RESOURCE MATERIAL SERIES No. 56

INCLUDING VICTIMS IN THE AMERICAN CRIMINALJUSTICE PROCESS
Heather L. Cartwright*
I. INTRODUCTION: WHY DO WE
NEED VICTIMS’ RIGHTS LAWS?
“I will never forget being raped,
kidnapped, and robbed at gunpoint.
However, my sense of disillusionmentof the judicial system is many times
more painful. I could not in good faithurge anyone to participate in thishellish process.”
A victim (as quoted in the President’s
Task Force Report at p. 5 (1982)).
“To be a victim at the hands of thecriminal is an unforgettablenightmare. But to then become avictim at the hands of the criminal
justice system is an unforgivable
travesty. It makes the criminal andthe criminal justice system partners
in crime.”
Robert Grayson (as quoted in the
President’s Task Force Report at p. 9
(1982)).
Dire descriptions of the American
criminal justice system such as these andothers were heard at public hearings
conducted by the Presidential Task Forceon Victims of Crime in 1982. The hearingsand subsequent report issued by the Task
Force motivated a dramatic change in theway the criminal justice system in the
United States treats victims of crime at theFederal and local level. Although we havemade some progress in the past 17 years* Attorney Adviser for Director, Office of Victims of
Crime, Office of Justice Programs, Department ofJustice, United States of America.

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in making the criminal justice process more
responsive to victims of crime, we in the
United States still think we have someways to go to become a system that treats
all participants in the process fairly.
The United States has a very serious
crime problem. Millions of citizens become
victims of crime every year. We are stilllearning what long term impacts crime
victimization has on individuals andcommunities. Crime victimization can
negatively affect a victims’ views of theirgovernment and community, their senseof safety, and mental health. Indeed, withsome types of victimization, especiallycrimes against children, there is some link
between those who have been victims andthose who become victimizers. For thehealth and safety of our communities
therefore, it is important to treat crime
victims in a manner that will promotehealing and recovery from the experience.
For the health and future of our criminal
justice system it is also important to treat
victims well. Victims who survive theirexperience, and are brave enough to report
the crime, turn to their government
expecting it to do what a good government
should do, protect the innocent. The
American criminal justice system isabsolutely dependent on crime victims’
cooperation. Without the cooperation of
victims and witnesses in reporting andtestifying about crime it is impossible in afree society to hold criminals accountable.
When victims come forward in our country
to perform this vital service, however, theyoften find little assistance and protection.
There is a sense experienced by many

112TH INTERNATIONAL TRAINING COURSE
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victims that the system is out of balance,that there are many rights and protections
for offenders, but none for victims. To
continue to encourage victim participationin the system, and to make thatparticipation as helpful as possible both tothe victim and the system, it is vital thatcertain essential victims rights areincorporated into the process.
Finally, providing basic victims rights is
the right thing to do. Our justice system
must be fair to all involved to reallydispense justice. If victims walk away fromthe experience feeling that they were notrespected, listened to, consulted, or
protected, the system really has failed themin a significant way. Regardless of what
moral code we as individuals adhere to, theway our systems treat crime victims, someof the most wronged members of oursocieties, is a true measure of the moralityof our societies.
II. WHAT DO VICTIMS WANT?
Of course, as with all people, victims
want to be treated with dignity and respect.
This is difficult to legislate, but should be
used as a guiding principle. In terms ofactual, enforceable rights, victims
generally report that they want to be
informed and participate. Being informed
usually encompasses getting notice of what
is happening in the case and having someability to observe proceedings.
Participation centers around having thevictims’ side of the story heard andvalidated, especially the extent of the harmcaused by the crime. Another very
important need for victims, and indeed themost urgent one I encountered as a publicprosecutor, is the need to feel safe as thevictim participates in the criminal justiceprocess. Victims more than anyone knowhow destructive the offender can be and areunderstandably concerned about theirsafety as they participate in the process.

The one thing victims want more thanany other, however, we have no power togive. Ultimately, victims want the crime
not to have happened. Because this is
impossible for the criminal justice system
to provide, many victims are going to bedisappointed at the end of the process. If
the process has been fair, however, mostvictims will eventually be satisfied with thesystem, even if the result is not what theywanted.
III. VICTIMS’ RIGHTS IN THE
AMERICAN SYSTEM
As you may already know, we have two
major justice systems in our country: thestates and the Federal government. Eachstate has its own system, with its own
constitution, laws, and governmental
structure. States have jurisdiction over all
crimes occurring in that state. The Federal
system encompasses only certain limited
crimes, usually those having an impact
beyond a single state. In our country, thestates have really been the leaders in thearea of victims’ rights, although thoserights vary from state to state. The Federal
system’s first victims’ rights statute waspassed in 1982, in the aftermath of the
President’s Task Force on Victims of Crime.
Since that time, several additional laws
have been passed that have expanded andstrengthened the Federal crime victims’rights. Even today, we have new legislation
pending in our Congress to further expand
the rights of Federal crime victims. In
addition, for several years our Congress has
been debating adding a provision forvictims rights to our Federal constitution.
That constitutional amendment is
supported by the President and theAttorney General.

