Emil raises two questions which my proposals seeks to address: “Who should be defined as a victim?; and have the rules of evidence been expanded too much so as not to adequately protect a defendant’s rights?”
My proposals presume that the Victims' Bill of Rights does not adequately protect the rights of defendants because the definition of “victim” is too expansive, and because defendants at parole hearings do not have the right to have members of the community speak on their behalf. The goal of prisons should be to rehabilitate prisoners. Parole is a supervised reintroduction of defendants into the community prior to the completion of their sentence; it is an opportunity for defendants to be rehabilitated outside of the confines of a prison.
Proposition 8’s constitutionality was upheld in Brosnahan v. Brown in spite of its far-reaching scope. The California Supreme Court held that the numerous facets that Proposition 8 addresses all advance the common purpose of promoting the rights of actual or potential crime victims.
However, the Victims' Bill of Rights is far too broad because the definition of victim is: “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated. The term ‘victim’ does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
Proposal #1: Redefine Victim
The majority of California voters support the Victims' Bill of Rights – they voted for it in 1982 and expanded it in 2008. Although a definition of victim was on the 51st page of the 62-page text of propositions in 2008, it is unlikely that many Californians were aware that any member of such a large group of people could determine the fate of a single defendant. Further, once a victim dies not as the result of the defendant, the victim no longer has an interest in preventing the defendant’s release.
The definition of victim should be limited to: “a person who suffers direct or threatened physical or psychological [or financial] harm as a result of the commission [or attempted commission] of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased as the result of the commission of the crime for which the defendant is accused, a minor, or physically or psychologically incapacitated. The term ‘victim’ does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
Economic Cost: unknown savings
Limiting the number of victims who have the right to appear at parole hearings will save the criminal justice system money.
Proposal #2: Allow Defendants to Have Someone Speak on Their Behalf
Although the Sixth Amendment only applies to criminal prosecutions, defendants should have the right to rebut the contentions of their accused at parole hearings. Under Penal Code Sec. 3041.5 (a)(2): “Neither the prisoner nor the attorney for the prisoner shall be entitled to ask questions of any person appearing at the hearing pursuant to subdivision (b) of Section 3043 [victims or victims’ next of kin].” Permitting defendants to confront victims in parole hearings may dissuade victims and their families from asserting their rights, but allowing a guardian or next of kin to speak on the defendant’s behalf may ameliorate the impact of the victim’s statement in parole hearings.
Ultimately, it is in the interest of the community to rehabilitate the defendant. Although the victim can speak to her experience, she may not be able to supply the information that the parole board needs to make its determination: whether the defendant is sufficiently rehabilitated. Thus, one member of the defendant’s family should be permitted to state the extent to which the defendant has been rehabilitated and the impact the defendant’s incarceration has had on the family.
The defendant’s spouse, parents, children, siblings, or guardian, or lawful representative should have the same rights that victims and victims’ families have for notice and the right to be heard at parole hearings.
Economic Cost: unknown cost
According to the Legislative Analysts Office: “the addition of various criminal court procedures and hearings, and the expanded ability of victims to take part in them, is likely to lengthen criminal proceedings. This, in turn, is likely to increase the costs of conducting these proceedings. These costs would affect both the state, which pays for the operation of trial courts, and counties, which pay for some staff, such as prosecutors and public defenders, who take part in criminal proceedings. Because the implementation of these provisions could vary across the state, it is not possible to estimate the exact fiscal impact of these changes, but they are likely to be significant on a statewide basis.”
Proposal #3: Limit the Weight Given to Victim’s Statements
Under Penal Code Section 1191: “The victim, or up to two of the victim's parents or guardians if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution.” (Note that Prop 9 has expanded this section to allow as many members of the victim's family who wish to attend or make a statement)
Although these statements may assist the parole board in assessing the defendant’s crime and the victim’s need for restitution, such statements provide little value to the determination of whether the defendant has been sufficiently rehabilitated. Thus, the victim’s statements concerning the defendant’s prior acts should not outweigh statements concerning the defendant’s progress.
Economic Cost: $0
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As objective professionals in the legal world, we must be able to put aside the bias and primal need for retribution that so often infuses the punishment phase of the criminal justice system. The people of this state, out of emotion and empathy, have given a disproportionate voice to the family of victims regarding parole hearings. There is a clear argument that the inclusion of victim statements during sentencing can provide value and a holistic view of the impact that the crime had, but once the prisoner has been deemed acceptable to appear before a parole board, our Constitution and the very foundations of due process argue that they must be able to challenge those who attempt to keep them locked up and to provide witnesses on their own behalf. We may find this distasteful and it may prove to rarely be influential in decision, but each criminal in the system, however 'undeserving', must be given that opportunity.
ReplyDeleteThe first proposal seems like the best option for California. The definition of victims should be limited to actual victims. If someone robbed you, only you should be allowed to speak. I understand that crime affects more people than just that one person, and I think that is why this portion of the bill passed. But allowing many people to speak as "victims" drains judicial resources, costs too much money, and unfairly impacts defendants.
ReplyDeleteLimiting the "victim" class is definitely in order, given how broad the class currently is. In light of the fact that the prisoner does not have the right to have people speak on his behalf, it is not fair to have such a large class of people protest against the prisoner's parole. When a prisoner becomes eligible for parole, he or she has already served the minimum sentence, and it is unfair for basically anyone to come in and judge the prisoner at his or her parole hearing without the defendant having the right to call his own witnesses. Denying the prisoner this right denies children and spouses of the prisoner from addressing that they too have suffered because of the ordeal. Therefore, Eve's second suggestion that one member of the prisoner's family should be permitted speak about whether the prisoner has been rehabilitated and the impact the person's incarceration has had on the family, seems best.
ReplyDeleteI would support Proposal # 2 because I believe that a defendant should have the right for someone to speak on his or her behalf at a parole hearing. To restrict a defendant from having such a right places the defendant at an extreme disadvantage. I completely support victim’s rights, however, I believe that giving a defendant the option of having an advocate eliminates the huge bias in favor of denying parole. If an inmate cannot find someone to speak on his behalf at such a hearing than that would speak volumes about his rehabilitation. It seems clear to me that in order to remove the bias from the current parole system, defendants must have a right that allows someone to speak on his or her behalf.
ReplyDeleteI would vote for proposal#1 because too expansive definition on the statute could unnecessarily increase the time and cost spent on the parole process on the whole. It is important to assure victim's right, but I think we don't have endless resources to support and maintain that, and to draw a line on certain point, I think it is a most practical way to limit the coverage of the definition to a certain level. Defendant's right asserted in proposal #2 seems important too, but I doubt the effect as don't know how objective their representation would be. If I am a family member of a victim, I would even see it as the deprivation of my right, too. In this sense, I like proposal #1 as it seems more balanced solution for both sides.
ReplyDeleteI am in favor of proposal 3. I actually don't see what the value is in having victims testify at various proceedings. Their views are inherently biased against the inmate and I believe that a vast majority of these statements cannot speak towards the rehabilitation of the inmate. A parole board must have objective evidence in front of them to make a determination whether an inmate should be paroled or not. I just don't see how a victim's testimony can be objective at all.
ReplyDeleteI like proposal #2. In any adversarial forum I believe that both sides should have adequate opportunity to present their case and challenge that of the opposing party. In reality, allowing a prisoner to also present witnesses should cover some of the concerns with #3. The parole board, as fact finder, should be able to give proper weight to witness for both the victim and convict. When factoring in the bias against the convict from the victim's witnesse and the bais for the convict from his/her witnesses, the parole board will have a completely picture.
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