Victims rights marks a decade of progress
Portland institute guides growing national legal field
How often does Oregon Supreme Court Chief Justice Paul De Muniz personally discuss a groundbreaking ruling with a prevailing party?
'Not very often,' De Muniz admits.
But there he was last Wednesday, taking about a recent Oregon Supreme Court ruling supporting the rights of crime victims at the 2011 Crime Victims Law Conference. Attending the conference was Janine Robben, the lawyer who filed the case.
'I was amazed,' Robben says of De Muniz's presentation, which delved into the court's reasons for supporting her client.
The conference was sponsored by Portland's National Crime Victim Law Institute, which is affiliated with the Lewis and Clark Law School. Held at the downtown Benson Hotel, the conference was attended by 175 lawyers, law students, crime victims and victims' advocates.
De Muniz did not break any laws or court rules by talking about the ruling at the conference. But his appearance underlines the growing influence of the victims' rights movements.
Although it hardly existed 40 years ago, today victims' rights are defined and protected at the federal level and in all 50 states. They apply to actual crime victims and their families. Recent court rulings are establishing important precedents. Many of them are the result of briefs prepared and filed by the victims' institute, the only organization of its type in the country.
But as several presentations at the conference showed, victims' rights is still an emerging field of law. Participants talked openly about the need to seek losing cases that could set more precedents on appeal. Strategies for expanding the rights of crime victims beyond the borders of the United States were also discussed.
A more pressing issue is financing, however. The institute is funded in large part by grants from the U.S. Department of Justice. It distributes much of the money to 11 clinics across the country that represent crime victims, including the Oregon Crime Victims Law Center, which is led by Robben, a former prosecutor and Portland Tribune reporter.
But the funding has not been renewed this year because of a budget fight in Congress, threatening the center's future.
'I'm spending a lot of my time looking for other sources of money these days,' says institute Executive Director Meg Garvin, a clinical professor at the Lewis and Clark Law School.
Following the law
According to De Muniz, there is nothing mysterious or tricky about victims' rights. The ruling he discussed invalidated a plea bargain deal because the victim had not been notified of the negotiations and sentencing hearing, as required by the Oregon Constitution and state law.
The case involved Beaverton's Ivey Wayne Barrett, who had been arrested for for stalking his estranged wife, Linda. She asked to be told in advance of any important hearings in the case. But prosecutors agreed to a sentence of two years probation without telling her. She challenged it, and on May 27 the Oregon Supreme Court agreed, ordering that her husband be resentenced at a hearing she can attend.
Although De Muniz said several technical issues had to be resolved, the basic decision was easy to reach.
'The prosecutors and court should have read and followed the law,' he said during his Tuesday luncheon address.
Such a decision was not possible for most of this country's history, however. As documented in numerous legal journals and textbooks, the American judicial system originally tended to focus on the rights of the accused and minimized the position of the victims. Prosecutors have historically represented the state, not the victims. Aside from their testimony, victims had no formal role in criminal trials and little way of obtaining compensation.
The concept of victims' rights began to emerge in the 1970s with such groups as the National Organization for Women, Mothers Against Drunk Driving and various child advocacy organizations. In response, under President Reagan, the justice department established the President's Task Force on the Victims of Crime. It issued a report highly critical of existing victim involvement and compensation programs.
As a result, Congress passed the Victim and Witness Protection Act of 1982, providing restitution for crime victims and allowing the use of 'victim impact statements' at federal sentencing hearings. All expanded the rights of crime victims at the federal level and provided funds to help enforce them.
In the meantime, states began to pass laws and adopt constitutional amendments to protect victims' rights. Advocates for victims were created as full-time positions in the offices of many prosecutors at the federal, state and local levels.
In Oregon, voters approved a victims' rights amendment to the state constitution in 1999 and clarified it in 2008. The Oregon Legislature wrote the rights into law in 2009. They include these rights: to have a personal representative or support person; to refuse to be interviewed by lawyers for the accused; to be notified of all court proceedings and attend them; to speak at release and sentencing hearings; to promptly receive restitution; and to keep personal information from the accused.
Garvin admits that some see the victims' rights push as a reactionary, right-wing movement that is undermining the objectivity of the criminal justice system.
'I hear that all over the country, but it's not true. Victims' rights are human rights. They don't take any rights away from defendants,' she says.
For example, Garvin insists that victims do not always argue for stiff sentences.
'Some victims are emotionally and financially dependent on their abusers and do not want them incarcerated. And even in murder cases, some victims are against lengthy sentences and the death penalty,' she says.
Seen as interlopers
The Lewis and Clark Law School has been on the cutting edge of victims' rights law for more than 10 years. Professor Doug Beloof wrote the only legal casebook on the field, 'Victims in Criminal Procedure,' first published in 1991. That same year, the Victim Litigation Legal Clinic was established at the school.
The National Crime Victims Law Institute was formed under Beloof's leadership in 1997 to help enforce victims' rights in civil and criminal proceedings. It convened the first conference for victims' rights lawyers in 2001. Garvin remembers it was attended by about 40 people, all of whom knew each other.
'The question was, how do we enforce victims' rights law without being seen as interlopers? The early response by some judges was, 'You don't belong here,' ' Garvin remembers.
But the field of victims' rights law has made major strides over the past 10 years, in large part because of amicus curie briefs prepared and filed by the national institute in state and federal courts - including 18 filed last year. A membership group, the National Alliance of Victims' Rights Attorneys, now has around 900 members.
Today, the national institute operates with seven full-time lawyers and the support of law students from a suite of informal offices in downtown Portland. Across the hall is the center where Robben works. Garvin is confident the field will continue to grow, even in the face of funding problems.
'Ten years from now, I predict we'll have a lot more work because all victims will be represented by lawyers,' Garvin says.
For detailed information on Oregon's victims' rights protection, check the state Department of Justice website, www.doj.state.or.us/victims/rights.shtml.