The Ascending Role of Crime Vctims in Plea-Bargaining and Beyond

Volume 117 Issue 1 Article 6
September 2014
The Ascending Role of Crime Vctims in Plea-Bargaining and

Beyond
Elizabeth N. Jones
Western State College of Law
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Recommended Citation
Elizabeth N. Jones, The Ascending Role of Crime Vctims in Plea-Bargaining and Beyond, 117 W. Va. L.
Rev. (2014).
Available at: https://researchrepository.wvu.edu/wvlr/vol117/iss1/6
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THE ASCENDING ROLE OF CRIME VICTIMS IN PLEA-
BARGAINING AND BEYOND
Elizabeth N. Jones*
ABSTRACT .......................................................................................... 98
I. INTRODUCTION .................................................................................... 98
II. CONTINUING CONCERN FOR THE PROTECTION OF DEFENDANTS'
CONSTITUTIONAL RIGHTS ..................................................................... 104
A. Padilla v. Kentucky ........................................................................ 105
B. M issouri v. Frye ............................................................................. 106
C. Lafler v. Cooper ............................................................................. 109
III. INCREASING AWARENESS OF THE NEED FOR VICTIMS' RIGHTS
UNDER STATE LAW ............................................................................... 112
A. Evaluatingthe Seven States with ConstitutionalLanguage
Permitting Victims to Participatein the Plea-Bargaining
P rocess ........................................................................................... 1 17
1. Arizon a ..................................................................................... 117
2. California ................................................................................. 119
3. Connecticut .............................................................................. 121
4 . Id ah o ..................................................... 12 3
5. M issouri ................................................................................... 124
6. Oregon ...................................................................................... 125
7. South Carolina ......................................................................... 126
B. Assessing the Efficacy of Victims' Rights Amendments ................. 126
IV. HARMONIZING THE RIGHTS OF CRIME VICTIMS AND DEFENDANTS .... 128
A. Protecting Victims' Rights While PreservingDefendants'
R igh ts ...................................................
12 9
B. Accommodating Rights with Limited JudicialResources .............. 132
V. CONCLUSION ......................................................................................... 133
* Associate Professor of Law, Western State College of Law. University of Miami School of
Law, J.D.; University of California, Los Angeles, B.A. The Author gratefully acknowledges and
thanks Professor Edith R. Warkentine, Research Librarians Lesley Chan and Scott Frey, and
student research assistant Kylie Starr for their generous advice and assistance.
WEST VIRGINIA LAW REVIEW [Vol. 117
ABSTRACT
This Article looks to the nationwide trend of promoting a victims'

rights agenda alongside three recent United States Supreme Court opinions
affirming defendants' rights during various stages of the plea-bargaining
process, in an attempt to harmonize these seemingly anomalous rights. The
three Supreme Court decisions focusing on defendants' rights in the plea-
bargaining context highlight the need to consider victims' rights in that same
milieu and to further guarantee victims the right to meaningful participation in
all aspects of a criminal prosecution. Particularly as the constitutional rights of
victims become further defined and embedded into the criminal justice system,
ensuring a proper role for the crime victim is of timely and crucial concern.
Though crime victims' rights (or lack thereof) are demonstrated through the
critical stage of plea-bargaining, this phase of the criminal justice process can
be considered a vehicle for the larger platform of victims' rights in general. It
sets the stage for the broader query as to whether and when victims of crime,
like their assailants, will finally be granted a full panoply of constitutional
rights.
I. INTRODUCTION
Victims of crime have a unique role to play in the prosecution of their

assailants. Accidental participants in the legal process, victims have been
historically marginalized. Their lives are on hold during the criminal process,
captured and ranked second to the rights of the person or people who forever
transformed them from civilian to victim. Decades ago, various ad hoc social
movements emerged with an eye toward personalizing crime victims, but
before these coalitions, the criminal justice system treated a crime victim as just
another piece of evidence, a potential witness for the prosecution at trial, but
not much more.'
Recent years have seen crime victims evolving from passive casualties,
to potential evidence providers, to participatory stakeholders. Many states have
already afforded crime victims some sort of statutory rights.2 More recently, a
I See generally Andrew J. Karmen, Who's Against Victims' Rights? The Nature of the
Opposition to Pro-Victim Initiatives in CriminalJustice, 8 ST. JOHN'S J. LEGAL COMMENT. 157
(1992) (discussing the traditional victim's role as a mere "complainant" who brought information
about criminal activity to the attention of the police). The author points out that "[slince crime
was conceptualized as an event that threatened and offended the entire community, and was
prosecuted by the state on behalf of an abstraction (i.e. 'the People'), the real flesh-and-blood
victim was treated like just another piece of evidence, a mere exhibit to be discarded after the
trial." Id. at 158.
2 See generally Sarah N. Welling, Victim Participationin Plea Bargains,65 WASH. U. L.Q.
301 (1987); DOUGLAS E. BELOOF ET AL., VICTIMS IN CRIMINAL PROCEDURE, 421-22 (3d ed.
2010).
2014] THE ASCENDING ROLE OF CRIME VICTIMS
handful of states have supplemented general constitutional rights for crime

