honorable Cindy Lederman, the Honorable Rosalyn Richter, Lynn Hecht
Schafran Esq., the Honorable Bill Schma, the Honorable Bill Thorne, and the
Honorable Irene Toledo.

6 Office for Victims of Crime, Report from the Judicial Focus Group on
Victims Issues, Washington, D.C.: 1997.

7 Id.

8 Id. at 4. Judges report that they often feel caught in the crossfire
among prosecutors who resent interference in their cases, victim advocates
who perceive judges as having more power and discretion than they do, and
defense counsel who often paint victims as persons interested only in
revenge.

9 Edwards, Hon. Leonard P., Reducing Family Violence: The Role of the
Family Violence Council, Juvenile and Family Court Journal, 2,1992:43.

10 Violence Against Women Act, Tit. IV of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322 (September 13, 1994), codified
at 42 U.S.C. 13701.

11 Abrahamson, Hon. Shirley S., A True Partnership for Justice, JUDICATURE,
Vol. 80, No.6 (1996).

12 American Prosecutors Research Institute, Community Prosecution: A Guide
for Prosecutors, Washington, D.C.:1995: 32 (National District Attorneys
Association prepared under agreement with the U.S. Department of Justice,
Office of Justice Programs, Bureau of Justice Assistance, 1995). This
unique concept for victim participation was first initiated by the
Milwaukee District Attorneys Office, and is now routinely used by the U.S.
Attorneys Office for the Eastern District of Wisconsin.

13 Bush, G. W. and K. J. Greene, The Governors Criminal Justice Plan for
Texas: Protecting Our Future, Austin, Texas: Criminal Justice Division,
Office of the Governor, fiscal year 1998:58.

14 The Edmund D. Edelman Childrens Court, The Childrens Court Design
Committee Report, Los Angeles, California: Juvenile Court Administrative
Office, 1995.

15 Id.

16 National Victim Center, 1996 Victims Rights Sourcebook, 257.

17 Ostrom, B. J. and N. B. Kauder, Examining the Work of State Courts,
1994: A National Perspective from the Court Statistics Project,
Williamsburg, VA: National Center for State Courts, 1996:66.

18 Id.

19 ARIZ. REV. STAT.  13-4423 (1996).

20 National Victim Center, 1996 Victims Rights Sourcebook, 275-276.

21 Presidents Task Force on Victims of Crime, Final Report, 72.

22 Code of Conduct for United States Judges, Guide to Judiciary Policies
and Procedures, Washington, D.C: Judicial Conference of the United States,
1997: vol ii, ch.1.

23 Id. at 5.

24 Id. at 6.

25 Ostrom, Examining the Work of State Courts, 1994, 17, 14.

26 Id. at 14.

27 Administrative Office of the U.S. Courts, Statistical Report for the
Justices and Judges of the United States, Washington, D.C.: April, 1997:1.

28 Id.

29 Telephone interview between Cathy Sanders (OVC) and the National
American Indian Court Judges Association (April 24, 1997).

30 Ostrom, Examining the Work of State Courts, 1994, 8-9.

31 Committee on Long Range Planning, Proposed Long Range Plan for the
Federal Courts, Washington, D.C.: Judicial Conference of the United States,
November 1994:11.