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IV. TYPES OF VICTIMS RIGHTS
LAWS
A. Definition of Victim
Interestingly enough, one of the mostcontentious issues when establishing
victims’ rights laws is deciding who should
qualify as a victim. Some suggest that therights, or at least stronger or morecomprehensive rights, should be limited toviolent crime victims. This policy excludes
victims of economic and property crimes
like fraud. Some of the states limit victims’rights to situations involving physicalinjury to the victim, however, the Federal
stature includes victims of all crimes. It
should be noted that some economic crimes
have devastating impacts on their victims,
especially if the victim is particularly
vulnerable like an elderly person.
In the case of a homicide, incapacitatedor child victim, most statutes allow for afamily member such as a spouse or parent
to be considered the victim. It is important
to make sure that anyone who is culpablefor the crime is not designated the victim
under this provision.
This raises another difficult issue,
whether someone who is culpable in someway for the crime being investigated orprosecuted, or some other crime, is entitled
to receive victims’ rights. Although ourFederal statutory definition of victim issilent about this question, as a policy
matter our Federal Justice Department
has decided that those individuals who areculpable in the crime being investigated orprosecuted will not be treated as victims.
This means that victims who may be
culpable for some other crime are treatedas victims. Examples of such persons are:illegal aliens who are involuntary servitude
victims, inmates who are victimized inprison, and victims of witness intimidation.
This policy prevents someone who is an
injured participant in the crime from being192

considered a victim for purposes ofreceiving victims’ rights.
One final important issue that any
drafter of victims’ rights provisions needs
to consider is the line to draw between
direct and indirect victims. There must be
some point at which a person’s injury froma crime is too attenuated to entitle them tovictims’ right. Certainly, most people whoare physically injured should be consideredvictims. In addition, some people who
suffer emotional harm and trauma should
be included, but it is more difficult to draw
a line when you talk about emotional harm.
Take the example of a bank robbery crime.
Typically, the bank, which suffers thefinancial harm, is considered the primary
victim. The question presented is whether
the tellers, bank employees, and customers
present in the bank at the time of therobbery are also “direct” victims of thecrime. The answer to this question will
depend to a great extent on the facts of eachspecific case. If, for example, a robber
points a gun at a teller as part of therobbery and, as a result, the teller suffers
psychological trauma (and may be a trial
witness), the harm is a direct result of thecrime and the teller probably should betreated as a victim, even though s/he may
not have suffered any physical injury (theteller is actually the direct victim of anarmed assault which may not be separately
charged).
In comparison, a bank employee who
was in another room and only heard people
talking about the robbery may also suffer
some trauma, but is much more indirectly
harmed and usually should not be
considered a victim for purposes of victims’rights and services. In between those two
examples are a variety of different factual
situations requiring law enforcement
personnel to use their judgement and drawlines just as they do in other contexts.