victims with statutes containing specific rights.3 And an even smaller group of
states have passed constitutional amendments designed to guarantee victims
specific constitutional rights throughout the criminal justice process. 4 The
effort toward guaranteeing victims of crime their own constitutional rights at
every phase of the criminal justice process gains slow, but constant, forward
movement.
Acknowledgment of victims and their families in the courtroom is
becoming more common across the country, in small- and high-profile cases
alike. One case that received nationwide attention was the 2012 mysterious
disappearance of sixteen-year-old Skylar Neese in Monongalia County, West
Virginia. Skylar's two best friends ultimately pled guilty to her murder after
conducting a yearlong fagade of concern and bewilderment as to Skylar's
whereabouts. 5 At the girls' sentencing hearings, statutory authority permitted
Skylar's family to speak. 6 "I know with my heart Skylar fought that night for
3 See e.g., ALA. CODE § 15-23-71 (2014) (Plea Agreement); ALA. CODE § 15-23-76 (Right to
be present and heard at court proceedings); ALASKA STAT. § 12.61.010 (2014) (Rights of crime
victims); ALASKA STAT. § 12.55.011 (2014) (Victim and community involvement in sentencing);
COLO. REV. STAT. § 24-4.1-302.5 (2014) (Rights afforded to victims); FLA. STAT. § 960.001
(2014) (Guidelines for fair treatment of victims and witnesses in the criminal justice and juvenile
justice systems); IND. CODE § 35-40-5-5 (2014) (Right to be heard at sentencing or release); LA.
REV. STAT. ANN. § 46:1844 (2014) (Basic rights for victims and witnesses); MD. CODE ANN.
CRIM. PROC. § 11-403 (West 2014) (Right of victim or victim's representative to address court
during sentencing or disposition hearing); MICH. COMp. LAWS § 780.756 (2014) (Post-
arraignment notice; duties of prosecuting attorney; duties of victim); MICH. COMP. LAWS §
780.763 (2014) (Notice of defendant's conviction and of victim's right to participate in
sentencing investigation and proceedings); MISS. CODE ANN. § 99-43-27 (2014) (Plea bargaining;
victim's rights); MISS. CODE ANN. § 99-43-37 (2014) (Right of victim to be present and heard at
court proceedings); N.J. STAT. ANN. § 52:4B-36 (West 2014) (Rights of crime victims and
witnesses or adjudication of alleged juvenile offender); OHIO REV. CODE ANN. § 2930.12 (West
2014) (Notice of acquittal or conviction of defendant or adjudication of alleged juvenile offender
or disposition of alleged juvenile offender); OHIO REV. CODE ANN. § 2930.14 (West 2014)
(Statement by victim prior to sentencing of defendant); R.I. GEN. LAWS § 12-28-4.1 (2014) (Right
to address court regarding plea negotiations); TENN. CODE ANN. § 40-38-103 (2014) (Victims;
additional rights); VA. CODE ANN. § 19.2-11.01 (2014) (Crime victim and witness rights).
4 This Article addresses individual states and their constitutional amendments. The Crime
Victims' Rights Act (CVRA) of 2004 is federal legislation designed to strengthen the rights of
federal crime victims throughout criminal justice proceedings. See generally,Nicholas C. Harbist
& Dina L. Relies, The Crime Victims' Rights Act: How to Make the New Victims' Rights
Legislation with Teeth More Than Just Foodfor Thought, 2008 N.J. LAW. MAG., June 2008, at
48.
5 Tara Kinsell, Rachel Shoaf Gets 30 Years for Murder of Skylar Neese, OBSERVER-
REPORTER (Washington, Pa.), (Feb. 26, 2014), http://www.observer-reporter.com/article/
20140226/NEWS02/140229483/1003#.VBdhQWdOzcs.
6 W. VA. CODE § 61-1 1A-2(b) (2014) (stating that "[p]rior to the imposition of sentence
upon a defendant who has ... pleaded guilty or nolo contendere to a felony, ... the court shall
WEST VIRGINIA LA W REVIEW [Vol. 117
her life and now she's gone. Your Honor, I'm here to fight for her as she did to
stay alive." 7
The court conferred with the Neese family before accepting Miss
Shoaf's guilty plea to a reduced charge of second-degree murder. David Neese,
Skylar's father, implored the court to sentence the girls to the maximum
penalty permitted. "[Defendant] Rachel Shoaf murdered my daughter in cold
blood. Skylar would not be where she was if it wasn't for Rachel Shoaf. She
should not be given any leniency.. ,8 Miss Shoaf received a sentence of 30
years in state prison, and was ordered to pay restitution for Skylar's funeral
expenses. Her accomplice, Shelia Eddy, pled guilty to one count of first-degree
murder and was sentenced to "life with mercy." 9
Three recent United States Supreme Court decisions focused on
defendants' rights in the plea-bargaining context and highlight the need to
consider victims' rights in that same milieu, and to further guarantee victims
the right to meaningful participation in all aspects of a criminal prosecution.
Particularly, as the constitutional rights of victims become further defined and
embedded into the criminal justice system, ensuring a proper role for the crime
victim becomes an even more important and timely concern.
Assuring constitutional rights for crime victims, including the right to
participate in the plea-bargaining phase of the criminal proceedings, serves to
legitimize-and even empower-victims as active participants in the criminal
process. When people become victims, they are helpless, both during the act
itself and all through its aftermath. The alteration of their lives is damaging and
permanent--or at least it may feel that way from the victims' perspectives.
Possessing guaranteed constitutional rights throughout the process of bringing
their assailants to justice gives a measure of power back to these victims,
allowing them to shed this wounded label. Active participation also helps to
ensure understanding of the assorted procedural aspects inherent in the criminal
justice system. A vested interest in, and knowledge of, this system can now
manifest through participation at various stages of a defendant's case. If victims
at least attempt to comprehend the complexities of the judicial system, they can
more readily accept the inevitable delays and compromises while continuing
the healing process. Participation also encourages victims to be more
permit the victim of the crime to appear before the court to make an oral statement for the record
if the victim notifies the court of his or her desire to make such a statement...").
7 Kim Freda, Monongalia County Teen Sentenced for Involvement in Skylar Neese's Murder,
WTRF.coM, (Feb. 26, 2014), http://www.wtrf.com/story/24828113/monongalia-county-teen-
sentenced-for-involvement-in-skylar-neeses-murder.
8 Id.
9 See Crimesider Staff, West Virginia Teen Sentenced to Life in Skylar Neese's Murder,
CBSNEWS.COM, (Jan. 27, 2014), http://www.cbsnews.com/news/west-virgina-teen-sentenced-to-
life-in-skylar-neeses-murder/.
forthcoming with the police, prosecution, and probation department regarding

