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During the last two decades, victims and their advocates have relentlessly championed for increased victim participation in the criminal justice system. Slowly, the nation has begun to respond. Although tremendous strides have been and will continue to be made in the victims' rights arena, not all states and lawmakers agree with the importance of victim rights legislation. Those who support and have worked tirelessly for this cause must continue their efforts to ensure that all crime victims are granted rights that justly belong to them -- rights that are no less than those afforded offenders.

Despite the victim movement's monumental strides, in many state and local jurisdictions, victims still retain no rights to be present, informed and heard, to have a voice in the sentencing process, or be informed, present and heard during the paroling process. As crime rates continue to escalate, and growing numbers of victims enter the criminal justice system, it becomes increasingly important that this nation's policymakers critically review all current victim rights legislation, policies and procedures. By doing so, we can ensure strong and comprehensive program services are in place to effectively meet the needs of crime victims.

The writers and Advisory Board members for this report offer the following key findings on the state of victim rights, in particular, the right to submit victim impact statements, for the nation's review. Key findings are:

* A national educational initiative must be launched to train all criminal justice agency professionals, i.e., law enforcement, prosecution, judicial, probation and parole, on the traumatic, devastating effects of crime on the lives of its victims and the community at large. Only with an increased understanding of victims' emotional needs, can criminal justice professionals offer services that address victims' needs and promote victim satisfaction within the justice process. Increased compassion for the rights of victims often leads to a higher reporting of crime and victim participation at trials and an increase in the system's ability to secure more convictions and seek longer sentences;

* National policies must be enacted at the Federal, state and local levels to elevate victims to their rightful standing as integral, viable participants in all stages of the criminal justice process. This can be accomplished through the passage of constitutional amendments. A constitutional amendment eliminates any threat to the victim of losing the right to be heard based upon infringements of the convicted offender's constitutional rights. (At the present time, 14 states have enacted constitutional amendments that guarantee crime victims the right to be informed, present and heard, and three additional states have similar constitutional amendments currently pending on their ballots.);

* National policies must be drafted to ensure crime victims a strong and active voice in the disposition of criminal cases through the use of victim impact statements. If the justice process is to dispense sentences that are fair and just for each crime committed, criminal justice professionals must learn of crime's impact not only for the victim, but to a greater degree, society in general. When we fail to listen to crime victims, we are in direct conflict with the very premise that our justice system was founded upon--fair, swift and equal justice, with punishments that are consistent with the crime;

* National policies must be drafted at the Federal, state and local levels that permit the submission of community impact statements as the effects of crime are far-reaching. Not only do victims suffer the detrimental consequences of crime, but the impact of crime often carries over into victims' extended families and respective communities. The impact on these secondary victims is just as real and measurable as the impact on primary victims. Before this nation can accurately assess the financial costs of crime, all those who suffer emotional or financial losses must be given an opportunity to make these losses known to the sentencing courts and paroling authorities; and

* Continual study and research must be conducted if we are to remain alert to the short and long-term effects of crime, to learn of victims' needs, and to direct and aid in the development and enhancement of current victim service programs. The results of continual study and research efforts are critical if the criminal justice system is to Focus on the Future needs of crime victims and to identify emerging issues or trends in the area of crime victimization. Numerous research projects and studies were commissioned during the 1980s to determine the need for victim assistance programs and services. However, little research has been conducted during the early 1990s to assess the efficiency and effectiveness, weaknesses and strengths, and changes necessary in programs and services to reflect victims' needs today. Additionally, it is vital that exhaustive program evaluations be conducted to critique and review programs and services. These evaluations will help determine the need for service enhancements and policy changes that will ultimately lead to increased victim satisfaction and participation. Most important, adjustments to current programs and services will provide victims an opportunity to begin to heal from the emotional consequences of crime.

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The evolution of victims' rights and services has generated a revolution in the American public's views of victims as citizens who deserve to be treated with dignity and respect. The results of the National Victim Center's national public opinion poll, America Speaks Out: Citizens' Attitudes About Victims' Rights and Violence, indicate that concerns about crime and victims' rights have led a majority of Americans to support varied activities which reduce the risks and consequences of criminal victimization. Of those interviewed, 62% said they probably or definitely would pay higher taxes to improve the criminal justice system. An even larger 70% said they would probably or definitely pay higher taxes to improve services to crime victims. Perhaps most important, 81% of those interviewed said they would probably or definitely pressure the government to pass laws to improve victims' rights. Crime victims themselves have strongly influenced the change in national attitudes about violence and victimization. Victims and their supporters have become ardent, vocal advocates for change; not only within our criminal justice system, but also within society itself.

In addition, results of the National Victim Center's public opinion poll also revealed that 55% of Americans feel that sentences handed down to criminals by the court are too lenient. Perhaps this is why seven out of 10 Americans believe that it is very important for the judicial system to provide victims and their families with "...an opportunity to make a statement prior to the sentencing of the offender about how the crime has affected them." In essence, for the court to impose fair and just sentences, it is critical that information be provided to the sentencing and paroling authorities on the emotional, financial and physical impact of crime - information that only victims can accurately define and provide through the use of victim impact statements.

Clearly the criminal justice system is ready, as is the American public, for the permanent infusion of victim impact statements into the justice process. We must now make the use of victim impact statements functional and consistent within the criminal justice system. Comprehensive guidelines, protocol and model victim impact statement instruments must be drafted that address the needs of both the justice system and the victim. Victims must be systematically and consistently made aware of their right to submit victim impact statements and the statement's application within the system. To accomplish this goal, each criminal justice agency that has contact with crime victims must have comprehensive agency guidelines and protocol that outline the roles and responsibilities of each staff member in the notification, distribution, collection and application of the victim impact statements.

Being a victim in our legal system is not an easy task. No one expects to be victimized, and certainly no one would choose to voluntarily enter our complex criminal justice system. However, more and more American citizens realize that they or someone they know will be touched by crime. Our citizens demand that they be afforded basic rights in our criminal justice system and demand accountability from the justice system and policy makers across the land. This accountability includes the right to be informed, present, and most important, to be heard. To be effectively heard; however, the criminal justice system must provide victims with a forum in which participants will listen. This can be easily achieved through the effective and consistent use of victim impact statements. Listen to the words of one victim who speaks on behalf of all victims, "...in some cases there is no loss of limb, no loss of income...only a heartrendering loss that no court report can measure...and because no two victims are alike in their emotional responses, it is important that the victim be allowed to convey these emotional losses to all parties within the criminal justice system."

The National Victim Center, Mothers Against Drunk Driving, and American Prosecutors Research Institute believe the successful implementation of victim impact statements requires sound system-wide policies and procedures which clearly detail and designate the roles and responsibilities of all key players in the criminal justice system for soliciting, processing and applying victim impact information.

National Recommendation 1

The criminal justice system must adopt policies which allow crime victims to play an integral role in the American criminal justice process. Such policies must reflect an attitude that our justice system does not exist despite its victims, but rather, it exists because of its victims.

Victims' overwhelming desire to have an active role in the prosecution and disposition of a criminal case does not stem from a need to retaliate, but rather to promote fair and sensitive treatment of victims, to have their role in the justice process acknowledged, and to alert the justice process to the emotional, physical and financial impact of crime on its victims and our nation as a whole.

National Recommendation 2

Legislation shall be enacted or amended at the Federal, state and local levels to provide crime victims with the right to submit victim impact statements by written, oral, video, audio or other electronic means at the time of sentencing and parole authorities.

Empirical data has been collected which documents the fact that many victims face an overwhelming fear of retaliation from the defendant after presenting victim impact statements. This fear is often heightened when victims find they must confront the defendant in an open arena such as a courtroom or parole board setting. The use of alternative victim impact statements will, for many victims, lessen this fear and may result in increased victim participation. Additionally they may serve to assure to victims that impact information will be seriously considered and addressed by the court, particularly in the determination of fair restitution orders.

State legislators may also wish to consider whether limiting victim impact evidence to oral or written statements would have the effect of discriminating against victims with disabilities, such as those who fall under the provisions of the Americans With Disabilities Act of 1990. The potential for discrimination may be alleviated by permitting victims to submit victim impact statements, in addition to written or oral statements, via video tape, audio tape or other electronic means. The use of these alternative victim impact statements will provide victims who are geographically, financially or physically unable to attend sentencing or parole hearings to submit information for consideration at the time of sentencing and parole. Physical limitations may include travel restrictions due to age (elderly and children); physical or mental disabilities; and sight, hearing or speech impairments.

Additionally, legislation should include provisions for the submission of victim impact statements by designated victim representatives of non-English- speaking and illiterate victims.

National Recommendation 3

Legislation shall be drafted and enacted at the Federal, state and local levels that provides victims of juvenile crime with the right to submit victim impact information at the time of adjudication.

Just as victims of adult offenders should have the right to submit victim impact evidence to the sentencing court, victims of juvenile offenders should be justly afforded the same right to submit impact statements for the juvenile court's review. Crimes of juveniles cause no less the emotional, financial and physical impact as those committed by adult offenders; and as in adult court, juvenile court judges must have access to the financial and emotional impact of crime if they are to determine appropriate and just punishments for juvenile offenders.

America cannot lose sight that victims of juvenile offenders have the same need for information on the apprehension and adjudication of the juvenile offender as do those victimized by adult offenders.

National Recommendation 4

Legislation shall be enacted that delegates specific authority, roles and responsibilities at the Federal, state and local levels for the distribution, collection and dissemination of victim impact statements. This legislation shall also provide specific mandates for accountability and outline specific penalties for noncompliance with the legislation. Additionally, all state and local criminal justice agencies shall provide, to each state legislative body, in the form of an annual report, detailed information on services and programs provided to crime victims. Federal criminal justice agencies shall also provide, to the Attorney General and Congress, detailed information in the form of an annual report on services and programs provided to crime victims.

Although Federal, state and local authorities have acted in good faith to pass legislation that allows for the submission of victim impact statements, all too often this legislation does not delegate authority to any one criminal justice agency on the distribution, collection and dissemination of victim impact statements. In cases where these duties have not been clearly defined, some states are finding that the implementation of victim impact statements has been haphazard at best. (Texas is currently the only state that requires criminal justice agencies to file an annual report with the state legislature outlining the number of victims served by the programs in each agency.)

National Recommendation 5

All criminal justice professionals who influence the victim impact statement procedure in any way must have a thorough understanding of their state's statutes and case law regarding the submission and use of victim impact statements.

This includes the types of crimes for which they are allowed; the definition of victim; whether the submission of victim impact information or statements is mandatory or discretionary at the time of sentencing; whether the submission of victim impact information or statements is mandatory or discretionary at the time of parole consideration; confidentiality limits; rights of enforcement (probably limited to states with State Constitutional Amendments for victims' rights); submission deadlines; perjury penalties; collectability of restitution; liability issues; and other elements or limitations.