112TH INTERNATIONAL TRAINING COURSE
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There may be cases that involve
hundreds or even thousands of direct
victims. For example, in a terrorist
bombing or a mass violence shooting, there
may be a large number of persons who are
killed, injured, or suffer extreme emotionalharm such that they would be considereddirect victims. Indeed, in a terrorist
incident, the terrorist targets a large
number of people with the intent of
inducing fear and other emotional harm.
Just because there is a large number ofvictims does not mean that victim services
should not be provided. It just means thatyou have to be more creative about how toprovide them.
B. Right to Notice
Perhaps the most fundamental right ofa crime victim is the right to be kept
informed by the criminal justice system.
The other rights and services that may beavailable to a crime victim are meaninglessunless the victim knows they exist. For
example, a victim’s right to attend
proceedings or to be heard at proceedings
can have no effect unless the victim is
notified in advance of those proceedings.
The right to be notified can be divided into
two classifications: the right to general
information which is of interest to all crime
victims, and the right to be kept informed
about proceedings and events relating tothe offense against that particular victim.
Our state criminal justice systems often
provide much general information ofinterest to all victims. Such general
information includes: notice of theavailability of crime victim compensation
money; referrals to victim services such asrape crisis centers, homicide survivor
groups, and general victim service
agencies; information about the steps
involved in a criminal prosecution; andnotification about victims’ rights. In theFederal system, many of our investigative
agencies have brochures which they handout to victims containing some of the same
information. Our Federal prosecutors havea book called the “Victim Witness
Handbook” which contains information
about the stages of the criminal justiceprocess.
The other type of notice, notice of eventsand proceedings in the criminal justiceprocess, is one of the most time consuming
and expensive of the victims rights forgovernment to provide. Keeping victims
informed throughout the criminal justiceprocess, however, is a very important rightbecause it is a recognition that victims are
more than mere pieces of evidence in thegovernment’s case; that they as individuals
have a real interest in the progress of thecriminal case and the current status of theoffender. There are dozens of events orproceedings in the ordinary criminal justiceprocess for which notice may be requiredby our state and Federal statutes. The
types of proceedings and events that are
most frequently included are: scheduled
court proceedings and any cancelled or
rescheduled dates, dismissal or droppingof case, plea bargains, appeals, release fromprison (including conditional releases), andparole hearings. In the Federal system weprovide victims with notice of the status of
the investigation, the arrest of the offender,
the filing of charges, the scheduling of
public court proceedings, the release ordetention status of the offender, theacceptance of a plea of guilty or the trial
verdict, the sentence, any scheduled parole
hearing, any release of the offender(including escape, work release, andfurlough), and the death of the offender ifs/he dies while in custody.
The procedures that the state andFederal governments use to notify victims
vary widely. In the Federal JusticeDepartment, we encourage personal
contact with and notice to victims if
possible. Many notifications are

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accomplished through phone calls andletters. With some notices, such as a
notification that an offender has escapedfrom prison, immediate notification by
telephone can be a matter of life or death.
Increasingly, states are using technology
to assist with victim notification. With
automated notification systems, victims’
names and addresses are entered into a
computer that can automatically issue
notification letters when some particular
event occurs. These systems also have thecapability to call a victim in an emergency,such as when an offender escapes fromprison. The Federal system is presently
considering adopting such a system.
Notification presents a particularchallenge in cases with large numbers ofvictims. Some cases may involve
thousands of victims. Our Federal JusticeDepartment’s policy provides that in caseswith large numbers of victims, Department
employees should use the practical means
best calculated to achieve actual contact
with and notice to victims. A variety oftechniques are available to enable law
enforcement personnel to provide adequate
notice and assistance to victims in larger
cases. The determination of what efforts
are sufficient and what types of notice andassistance are appropriate depends largelyon the anticipated needs of the crime
victims. In addition, law enforcement
personnel need to carefully evaluate thetype of information relayed and the methodof communicating the information to seethat notification efforts do not compromise
investigations or inadvertently invade
victims’ privacy.
Identifying the nature of the harmsuffered by crime victims is essential todetermining the appropriate method ofeffectuating notice and providing
assistance. Victims of violent crimes, forexample, may have a high level of need fora wide range of victim services in almost194