valuable information and advice that only they can provide.
This appreciation of, and ability to assist, the criminal justice system is
particularly poignant for victims at the plea-bargaining stage. Victims may
view plea bargains as a mixed blessing. On one hand, a plea bargain may
deprive victims of the possibility of seeing their assailants suffer the maximum
possible punishment as allowed by law. Victims often want to testify at trial,
thus providing their factual recitation as to the events that brought them into the
criminal system. Perhaps they simply want to speak at the sentencing hearing,
so that the judge more fully understands their position. On the other hand, plea
bargains often provide a necessary sense of closure to crime victims; by
avoiding the requirement of testifying at trial and thus enduring inevitably
numerous continuances and postponements, victims often encourage and
endorse the practice of plea-bargaining. Furthermore, with expanded rights, a
victim now may maintain some influence throughout the criminal proceedings.
Many criminal cases are circumstantial in nature; often it is only the defendant
and the victim who know what truly happened at the scene of the crime. Now
victims can speak with their own voices (or that of a family member or
representative) during the plea-bargainingprocess, thus effectively being heard,
and taking center stage in the legal arena.'
But it is not the spotlight that victims seek to steal from defendants.
Nor do they seek a singular focus on their rights to the exclusion of the
defendant. Establishing victims' rights is not intended to and should not
derogate defendants' rights. Rather, victims' constitutional rights are
independent of defendants' constitutional rights.11 Thoughtful exploration of
defendants' rights will reveal that there is room for victims' rights to be
developed in tandem with defendants' rights.
In an attempt to harmonize these seemingly anomalous rights, this
Article looks to the nationwide trend of promoting a victims' rights agenda
alongside three recent United States Supreme Court opinions affirming
defendants' rights during various stages of the plea-bargaining process. First,
this Article reviews these Supreme Court decisions, which affirmed a
defendant's constitutional right to effective counsel during this critical stage in
10 See BELOOF ET AL., supra note 2, at 716-17. ("The victim's interests in participating in the
plea-bargaining process are many. The fact that they are consulted and listened to provides them
with respect and an acknowledgment that they are the harmed individual. This in turn may
contribute to the psychological healing of the victim. The victim may have financial interests in
the form of restitution or compensatory fine which need to be discussed with the prosecutor ....
The victim may have a particular view of what. . . sentence [is] appropriate under the
circumstances .... Similarly, because judges act in the public interest when they decide to accept
or reject a plea bargain, the victim is an additional source of information for the court.").
11 It is true that crime victims have suffered injuries that were inflicted by the defendant,
which obviates completely overlapping interests. Nevertheless, there is room for constitutional
rights for both defendants and victims.
the criminal justice process. In 2010, Padilla v. Kentucky 12 held that noncitizen
defendants have a Sixth Amendment right to be advised of any clear
immigration consequences of a guilty plea. Two years later, Lafler v. Cooper 3
stated that a defendant must be notified of the maximum possible punishment
14
when rejecting a plea offer in favor of proceeding to trial. Missouri v. Frye
mandated that a defense attorney must make all plea offers known to the
defendant. The Supreme Court's focus on defendants' rights during this stage
of the criminal justice process is understandable given the heavy reliance on the
process of plea-bargaining in modem criminal justice. Indeed, Justice Antonin
Scalia has remarked that now "a whole new field" has opened in constitutional
criminal procedure. 15 An examination of the emerging constitutional rights of
crime victims is therefore timely, necessary, and appropriate.
This constitutional case law confirms the importance of plea-
bargaining to the criminal justice process and affirms the rights of defendants to
effective lawyering during the plea-bargaining stage. Justice Anthony Kennedy
noted in Frye that plea bargaining has "become ... central to the administration
of the criminal justice system .... 16 And in Lafler, Justice Kennedy again
observed that "criminal justice today is for the most part a system of pleas, not
a system of trials."' 7 Indeed, 95% of all adjudicated criminal cases result in a
guilty plea to the court rather than a trial.' The cases of Padilla,Lafler, and
Frye seem to suggest the Court's willingness to concede that the plea-
bargaining phase is indeed a customary, and critical, one.19
Justice Scalia's withering dissent in both Frye and Lafler may also
support the broadening of victims' rights into the plea-bargaining arena. His
dissents punctuated the dissonance between a criminal defendant's Sixth
Amendment constitutional right to effective lawyering and "other aspects" of
this critical stage.20 Justice Scalia discounted the idea that plea-bargaining is a
constitutional right, and lamented the majority's inclination to create it as such.
12 559 U.S. 356 (2010).