National Recommendation 6

All agencies that interact with crime victims should have victim impact statement instruments and supplementary guides which explain to victims the importance of victim impact statements; their right to submit one; and the criminal justice system's use of victim impact statements.

All agency staff should be trained on the materials available to victims and should work together to develop creative methods to generate public awareness to alert victims of their right to submit victim impact statements.

National Recommendation 7

Statewide victim networks, coalitions and criminal justice agencies shall join together to evaluate the effectiveness of their victim impact statement statute and, if it is inadequate, work together to amend it.

While the impact of crime is uniquely personal, the need for services to victims is universal, and often the need for services can be extracted from the victim impact statement. It is critical that criminal justice professionals with access to the information therein, bring to the attention of state networks and coalitions any voids in service programs that have been identified in the victim impact statement. In doing so, criminal justice professionals can join with state and local networks and coalitions in determining the best method to address these newly identified needs.

National Recommendation 8

Training and continuing education on the traumatic effects of crime victimization must be made available to all criminal justice professionals who interact with crime victims.

It is imperative that criminal justice professionals working with crime victims have a complete and thorough understanding of the devastating effects of crime on its victims. Only when there is a clear perception of the impact of crime can criminal justice professionals effectively and compassionately address the needs and rights of, and provide services to, crime victims.

Adoption of National Recommendations

The national recommendations offered in this report will be rendered moot if corresponding guidelines for the comprehensive, systematic implementation, distribution, collection and application of victim impact statements are not adopted. Therefore, if the American judicial system is to recognize and accept the permanent infusion of victim impact statements into the justice process, it is vital that these national recommendations be coupled with critically needed guidelines, policies and procedures for implementation along the entire criminal justice continuum.

Key linkages in the criminal justice arena are crucial for creating a systems approach to improve the treatment and rights of crime victims. Although the national recommendations and agency protocols outlined in this report are not a panacea to absolutely guarantee victims the right to submit victim impact statements, the adoption of these recommendations will help to establish standards for the field.

Cooperative Inter-Agency Protocol: Critical for Ensuring Victims' Right to Submit Victim Impact Statements

No one criminal justice agency operates as the hub of the justice process, but rather each agency operates as a spoke in the wheel of justice. Central to the criminal justice process are law enforcement officials, prosecutors, judges, and probation, parole and correctional officials. Although each of these agencies operates within their own framework and agenda, each agency provides victims with services which are irrevocably intertwined. Without systematic guidelines for inter-agency cooperation and communication, our criminal justice system cannot successfully or efficiently protect the rights of victims.

1 National Victim Center. "America Speaks Out: Citizen's Attitudes About Victims' Rights and Violence, Executive Summary." (1991)

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Victim Impact and Law Enforcement

"I beg you to remember that wherever our life touches yours we help or hinder...wherever your life touches ours, you make us stronger or weaker. There is no escape--man drags man down, or man lifts man up."

Booker T. Washington

"With the gift of listening comes the gift of healing, because listening to your brothers and your sisters until they have said the last words in their hearts is healing and consoling..."

Catherine de Hueck Doherty

"My victim impact statement was the last opportunity I had to let anyone know about my daughter."

a victim, NVC's focus group with victims

Victim impact statements are only one way in which the impact of crime can be measured. Personal contact with criminal justice representatives serves as an additional method to assess the effect of crime. From the very moment a crime is committed, victims experience a real and measurable impact of crime, especially if the crime is one of violence or there has been direct confrontation with an offender. Law enforcement officers are often the first criminal justice representatives to arrive on the scene, the first to provide support and assistance, the first to observe victims' emotional and physical state, and as such, they have the first opportunity to assess immediate victim impact.

Although the long-term impact of crime is not readily assessable immediately following a crime and the dispensing of an actual victim impact statement instrument at the crime scene may be premature, law enforcement officers are in a position to assess the victim's need for crisis intervention, referrals, financial assistance, and more importantly, to feel safe from the offender. In addition to assisting with safety issues, an officer's assessment of the victim's initial fear of defendant retaliation and intimidation provides necessary information to the proper authorities to strengthen arguments for the increase or denial of bail bonds and the issuance of restraining orders.

Historically, law enforcement officers have been legislatively excluded in the collection and distribution of victim impact information. This is unfortunate because as first responders, law enforcement officers provide victims with their first glimpse into the criminal justice process. As such, they play a critical role in setting the stage for victims' satisfaction and participation in the criminal justice system.

The victim's perception of the justice process and willingness to participate is often influenced by this contact. If law enforcement officers fail to provide victims with sensitive and compassionate treatment at the time of the crime and during the investigation, victims may refuse to cooperate and thus, hinder the law enforcement agencies' ability to make arrests.

Law Enforcement Officer's Role in the Distribution and Collection of Victim Impact Information

It is universally recognized by the justice process that law enforcement officers play an important role in the assessment of victims' initial service needs and the immediate impact of the crime. The role of law enforcement officers in the distribution of victim impact statement information has been one of much debate. There are solid arguments for both sides of the issue. Supporters in favor of law enforcement officers distributing victim impact statements have argued this process:

* Provides victims with information on their right to submit victim impact statements as soon as the crime has been reported and allows them to participate in the justice process early on.

* Permits victims to begin documenting financial losses, as well as to begin recording any initial thoughts, fears, concerns and needs for the future drafting of victim impact statements.

Although informing victims early of their need to document expenses attributable to the crime is prudent, opponents of the distribution of victim impact statement instruments by law enforcement officers argue this may:

* Lead victims to interpret that the offender will be identified, arrested and convicted, when in fact, a high percentage of crimes never result in arrest or prosecution.

* Result in legal concerns surrounding the discovery of the written materials.

* Result in an assumption that victims are familiar and knowledgeable about the criminal justice system and the role they are to play. The average citizen rarely has any prior knowledge of criminal justice system; therefore, they may not have the necessary understanding of the significance of the victim impact statement.

Subsequently, immediately following a crime, especially one of violence, many victims will naturally focus on physical, emotional, or financial concerns. Coping with the aftermath of crime requires victims' full attention and many victims will not have the emotional or physical strength to begin to education themselves about the complicated legal system they are about to enter. Victims may be better served if they receive information about the criminal justice process after they have first attended to their personal needs.

Providing Victim Services Through Police-Based Victim Assistance Programs

Society alone has not been responsible for excluding

law enforcement from a more active participation in the assessment of victim impact. Attitudes have long prevailed among law enforcement officers that their role is one to serve and protect, and not that of a social worker. However, these attitudes are increasingly changing as more and more law enforcement agencies recognize the need to expand their roles and the services they offer victims. In providing victim services, they may improve their ability to investigate cases more efficiently; substantially increase their efficiency in making arrests and bring more offenders into the justice process.

In recent years, many law enforcement agencies have enhanced victim assistance services by establishing police-based victim assistance programs. The emergence of the police-based program is of significance for several reasons. Police-based programs have the ability to provide services to millions of crime victims that would traditionally be excluded from receiving services. Many established victim assistance programs primarily focus on those victims whose cases have formally entered the criminal justice process.

However, in approximately 80% of all reported crimes, no offender will be identified, arrested or prosecuted. Based on a recent report released by the Bureau of Justice Statistics, this percentage translates into approximately 24 million victims who have no access to critically needed services and programs.1 Therefore, police-based programs are essential in meeting the service, referrals and assistance needs of these often forgotten victims:

* In jurisdictions where no formal prosecutor-based victim assistance program exists and cases are entering the criminal justice process for prosecution, police-based programs are assuming the primary role of providing victim assistance throughout the entire justice process i.e., referrals, case status updates, notification of court date, assistance with crime victim compensation applications, etc. It is within this framework that police-based programs would be subject to the same agency protocol and directives as prosecutor-based programs.

* The police/victim partnership has improved over the last few years. Victim assistance efforts are widely recognized and appreciated by victims and society. Perhaps law enforcement agencies have heeded the public's cry for more involvement and increased victim issue training.2

No matter the reasons, law enforcement officers and police-based victim assistance programs can and do play a significant role in the collection and dissemination of impact evidence. As police-based victim assistance programs continue to expand, their role will increase proportionally. In order to ensure that agency personnel are working to accomplish the department's goals for victim assistance, it is critical that individual agencies examine their current policies and procedures to ensure they address victims' needs, responsibility and accountability for program services within the department.

National Protocol Recommendations for Law Enforcement Agencies

* Law enforcement agencies should establish program services for victims of crime with sound policies and procedures that clearly delineate roles and responsibilities for the administration of program services such as those set forth in Chapter 55 of Guidelines for Accreditation by the Commission on Accreditation for Law Enforcement Agencies, Inc.;

* Law enforcement agencies should establish policies and procedures that ensure accountability in implementing program services, and specific penalties shall be drafted for noncompliance of established policies and procedures;

* Law enforcement agencies should establish policies and procedures for the inter-agency coordination of victim services with all key criminal justice agencies to ensure the delivery of services are not duplicated;

* Law enforcement agencies should establish policies and procedures that require all employees, who have direct contact with crime victims, to participate in state and local victim assistance training programs that address the needs, rights and legal interests of crime victims;

* Law enforcement agencies should establish policies and procedures which guarantee that all pertinent victim impact evidence, i.e., acts of intimidation or threats towards the victim, is immediately relayed to the prosecutor's office prior to any bail/bond proceedings, so that any fears or concerns for victim safety can be addressed by the hearing authority; and

* Law enforcement agencies should establish policies and procedures which require law enforcement personnel to serve as a liaison between the victim and all criminal justice agencies.

Law enforcement agencies with established victim assistance programs, and where no formal prosecutor-based programs exist, should include the following additional services relating to victim impact statements which should be incorporated into agency policies and procedures:

* Law enforcement agencies should establish program services to aid in the completion and submission of victim impact evidence; and law enforcement agencies should establish policies and procedures to notify and inform crime victims of their right to submit victim impact statements. At a minimum, victims should be informed of any policies pertinent to the implementation of victim impact statements including:

* The purpose and use of victim impact statements in the criminal justice system; the victim's option to exercise or decline his or her right to submit a victim impact statement; and specific guidelines concerning the confidentiality of victim impact statements;

* Eligibility requirements for submission of victim impact statements, i.e., victim only, family members or designated victim representative;

* How the victim impact statement should be submitted and options for submission, i.e., written, oral, audio, video, or other electronic means;

* How the victim impact statement will be reviewed by the court, i.e., inclusion in the presentence report, or as an attachment to the presentence investigation;

* The date and time of the sentencing hearing, as well as the right to attend the proceedings;

* A specified time frame for returning the completed victim impact statement;

* Information on the victim's right to request no contact orders; to receive notification of probation revocation hearings, parole or other early release provisions, i.e., released to community supervision, furloughs, and instructions for requesting these rights;

* How to request assistance in completing the victim impact statement, i.e., name and phone number for agency contact;

* The importance of notifying probation, correctional and paroling authorities of changes in address, and providing instructions how to do so;

Additionally, in law enforcement agencies with sufficient program services and budget allocations, the following victim services should be incorporated into agency policies and procedures:

* Provide home/hospital/nursing home visits to aid in the completion and collection of victim impact statements from disabled, ill, child or elderly victims who may be otherwise excluded from presenting victim impact evidence;

* Provide assistance to victims in the collection and verification of financial losses for the court's consideration in determining fair restitution orders;

* Provide court escort services for victims that wish to attend the sentencing hearing, especially those who wish to address the court through allocution;

* Provide non-English speaking crime victims with victim impact statement instruments written in their native languages;

* Provide interpreters, signers or allow a victim representative to present victim impact statements to the court on behalf of non-English speaking and hearing impaired victims at the time of sentencing; and

* Provide assistance in the completion of victim impact statements for illiterate victims or those who do not read or write well.