every instance, and so in almost every
instance a substantial effort to identify andpersonally contact victims of violent crime
will be warranted, regardless of thenumber of victims involved. Indeed, law
enforcement field offices should consider
assessing the possibility of a large scaleviolent crime occurring within theirjurisdictions, identifying the resources
currently available to provide victim
assistance (government resources andprivate resources such as the Red Cross)and those resources needed but notavailable, and developing contingency
plans for contacting and providing
assistance to mass crime victims should theneed arise.
As another example, victims of financial
crimes such as telemarketing fraud often
suffer significant (to them) harm and havea high degree of need for notice and referral
services. Names and addresses of victims
of financial crimes can often be obtained
from offenders’ records, and even insituations where thousands of victims exist
it may be appropriate to send individual
victims an initial notification letter
informing them of the nature of the offense
and assessing their interest in receiving
future notice and consultation services.
Under one Federal law, defendants who
have been convicted of offenses involving
fraud may be ordered by the court to spend
up to $20,000 to provide notice to victims
explaining the conviction (18 U.S.C. §3555).
Offices that frequently deal with cases
involving large numbers of identifiablefraud victims may wish to develop theability to conduct mass mailings in-house,
while offices that do not should locate
private companies who can handle
sensitive government information and who
can assist with the provision of suchservices when needed.
In other cases involving large numbersof victims, circumstances may require other112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
methods to provide notice and assistanceto the victims. When a crime results in alarge number of victims who are likely havesuffered significant harm and cannot bereadily identified, but who reside in alimited geographic area, a well-publicized
town meeting may be an effective way toidentify victims, provide victims with noticeand pertinent information, and consult
with victims concerning the crime and thegovernment’s investigation. Still othercases may present a situation where a verylarge number of victims (spread out over alarge geographic area) have likely suffered
only minor (to them) financial losses.
Under theses circumstances, the use ofrepresentative victims, victim proxies (suchas organizations that represent theinterests of the victim class or actual classaction representatives) or even the generalmedia may be the most efficient method toprovide victims with notice andinformation concerning the crime.
Other techniques, beyond thosementioned above, also exist that can, in
certain situations, assist law enforcement
personnel to provide large numbers ofvictims with information concerning theongoing status of an investigation,prosecution, or detention. For example,
toll-free telephone numbers can beestablished that not only permit victims tocall in and get recorded information
concerning the status of a matter, but that
actually call the victims to alert them to achange in status. With individuals’
increasing ability to access the Internet,
web sites can be created that contain
information concerning the progress ofinvestigations and prosecutions (keeping in
mind, of course, that any information thatis not for public dissemination should not
be posted on the Internet. Items that would
normally be appropriate for a press release,such as dates for public court proceedings,
are appropriate for the Internet.) Also,
private groups that have within theirmembership a significant number ofvictims of a particular violation may havenewsletters or other methods of informing
their members that can be used to provide
information about the ongoing progress ofa case. Some victims themselves may bewilling to assist with preparing anddisseminating a newsletter or participating
in a phone tree.
C. Right to Attend the Trial
The ability of victims to attend trial
proceedings is one of the most significant
in the eyes of victims, and one that is very
important to ensuring victim satisfaction
with the system. In the American judicial
system, however, this is a very troublesome
right if the victim will also be a trial
witness. Under most rules of evidence,
there is a rule commonly referred to as the“rule on witnesses”. The rule provides thatwitnesses should be excluded from thecourtroom during trial proceedings except
when they are testifying. The rule isdesigned to prevent witnesses from hearing
other evidence in the case and thenintentionally or unintentionally changing
their testimony to conform with the otherevidence. Defendants are exempt from thisrule.
The states and the Federal government
have taken a variety of approaches to try
to harmonize the rule on witnesses with thevictims’ right to attend trial. Some states
mandate the exclusion of all witnesses fromall proceedings. On the other extreme,some states specifically exempt victims
from the rule on witnesses in much thesame way that the defendant is exempt.
Some states take a middle route, forexample, allowing the victim to sit in on
the trial after the victim has testified.
Overall, the majority of states that give
victims the right to attend the trial also
give the judge discretion to exclude thevictim, either as a witness or to preserve
the defendant’s right to a fair trial

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generally. The defendant’s right to a fairtrial is guaranteed by the US Constitution,
the highest law of the United States, whilethe victims’ right to attend is a matter ofsubordinate state law. In the Federal
courts, victims have a “qualified” right toattend that is, they have the right to bepresent at all public 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. In 1996,
new legislation gave Federal victims anadditional attendance right. Federal law
now provides that a Federal judge can not
exclude any victim from trial if the victims’
only role as a witness is testifying at thesentencing hearing. Interestingly enough,this statute was passed specifically toaddress the attendance issue in a highprofile case, the Oklahoma City bombing
trial. In that case the victims hired theirown attorney and lobbied Congress for
permission to attend the trial, even thoughsome of them planned to be sentencing
witnesses.
The Oklahoma City bombing trial also
was the first to use a closed circuit
television link to broadcast the trial to anauditorium so that any victims who wanted
to could watch proceedings. That caseinvolved over 2,000 victims and there
wasn’t enough room in the courtroom for
all the victims to observe the trial. In
addition, the trial venue was moved from
Oklahoma City to Denver, Colorado, somedistance away. Many of the victims could
not afford, nor did they want to, travel toattend the trial in Denver. So the judge
authorized a closed circuit television link
between the courtroom in Denver and anauditorium in Oklahoma City. The
auditorium was treated like a courtroom
and was presided over by a retired
magistrate. Grief counselors wereavailable at the site. By all accounts thisprocedure was highly successful.

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D. Right to be Heard
The primary proactive way victims canparticipate in the criminal justice process
is by speaking or submitting a written
statement to the court. The mostimportant proceeding for this participation
is at the sentencing hearing. Generally,
all states recognize that victim input has aproper place in the sentencing process. Our
United States Supreme Court, the highest
court in the land, has stated:“It is an affront to the civilized
members of the human race to saythat at sentencing ... a parade ofwitnesses may praise the background,character and good deeds of the
Defendant ... without limitation as torelevancy, but nothing may be said
that bears upon the character of, or
the harm imposed, upon the victims.”
Payne v. Tennessee, 111 S. Ct. 2597, 2609,
quoting Payne v. Tennessee, 791 S. W. 2d 10, 19(Tn. 1990)
As of 1995, every state allows victim
impact evidence at sentencing, either
through input into the presentence reportor through presentation of a written or oral
statement at the sentencing hearing in fact,
most states allow both forms. The majorityof those states also require the court toconsider the victim’s statement in making
the sentencing determination. Federal
statutes require probation officers to
prepare presentence investigation reports
which include a section on the impact of
the crime on the victims.
In a few states, allowing a victim totestify at sentencing rests solely with thediscretion of the trial judge, while in thevast majority of states, victim participation
through oral impact statements is a matterof right. Many states specifically delineate
the information to be included. Typically,
states allow evidence of the physical,