13 132 S. Ct. 1376 (2012).
14 132 S. Ct. 1399 (2012).
15 Lafler, 132 S. Ct. at 1391 (Scalia, J., dissenting).
16 Frye, 132 S. Ct. at 1407.
17 Lafler, 132 S. Ct. at 1389.
18 Frye, 132 S. Ct. at 1407 (citing DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, tbl. 5.22.2009, http://www.albany.edu/
sourcebook/pdf/t5222009.pdf (last visited Oct. 9, 2014)) (stating that 94% of all state convictions
and 97% of all federal convictions in 2010 resulted in a plea bargain).
19 See, e.g., Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (holding that "the negotiation of a
plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to
effective assistance of counsel").
20 Lafler, 132 S. Ct. at 1392 (Scalia, J., dissenting).
His apprehension that additional areas of the law might increasingly be

designated as falling within "constitutional" parameters, if true, would indicate
the need for even more guidance by the Supreme Court.
The Majority was concerned with the preservation of the defendants'
constitutional rights, as they define them, in all stages of a criminal
prosecution. Neither Justice Scalia nor the Majority, however, have addressed
the very real constitutional rights possessed by crime victims. A nationwide
recognition that plea-bargaining is both widely used and a critical part of the
criminal process provides fertile foundation for crime victims to assert their
newly established constitutional rights in this arena and in others throughout
the criminal justice process.
Next, this Article examines the current state of victims' rights granted
via constitutional amendment. It questions whether these amendments exist
simply to appease victims, or whether these newly established constitutional
rights are intended to substantively sanction victims' active participation during
the plea-bargaining stage. States may offer assurances that victims may now
play a meaningful role in the cases stemming from their victimization; this
Article details the status of crime victims during the critical pre-trial phase of
plea-bargaining.
Currently, seven states grant specific constitutional rights to crime
victims to participate in plea-bargaining in some manner. While it is clear that
now both defendants and victims possess constitutional rights during the plea-
bargaining process, the extent to which victims may participate in the process is
much less certain. The breadth and scope of the process of the formation of a
plea bargain is great. Considerations such as which charges to file, how many
crimes to include in the charging document, which charges to consider
dropping in favor of an amicable plea deal, and the type and range of
sentencing options are traditionally matters for the prosecutorial agency. Often
the court itself gets involved in negotiating between the prosecution and the
defense. Indeed, the plea-bargaining process is a collaborative and intricate
one, and recognizing yet another dance partner might further complicate the
legal choreography. 21 The exact language of each state's victims' rights
amendments fail to reveal any bright line rules. Likewise, case law provides
spotty assurance of crime victims' roles throughout the criminal justice process.
This Article then investigates whether a state's mandate to provide
victims with meaningful voices in the criminal justice process conflicts with the
rights afforded to defendants during the practice of plea bargaining. With such
recent concern over the defendants' rights at plea-bargaining, victims must be
reassured that their constitutional rights will not be overlooked. And this
21 See Stephanos Bibas, Incompetent Plea Bargainingand ExtrajudicialReforms, 126 HARv.

L. REv. 150, 155 (2012) (commenting on Justice Stevens' observations in Lafler and Frye that
"[t]he real world of plea bargaining is dynamic, sensitive to context, and frequently off the
record").
assurance must extend into all areas of the criminal proceedings. Though the
plea-bargaining stage has been deemed a "critical" one, it is still but one spoke
in the larger wheel of the criminal justice system.
Finally, this Article examines the impact of victim participation in the
criminal justice process on increasingly scarce judicial resources. It suggests
simple, cost-effective procedures to ease the strain, if any, of accommodating
crime victims' rights while preserving defendants' constitutional rights. It is
also important to note that crime victims' rights (or lack thereof) are emerging
in the plea-bargaining process, yet plea-bargaining should be used as a vehicle
for the larger platform of victims' rights in general. It sets the stage for the
broader query as to whether and when victims of crime, like their assailants,
will finally be granted a full panoply of constitutional rights.
II. CONTINUING CONCERN FOR THE PROTECTION OF DEFENDANTS'

CONSTITUTIONAL RIGHTS
All I want is to be treated like a common criminal.

22
- Anonymous Crime Victim
A series of United States Supreme Court cases has illuminated the

importance of the plea bargain in criminal cases. These cases center on the
constitutional rights of the defendant during the plea-bargaining process. The
hallmark of this process provides the defendant with an opportunity to
negotiate away constitutional guarantees basic to a criminal case in order to
secure a more favorable outcome. Though plea-bargaining has its detractors, it
remains a crucial part of the criminal justice system.
Plea-bargaining has been credited with bringing fast resolutions to
cases, avoiding costly jury trials, easing the strain of overcrowded court
dockets, and saving much needed governmental resources. 23 Plea bargains
secure a measure of finality to cases, while allowing defendants more certainty
in their cases and a more measured sense of control over their fate.24
Critics of plea-bargaining express concern that often defendants are
pressured into giving up their constitutionally guaranteed rights in exchange for
a hasty deal. Prosecutors and the court generally dictate the terms of the plea
bargain, with defendants left with very little to actually negotiate. Mandatory
22 NAT'L VICTIMS' CONSTITUTIONAL AMENDMENT NETWORK, VICTIMS' RIGHTS EDUCATION