* When notified by paroling and correctional authorities that the offender is eligible for parole or early release, law enforcement agencies shall establish policies and procedures that:

* Provide notification to victims of the offender's eligibility for parole or alternative early release programs;

* Provide victims with information on their right to provide updated victim impact statement information to paroling or correctional authorities including requirements and/or options for submission of updated victim impact statements, i.e, written, oral, audio, video or other electronic means;

* Provide victims with specific information on their rights to attend parole or correctional proceedings, i.e., must attend and speak in the presence of the offender, the option to meet separately with paroling or correctional authorities;

* Provide, where possible, a victim advocate to accompany victims to parole or correctional hearings, especially in cases of violent crime and where the victim will be confronted by the offender or his family;

* Provide, where statutorily permitted, victims with paroling and correctional authorities decisions for the offender's release, and if released, any conditions for release, i.e., no contact orders, restitution requirements; and

* Provide the prosecutor, parole and correctional authorities with any changes in pertinent victim information, i.e., changes in address, threats or intimidation tactics made by the defendant or on behalf of the defendant.

1 "Criminal Victimization in the United States: A National Crime Victimization Survey Report, 1992." U.S. Department of Justice, Office for Justice Programs, Bureau of Justice Statistics. (1993)

2 Regina Sobieski, "MADD Study Finds Most Victims Satisfied with Law Enforcement", MADDVOCATE, Winter Edition, 1993.

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Enhancing Prosecutor and Victim Communication

"Years ago when my husband was murdered, I had to sit outside of the courtroom during the trial. My husband's murderer sat inside with a lawyer paid for my tax dollars, in a new suit with his wife, children and minister. His wife sobbed at the drop of a hat, but when I began to cry the prosecutor asked me to leave so I wouldn't influence the jury. No one seemed concerned about his family influencing the jury. You call that justice?

Victim - MADD Focus Group

"I have a hard time getting people, even my own assistant attorneys, to really empathize with victims. Its's almost a daily battle for me to sit down and say `look, either you do this or you can find somewhere else to work."

a prosecutor, NVC's focus group with prosecutors

According to Dr. Mark Umbright, Director of Research and Training at the Center for Victim Offender Mediation at the Minnesota Citizens Council on Crime and Justice, University of Minnesota "... the criminal justice system places victims in a passive position. They feel powerless and vulnerable; some even feel twice victimized, first by the offender, and then by the police and the courts who often overlook their needs. As for offenders, they rarely understand or are confronted with the human dimension of their criminal behavior - that victims are real people, not just faceless objects without feelings..."

Little did Dr. Umbright realize, when he addressed the lack of understanding among offenders as to the pain and suffering their actions caused their victims, that he was also referring to a lack of understanding by the criminal justice system on the impact crime has on its victims. Just as offenders have regarded the victim as a nameless, faceless entity in the administration of justice, it has only been in the last two decades that our justice system has assigned faces, names and emotions to millions of its victims.

For every crime committed, there are at least two victims: society suffers a violation of its laws and subsequently, the peace of its citizens, and the actual victim suffers an injury to person or property. Yet the American criminal justice system currently allows only the state to play a meaningful role in the prosecution of a criminal case. While the public prosecutor takes center stage and represents the interests of the state in delivering justice, the actual victim of the crime is relegated to the role of witness for the prosecution.1

Our criminal justice system has gradually recognized that its failure to grant victims a prominent role in the dispensing of justice is particularly shortsighted because the continued functioning of the criminal justice system depends on victim cooperation both in reporting offenses and in assisting the prosecution of crimes.2

Recommended Prosecutor Services

Recognizing this basic premise, the criminal justice system has begun to remove the cloak of secrecy surrounding judicial proceedings. In 1982, the President's Task Force on Victims of Crime Final Report recommended the legislative and executive branches, at both the Federal and state level, to "...pass and enforce laws that protect all citizens and that recognize society's interest in assisting the innocent to recover from victimization."3 Acting upon this recommendation, Federal, state and local legislative bodies are enacting more and more statutes that mandate the development of programs and services that provide victims with the information and participation they rightfully deserve.

The President's Task Force further concluded that "better treatment of victims should be a high priority for prosecutors, that the prosecutor is "in the best position to see that the victim is accorded a proper role in the criminal justice system" and that prosecutors "must serve victims by ensuring that they will not be victimized again, either by the criminal or the system that was designed to protect the innocent."4

Prosecutors' offices, more than any other criminal justice agency, have been assigned the responsibility for creating and implementing a vast majority of assistance programs and services which provide victims with information and the opportunity for participation in the justice process. The justification for the assignment is simple -- prosecutors have a vested interest in facilitating victim participation in, and satisfaction with, the criminal justice process. If victims of crime feel helpless, frustrated or angry due to insensitive treatment, they are unlikely to work cooperatively with the system. The prosecutorial link in the justice process will quickly be rendered ineffective if victims and witnesses are unwilling to report criminal activity, testify as witnesses, serve as jurors or work cooperatively within the system.

Victim Satisfaction Leads to Prosecutor and System Benefits

Research has clearly shown that victim satisfaction with the criminal justice process is far more closely linked to the opportunity to participate than to the outcome of the case. These findings are enormously important because, while the prosecutor cannot control the outcome of the case, he or she can always share information with and seek input from the offender's victim(s). Next to law enforcement officials, prosecutors have more day-to-day contact with crime victims and witnesses than any other personnel in the criminal justice system.

Placing victim assistance programs in prosecutors offices can improve communications between the victim and the prosecutor. Additional benefits for prosecutors may include:

* Access to information about physical, financial and emotional impact leading to more accurate charging decisions, more persuasive closing arguments, and sentences more reflective of harm done;

* Learning of additional facts surrounding the crime which may enhance effective prosecutions;

* Lessening the likelihood for an adversarial relationship to develop between the victim and the prosecutor, one which is time-consuming and frustrating to both parties;

* Favorably influencing citizens' perceptions of prosecutors' accountability and commitment to making the system work for the people rather than making people work for the system: and

* Favorably influencing victims' overall satisfaction with plea negotiations because victims have been provided with information to help them understand the basis for plea acceptance due from evidence weaknesses or legal constraints.

Many prosecutors' offices are incorporating victim assistance services as part of regular operations rather than delegating them to a separate program or agency. Creating victim advocate positions within the prosecuting attorney's office benefits the prosecutor as it gives the victim someone to contact other than the prosecutor. Advocates act as liaisons for the victim and prosecutor, relaying important information to and from both parties which frees the prosecutor to focus on the task of bringing offenders to justice. Advocates offer the victim a prosecutorial contact to communicate the degree of injury inflicted and subsequent consequences of the crime as well as to receive information about the process and their rights within the process--including the right to submit victim impact information.

"Permitting victim input" was one of the key recommendations of prosecutors in the 1992 President's Task Force on Victims of Crime Final Report(5) and the 1992 Attorney General's Combating Violent Crime: 24 Recommendations to Strengthen Criminal Justice. As was noted in the 1982 President's Task Force(6), "prosecutors have a responsibility to ensure that victims of violent crime are informed of the presentence report process, so that victims have the opportunity to have their views reflected in these reports. Additionally, the President's Task Force(7) also noted "that victims should have an opportunity to appear and be heard at the time at the time of sentencing to inform the court of the nature of the crime and the full effect that it has had on them and their families."

Victims Witness programs offer the victim the opportunity to communicate clearly to the prosecutor, the degree of injury inflicted and any derived consequences of the crime suffered by the victim. Prosecutors' offices are becoming more responsive to victims' need to communicate victim harm to the court. As such, prosecutors' offices are incorporating victim impact statement services as part of their normal daily operating procedures rather than delegating them to a separate program or agency.

National Recommendations for Prosecutors and Their Professional Staffs:

* Prosecutors should establish program services for victims of crime with sound policies and procedures that clearly delineate roles and responsibilities for the administration of such program services. Policies and procedures shall also be established to ensure accountability in implementing program services, and specific penalties drafted for noncompliance of established policies and procedures;

* Prosecutors should establish policies and procedures that require all employees having direct contact with crime victims to participate in state and local victim assistance training programs that address the needs, rights and legal interest of crime victims;

* Prosecutors should establish policies and procedures that delineate agency responsibility for the distribution and collection of victim impact statements (if the prosecutor's office does not serve as the primary distribution and collection point for victim impact statements, policies and procedures shall be established for inter-agency coordination in the distribution and collection of victim impact statements. Specifically, these guidelines should address the coordination of victim impact services to ensure that responsibilities do not overlap, and to lessen the likelihood victims will be "overlooked" in the duplication of services);

* Prosecutors should postpone any recommendation for sentence in cases settled by plea negotiations until such time that the victim is provided with an opportunity to submit a victim impact statement, especially those cases in which a violent act was committed;

* Prosecutors should establish policies and procedures for the collection of victim impact evidence in violent crimes prior to any bail/bond proceedings so that any fears or concerns for victim safety can be addressed by the hearing authority;

* Prosecutors should establish policies and procedures which guarantee that all victim impact statements are forwarded to the probation department for inclusion in the presentence report and the defendant's permanent court file;

* Prosecutors should establish policies and procedures which guarantee that all pertinent victim contact information is forwarded to the probation department, aiding them in obtaining any additional impact information that may be needed for the completion of the presentence investigative report;

* Prosecutors should establish policies and procedures requiring victim/witness assistance personnel to serve as a liaison between the victim and other criminal justice agencies, i.e, representing victims' best interest and relaying special victim needs such as emotional or physical considerations to other criminal justice agencies; and

* Prosecutors should establish program services to aid in the completion and submission of victim impact evidence; and the prosecutor shall draft policies and procedures to notify and inform crime victims of their right to submit victim impact statements. At a minimum, victims should be informed of any policies pertinent to the implementation of victim impact statements including:

* The purpose and use of victim impact statement in the criminal justice system; the victim's option for exercising or declining his or her right to submit a victim impact statement; and specific guidelines concerning the confidentiality of victim impact statement;

* Eligibility requirements for submission of victim impact statements, i.e., victim only, family members, or designated victim representative;

* How the victim impact statement should be submitted and/or options for submission, i.e., written, oral, audio, video form, or by electronic means;

* How the victim impact statement will be reviewed by the court, i.e., inclusion in the presentence investigative report, or as an attachment to the presentence investigative report;

* The date and time of the sentencing hearing, as well as the victim's right to attend the proceedings;

* Instructions for submitting the victim impact statement to the court, i.e., through the prosecutor victim/witness assistance staff, probation department or directly to the court;

* A specified time frame for returning the completed victim impact statement;

* Information on the victim's right to request no contact orders; to receive notification of probation revocation hearings, parole or other early release provisions, i.e. released to community supervision, furloughs, and instructions for requesting these rights;

* How to request assistance in completing the victim impact statement, i.e., name and phone number for agency contact; and

* The importance of notifying probation, correctional and paroling authorities of changes in address and provide instructions for doing so.

