Reasonable Protection from the Accused: How Procedural Justice Principles Can Give Meaning to the Victim’s Protection Right Mary Margaret Giannini National Crime Victim Law Institute 2010 Crime Victim Law Conference 1

The big picture  The problem(s)  Why it matters to victims and the victims’ rights movement  A remedy – procedural justice and the promise of protection 2

 Crime Victims’ Rights Act, 18 U.S.C. § 3771(a) A crime victim has... (1) [t]he right to be reasonably protected from the accused.  States with similar protection language Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, Mississippi, Nebraska, New Hampshire, North Dakota, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Vermont, Washington, Wisconsin, Wyoming 3

The power of rhetoric  Senator Jon Kyl (AZ-R) “Congress’ concern for the safety of crime victims is appropriate and just. The United States Supreme Court has recognized that the ‘primary concern of every government... [is] for the safety and indeed the lives of its citizens.’ In the past, victims have been grievously harmed – even murdered – because courts have been inattentive to their needs while making decisions about pre-trial release of the accused.”  Senator Diane Feinstein (CA-D) Protection right listed first in statute order “reinforce[] the principle that government’s first and foremost obligation to its citizens is to protect them – especially those who have already been victims of a crime.” 4

Constitutional constraints  DeShaney v. Winnebago County of Dep’t Social Services, 489 U.S. 189 (1989)  Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) 5

Statutory limits on a victim’s right to protection  “[N]othing [within the victims’ rights legislation] shall be construed as creating an entitlement or cause of action on behalf of any person against any public employee, public agency, the commonwealth or any agency responsible for enforcement of rights and provisions set forth” in the state’s victims’ rights laws. M ASS. G EN. L AWS. ch. 258B, § 10.  Federal Crime Victims’ Rights Act Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. 18 U.S.C. § 3771(d)(6) Available remedy – re-open plea or sentencing hearings. 18 U.S.C. § 3771(d)(5). 6

Why it matters: The Criminal Justice System 7 Victim in Public Prosecution Private prosecution -- Tort Due Process Crime Control Utilitarianism Retributivism Victim Participation

Procedural Justice: The victim and the criminal justice system 8 Procedural Justice Procedural Due Process Rules of Criminal Procedure Process ControlGroup Value Utilitarianism Retributivism More willing to report crimes/participate in the system Solidarity with victim Revalidating victim value Public Prosecution Victim Participation

Procedural justice and the Crime Victims’ Rights Act  Timely and accurate notice of public court proceedings, including any parole proceeding involving the crime or any release or escape of the accused;  The right not to be excluded from such public proceedings;  The right to be reasonably heard at public proceedings regarding release, plea, sentencing or parole determinations;  The right to confer with the attorney for the Government;  The right to proceedings free from unreasonably delay. 9

Procedural justice and the right to reasonable protection  Current language: A crime victim has... (1) [t]he right to be reasonably protected from the accused. 18 U.S.C. § 3771(a)(1)  Suggested revision: A crime victim has... the right to have the victim’s safety considered in determining the defendant’s release from custody.  Revised remedy language A victim may make a motion to re-open a release hearing, plea, sentence, or parole hearing U.S.C. § 3771(d)(5) 10

The big picture – a return  The problem(s) Scope of right is unclear Ability to enforce the right is limited  Why it matters to victims and the victims’ rights movement Increases secondary victimization  A remedy – procedural justice and the promise of protection Procedural justice furthers both utilitarian and retributivist goals of public prosecution model Procedural justice focuses on process rather than outcomes. Reframing victim’s protection right in terms of process of determining defendant release 11