112TH INTERNATIONAL TRAINING COURSE
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mental/emotional, social and economic
harm caused to the victim and/or thevictim’s family. They may also allow theinclusion of the victim’s of family’s views
concerning both the offense and/or offender,in addition to their opinions regarding theappropriate punishment.
In general, victim impact statements
may be given by the victim, homicide
survivors, or the parent or guardian of aminor victim. Children can submit victim
impact statements in a format that is age
and developmental level appropriate.
Some courts have developed forms forchildren to fill out with places for children
to draw pictures and circle smiley faces or
sad faces.
Other stages where states provide forvictim impact include the parole releasedecision, pretrial release decisions, andplea bargain acceptance proceedings. Most
states allow victims to present a written
or oral statement to the parole board forconsideration at the parole hearing. A few
states specifically authorize the use ofaudio or videotaped statements at theparole hearing. Victims’ rights toparticipate at the other stages are much
more limited. One of the more
controversial proceedings is the plea
bargain acceptance proceeding. It is
important to note, moreover, that victims’rights laws only afford victims a voice atsuch proceedings, not a veto.
E. Right to Confer with theProsecutor
In 1982, the President’s Task Force on
Victims of Crime recommended thatprosecutors consult with the victim during
the various stages of the prosecution as oneof the objectives included in its proposed
guidelines for fair treatment of crime
victims and witnesses. Whether it involves
the reduction of charges to a lesser offense,
dismissal of the case, consideration of

pretrial diversion or entry into a plea
agreement, giving the victim an
opportunity to offer his or her views andconcerns assists the prosecutor informulating an appropriate disposition.
The definition of the term “consultation”
anticipates an interactive dialogue between
two parties. Its usage by the Task Force
reflects an intention that victims beprovided with more than just information
concerning developments in their cases; it
instead encourages prosecutors to actively
solicit and consider victims’ input before
taking dispositive action. Many, but not
all states, have attempted to address thisissue by adopting statutory provisions
mandating meaningful interaction throughconsultation in accordance with thisbroader Task Force objective. For example,
several states have adopted laws requiring
the prosecutor to obtain the views of thevictim before a disposition is final and evengo so far as to require the prosecutor tocertify to the court that he or she hascomplied with the consultation mandate.
However, almost as many states havec h o s e n t o l i m i t t h e p r o s e c u t o r ’s
responsibilities to informing, notifying, oradvising a victim of the action to be taken.
It should be noted, however, that in no state
has the right to confer been equated to theright to direct the prosecution of the caseor veto prosecutorial decisions.
In the Federal system, Federal
prosecutors are to use their “best efforts”
to see that victims are accorded their rightto confer with an attorney for thegovernment. New Justice Department
policy, which will go into effect thissummer, requires Federal prosecutors to
use reasonable efforts to notify victims ofand consider their views about proposedplea bargains. In deciding what isreasonable, prosecutors can look at a seriesof factors including whether the plea
bargain contains confidential provisions

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such as a cooperation agreement, thenumber of victims, public safety, andwhether the victim may be a witness in thecase if the plea bargain falls through.
H o p e f u l l y, t h e s e g u i d e l i n e s w i l l
encourage prosecutors to consult withvictims in more cases, while preserving thediscretion to withhold that information fora legitimate law enforcement reason.
F. Child Victims and Witnesses
Unfortunately, children are direct
victims of a variety of crimes including
physical abuse, sexual abuse, exploitationand pornography. Additionally, children
witness a broad range of crimes including
violent crimes. Too often in the past ourcriminal justice system has not paid
sufficient attention to the needs andwelfare of child victims and witnesses,
causing serious consequences. Contact
with the system aggravated the trauma
that the child had already experienced,
making it more difficult for the child toparticipate in the investigation andprosecution of the case and ultimately,
making it more difficult to prosecute thecase. Basic victims’ rights laws apply
equally to child victims. In addition, manystates and the Federal government haveenacted laws to specifically address theissues raised by children’s participation in
the criminal justice process.
Children receive enhanced protection insome states and the Federal system. For
example, in many jurisdictions, the nameand identifying information about a childvictim is confidential and is not to bedisclosed, except in limited situations. All
court papers identifying a child victim mustbe filed under seal. It is a crime of
misdemeanor contempt to violate this rule.
In some jurisdictions the court may appointa guardian ad litem for a child victim or
witness. A guardian ad litem may attend
all the depositions, hearings, and trial