Additionally in prosecutor offices with sufficient personnel and budget allowances, the following victim services relating to victim impact statements should be incorporated into agency policies and procedures:

* The creation of a paid or volunteer victim advocate position within the prosecutor's office to provide crime victims additional services at the time of sentencing and upon notification that the offender is eligible for parole or early release considerations:

* Provide home/hospital/nursing home visits to complete and collect victim impact statements from disabled, ill, child or elderly victims that may be otherwise excluded from presenting victim impact evidence;

* Provide assistance to victims in the collection and verification of financial losses for the court's consideration in determining fair restitution orders;

* Provide court escort services for victims that wish to attend the sentencing hearing, especially those that wish to address the court through allocution;

* Provide transportation to victims that would be otherwise excluded from attending sentencing hearings due to transportation restrictions, i.e. elderly, disabled or indigent victims;

* Provide non-English-speaking crime victims with victim impact statements written in their native languages;

* Provide interpreters/signers or allow a victim representative to present victim impact statements to the court on behalf of non-English-speaking and hearing impaired victims at the time of sentencing; and

* Provide assistance in the completion of victim impact statements for victims who do not read well.

* When notified by paroling or correctional authorities that the offender is eligible for parole or early release, prosecutors shall establish policies and procedures that:

* Provide notification to victims of the offender's eligibility for parole or alternative early release program;

* Provide victims with information on their right to provide updated victim impact information to paroling or correction authorities including requirements and/or options for submission of updated victim impact statements, i.e., written, oral, audio, video or other electronic means;

* Provide victims with specific information on their right to attend parole or correctional proceedings, i.e., must attend and speak in the presence of the offender, the option to meet separately with paroling or correctional authorities;

* Provide, where possible, a victim advocate to accompany victims to parole or correctional hearings, especially in cases of violent crime and where the victim will be confronted by the offender or his family;

* Provide, where statutorily permitted, victims with paroling and correctional authorities' decisions for the offender's release; and if released, any conditions for release, i.e, no contact orders, restitution requirements, etc; and

* Provide the paroling and correctional authorities with any changes in pertinent victim information, i.e., changes in address, threats or intimidation tactics made by the defendant or on behalf of the defendant, etc.

1 Karen L. Kennard, "The Victim's Veto: A Way to Increase Victim Impact on Criminal Case Dispositions", California Law Review. (1989) 77(2):417

2 Ibid. pg.

3 United States. President's Task Force on Victims of Crime. Final Report. December 1982. pg. 66,76

4 Ibid. pg.64,65

5 Ibid. pg.66,76

6 U.S. Justice Department. 1992 Attorney General's Combating Violent Crime: 24 Recommendations to Strengthen Criminal Justice. pg. 49,56

7 United States. President's Task Force on Victims of Crime. Final Report. December 1982, pg. 66

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The Judiciary: An Integral Link in Assessing Victim Impact

"I want you to go over each victim impact statement...You have to live with the stupidity of your behavior for the rest of your life, but you also have to understand what these families have to live with as well..."

Judge to a defendant at the time of sentencing (MADD Focus Group)

"I personally feel that it is a miscarriage of justice to sentence a defendant who has been convicted of committing a crime against another person without first hearing from the victim and taking into account the effects the crime had on the victim's life."

Judge Reggie Wilson The President's Task Force on Crime Victims

If all crimes were exactly alike, the circumstances surrounding each crime would be identical. Prosecutors would never need to take a case to trial; no witness would be called upon to testify; no judge or jury would be needed to hear and weigh evidence; and all punishments would be equal. But reality tells us that this is not true. For each crime committed, a different set of circumstances exists that deserve individual and impartial review. As an American standard, this is only fair and just. But somewhere along the way, the rights of the accused and the rights of the innocent became unbalanced. The criminal justice system became so focused on protecting the rights of the accused that it lost sight of the needs and rights of the victim.

For many victims, the criminal justice system has imposed a different standard, a standard that has effectively silenced them by falsely and unfairly attributing the same fears, emotions and needs to all victims. Crime is uniquely personal and, as such, no two victims will experience the same emotional, physical or financial impact of crime. It is imperative that judges have access to all pertinent information relative to a criminal case if they are to accurately determine a just and fair penalty, so that the defendant's needs and societies needs are properly balanced. One method of balancing the information provided to judges prior to sentencing is through the use of victim impact statements.

The use of victim impact statements by our judiciary has not been without critics. Some legal scholars question whether victim participation in sentencing blurs the lines between civil and criminal courts. Others have expressed fears that allowing victim impact information may reduce judges' ability to withstand unreasonable and public pressure.1 Some are concerned about the possibility of increased sentencing disparity and bias based on victim attributes. Some have been concerned about the potential for adding additional costs to the justice system or contributing to delays. The most significant concern about victim impact statements and victim participation generally - is that gains for victims will result in costs for defendants.2

In 1982, the President's Task Force on Victims of Crime responded to such objections, in particular the concern about judges' ability to withstand unreasonable and public pressure and that participation by victims at sentencing will place improper pressure on judges as follows:

"The duty of a judge is to dispense justice, and the passing of judgement is a difficult task. The difficulty of the task should not be relieved, however, by discharging it unfairly. Hearing from the defendant and his family and looking into the faces of his children while passing sentence is not easy, but no one could responsibly suggest that the defendant be denied his right to be heard or suffer a sentence imposed in secret in order to spare the judge. The victim, no less than the defendant, has a real and personal interest in seeing the imposition of a just penalty...the judge cannot take a balanced view if his information is acquired from only one side. The prosecutor can begin to present the other side, but he was not personally affected by the crime or its aftermath, and may not be fully aware of the price the victim has paid. It is as unfair to require that the victim depend solely on the intercession of the prosecutor as it would be to require that the defendant rely solely on his counsel."3

To counter the concern about the potential for adding additional costs to the justice system or contributing to delays, it is thought that victim participation increases accuracy in the judicial process by providing judges with facts that would otherwise be lost in the bureaucracy of criminal courts. Currently, no empirical data exists which supports the premise that victim participation adds additional costs to the criminal justice system either financially or in loss of time. It is widely supported by numerous research studies that not all victims want to or will participate in the sentencing process. Some factors for not doing so may include: overall victim satisfaction with the justice process; the fear that reliving their victimization may, in part, cause a psychological setback; and most importantly, a general belief that judges will do what is "right" on behalf of victims, and to a higher degree, society. Therefore, we cannot justly infer that because the opportunity to present impact evidence exists, that all victims will want to do so.

Nor can we misinterpret the lack of victim participation interest to mean that all victims are satisfied with the justice process and no changes are necessary. On the flip-side of victim satisfaction is the unwillingness of victims to participate in the justice process due to: the fear of re-victimization by a system originally designed to protect them; fear of retaliation by the defendant; a general lack of knowledge or notification of their right to present impact evidence; and finally, a belief that their participation will not alter the sentencing process because judges do not seriously consider victim impact when determining appropriate sentences.

Are Judges Really Listening?

Victims' perception that judges do not consider impact evidence differs significantly from that of judges. As early as 1987, Susan Hillenbrand, with the American Bar Association, conducted a study of 77 state trial judges to determine if judges found information contained in victim impact statements was useful in determining appropriate sentences and fair restitution orders. Her findings revealed that 70% of the judges said information contained in the victim impact statement about the financial impact of the crime was "very useful" in determining an appropriate sentence, while another 20% found the information to be "useful." A considerable majority reported that impact information had considerable weight in both the number and size of restitution orders. Moreover, all said they order restitution whenever the victim suffered financial loss and the defendant seemed able to pay.4 During the last 10 years, victim impact statements have steadily gained significant judicial support and the National Judicial College now endorses the submission and consideration of impact evidence.

Supporters of victim impact statements have argued that both victims and the justice process benefit from the submission and consideration of victim impact evidence. Victims' benefits include viewing the justice process as more democratic and fair; validation of their importance and role in the justice process; and more importantly, for many victims, the opportunity to present impact evidence may promote psychological healing. Benefits for the criminal justice system may include increased reporting of crime and increased participation at trial; information that allows judges and juries to more accurately determine the appropriate imposition of sentences and restitution orders; and, a sense that the justice system is working in greater balance.

Findings from the President's Task Force on Victims of Crime clearly indicate that Americans feel the ultimate responsibility for how the system operates rests with judges who must reconfirm their dedication to be fair to both sides of a criminal prosecution. If they fail to do this, they do not serve the public from whom their authority is derived.5 Additionally, with the exception of parole decisions, the sentencing stage often represents the final opportunity victims have to influence decisions regarding the offender's fate.6 Victims have traditionally looked to judges as the ultimate dispensers of justice, to do what is right and fair.

National Protocol Recommendations for the Judiciary:

* Judges should participate in a state victim advocacy training program, or a similar program endorsed by the National Judicial College which addresses the needs, rights and legal interests of crime victims;

* Judges should allow for, and give appropriate weight to, input at sentencing from crime victims, especially those victims of violent crime as previously recommended by the 1982 President's Task Force;

* Judges should inform crime victims of their right to submit victim impact statements, if the victim is present in the courtroom, when a finding of guilt has been entered into the court record;

* Judges should require the probation department to offer proof of due diligence in their attempts to contact the victim, if no victim impact statement has been submitted for review. If not properly satisfied that due diligence has been exercised, judges should postpone sentencing while further attempts are made to contact the victim;

* Judges should allow for the submission of victim impact evidence both orally and in writing. Additionally, judges should allow for all victims to submit victim impact evidence through alternative means, i.e., audio tape, video tape or other electronic means, especially when the victim is a child or is disabled mentally, physically or emotionally;

* Judges should require the probation department to attach original victim impact statements or letters to the presentence investigative report for further judicial review;

* Judges should allow for the use of interpreters/signers or a designated victim representative for hearing or sight impaired victims and should also allow non-english speaking and illiterate victims to appoint a victim representative to act on their behalf;

* Judges should postpone sentencing in cases settled by plea negotiations until such time that the victim is provided the opportunity to submit a victim impact statement, especially those cases in which a violent act was committed; and

* Judges should acknowledge, in open court, if he or she has read the victim impact statement.6

1 Keisel, "Crime and Punishment -- Victims' Rights Movement Presses Court, Legislatures, " 70 American Bar Association Journal 25, 26 (January, 1984).