PROJECT: TALKING POINTS 13 (2004), available at http://www.nvcap.orgvrep/NVCANVREP
TalkingPoints.pdf.
23 ERWIN CHEMERINSKY & LAURIE L. LEVENSON, CRIMINAL PROCEDURE ADJUDICATION 815
(2013).
24 Id.
sentencing guidelines often limit the boundaries in which negotiated plea deals
can be made.
Regardless of opinion on the matter, plea-bargaining is so common that
it is almost uncommon to find a criminal case in which plea-bargaining does
not occur; indeed, Justice Kennedy noted that "plea-bargaining is ... not some
adjunct to the criminal justice system; it is the criminal justice system. '25 In
2006, nine out of ten felony convictions in larger urban counties resulted from
plea bargains as opposed to jury trials.26 The three recent Supreme Court cases
appear to lead to a new construct of what is acceptable constitutional plea-
bargaining procedure. Focused exclusively on the rights of a defendant to
effective lawyering during the plea-bargaining phase of litigation, the Court
pronounced acceptable plea-bargaining protocol with regard to relaying effects
of deportation, 27 plea offers, and maximum possible sentences. 29
28
A. Padilla v. Kentucky
Whether defense counsel should be held accountable for advisements

made during plea-bargaining formed the basic query for the United States
Supreme Court in Padillav. Kentucky.3 ° In this case, Jose Padilla was charged
with the transportation of marijuana.31 Mr. Padilla was a native of Honduras
but had lived in the United States for over 40 years. 32 He faced deportation
proceedings as a result of his guilty plea to this charge. Mr. Padilla's lawyer
advised him that he "'did not have to worry about immigration status since he
had been in the country so long."' 33 Relying on this legal advice, Mr. Padilla
pled guilty to the drug distribution charge, and was then subjected to "virtually
mandatory" deportation.34
The Supreme Court of Kentucky rejected Mr. Padilla's post-conviction
proceeding on the ground that incorrect advice about deportation consequences
was merely a "'collateral' consequence" of pleading guilty, and not protected
25 Missouri v. Frye, 132 S. Ct. 1399, 1407 (quoting Lafler, 132 S. Ct. at 1388); Robert E.
Scott & William J. Stuntz, Plea Bargainingas Contract, 101 YALE L.J. 1909, 1912 (1992).
26 See generally MARC L. MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES:
PROSECUTION AND ADJUDICATION (4th ed. 2011).
27 Padilla v. Kentucky, 559 U.S. 356 (2010).
28 Frye, 132 S. Ct. at 1399.
29 Lafler, 132 S. Ct. 1376.
30 Padilla,559 U.S. at 359-60.
31 Id.
32 Id.
33 Id. at 359.
34 Id.
by the Sixth Amendment.35 The United States Supreme Court disagreed. It

noted that "the negotiation of a plea bargain is a critical phase of litigation for
36
purposes of the Sixth Amendment right to effective assistance of counsel.,
Accordingly, defense counsel was required to accurately inform clients of any
deportation risks associated with a plea of guilty. 37 Mr. Padilla's guilty plea,
which was based on a negotiated offer, was set aside, an attendant result of
defense counsel's flawed deportation information. This faulty advice violated
Mr. Padilla's Sixth Amendment right to competent representation. 38
Justice Scalia dissented in Padilla. True to his originalist roots, he
began by asserting that,
criminal defendants contemplating a guilty plea ought to be
advised of all serious collateral consequences of conviction,
and surely ought not to be misadvised. The Constitution,
however, is not an all-purpose tool for judicial construction of
a perfect world; and when we ignore its text in order to make it
that, we often find ourselves swinging a sledge where a tack
hammer is needed. 9
Justice Scalia's argument centered around the principle that the text of
the Constitution does not contain specific provisions allowing for the extension
of the right to competent counsel "beyond those matters germane to the
criminal prosecution at hand.", 40 He focused on the fact that the majority had
now "constitutionalized" the area of plea-bargaining, and as such prohibited
legislatures from creating more "targeted" solutions to this vast area of the
law. 4'
B. Missouri v. Frye
The companion cases of Lafler v. Cooper and Missouri v. Frye were