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proceedings in which a child participates,
and make recommendations to the court
concerning the welfare of the child.
Most states have multidisciplinary childabuse teams. These teams are professional
units composed of representatives fromheath, social service, law enforcement, andlegal service agencies to coordinate theassistance needed to handle cases of childabuse. The purpose of multidisciplinary
teams is to maintain the credibility andreliability of the child’s testimony, as wellas to monitor the child’s safety and wellbeing throughout the case. The goals of
the multidisciplinary team are:(1) t o m i n i m i z e t h e n u m b e r o finterviews to which the child issubjected, to reduce the risk ofsuggestibility in the interviewing
process;(2) to provide needed services to thechild; and(3) to monitor the child’s safety and wellbeing.
In some situations, the trauma ofparticipating in the trial process can be sogreat that the child is unable to testify orthere is a substantial likelihood that thechild would suffer emotional harm fromtestifying in open court. Technology cancome to the rescue in such a situation. In
Federal courts, there are two alternatives
to live, in-court testimony that can be used
when a child is unable to testify because offear or emotional trauma. In somesituations, a child can testify by 2-way
closed circuit television. The attorney forthe government and the attorney for the
defendant are present with the child in aroom outside the courtroom. The child’s
testimony is transmitted into thecourtroom for viewing by the defendant,
jury, judge and public. The defendant isprovided with the means to/ofcommunication with their attorney and the112TH INTERNATIONAL TRAINING COURSE
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television transmits the defendant’s image
into the room where the child is testifying.
Another alternative to live, in-court
testimony is a videotaped deposition of thechild. A judge presides at the deposition
and rules on all questions of law just likeat trial. The defendant is permitted to bepresent unless the court finds that the childis unable to testify with the defendant there
and orders that the defendant be excluded.
The tape can then be played at trial.
G. Restitution
In 1982, the President’s Task Force on
Victims of Crime called for mandatory
restitution in all criminal cases, unless thepresiding judge could offer compelling
reasons to the contrary. As the Task Forcenoted, “the concept of personalaccountability for the consequences of one’s
conduct, and the allied notion that theperson who causes the damage should bear
the cost, is at the heart of civil law. It should
be no less true in criminal law.” Studies
indicate that restitution is one of the mostsignificant factors influencing victims’satisfaction with the criminal justiceprocess. Although restitution has always
been available via statute or common law,
it remains one of the most underutilizedmeans of providing crime victims with ameasurable degree of justice.
Restitution laws have been broadenedin recent years and made more mandatory.
Historically, only those persons who havesuffered physical injury or financial loss asa direct result of a crime have been eligible
to receive restitution from the perpetrator
for their out of pocket expenses. But as
restitution statutes have evolved,
definitions of who qualifies and the kind oflosses covered have broadened
considerably. Today, not only do victims
themselves qualify for restitution, but, insome states, family members, victims’
estates, private entities, victim service
agencies, and private organizations who

provide assistance to victims can seek
restitution as well. Definitions forcompensable losses under state restitution
laws have also expanded to include
psychological treatment, sexual assault
exams, HIV testing, occupational/
rehabilitative therapy, lost profits, moving
and meal expenses, case-related travel
expenses, and burial expenses.
Most states are making restitution
mandatory as part of a criminal sentence.
Aside from the direct benefits to crime
victims and society that come fromrestoring the victims’ financial losses, there
is a growing recognition that holding
offenders directly accountable to their
victims as part of a sentence has arehabilitative effect on the offenders
themselves. In a recent revision to its
restitution laws, the California Legislature
noted that “Restitution is recognized to havea rehabilitative effect on criminals ... [and]restitution is recognized as a deterrent tofuture criminality.” The Federal system
now has mandatory restitution for mostFederal crimes.
Although the law has been in effect since
1996, it has been a challenge to get Federal
prosecutors and judges to comply with it.
In fact, a recent report by the US General
Accounting Office found that lessrestitution was being ordered in Federal
courts after the Mandatory Victim
Restitution Act than before the Act. The
reason for this situation is not clear but
presents us with a challenge for the future.
H. Right to Protection from the
OffenderIn recent years, reports from the media
and law enforcement officials suggest that
intimidation of victims and witnesses is on
the rise. In addition, the proliferation ofyouth gangs appears to directly correlate
to a dramatic rise in acts of intimidation, as wellas acts of violence, against those victims and199