2 J. Hernon and Brian Forst, The Criminal Justice Response to Victim Harm (1984) National Institute of Justice, Research Report at 45, 50.

3 Susan Hillenbrand, "Victim Rights Legislation: An Assessment of Its Impact on the Criminal Justice System, " A Study of the American Bar Association's Victim Witness Project, funded under National Institute of Justice Grant No. 86-IJ-CX-0049 (S-1)

4 United States. President's Task Force on Victims of Crime. Final Report. December 1982. p 72.

5 Hall, "The Role of the Victim in the Prosecution Disposition of a Criminal Case, In Criminal Justice and the Victim." (1981) p. 318, 323.

5 This recommendation is based upon numerous interviews and surveys conducted with crime victims, in which victims stated that this simple acknowledgment by the judge, further validated their role in the justice process and confirm that their input has been heard.

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There is no empirical evidence to back up the assertion that victim impact statements harm defendants or erode their constitutional rights. A 1983 study of jurisdictions with victim impact laws found that, with the exception of Ohio, sentences did not increase when victim impact statements were introduced.¹ In the Ohio study, Edna Erez and Pamela Tontodonato observed 500 felony cases, some of which had solicited victim impact statements when it appeared the case would go to trial, and some that did not.

The researchers found that cases in which a victim impact statement was submitted were more likely to result in a prison sentence than probation. However, a second analysis showed no association between the submission of an impact statement and length of sentence. Unfortunately, the researchers discovered that cases with and without impact statements varied widely in terms of charges, defendants' criminal histories, etc. Therefore, they were unable to control for potentially confounding variables.

Use of Victim Impact Statements in Capital Cases: Supreme Court Rulings

The argument of defendant harm was raised at the Federal level when Maryland's Victim Impact Statement law was successfully challenged with Booth v. Maryland in the U.S. Supreme Court.² In holding that victim impact statements were unconstitutional when applied to capital cases, the Court reasoned that "only the defendant's personal responsibility and moral guilt" may be considered in capital sentencing. The effect on victims and family members of murder victims was irrelevant to the defendant's culpability and served to "inflame" the jurors and divert attention away from the crime and the defendant.³

This view was narrowly decided in a 5 to 4 decision written by Justice Powell, joined by Justices Brennan, Marshall, Blackmun and Stevens. Significant dissenting opinions were also offered. Justice Antonio Scalia noted:

"Many citizens have found one-sided and hence, unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime, with no one to lay before the sentencing authority the full reality of human suffering the defendant has produced-- which (and not moral guilt alone) is one of the reasons society deems his act worthy of the prescribed penalty."⁴

In 1989, in South Carolina v Gathers, the court reaffirmed Booth by reiterating that "a sentence of death must be related to moral culpability of the defendant." During the penalty phase in the trial court, the prosecutor read from religious tracts that the victim had been carrying at the time of his murder. The prosecutor also commented on the victim's religious characteristics.5 Justice Brennan wrote the opinion and was joined by Justices Marshall, Blackmun, and Stevens. Justice White concurred in order to form a majority because he felt bound by the findings in Booth.⁶ However, in 1990, in Payne v. Tennessee, Booth and Gathers were reversed in a 7 to 2 decision finding that testimony commenting on the murder victim's good character, as well as how the victim's death affected his or her survivors did not violate the defendant's constitutional rights in a capital case.⁷

Although many legal scholars believe that victim impact statements have passed the ultimate test of admissibility (in capital cases) with the U.S. Supreme Court's favorable reversal of Booth and Gathers, many courts are more reluctant than worried to follow the U.S. Supreme Court's broad mandate in Payne v. Tennessee to allow for the submission of victim impact statements in capital cases. Since the High Court issued its ruling in Booth and Gathers, defense attorneys throughout the land have argued that Booth and Gathers relate to all victim impact statements. If the Court's ruling allows for the submission of victim impact statements in capital cases, one may infer that in cases where the penalty would be other than death, judicial concerns in regards to possible defendant harm would be sufficiently lessened. Without exception, courts must exercise discretion and caution when balancing the rights of the victim and the defendant relative to the submission of impact evidence. However, their caution should not go so far as to exclude the victim impact statement or to arbitrarily dismiss the importance of the information or views that victims can bring to the sentencing process.

1 New York Crime Victims Board, " A Quick Assessment and Evaluation of Victim Impact Statement Law," (Unpublished Study, 1983).

2 482 U.S. 496 (1987)

3 Ibid. at 508

4 Booth v Maryland at 2542 (Scalia, J. Dissenting)

5 109 S. Ct. 2202 (1989)

6 Ibid. at 2211

7 Reported in NOVA Newsletter, op. cit.

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As early as 1981, researchers, mental health practitioners and criminal justice professionals have recognized that victims who receive information about their criminal cases and are allowed to have input into the criminal justice process have a higher degree of satisfaction with the justice process and experience a higher degree of closure to their victimization.

Findings contained in the survey entitled Why Victims Fail to Report? The Psychology of Criminal Victimizations (1), reflect that victims who do not report their crimes have clearly opted not to participate in the criminal justice system. A major deterrent to reporting the crime is the victims' concerns about their treatment by the criminal justice system stemming from a belief that the system was 1) powerless to help them, and 2) might further victimize them.¹

A 1981 research study conducted by Barbara Smith and Susan Hillenbrand of the American Bar Association, revealed that victims' satisfaction with the justice process increased if they perceived that they had influenced the process, regardless of whether they really had.² For example, victims who believed they were able to speak with prosecutors and judges were more satisfied with the criminal justice system than those who believed they were not able to do so.

Similarly, in a 1984 study of 450 crime victims, 48% stated that they would have been more satisfied if they were better informed about the status of their case. Twenty-one percent wanted more opportunity to let prosecutors and judges know their opinions about the case.³ In 1982, Deborah Kelly, Assistant Professor with the American University, published findings from a study she conducted which revealed that a sense of participation was more critical to victims' satisfaction with the criminal justice system than how severely the defendant was punished.⁴

In a 1989 publication, Dr. Dean Kilpatrick, Director of the Crime Victims Research Treatment Center, Medical College of South Carolina, reported his findings that victim participation not only affected potential cooperation within the criminal justice system, but it also promoted victims' recovery from the aftermath of crime by helping them to reassert a sense of control over their lives. He states, "The perception-of-control variable has been identified as a key factor in understanding the impact of victimization...A criminal justice system that provides no opportunity for victims to participate in proceedings would foster greater feelings of helplessness and lack of control than one that offers victims such rights."⁵ Kilpatrick further states that there is a great danger in promising victims what will not be delivered. "Providing rights without remedies would result in the worst of consequences such as feelings of helplessness, lack of control and further victimization. Ultimately, with the crime victims' best interest in mind, it is better to confer no rights at all than 'rights without remedies."^'6

Although other research cited in this report focused on victims' satisfaction with the overall criminal justice process including victim impact statements, Dr. Robert Davis, Research Director of the Victim Service Agency in New York, conducted studies in 1985 and 1990 specifically to evaluate the correlation of victim satisfaction and the use of victim impact statements. Davis' study findings were contrasted with the studies that found victim satisfaction with the criminal justice system increased with more participatory rights such as the opportunity to offer impact evidence. Davis' study found that only 50% of victims wanted to participate in the criminal justice process, while the rest were satisfied to leave criminal justice matters to the court. One victim in three did not even want to be present when the case was decided. The study also included a matched, quasi-experimental design, which looked at the effect of giving a victim impact statement on victim satisfaction. Davis found no evidence that victims who gave impact statements felt a greater sense of participation or increased satisfaction than those who did not. Findings from a similar study conducted five years later led Davis to conclude that victims still did not experience a higher degree of satisfaction with the criminal justice system merely because they had been provided the opportunity to submit victim impact statements. This second study did not find, however, that the use of victim impact statements led to a harsher sentence for offenders. This may be good news in countering those who argue that impact statements result in unfair sanctions for offenders. On the other hand, sentencing decisions were not congruent with victim harm in cases in which statements had been offered than in cases in which they had not may be bad news. Charge severity did highly predict the length of sentence.⁷

The Victim Impact Statement allowed me to construct what had happened in my mind. I could read my thoughts...they were on paper...in black and white. I helped me to know that I could deal with this terrible thing.
----a victim, NVC's focus group with victims.

Although Dr. Davis' research offers contridictory evidence in the support of increased victim participation through the use of victim impact statements, the reader must keep in mind that Dr. Davis focused only on measuring an increase in the satisfaction of those victims allowed to submit victim impact statements. His findings did not measure any correlation between increased victim satisfaction when victims were given the opportunity to participate in the overall justice process including submission of impact evidence. Findings from Dr. Davis' study also revealed that not all victims want to submit victim impact statements. However, when comparing studies which focus on increasing victim satisfaction through increased participation, the findings clearly indicate that victims wishing to participate fully in the justice did, in fact, experience a higher degree of victim satisfaction when allowed to do so.

1. Kidd and Cajet, "Why Victims Fail to Report? The Psycology of Criminal Victimization," 40 Journal of Social Issues 35-50 (1984)
2. Barbara Smith, Susan Hillanbrand, "Non-Stranger Violence: The Criminal Court's Responses." National Institute of Justice, (1981.)
3. J. Hermon and Brian Forst, "The Criminal Justice Response to Victim Harm." National Institute of Justice, Research Report at 45, 50. (1984)
4. Deborah P. Kelly, "Delivering Legal Services to Victims: An Evaluation and Prescription, 9 Justice System Journal 62 (1984)
6. Ibid. 15 at 27.
7. Robert Davis, "Impact Statements Not Having Much Effect," NOVA Newsletter, 16, 2 (1992)

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Victim Impact--How Does It Impact Probation and Parole?

"When the victim impact statement was read, the entire courtroom was in tears. I watched the judge and he was really paying attention. On that day, I saw that victim impact statements are a way to educate judges, juries, prosecutors and probation officers on what it means to be a victim."

A probation officer - NVC Focus Group

"Balancing competing interest and equities in deciding a sentence can require Solomon-like wisdom. Even Solomon heard from both sides."

