California voters approved Proposition 8, also known as the “Victims’ Bill of Rights” in June 1982 by 56 to 44 percent. According to the California Legislative Analysts Office (LAO), the initiative amended the state Constitution and several statutes to grant crime victims the right to attend and state their views at sentencing and parole hearings. The initiative also supported the passage of separate statutes that have created additional rights for victims, such as a victim’s right to obtain restitution from any person who committed the crime that caused them to suffer a loss. The LAO reported in February 2008 that “[a] court is required under current state law to order full restitution unless it finds compelling and extraordinary reasons not to do so.”
Although the proposition’s supporters focused on the initiative’s role in expanding victims’ rights, the bulk of Proposition 8 targeted defendants' rights. For example, it changed the granting of bail from a right to a matter of discretion, changed sentencing guidelines, reduced the evidence available to prove diminished capacity, and restricted plea bargaining. Defendants’ rights were restricted to such an extent that Newsweek magazine called Proposition 8 a “counter-Constitution.”[1]
The Victims’ Bill of Rights received broad support as the state was emerging from a period of increased crime. The initiative was supported by a bipartisan group of state legislators and by George Nicholson, the Executive Director of the California District Attorneys Association at the time. The Committee to Stop Crime and then-Attorney General and Republican Candidate for California Governor George Deukmejian also advocated on behalf of the initiative. Supporters claimed victims should be able to participate in criminal proceedings because the relationship between the victim and the perpetrator created a private dispute that is similar to the rights that are triggered in tort claims. Supporters also claimed the initiative would keep society free from the fear of crime because it would ensure that criminals are detained and charged.
One of the most controversial aspects of Proposition 8 was that it gave victims the right to testify at sentencing and parole hearings. Crime victims’ right to testify has been codified in California Penal Code section 3043. Under this statute, the Board of Parole Hearings is required to send “notice of any hearing to review or consider the parole suitability or the setting of a parole date for any prisoner in a state prison” at least 90 days before the hearing is to take place if such notice is requested. The notice must be sent to “any victim of any crime committed by the prisoner, or to the next of kin of the victim if the victim has died.”
The victim, next of kin, members of the victim’s family, and two representatives are allowed to attend the parole hearing and reasonably express his or her views concerning the prisoner, including other crimes for which the prisoner has been convicted or paroled, the effect of the crimes on the victim or the victim’s family, the person responsible for the crimes, and the victim’s view of the appropriateness of parole. Importantly, under section 3043, the parole board is required to consider the victim’s entire and uninterrupted statements in deciding whether to release the person on parole.
Proposition 8’s success has been widely debated, with supporters pointing to reduced crime rates since enactment and opponents arguing that it places too many limits on defendants’ rights. Some of the initiative’s most controversial questions regarding parole include: Who should be defined as a victim? Does the initiative place too large of a burden on parole boards due to notice requirements? Have the rules of evidence been expanded too much so as not to adequately protect a defendant’s rights? In recent years, however, debate has switched from the impacts of Proposition 8 to discussion of its expansion under Proposition 9, or Marsy’s law, in 2008.
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