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witnesses who testify against fellow gangmembers. Prosecutors and victim
advocates have recognized the relationshipbetween measures to enhance a victims’
feelings of security and greater willingnessof crime victims to cooperate with criminal
justice officials and criminal prosecutions.
Measures to protect crime victims takevarying forms. Many states grant victims
a right to protection from the offender, or
they provide information regarding theprotective measures available. Other
approaches include amendment of bailprovisions, providing separate or secure
waiting areas in court, and various
measures to protect victims through thediscovery process. Recent bail provisions
now include danger to a victim or to thecommunity as a reason to deny release
pending trial. In addition, prosecutors
have historically requested high bail as ameans of keeping intimidators behind bars.
In addition to these legislative measures,
many law enforcement and prosecution
agencies have developed comprehensive
witness security programs. These
programs evaluate threats and take actions
to improve the security of the victim or
witness. It should be noted that the
government can not guarantee anyone’s
complete safety. The government can,however, take steps designed to reduce therisk of intimidation and harassment. Someof these steps include relocating an
intimidated witness, preventing
intimidation in courtrooms and jails, andreducing community-wide intimidation, In
addition, there are many steps that victims
and witnesses can take themselves toenhance their security, such as getting anunlisted phone number. Government
personnel can assist victims and witnesses
with identifying actions that will help.
Relocating intimidated victims andwitnesses is one of the more extreme
measures that the government can take,200

however, it is also considered to be one of
the most effective. Relocation programs
generally fall into three categories: longterm, short term, and emergency. Probably
the most secure program that exists is theFederal Marshal’s Service’s Witness
Security Program. The Program has very
strict entrance requirements and entails acomplete change in the participant’s
identity. Many victims and witnesses areunwilling to enter this program because it
may mean that they can never contact
family members again. Other permanentmeasures include relocating a victim’s
residence. If the victim lives in public
housing, the government can request thatthe public housing authority transfer thevictim to another location far away fromthe victim’s present home. If the victim
does not then return to the original abode,some measure of safety is achieved. Shortterm relocation procedures include placing
a victim in a hotel, motel, or with out of
town family or friends for the duration of
the investigation or trial (or perhaps evenlonger). Emergency relocation usually
involves an immediate placement of a
victim or witness into a safe house or hotel
until more permanent location is secured.
The relocation program should be tailoredto the individual and the nature of thethreat. It is very important that the victim
understand that once relocated, he or she
can not return to the area where the threat
exists.
Gang members and associates ofdefendants often appear in court to frighten
witnesses into not testifying. Because thethreat may be very subtle and because
judges often feel that the constitutional
requirement of a public trial prevents themfrom removing such individuals from thecourtroom, it is often difficult to stop thiskind of intimidation. Nevertheless, anumber of judges have taken steps toremove gang members from the courtroom,
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VISITING EXPERTS’ PAPERS
intimidating spectators, or to close thecourtroom entirely to spectators.
Incarcerated witnesses who are targets
for intimidation in gang, drug-related cases
require special protection, including
separation from the defendant within thesame correctional facility or transfer to a
nearby correctional facility, and separatetransportation to court to testify.

(2) check on case file documentation;(3) evaluate the level of services
provided;(4) resolve any outstanding victim
complaints;(5) gather any available statistics fromany tracking or reporting systems inplace; and(6) review the background and trainingof personnel who are in direct contact
with victims.

V. COMPLIANCE
All of these victims’ rights statutes aremeaningless, however, if law enforcement
personnel and the courts do not follow
them. States and the Federal government
have struggled with the issue of ensuring
compliance with the victims’ rights laws.
Two unique state programs, the audit
program and the ombudsman program
offer some ideas about how to encourage
compliance.
A. Audit Program
The State of Arizona has a victims’ rights
State constitutional amendment as well as
several victims’ rights statutes. The State
Attorney General’s Office has a component
called the Office of Victim Services whichis responsible for distributing State victims’rights funds monies and monitoring stateand local compliance with the victims’rights laws. By statue, the State Attorney
General’s Office must report to theGovernor and the State Assembly each year
on the status of the victims’ rights program,the Attorney General’s compliance with theprogram, including the level of service, andthe expenditure of all monies. To satisfy
this reporting requirement, the Arizona
Attorney General’s Office developed an
audit system to gather complianceinformation.
The Audit is designed to examine:(1) the policies and procedures in place
in a particular criminal justice office;