...a victim, President's Task Force on Crime Victims

Opponents of victim impact statements have long argued that the submission of victim impact evidence at the time of sentencing serves only to inflame judges and juries to impose stiffer sentences, based upon emotional rather than factual considerations. Opponents are now voicing the same objection regarding the submission of impact evidence into the probation, correctional and paroling process.

Is there any validity to this assertion? Certainly, it has merit. Victims want to see that justice is done and ultimately, a victim's personal agenda for submitting victim impact evidence to both court and paroling authorities can be construed as self-serving. Presenting impact evidence is one way the victim can provide information to court and paroling authorities to aid them in determining an appropriate punishment for the crime committed - from sentencing to the actual amount of time an offender serves for the crime. Is this vengeance or merely a demand for accountability on the part of the offender and our criminal justice system? As early as 1982, the President's Task Force on Victims of Crime responded to such objections as follows "...the victim, no less than the defendant, has a real and personal interest in seeing the imposition of a just penalty. The goal of victim participation is not to pressure justice, but to aid in its attainment."1

Apart from the victim's personal agenda to present impact evidence, victim impact statements are important to the probation, correctional and parole process for a number of reasons. Victim impact statements can help register the financial, emotional and physical effects of crime both at the time of sentencing and prior to any hearings relevant to the offender's release from incarceration or community supervision. This information is beneficial in determining:

* Fair restitution orders;

* The duration of sentence, probation or parole;

* The need for special release conditions such as restraining orders;

* The need for victim/offender programs (when appropriate) such as mediation, conciliation, participation in treatment programs; and

* Any recommendations or factors that the victim feels would help guarantee his or her safety.2

In addition, victim impact statements provide an accurate assessment of the actual crime that occurred, which often differs from the crime to which the offender was sentenced, i.e., reduced charges as a result of plea negotiations. Submitting a victim impact statement to paroling authorities also allows the victim to update the emotional, physical and financial effects of the crime which may not have been known at the time of sentencing.

Victim impact statements often validate the victim's role in the criminal justice process and may aid in the victim's ability to recover from the devastating aftermath of crime. In principle, a victim should be afforded at least the same guarantees as the defendant. The law provides the defendant with the right to present to the court, correctional and paroling authorities information as to why a certain sentence be imposed, or why parole or an early release should be granted. As such, the law should justly afford victims the same right for full disclosure as to the impact of the crime.

Probation and Parole: Key Players in Ensuring Victim Rights in Submitting Victim Impact Statements

Probation, correctional and parole officials each play a critical role ensuring that crime victims are notified of their rights to participate in sentencing and parole hearings; to complete or update victim impact statements; and, to receive assistance in doing so. For victim impact to be measured and considered at parole hearings, it must first be made available to reviewing authorities. One study conducted on the use of victim impact statements in parole revealed that presentence victim impact statements were not being forwarded to correctional and paroling authorities by probation officers. In 106 cases, only six victim impact statements were forwarded to parole boards for inclusion in the offender's correctional file. The study further concluded that parole boards were not consistent in providing information outlining victims' rights to present or to update impact evidence at the time of parole consideration, even those victims requesting notification. Out of 3200 victim requests for notification, only 1389 notices were sent.

Additionally, the study uncovered an interesting factor that may explain, in part, the failure of probation, correctional and paroling authorities to fully utilize victim impact statements. Ninety-six per- cent of probation, correctional and parole officers interviewed for the survey felt that they lacked the skills necessary to work with and support crime victims. Training in victim issues was identified as a high priority if they were to better assist crime victims.3

Another study conducted in 1987 by Carol Shapiro addressed victim concerns throughout community correction programs.4 Ms. Shapiro found that roles between probation officers and victim advocates often overlapped, including assisting victims to submit victim impact statements. From more than 100 respondents, she found that 68% of the probation officers assisted in the preparation of victim impact statements and 80% of victim advocates assisted in preparing them. Her study also concluded that probation and parole officers felt ambivalent about providing victim services because their training focused primarily on offenders. The study also revealed a lack of understanding of the differing roles of probation officers and victim advocates. On the whole, 84% of victim advocates believed they understood the problems probation officers faced, but only 40% of the probation officers agreed. While correctional officers could understand the need for their involvement with victims, and many did desire more interaction, most felt they needed training in order to do so. (In numerous focus groups conducted by the National Victim Center for this project, correctional personnel stressed the need for victim service training as a high priority.)

Additionally, Ms. Shapiro noted five areas of concern with the use of victim impact statements by probation and parole:

1. When a presentence investigation report is not ordered, there is no other avenue for victim input.

2. Some victims may not want to participate in the criminal justice system, and may be particularly offended by contact from a correctional officer.

3. Many probation and parole officers are uncomfortable, ambivalent or too busy to adequately collect victim information.

4. The weight of victim impact statements seems to vary from court to court, and paroling authority to paroling authority.

5. Parole officers questioned how much weight a victim impact statement at parole should be given when an offender has an otherwise excellent institutional record.

Probation, correctional and paroling professionals can shape how "victim impact" is defined in the community. To do so, they need to examine their methods for the collection of victim impact information; coordinate the collection process with key criminal justice agencies (in particular, victim assistance programs) and initiate staff training on issues surrounding criminal victimization. If this is done, victims will provide the criminal justice process with information which more completely represents the actual impact of crime on victims - information which can make a difference.

(It is universally recognized that probation, correctional and paroling authorities operate under specific and individual agendas, each agency agenda inherently influences the other in the performance of assigned duties. Therefore, it is critical that strong interagency cooperative agreements be established and adopted to ensure that information pertaining to crime victims is made available to each of the post-conviction agencies. Although the supporting narrative in this report is applicable to each agency, individually tailored recommendations for probation, corrections and parole have been drafted.)

National Protocol Recommendations For Probation Agencies:

As the primary collector and distributor of victim impact evidence for courts and paroling authorities, it is especially critical that the probation agency establish clearly defined policies and procedures for the implementation, distribution, collection and application of victim impact statements.

* The probation agency should establish policies and procedures that delineate agency responsibility and accountability for the implementation, distribution and collection of victim impact statements. Specific penalties should be drafted and instituted for noncompliance of established policies and procedures;

* The probation agency should establish policies and procedures that provide for interagency cooperation in coordinating victim impact services with all key criminal justice agencies. Specifically, these guidelines should ensure that responsibilities do not overlap and that special victim needs such as emotional or physical considerations are adequately addressed;

* The probation agency should establish policies and procedures that require all employees who have direct contact with crime victims to participate in state and local victim assistance training programs that address the needs, rights and legal interests of crime victims;

* The probation agency should establish policies and procedures that require probation officers to exercise due diligence in securing victim impact evidence from crime victims, even to the extent that contact is made with outside agencies in an attempt to locate the whereabouts of crime victims, i.e., postal service, drivers license bureau, voter registration bureau, social security administration and utility companies;

* The probation agency should establish policies and procedures which guarantee that all victim impact statements are forwarded to correctional and paroling authorities for inclusion in the inmate's agency file; and

* The probation agency should establish policies and procedures to notify and inform crime victims of their right to submit victim impact statements or updates of previously submitted victim impact statements. This contact can be by letter or personal contact. At a minimum, victims shall be informed of any policies pertinent to the implementation of victim impact statements in their cases including:

* The purpose and use of victim impact statement in the criminal justice system; the victim's option for exercising or declining his or her right to submit a victim impact statement; and specific guidelines concerning the confidentiality of victim impact statements;

* Eligibility requirements for submission of victim impact statement, i.e., victim only, family members, or designated victim representative;

* How the victim impact statement should be submitted and/or options for submission, i.e., written, oral, audio, video or other electronic means;

* How the victim impact statement will be reviewed by the court, i.e, inclusion in the presentence investigative report or as an attachment to the presentence investigative report;

* The date and time of the sentencing hearing, as well as the right to attend the proceedings;

* A specified time frame for returning the completed victim impact statement;

* Instructions for submitting the victim impact statement to the court, i.e, through the prosecutor, probation department or submitted directly to the court;

* Information as to the victim's right to request no contact orders; to receive notification of early release, probation revocation hearings; and instructions for requesting these rights;

* Information for requesting assistance in completing the victim impact statement, i.e., name and phone number of agency contact; and

* The importance of notifying probation, correctional and paroling authorities of changes in address, and instructions for doing so;

Additionally, probation agencies with sufficient resources, the following victim services relating to collection of victim impact information should be incorporated into agency policies and procedures:

* Create a paid or volunteer victim advocate position within the probation department to assist victims in the completion of victim impact statements or other victim related issues or needs;

* Provide home/hospital/nursing home visits for disabled, ill, child or elderly victims who would otherwise be excluded from presenting victim impact evidence;

* Provide non-English speaking crime victims with victim impact statements instruments and information written in their native language or allow the victim to designate a representative to act on his or her behalf;

* Provide interpreters or signers for non-English speaking and hearing impaired victims or allow the victim to designate a representative to act on his or her behalf; and

* Provide assistance in the completion of victim impact statement for victims who do not write or read well.

Correctional Settings: An Agenda to Meet Victims' Needs

Just as judges and paroling authorities cannot make accurate and informed sentencing and paroling decisions without considering victim impact evidence, the same need for victim impact evidence exists in the correctional setting. Victim impact statements can provide correctional personnel with an assessment of the actual crime that occurred, which often differs from the crime for which the offender was actually sentenced. In addition, victim impact evidence can provide correctional personnel with crucial information needed to determine:

* The need for correction-based victim service programs;

* Accurate placement of offenders in correctional institutions and correctional treatment programs;

* Appropriateness of victim/offender mediation programs; and

* Eligibility requirements and safety considerations in the offender's early release; placement in community programs or granting furlough options.

The Critical Need for Program Services

Most victims have even less of an understanding of the correctional process than they have of the criminal justice process. They possess little or no knowledge of how or where to learn of an offender's placement, treatment plan or pending release, and often the victim's advocate in the justice process also possesses little knowledge of the procedures necessary to obtain this information. They often see the sentencing phase of the criminal justice process as the final phase of their participation.

When a defendant is sentenced to a prison term, the measure of safety is short-lived because victims know that in most cases, the offender will be released from custody at some point. Victims need to be reassured that they have a measure of control over their own safety. This control hinges on the ability to prepare in advance for the release of the offender. No victim, especially of a violent act, should learn of an offender's release when they encounter the offender walking along the street or shopping in the neighborhood store.

In addition to the victim's need to feel safe, information about the offender's treatment plan and movement within the correctional system may promote the psychological healing of some victims, and may directly increase victim satisfaction with the justice process. The victim may feel their participation in the justice process has spared an innocent victim for a similar experience.

Victim services in the correctional setting are relatively new. As such, it is critical that systematic, comprehensive policies and procedures for program services are established for the fair and sensitive treatment of crime victims, including the use of victim impact statements. When correctional personnel take the time to hear from victims, they are receiving valuable information that will enable them to do their jobs more efficiently and effectively.

