The Third Wave of Crime Victims' Rights: Standing, Remedy, and Review

I. INTRODUCTION AND BACKGROUND A. Introduction: Crime Victims' State Constitutional Rights Are Often Illusory In Maryland, a day care provider shook a young couple's baby to death, but the couple was unable to attend the trial, despite the fact that all other nonwitness members of the public could do so.1 The young couple had state constitutional rights to attend the trial and address the court at sentencing, but the trial court denied their rights.2 In Utah, a child was seriously sexually abused, and the perpetrator was charged with felony sex crimes. But a plea deal and hearing went forward with no opportunity for the victim to address the court in opposition to the plea,3 even though the mother of the little boy who was sexually abused had a state constitutional right to address the court to oppose the plea bargain.4 The offender pled to a misdemeanor and was given a minimal sanction.5 Similarly, in Florida, the victim of a multimillion dollar jewelry heist was not provided notice of, or the opportunity to speak at, the thief s plea and sentencing hearing. The owner of the stolen jewelry had a constitutional right to speak at sentencing, but did not get that opportunity.6 Each court denied all of these victims their state constitutional rights. Their rights were illusory because the victims were unable to enforce them, as they lacked standing to enforce them, remedy for their violation, or review by a higher tribunal.7 The crime victims' rights movement worked to enact rights in two waves. The first wave provided victims with statutory rights.8 Unsatisfied with the response of the legal culture to statutory rights, the crime victims' movement began to work to enact state constitutional rights.9 The achievements of these victims' rights pioneers are nothing short of astonishing. The second wave resulted in thirty-three state constitutional amendments that contain some kind of victims' rights provision.10 In the mid-1900s, before the advent of victims' rights, victims were lawfully exiled from criminal processes and rarely notified of important events.11 Against an entrenched legal culture that completely excluded victims from the criminal process,12 these pioneers established critical beachheads for the victims' rights movement. As impressive a feat as securing these beachheads was, the first and second wave of statutory and constitutional victims' rights have not been consistently successful in establishing real crime victims' rights. Present victim rights' laws (or courts' interpretation of those laws) often severely curtail victim standing, remedy, or review. Thus, it is time to move inland. In this context, standing is the ability of victims to defend a denial of their rights in appellate courts. Differences in standing law appear among jurisdictions, but this Article does not examine various standing doctrines in all fifty-one jurisdictions. Right now, as illustrated by the stories in the introduction, victims are often without standing to vindicate the rights that the first and second waves of the victims' rights movement secured for them. The third wave of victims' standing, remedy, and review will transform these illusory rights into real rights. There are three main obstacles in the way of turning victims' illusory rights into real rights: (1) government discretion to deny rights, (2) lack of a meaningful remedy to enforce rights, and (3) appellate court discretion to deny review. The language in some state constitutions permits state governments to exercise their discretion to infringe severely on or completely eliminate victims' rights guaranteed by those state constitutions. Governments have the discretion to ignore constitutional rights that are not mandatory and, when constitutionally required, not reinforced with enabling legislation. Some victims' constitutional rights are cast in discretionary language, and, with limited exceptions, victims have no standing to obtain review of these discretionary rights when the government disregards them. …