decided on the same day, and involved negotiated plea bargains by criminal
defendants.42 In both cases, defense counsel provided incompetent legal advice
35 Id. at 359-60 (quoting Commonwealth v. Padilla, 253 S.W.3d. 482, 485 (Ky. 2008)).
36 Id. at 373.
37 Id. at 374.
38 Id.
39 Id. at 388.
40 Id. at 390.
41 Id. at 392 (noting that if the subject of plea bargaining had not been constitutionalized by
the Majority, "legislation could specify which categories of misadvice about matters ancillary to
the prosecution invalidate plea agreements, what collateral consequences counsel must bring to a
defendant's attention, and what warnings must be given").
42 See generally Albert W. Alschuler, Lafler and Frye: Two Small Band-Aids for a Festering
Wound, 51 DUQ. L. REv. 673 (2013); Rishi Batra, Lafler and Frye: A New Constitutional
to their clients.43 Justice Kennedy wrote the majority opinions for both
decisions, 4 with Justice Scalia offering up a rather scathing dissent for both
cases. 45 Both cases solidify the plea-bargaining process as a critical one in
criminal prosecutions.4 6 The Majority in both decisions extended constitutional
protections to criminal defendants at that stage of the prosecution.47 Justice
Scalia's dissent in both cases pointed out that only constitutionally mandated
areas deserve judicial protections, rejecting the Majority conclusion that the
plea bargain is such a constitutionally mandated area. 8
Standardfor Negotiation, 14 CARDOZO J. CONFLICT RESOL. 309 (2013); Bibas, Incompetent Plea
Bargaining,supra note 21; Russell D. Covey, Plea-BargainingLaw After Lafler and Frye, 51
DUQ. L. REv. 595 (2013); Sean Michael Fitzgerald, Losing Sight of the Forestfor the Trees: The
Supreme Court's Misapplication of Sixth Amendment Strickland Analysis in Missouri v. Frye and
Lafler v. Cooper, 21 AM. U. J. GENDER SOC. POL'Y & L. 681 (2013); Bruce A. Green, The Right
to Plea Bargain with Competent Counsel After Cooper and Frye: Is the Supreme Court Making
the Ordinary CriminalProcess "Too Long, Too Expensive, and Unpredictable... in Pursuit of
Perfect Justice"?, 51 DUQ. L. REv. 735 (2013); Casey Scott McKay, Constitutional Law-the
Plea-Bargaining Process-Mr. Counsel, Please Bargain Effectively for Your Client's Sixth
Amendment Rights, Otherwise the Trial Court Will Be Forcedto Reoffer the Plea Deal and Then
Exercise Discretion in Resentencing, 82 MISS. L.J. 731, 739 (2013); Wesley MacNeil Oliver, The
Indirect Potentialof Lafler and Frye, 51 DUQ. L. REv. 633 (2013); Justin F. Marceau, Embracing
a New Era of Ineffective Assistance of Counsel, 14 U. PA. J. CONST. L. 1161 (2012); Jed S.
Rakoff, Frye and Lafler: Bearers of Mixed Messages, 122 YALE L.J. ONLINE 25 (2012),
http://www.yalelawjoumal.org/forum/frye-and-lafler-bearers-of-mixed-messages; Jenny Roberts,
Effective Plea BargainingCounsel, 122 YALE L.J. 2650 (2013).
43 Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012) (noting the Missouri Court of Appeal's
finding that "Frye's counsel's performance was deficient because the 'record is void of any
evidence of any effort by trial counsel to communicate the Offer to Frye during the Offer
window"') (citing Frye v. State, 311 S.W.3d 350, 356 (Mo. 2011)); Lafler v. Cooper, 132 S. Ct.
1376, 1391 (2012) (noting that trial counsel's "deficient performance" was conceded to by the
parties).
44 Frye, 132 S. Ct. at 1404; Lafler, 132 S. Ct. at 1382.
45 Frye, 132 S. Ct. at 1412 (Scalia, J., dissenting); Lafler, 132 S. Ct. at 1391 (Scalia, J.,
dissenting).
46 Lafler, 132 S. Ct. at 1388 (referencing Missouri v. Frye in stating, "[a]s explained in Frye,
the right to adequate assistance of counsel cannot be defined or enforced without taking account
of the central role plea bargaining plays in securing convictions and determining sentences").
47 Frye, 132 S. Ct. at 1408 (holding that "as a general rule, defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused"); Lafler, 132 S. Ct. at 1391 (applying the standards for
ineffective assistance of counsel to the situation at bar where a defendant rejects a plea bargain
and instead proceeds to trial).
48 Frye, 132 S. Ct. at 1412 (Scalia, J., dissenting) (noting that trial counsel's mistake "did not
deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea
bargain to which he had no entitlement in the first place"); Lafler, 132 S. Ct. at 1392 (Scalia, J.,
dissenting) (noting that the Majority opinion established a "new rule of law" in upholding the
constitutional right to effective plea bargains).
In Missouri v. Frye, Galin Frye was charged with driving on a revoked

license with multiple priors for the same offense. 49 The maximum punishment
for this crime was four years in state prison, but Mr. Frye's attorney received
two written plea-bargain offers from the prosecutor for his client.5 ° Both plea
bargains involved substantially less incarceration than the maximum possible
sentence, and both offers came with an expiration date. 51 Mr. Frye's attorney 52
did not relay either of these offers to his client, and they did in fact expire.
Before a preliminary hearing on the matter and after the offers were no longer
valid, Mr. Frye was again arrested for driving on5 a4 revoked license.53 The judge
sentenced Mr. Frye to three years in state prison.
Mr. Frye contended that he would have accepted one of the plea offers
had he been made aware of its existence in a timely manner. 55 However, a
Missouri state court rejected Mr. Frye's post-conviction motion to set aside his
sentence.56 The Missouri Court of Appeals reversed the state court, holding that
Mr. Frye had received incompetent assistance of counsel in violation of the
Sixth Amendment. 7
The United States Supreme Court agreed with the Court of Appeals. It
held that Mr. Frye's defense counsel failed to "communicate the terms of a
formal offer to accept a plea on terms and conditions that may result in a lesser
sentence" as required by the Sixth Amendment. 58 The Court remanded the case
back to the Missouri Court of Appeals to determine 59
whether Mr. Frye could
show that this failure in fact prejudiced his case.
Were that the end of it, Frye would merely mark the further definition
of defense counsel's responsibility in delivering formal offers to settle a
criminal case. Defense counsel has always maintained the duty to perform his
or her duties competently. This decision specified that plea bargains fall under
the rubric of "the 'duty60
and responsibilities of defense counsel in the plea
bargaining process.
It is Justice Kennedy's detailed recognition of the prevalence and
importance of the plea-bargaining process to the criminal justice system that
49 Frye, 132 S. Ct. at 1404.