National Protocol Recommendations for Correctional Authorities:

* Correctional authorities should establish program services for victims of crime with sound policies and procedures that clearly delineate roles and responsibilities for the administration of program services. Specific penalties should be drafted and instituted for noncompliance of established policies and procedures;

* Correctional authorities should establish policies and procedures that require all employees having direct contact with crime victims to participate in state, local and departmental victim assistance training programs that address the needs, rights and legal interests of victims;

* Correctional authorities should establish policies and procedures that require the inclusion of the victim impact statement into offender's correctional file;

* Correctional authorities should establish policies and procedures that require ALL VICTIMS OF VIOLENT CRIMES TO BE NOTIFIED IMMEDIATELY of their offender's escape from the correctional institution;

* Correctional authorities should establish policies and procedures that require victims to be notified when there is a change in the offender's custody status, i.e., change in institutional placement within the correctional system, early release, community placement, furlough, etc., if the victim should so desire. If state law mandates, victims shall be notified of any changes in the offender's treatment plan;

* Correctional authorities should establish policies and procedures for assisting victims who are attending parole hearings within the institution; and

Additionally, in correctional agencies with sufficient program services and budget allowances, the following victim services should be incorporated into agency policies and procedures:

Create a paid or volunteer victim advocate position within each institution to provide:

* General information on the department of corrections and a through explanation of any rights or privileges victims have in the correctional setting;

* Information on the length of offender's sentence, location of offender in the correctional department, offender treatment plan, matters/issues pertaining to restitution and parole hearing dates/issues; and

* Information on the institution's victim/offender mediation program if applicable and provide the victim with all necessary information to exercise his or her option for participation.

The Importance of Victim Impact in the Parole Process

For some victims, paroling authorities represent the last opportunity to see that justice is done. In essence, society demands that the offender's loss of physical freedom is commensurate with the crime committed. However, due to the wide-spread use of plea negotiations, many victims have not been given the opportunity to provide accurate victim impact evidence to sentencing and paroling authorities because often, victims are not brought into the plea negotiation process. By allowing victims to submit victim impact statements at the time of parole consideration, paroling authorities are provided with victims' perspectives of the actual crime that occurred, which often differs from the crime for which the offender was sentenced.

When crime victims are allowed to submit updated victim impact statements to paroling authorities at the time of release hearings, these updated statements can be compared to statements submitted at sentencing. This process provides paroling authorities with information about the long-term impact of the crime. In addition, the submission of an updated victim impact statement allows the victim to present additional financial losses incurred after sentencing to the paroling authority for consideration in amending existing restitution orders.

Our criminal justice process has assigned paroling and sentencing authorities with a grave responsibility...to protect the overall safety of our citizens by refusing to release dangerous or violent criminals back into the American mainstream. Paroling authorities cannot make sound judgements concerning our safety without having access to all available information about the crime. To make competent and informed decisions for our safety, paroling authorities must hear from the police, prosecutors, courts, and most importantly, the victim. We must establish policies and procedures to solicit victim involvement. We must also have a system of accountability if we fail to seek the information that only a victim can supply. Failure to hear from victims is not only an injustice to individual victims, but is greater disservice to society as a whole.

National Protocol Recommendations for Paroling Authorities:

* Paroling authorities should establish program services for victims of crime with sound policies and procedures that clearly delineate roles and responsibilities for the administration of program services. Additionally, specific penalties should be drafted to address noncompliance of established policies and procedures;

* Paroling authorities should establish policies and procedures that require all employees having direct contact with crime victims to participate in state and local victim assistance training programs that address the needs, rights and legal interests of victims;

* Paroling authorities should establish policies and procedures that guarantee victims notification of offender's eligibility for parole consideration. These policies and procedures should clearly delineate roles and responsibilities for the notification of victims;

* Paroling authorities should establish policies and procedures that provide for inter-agency cooperative agreements in coordinating victim impact statement services with all key criminal justice agencies. Specifically, these services should address the coordination of victim impact statement services to ensure that responsibilities do not overlap and to ascertain special victim needs such as emotional or physical needs;

* Paroling authorities should postpone parole considerations in cases involving a violent act until such a time that the victim is notified and provided the opportunity to submit a victim impact statement;

* Paroling authorities should establish policies and procedures that guarantee due diligence in securing victim impact information from crime victims, even to the extent that contact is made with outside agencies in an attempt to locate the whereabouts of crime victims, i.e., victim-witness assistance units, postal service, drivers license bureau, voters registration bureau, social security administration, and utility companies;

* Paroling authorities should establish policies and procedures that guarantee victims that offenders and their attorneys will not have access to the victim impact statement. If this cannot be done due to legal mandates, the paroling authority should remove all confidential victim contact information from the victim impact statement prior to review by the offender and his or her attorney or advise victims about the information the defendant and the defense attorney will have access to;

* Paroling authorities should establish policies and procedures that guarantee victims the right to receive notification of the paroling authorities' decisions, i.e., parole was granted with the following conditions, parole was denied, but offender will be eligible to apply for consideration in one to two years, etc.; and

* Paroling authorities should establish policies and procedures to notify and inform crime victims of their right to submit or update victim impact statements and/or to attend parole hearings. At a minimum, victims should be informed of any policies pertinent to the implementation of victim impact statements in their cases including:

* The purpose and use of the victim impact statements in the paroling process; the victim's option to exercise or decline his or her right to submit or update victim impact statements and specific guidelines concerning the confidentiality of victim impact statements;

* Eligibility requirements for submission of victim impact statements, i.e., victim only, family members, community representative designated victim representative;

* How the victim impact statement can or should be submitted, i.e., written, oral, audio, video or by other electronic means. This information should also include any special provisions for submission for disabled, elderly or child victims;

* The date, time and location of the parole hearing, the victim's right to attend the proceeding, as well as informing the victim how the proceeding will be conducted, i.e., victim allowed to meet separately with paroling authority, defendant will/will not be present, etc;

* A specified time frame for returning the completed victim impact statement;

* Information as to the victim's right to request no contact orders, to receive notification of the paroling authorities decisions for parole or early release and the conditions of these releases; and instructions to exercise these rights;

* Information as to the victim's right to submit evidence of additional financial losses for consideration in the modification of existing restitution orders;

* Information to requesting assistance in completing the victim impact statement, i.e., name and phone number of agency contact; and

* The importance of notifying paroling authorities of changes in address, and instructions for doing so.

Additionally, paroling authorities with sufficient personnel and budget allowances should provide the following victim services relating to victim impact statements and these services should be incorporated into agency policies and procedures:

* Creation a paid or volunteer victim advocate position within the parole setting to assist victims with notification of parole proceedings, in completion of victim impact statements and other related victim issues and needs;

* Provide victims with the opportunity to meet and talk with parole board members without the offender or the offender's family present;

* Provide non-English speaking victims with victim impact statements written in their native language or allow the victim to designate a representative to act on his or her behalf;

* Provide interpreters or signers for non-english speaking or hearing impaired victims or allow the victim to designate a representative to act on his or her behalf;

* Provide assistance in the completion of the victim impact statements to victims who do not read or write well; and

* Provide separate waiting rooms for victims staffed with personnel knowledgeable of victim rights in the paroling process.

1 United States. President's Task Force on Victims of Crime. Final Report. December 1982.

2 National Victim Center, "Crime Victims and Corrections: Implementing the Agenda for the 1990's project funded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice Grant No. 90-DD-CX-K030 (S-1)

3 Susan J. Hillanbrand, Suzanne McDaniel, Carol Shapiro, "Victim Impact Statements: Three Research Projects." MADDVOCATE, Fall Edition. (1989).

4 Carol Shapiro, "Making it Work: Addressing Victim Concerns Through Community Corrections Programs." National Institute of Corrections. (1988).

.

Victim Impact in the Federal System

"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success than to take the lead in the introduction of a new order of things."

Niccolo Machiavelli

Selection of an appropriate sentence is one of the most important decisions made in the criminal justice system. The primary vehicle used to assist the sentencing court in fulfilling this responsibility is the presentence investigation report. In November 1987, the Sentencing Reform Act of 1984 became effective and radically changed the philosophical model for sentencing offenders in Federal courts. Congress relinquished an indeterminate model of sentencing and adopted a determinate model based upon national guidelines. Changes in the content and format of the presentence report were necessary to accommodate the new sentencing process.1

As part of the Crime Control Act of 1984, Congress created the U.S. Sentencing Commission to serve as an independent body of the judicial branch. The Commission was assigned responsibility for establishing sentencing policies and practices for the Federal criminal justice system in compliance with the Sentencing Reform Act of 1984. The Commission was further directed to produce guidelines that would avoid unwarranted sentencing disparities while retaining enough flexibility to permit individualized sentencing when called for by mitigating or aggravating circumstances.

However, if the court is to accurately determine mitigating or aggravating circumstances of each individual case, it must have access to all information pertinent to the case, and this information must include a careful review of victim impact. Historically, this information has been presented through the use of a presentence investigation report.

In the United States Federal Court system, when a defendant is apprehended and charged and is either found guilty or enters a plea of guilty, a presentence investigation report is ordered by the court prior to imposing a sentence. Under Federal Rule 32(c)(1) of the Federal Rules of Criminal Procedure and 18 U.S.C. Section 3552, the defendant cannot waive the presentence investigation with the exception of violations where penalties include the death penalty. Rule 32(c)(1) also delegates the responsibility of preparing the presentence investigative report to U.S.

probation officers.

Traditionally, this report assists the Court to understand the offender's background and to offer explanations as to the circumstances surrounding the offense(s) and the offender's involvement. As required by Rule 32(c)(1), the presentence report shall contain information on the history and characteristics of the defendant, including any prior criminal record; financial condition; educational attainments; family history and marital history; and any circumstances affecting the defendant's behavior (mitigating and aggravating conditions) which may be helpful in imposing sentence or the correctional treatment of the defendant, and any other information to be collected as directed by the sentencing authority.

Crime Victims' Rights to Submit Victim Impact Evidence at the Federal Level

Breaking with long established traditions to not seek victim input at the time of sentencing, the Federal criminal justice system took the lead in setting a legal precedent to learn of crime's burdens on its victims with the passage of the Victim and Witness Protection Act of 1982. The Act allows for the submission of victim impact information at the time of sentencing. Specifically, the Victim and Witness Protection Act, which amends Rule 32 (c)(1), allows for the inclusion into the presentence report, "information concerning any harm, including financial, social, psychological and physical harm done to or loss suffered by the victim of the offense." Additionally, the Victim and Witness Protection Act provides for the inclusion of "any other information that may aid the court in sentencing, including the restitution needs of any victim of the offense" into the presentence investigation report.