The Audit process begins with a noticeletter sent to particular agency informing
it of the date and expected length of theaudit (usually one day). Enclosed with thenotice is a “pre-audit packet” which asks
detailed questions about the agency’s
policies and procedures, personnel,
training and other matters. The agency isrequired to complete the packet before theday of the audit. The actual audit isconducted at a site visit to the agency.
During the site visit, the auditors meetwith personnel, conduct file reviews, andperform an exit interview where they
discuss their findings. In conjunction with
an audit, the Attorney General’s Officesends a Victims’ Rights Survey to selectedvictims who have been assisted by theagency. The Survey asks the victims, theconsumers of the agency’s “product”, toindicate whether they received all thevictims rights to which they are entitled.
Any problems identified through thesurvey can be addressed during the audit
meetings. Finally, the Attorney General’s
Office prepares an audit report that canbe provided to the Governor to satisfy themonitoring requirement. The report also
contains recommendations on improving
services from that office.
B. Compliance Committee orOmbudsman
Another interesting example are thecompliance programs in Colorado,
Minnesota, and Wisconsin. Each state has

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a slightly different approach toaccomplishing the same task; providing
recourse to crime victims who feel that
their rights have been violated. The
differences in the three States’ programs
are found in their structure and powers.
Colorado uses a Victims’ Compensation andAssistance Coordinating Committee, which
receives complaints from victims. The
Committee has power to investigate
violations of victims’ rights under theState’s constitutional amendment and torecommend action with which the agency
at issue must comply to rectify victims’complaints. The Committee may also
monitor the implementation of thesuggestions. When agencies do not comply
with the Committee’s directives, the matter
may be referred to the Governor and/or theState Attorney General for review.
Minnesota has placed oversight in the
Office of the Crime Victims Ombudsman.
The ombudsman investigates both
statutory violations of victims’ rights laws
and alleged mistreatment by criminal
justice practitioners. The ombudsman
approaches the enforcement of victims’rights in a neutral and objective manner;
acting not as victims’ advocates but asadvocates of fair government. In addition
to responding to requests for investigations
by citizens, the ombudsman has thediscretion to inspect the actions of agencies
on its own initiative and may pursue cases
based on reports in the press. Theo m b u d s m a n ’s p o w e r i s l i m i t e d t oinvestigating alleged abuses and proposing
remedies when appropriate. The
ombudsman may make public - to both thepress and the legislature - his or herfindings after an investigation.
Wisconsin has a State level victims
service office called the Victim Resource
Center. One of the Center’s charges is toact as a liaison between criminal justiceagencies and victims in resolving

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complaints concerning unlawful orinappropriate agency action. Center
officials may not prescribe remedies forviolations of victims’ constitutional
protections. The scope of their ability to
act allows them to investigate complaints
and present the victims’ concerns to theofficial whose actions are in question.
VI. VICTIM ASSISTANCE
PROFESSIONALS
In addition to the statutory victims’rights that legislatures have been focusing
on, the emergence of victim assistanceprofessionals has really improved victims’
treatment in the criminal justice process.
Many government agencies, especially law
enforcement, prosecutor ’s offices, andparole agencies have created victim andwitness assistance units, whose mission is
to assist victims through the criminal
justice process. Some private agencies also
perform this function, particularly insexual offenses, domestic violence, andhomicide cases. There is a real effort inthis country to professionalize the victim
assistance positions and make sure thatthe personnel have adequate training toprovide needed assistance. A further
improvement in child cases includes thehiring of a child interview specialist who
can assist law enforcement and prosecutors
in a forensic interview of a child that takes
i n t o c o n s i d e r a t i o n t h e c h i l d ’s
developmental level and psychologicalstate.
VII. THE OFFICE FOR VICTIMS OF
CRIME
In 1982, the United States Congresscreated the Office for Victims of Crime(OVC) to be the national advocate for crime
victim’s issues. Congress also created afund, composed of fines from convicted
Federal offenders, special assessments andforfeited bail bonds. This money isadministered by OVC and primarily

112TH INTERNATIONAL TRAINING COURSE
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distributed back to the states pursuant toa Congressional formula. Part of the states’
money goes to pay direct compensation to
victims of violent crime for medical
expenses, lost wages, and burial costs. The
other part of the states’ money goes tosupport state level victim assistanceprograms such as rape crisis centers, childadvocacy centers, domestic violence
shelters and homicide support groups. The
remaining money that is not sent to thestates is used by OVC to support theFederal government’s victim assistanceprograms in Federal law enforcement
agencies and for discretionary grants by the
OVC Director. Recently, Congress createda special terrorism fund for use in providing
emergency services for terrorism victims
which also came out of the fund. These
programs are vital as a supplement to thevictims’ rights provisions that govern thecriminal justice system.
VIII. CONCLUSION
Although we have made great strides in
the past 17 years in incorporating victims’rights into our criminal justice system, we
still have far to go to make the system fairfor crime victims. Some provisions work
well and some need much more
improvement. The task is an importantone, however, and essential to maintaining
a fair and just criminal justice system.

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