50 Id.
51 Id.
52 Id.
53 Id.
54 Id. at 1405.
55 Id.
56 Id.
57 Id.
58 Id. at 1408.
59 Id. at 1411.
60 Id. at 1408.
makes this case (and its companion, Lafler v. Cooper) so important. The Court
noted the "simple reality" that "[n]inety-seven percent of federal convictions
and ninety-four percent of state convictions are the result of guilty pleas.' The
criminal justice system is "a system of pleas, not a system of trials., 62 And
Justice Scalia's dissent recognized the fact that the reason criminal defendants
receive such long sentences after being found guilty at trial is because these
longer sentences "exist on the books largely for bargaining purposes" and not
as an indicator of what prosecutors truly think are a fair punishment. 63 Plea-
bargaining is thus pivotal to the effective, and just, functioning of this criminal
system, requiring some regulation of defense attorneys' responsibilities in this
area.
In Justice Scalia's dissent, he characterized the failure of Mr. Frye's
defense attorney to communicate the plea offer as merely a "mistake [that] did
not deprive Frye of any substantive or procedural right; only of the opportunity
to accept a plea bargain to which he had no entitlement in the first place. 64
Justice Scalia noted that the Sixth Amendment right to counsel was not
implicated, and it was therefore gratuitous for the majority to rule on this
issue. 65 He did, however, agree with the majority that "[t]he plea-bargaining
process is a subject worthy of regulation,
66
since it is the means by which most
criminal convictions are obtained.,
C. Lafler v. Cooper
In Lafler v. Cooper, Mr. Anthony Cooper was charged with assault

with intent to commit murder, along with other crimes.67 Though the
prosecution engaged in the plea-bargaining process and twice offered to
dismiss two of the charges with a lesser sentence of 51 to 85 months
imprisonment attached to the remaining two charges, Mr. Cooper rejected these
offers to settle the case before trial. 68 He did so based on his defense counsel's
recommendation and advice that he would win at trial, as the victim was shot
61 Id. at 1407.
62 Id. (quoting Lafler v. Cooper, 132 S. Ct. 1376, 1381 (2012)).
63 Id. (Scalia, J., dissenting) ("To a large extent.., horse trading [between prosecutor and
defense counsel] determines who goes to jail and for how long. That is what plea bargaining is.")
(quoting Robert E. Scott & William J. Stuntz, PleaBargainingas Contract, 101 YALE L. J. 1909,
1912 (1992) (alteration in original)).
64 Id. at 1412.
65 See id. at 1413-14.
66 Id.
67 Lafler v. Cooper, 132 S. Ct. 1376, 1383 (2012). Mr. Cooper was additionally charged with
possession of a firearm by a felon, possession of a firearm in the commission of a felony,
misdemeanor possession of marijuana, and a habitual offender charge. Id.
68 Id.
below the waist, and that therefore Mr. Cooper could not be convicted of the
crime of assault with intent to commit murder.69 Mr. Cooper subsequently went
to trial and lost, and was sentenced to the mandatory minimum of 185 to 360
months imprisonment.7 °
A Michigan state court and the Michigan Court of Appeals rejected Mr.
Cooper's ineffective assistance of counsel claim. 71 However, a federal district
court and the Sixth Circuit Court of Appeals ruled that Mr. Cooper indeed had
a viable federal habeas corpus petition, and ruled that the Michigan state court
must remedy the outcome by reinstating the original offers for Mr. Cooper's
benefit. 72
The United States Supreme Court granted certiorari. It held that the
right to effective assistance of counsel did in fact extend not only to guilty
pleas, but also specifically to the plea-bargaining process. 73 Justice Kennedy
stated that a defendant who elects to go to trial "instead of taking a more
favorable plea may be prejudiced from either a conviction on more serious
counts or the imposition of a more severe sentence., 74 It is more than a fair trial
that determines the fairness of the pre-trial process; "the right to adequate
assistance of counsel cannot be defined or enforced without taking account of
the central role plea-bargaining plays in securing convictions and determining
sentences. 75 Justice Kennedy cited to Missouri v. Frye for statistics reflecting
the central role of plea-bargaining in the criminal justice process.76 Therefore,
the Court held that the Sixth Amendment extends to 77"all critical stages of a
criminal prosecution, of which plea-bargaining is one.",
Justice Scalia's dissent criticized "plea-bargaining law" as a new
"boutique" of "constitutional jurisprudence. 78 He foresaw additional
stakeholders now subject to constitutional scrutiny-not only defense attorneys
and their plea-bargaining efficacy, but also the prosecutor's behavior as well.
69 Id.
70 Id. at 1391. The Court noted that this sentence was three and one-half times more severe
than the one Mr. Cooper would have received had he availed himself of the plea-bargained offer
prior to trial. Id.
71 Id. at 1383.
72 Id. at 1383-84.
73 Id. at 1384.
74 Id. at 1386.
75 Id. at 1388.
76 Id. (noting as Frye did that "[n]inety-seven percent of federal convictions and ninety-four
percent of state convictions are the result of guilty pleas").
77 See Covey, supra note 42, at 607.
78 Lafler, 132 S. Ct. at 1398 (Scalia, J., dissenting). Justice Scalia specifically noted that
"Today's decision ...opens a whole new boutique of constitutional jurisprudence ("plea-
bargaining law") without even specifying the remedies the boutique offers." Id.
A main complaint of Justice Scalia in all three opinions seems to be