The mandate to include victim impact information into the presentence report has been a significant victory for Federal crime victims; although, neither the Victim and Witness Protection Act of 1982 or Rule 32(c)(1) provide victims with the right by law, to submit victim impact information directly to the court in either written or oral form.

In 1990, Congress passed the Victims' Rights and Restitution Act which grants Federal crime victims the right to be notified of and to be present at all public court proceedings (except where the testimony of the victim would be materially affected if the victim heard other testimony at trial), and to receive information about the conviction, sentencing, imprisonment, and release of the offender. The passage of this legislation signifies the Federal criminal justice system's acknowledgment and acceptance of the victim's right to have a more active role in the justice process. With the passage of this important legislative initiative, the Federal government began necessary steps to ensure Federal crime victims a right to participate in the justice process. However, the passage of the Victims' Rights and Restitution act did not specifically address Federal crime victims' rights to directly speak or to be heard by the sentencing authority through allocution or written impact statements, except with child victims.

Efforts to grant Federal crime victims the basic right to speak at sentencing is being addressed in a crime bill currently pending before Congress. If passed, the proposed legislation will mandate allocution rights at the time of sentencing. Although legislators and supporters of the crime bill remain optimistic about its passage, there is no guarantee that allocution provisions will survive as part of the crime bill package. If the passage of the crime bill should fail or if language is drafted in such a manner that it excludes or limits specific categories of victims in the granting of allocution rights, it is critical that continued efforts are made to enact legislation that will grant all Federal crime victims a right to present victim impact evidence either orally or in writing.

The lack of legislation to mandate a Federal victim's right to speak before sentencing is surprising as the Federal criminal justice system has been in the forefront of statutorily mandating victim/witness legislation. Perhaps the lack of statutory mandates that allow victims a voice in the sentencing process can be attributed to the few cases of violent crime seen at the Federal level.

Crime Statistics at the Federal Level

Traditionally, crimes committed in the Federal system have been ones of a financial nature against government and institutional entities, i.e., income tax fraud and evasion, postal fraud, embezzlement, bank robbery, forgery, interstate transportation crimes, etc., and crimes involving the sale and distribution of narcotics and weapons. Typically these crimes have been primarily thought to be "victimless" because they do not involve the human element of victimization as do those of violent offenses, and most frequently seen at the state and local levels. Exceptions would be the offense of bank robbery in which the primary victim is the banking institution, but where physical act of violence is committed against the bank employee. Other cases would include fraud where individual consumers are targeted for crime rather than government or institutional entities.

When Federal crime involves a human element, the victim has been more apt to suffer financial losses, i.e., fraud, con and deceit, as opposed to physical injuries. (It must be noted that while the majority of fraud victims do not suffer physical injury as a direct result of the crime, the loss of one's life saving is in and of itself detrimental and certainly deserving of victim services and victim impact participation.)

There has been, until recently, comparatively few cases involving life-threatening, direct victim/offender confrontation at the Federal level. Unfortunately this is no longer true -- violent crime is beginning to gather momentum at the Federal level. The numbers of violent crimes remain relatively small when compared to state and local crime statistics, but the Federal criminal justice system is witnessing an increase in the number of violent crimes entering the system for prosecution. This is evident when statistics are compared for the ten year time span, 1980 to 1990. In 1980, 2,382 violent crimes were referred for prosecution at the Federal level. In 1990, that number rose to 3,358, with a marked increase in crimes of rape and other sexual offenses, assault, and robbery.2 As drug crimes increase at the Federal level and the Federal government assumes the prosecutorial role of crimes previously prosecuted at the state level, such as carjacking, the potential for an influx of crime victims in the Federal system may dramatically increase.

The Critical Need to Amend Currently Existing Federal Legislation

Although prior Federal legislation authorizes the submission of victim impact information for the sentencing authorities review (under Rule 32 (c)(1) and the Victim and Witness Protection Act of 1982), it must be noted under both legal mandates, victims are afforded only with the opportunity to provide impact evidence to the U.S. Federal Probation Office and not directly to the court. Current legislation contains no specific language to address specific provisions for the collection of impact evidence other than it's inclusion in the presentence report.

Additionally, existing legislation supplies no directive as to how victims are to submit victim impact information to the probation department for inclusion in the presentence report, i.e., in the form of a written statement, a phone call or through a personal meeting between the probation officer and the victim. Nor does the legislation specifically provide the victim with any legal recourse should the probation officer fail to solicit impact information from the victim. Current trends in rights for victims at the state and local levels has been to create "remedies" for rights. The Federal criminal justice should consider adopting a similar policy to protect victims whose rights are not observed.

Furthermore, current legislation places a heavy burden on those that it has charged to relay victim harm - the court's probation officers. Certainly, probation officers are in a position to recount to the court, the "factual" and "verifiable" financial and physical harm the crime places upon the victim. However, can someone other than the victim accurately and effectively convey the subjective emotional burdens that crime inflicts? This issue is currently being reviewed at the state level. Several states have taken the lead in enacting legislation that limits the probation officer's ability to summarize victim harm in presentence reports to only those areas relating to physical or financial harm. Additionally, this legislation specifically mandates that only victims or their representatives can submit victim impact information concerning the emotional effects of the crime unless they waive their right to do so.

As more Federal crime victims experience crimes that directly threaten their physical persons and that may result in extreme emotional discord, it is critical that Federal legislation be drafted that will provide victims with a statutorily mandated right to submit victim impact information directly to the sentencing authority. Although victim impact information is sought in the presentence report, victims must be granted a basic right to come before the court to:

* Speak of crime's impact if they so desire; and

* Communicate in their own words, the impact of crime through written, audio, video impact statements or other electronic means.

The victim impact statement should serve as an attachment to the presentence report rather than as an inclusion into the presentence report.

Clearly, through the passage of numerous legislative statutes, the Federal criminal justice system has set in motion the tentative steps necessary to begin the permanent infusion of crime victims in the dispensing of justice. However, Congress and the Attorney General must now take further steps to recommit America to protecting the rights of Federal crime victims by closely, impartially and critically reviewing all existing Federal legislation to ensure that the needs and rights of crime victims are adequately addressed. Where weak, they must take a leadership role in enacting or amending legislation that will allow victims to take their rightful place in the justice process.

1 "The Presentence Investigation Report for Defendant's Sentenced Under the Sentencing Reform Act of 1984." Publication 107. Administrative Office of the United States Courts, Probation and Pretrial Services Division (September 1987, revised 1992) p.i.

2 1991 Source Book of Criminal Justice Statistics, U.S. Department of Justice, Bureau of Justice Statistics. (1991).

.

America's Forgotten Victims: Victims of Juvenile Crimes

"...advocating rights for victims does not mean lessening rights for the offender. It is a question of balance and it is a question of justice."

Senator Paul Laxalt

As one of this nation's most under-served victim populations, victims of juvenile crime have traditionally been afforded few rights to participate in the adjudication process of the juvenile offender. Victims have typically been excluded from any participatory role in the justice process other than to serve as witnesses. Currently only eight states afford victims an opportunity to submit some form of victim impact information for the juvenile court's review. However, the ability to do so in the majority of these states is generally restricted:

* Arizona allows for an interview with the victim during the course of a preliminary hearing and allows the victim to prepare restitution affidavits for consideration;

* California allows the victim to submit victim impact information only if the minor is alleged to have committed a crime that if committed by an adult, would be classified as a felony. In addition, the victim is provided information on the victim's right to file for civil damages and the victim's opportunity to be reimbursed from the restitution fund;

* Colorado considers the impact of the offense when deciding whether or not to waive juvenile court jurisdiction over the child. If the child is retained in the juvenile court, the juvenile may be ordered to perform work for the victim if the victim so consents. Colorado also issues restraining orders to victims to protect the victim from further threats or intimidating acts by the juvenile;

* Florida allows victims to have full participation in the juvenile adjudication process by allowing victims with the opportunity to comment on the disposition and proposed rehabilitative plan for the juvenile;

* Iowa allows the intake officer to interview the victim during the course of a preliminary hearing;

* Kansas allows the attitude of the victim or the victim's family to be considered as part of an investigation and report conducted by the court's service officer;

* New York allows a victim impact statement if deemed relevant;

* North Carolina interviews the victim for impact during the intake process; and

Wisconsin allows the court to prepare a report attempting to determine the economic, physical, and psychological effect of the crime on the victim if: the delinquent act would be a felony if committed by an adult, or if the victim has suffered bodily harm or an act involving theft or damage to property.

In some measure, the failure to infuse victims of juvenile crime into the adjudication process can be contributed to the complex legal concerns surrounding the protection and confidentiality of the juvenile's rights and identity; and society's and the criminal justice system's belief that juveniles, though no less culpable than their adult counterparts, have a higher success rate of rehabilitation due to their age and lack of maturity.

Traditionally, the juvenile justice system has operated under the premise that the successful rehabilitation of juveniles relies on the coupling of therapeutic intervention with a system of accountability (punishment). In essence, isolate the behavior and its causes, provide a treatment program, and where applicable, introduce the juvenile to the consequences of his or her actions through accountability and punishment. But can society expect juveniles to be accountable to the consequences of their actions if they are not made aware of the specific harm they have caused others, namely their victims. If the treatment and rehabilitation of the juvenile is to be successful, juveniles must be confronted by the financial, emotional and physical repercussions of their actions.

The Alarming Growth of Juvenile Crime

In 1987, 1,145,000 delinquency cases were processed nationally through the juvenile courts; in 1989, that number grew to 1,189,200 cases; and in 1990, figures for juvenile crime reached an all time high of 2.2 million cases1. Of the 1990 figures, juveniles accounted for 16% of all crime in our country, and more specifically, 14% of homicides; 15% of forcible rapes; 24% of robberies; 14% of aggravated assaults; 33% of burglaries; 43% of motor vehicle thefts; 7 percent of drug abuse arrest; and, 43% of all arson cases were committed by America's youth.

These statistics are indeed frightening. With millions of victims of juvenile offenses, our criminal justice system must begin to systematically bestow victims with legislatively mandated rights to fully participate in the adjudication of the juvenile offender. Victims of juvenile offenders have the same need for information concerning the apprehension and adjudication of the juvenile offender as do those victimized by adult offenders. We cannot fail to take into account the financial and emotional cost of juvenile crime when determining the overall cost of crime, not only for victims but for all citizens who must bear the brunt of crime's devastating costs.

For the victims of juvenile crime, the victim impact statement provides some degree of psychological closure just as the victim impact statement does in the adult criminal justice process. It also provides information to the sentencing court on the financial, physical and emotional impact of the crime. For the juvenile, the victim impact statement may provide some tangible evidence establishing the harm their actions have caused.

If the statistics of 1987, 1989 and 1990 are indicators of the growing trend in juvenile crime, record numbers of victims will be entering the juvenile justice process. It is critical that legislation be drafted and enacted that pr