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Victims' Voices Left Out Of Criminal Justice Reform

This piece originally appeared on Law360.


Criminal justice reform has gained momentum in the U.S. with state and federal lawmakers pushing for new legislation that would reduce incarceration, but some lawmakers and advocates argue that crime victims are being forgotten in these reforms.

Advocates say that some lawmakers forget that crime victims are diverse and have different experiences with the criminal justice system, so while some victims may support laws that allow for early releases, for example, other victims may be against such changes.

Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark Law School, told Law360 that, rather than taking the time to hear the spectrum of victims' voices on criminal justice reforms, some lawmakers will only engage with victims who support their proposed legislation. But most victims, regardless of whose side they are on, don't get a seat at the legislative table, according to Garvin.

Lawmakers have to slow down in their legislative process to hear all the different perspectives of crime victims who will be impacted by proposed legislation, Garvin said, noting that doesn't mean waiting another five years to enact necessary criminal justice reform.

"It's got to be this combination of urgency and listening, and I think we can do that by starting [policymaking] in communities as opposed to starting in the legislative body," she said. Garvin also said that silencing victims in an effort to enact speedy criminal justice reform designed to fix harms against one set of people can create new harms against the silenced individuals.

Katherine Darke Schmitt, acting director of the U.S. Department of Justice's Office for Victims of Crime, said that victims' voices should be included in legislative reform discussions, because "victims and survivors play a role in the entire criminal justice process."

Criminal justice reform should be implemented while keeping in mind that all crime victims have rights under the Crime Victims' Rights Act, Schmitt said. Victims' rights under the legislation include protection from the accused, reasonable notification of court proceedings and the right to be heard during court proceedings, according to the law.

"If we don't seek a reform effort that is attentive to victims' voices and survivors' perspectives, policymakers might inadvertently change the system in a way that would negatively impact crime victims," she said.

In an effort to raise awareness about victims' rights in the criminal justice system, the Office for Victims of Crime has celebrated National Crime Victims' Rights Week in April every year since 1981. The event started Sunday and runs until April 24. This year's theme is "Support Victims. Build Trust. Engage Communities."

Another problem for victims in the criminal justice reform process is that lawmakers mistakenly think that state and federal prosecutors represent the victims, according to victims' rights advocates. Instead, prosecutors just represent the interests of state and federal governments, they say.

According to the Alliance for Safety and Justice's 2016 national survey of crime victims' views on criminal justice reform, more than 50% of violent crimes are not reported because crime victims don't trust the criminal justice system. In addition, only one in 10 crime victims out of the more than 3,000 individuals surveyed received assistance from a district attorney or prosecutor's office, according to the study.

Schmitt said that one way that government officials can get victims to trust the criminal justice system so that they will report crimes and seek out social services is to listen to their voices when it comes to criminal justice reform.

"Having [victims'] voices is necessary to ensure that criminal justice reform promotes fairness and promotes dignity and respect and sensitivity for victims, especially when talking about creating a system that does not retraumatize victims," she said.

Malore Dusenbery, a policy associate at the Urban Institute's Justice Policy Center, and Mai Fernandez, a senior fellow at the Justice Policy Institute, both said that another reason why some lawmakers don't seek input from crime victims is because they falsely believe that there's a dichotomy between victims and their perpetrators.

But many crime victims are family members of their perpetrators and want their loved ones to get help rather than receive a lengthy prison or jail sentence, they said.

According to the ASJ's survey, more than 60% of crime victims were in favor of shorter prison sentences and more spending on crime prevention and rehabilitation services. Out of the 3,165 individuals surveyed, only 6% reported that they thought more funding should be spent on jails and prisons, according to the study. Instead, 89% of the victims were in favor of more spending on education rather than prisons and jails, the study said.

Fernandez said that if lawmakers took the time to listen to victims, they may find supporters of their reform efforts rather than opponents.

"Oftentimes victims and offenders are from the same group of people, and victims have more understanding for their offenders than outsiders," Fernandez said, adding that lawmakers also forget that many offenders were once victims themselves. Once a victim commits a crime, people view them as criminals rather than victims even though they still are victims, she said.

However, attorney and state victim advocate Natasha Pierre of Connecticut's Office of the Victim Advocate said that some criminal justice reforms, like out-of-court diversion programs for criminal offenders, diminish crime victims' rights altogether, because victims' rights only exist in court proceedings.

If a criminal offender is diverted to an out-of-court mental health or rehabilitation program, crime victims don't have rights to protection or notification, Pierre said.

"Criminal justice reform is trying to exclude victims from the process and has succeeded in excluding victims," she said.

In Connecticut, state lawmakers are considering bills to amend the state's laws on compassionate release, criminal record erasure and juvenile justice, according to the state's legislative agenda.

In light of the COVID-19 pandemic, some states including New Jersey, Virginia and California amended their compassionate and early release programs to reduce incarceration, but Connecticut state Rep. Craig Fishbein said that he found Connecticut's proposed legislation for early releases troubling, because there was no mention of victims' rights.

Fishbein said that if offenders are granted compassionate release or have their criminal records erased after a certain period of time, victims should receive notification of those changes and that needs to be outlined in proposed legislation.

"My concern is when a victim or their family sees someone is convicted and incarcerated for 30 or 40 years and all of the sudden that person is being let out on a compassionate release, the first thought is, 'Where is the compassion for my family member who was negatively impacted by the act of that individual?'" he said, adding that victims should also have the opportunity to object to these releases.

Schmitt and Pierre agreed that victims should be notified if their offender is granted early or compassionate release, and states need to include that in legislation on these measures.

Garvin said that even when victims' rights are left intact, victims can't always get remedies for alleged violations of their rights depending on the breach. Remedies for victims' rights violations would be stopping the violations or redoing court proceedings, she said. Generally, victims also can't get civil remedies in the form of monetary damages if their victim rights have been violated, according to Garvin.

"Even in states where folks have no remedies, they often have remedies for certain rights' violations," Garvin said.

Dusenbery said that in addition to victims' voices being considered in criminal justice reforms, changes should be made in the criminal justice system to benefit victims, like more support services, including victim compensation, and better funding for these services. According to ASJ's study, two out of three victims surveyed received no help from the criminal justice system following a crime.

Most funding for victims compensation come from criminal fines, so if offenders go through diversion programs or are not charged for crimes, victim services lose funding, according to Dusenbery. Dusenbery said that lawmakers need to pass legislation that addresses lost funding for victim compensation.

"Addressing this would go a long way of meeting victims' needs both emotionally and economically," she said.


This piece originally appeared on Law360.

  

 

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