that the elevation of negotiated pleas to deserve constitutional protections 79
evolved as a result of judicial invention, rather than constitutional mandate.
Justice Scalia's focus on the importance of constitutionalized text must not be
overlooked. To Justice Scalia, the Majority overstepped its historical
boundaries in taking on the advice of counsel regarding deportation
consequences rather than limiting effective counsel to that involving the right
to a fair trial. 80 He criticized the Majority for finding that an attorney's
"allegedly incompetent advice regarding a plea offer caused [the defendant] to
receive a full and fair trial" where no constitutional right to effective plea-
bargaining existed. 81 And Justice Scalia complained that a defendant who pled
guilty "without the benefit of a deal" and subsequently "acknowledged the
correctness of [the] conviction" was not entitled to a remedy for "an
opportunity to accept a plea bargain to which [he] had no entitlement in the first
place." 82 Consequently, for Justice Scalia, if a right is not literally within the
wording of the Constitution, then it should not be subject to regulation by the
Supreme Court. Though this reasoning appears to eliminate the ability to assure
fair practices in plea-bargaining, it benefits those with black letter
constitutional safeguards.
Hence, the significance of affording victims of crime constitutionally
guaranteed rights is emphatically revealed. Statutory rights may suggest some
level of validation, but only the Constitution can assure that these rights ascend
to the highest possible level. Justice Scalia all but confirms the magnitude of
constitutional rights for crime victims through his comments in the foregoing
cases.
Another concern raised by Justice Alito was that precious resources
would be wasted if the Court entertained areas of the law not deserving of
constitutional scrutiny.83 It is hard to completely disagree with such comment,
especially in times of economic austerity. The impact-if any--of assuring
crime victims constitutional rights throughout the criminal justice process is
discussed in Part III.A of this Article.
Defendants have long been the beneficiaries of constitutional rights.
The attention paid to the cases of Padilla,Lafler, and Frye further attests to the
consequence of such rights. Drawing parallels between these cases and the
emerging rights of crime victims in no way diminishes the rights of defendants.
79 Lafler, 132 S. Ct. at 1393 (Scalia, J., dissenting) (commenting on the "judicially invented
right to effective plea bargaining" resulting from Padilla v. Kentucky, and carrying over to
Lafler); Missouri v. Frye, 132 S. Ct. 1399, 1413 (2012) (Scalia, J., dissenting) (discussing the
"serious difficulties" created by the "constitutionalization of the plea bargaining process").
80 See Padilla v. Kentucky, 559 U.S. 356, 389-91 (2010).
81 See Lafler, 132 S. Ct. at 1392 (Scalia, J., dissenting).
82 See Frye, 132 S. Ct. at 1412 (Scalia, J., dissenting).
83 Lafler, 132 S.Ct. at 1399 (Alito, J., dissenting).
If anything, proper emphasis on crime victims will ensure a truly just criminal
system. However, the rights of victims as they relate to the criminal justice
system have yet to be clearly and consistently elucidated.
III. INCREASING AWARENESS OF THE NEED FOR VICTIMS' RIGHTS UNDER

STATE LAW
The system must no longer step over the body of a victim to

read the criminal his rights.
84
- Brooks Douglass
The movement 85 toward recognizing crime victims and vesting them

with constitutional rights throughout the criminal justice process is
expanding. 86 Victims are emerging from the shadows with acceptance by
society. The sight of victims waiting in courtroom hallways for the opportunity
to speak at a sentencing hearing, perhaps being comforted by a staff member
from the court's victim/witness office, has now become quite commonplace.
This conventional "right" manifesting at the culmination of a defendant's
criminal case is even more impactful if, rather than waiting until the end of the
case, it can be utilized during critical stages of the litigation, specifically during
plea-bargaining. And this right gamers more respect and becomes further
entrenched in the legal system if granted by constitutional amendment. The
challenge is to assure crime victims the right to meaningfully participate in
every stage of a criminal prosecution via their newly created constitutional
rights, while preserving defendants' well-established constitutional rights.
It is true that the past several years have demonstrated an increased
tolerance of crime victims as worthy participants during the prosecution of their
84 Lawyer, former Oklahoma state senator, and crime victim. This statement has been
attributed to Mr. Douglass in numerous speeches and testimonials. See, e.g., Brook Douglass,
National Victims' Constitutional Amendment Passage, Testimony to House Judiciary
Committee's Subcommittee on the Constitution (Apr. 26, 2012), available at
http://www.nvcap.org/legis/l 12/120426_.Douglass.pdf ("I fully support every right that the
accused has guaranteed to them under the constitution of the United States. But what we have
now is a system that literally steps over the body of the victim to read the criminal those rights.
This is unjust. We have forgotten the reason we bring offenders to justice in the first place and
for whom we do it."); Video: Heaven's Rain, MDEVAAN.COM (Nov. 3, 2012),
http://www.mdevaan.com/video-heavens-rain/ (In this article, Brooks Douglass states that "the
system must no longer 'step over the body of a victim to read the criminal his rights."').
85 See Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution
of the United States: Opening the Door of the CriminalJustice System to the Victim, 14 ARiz. J.
INT'L & COMP. L. 839, 840 n.4 (1997) (citing Abraham S. Goldstein, Defining the Role of the
Victim in CriminalProsecution, 52 MISS. L.J. 515, 517 (1982)).
86 See Welling, supra note 2; BELOOF ET AL., supra note 2, at 421-22.
assailants. 87 But this acknowledgment still does not come close to the reception
that defendants receive from society. Arguably, juxtaposing the rights of
criminal defendants and the rights of the people they victimize is an unfair
comparison. Criminal defendants enjoy constitutional rights in all 50 states per
the United States Constitution, for the misdemeanors and felonies that they
have been alleged to commit. Their cases are defendant-centric, from arrest to
trial and on through parole. Courts appoint attorneys for defendants unable to
afford legal representation.88 Those facing criminal charges are perfunctorily
treated with the utmost seriousness and respect, with great care taken to
observe any and all legal requests made. Even the media revels in the spotlight
of defendants, from minute by minute online coverage of courtroom spectacles
to the vast array of crime dramas available on television. As a result, most
laypeople are well versed in defendants' rights, whether secured by case law or
constitution.
Long before states even thought to vest their constituents with
constitutional liberties, the criminal justice process essentially excluded victims
from any participation. Various theories abound as to why victims were
categorically shut out from legal proceedings that would not exist but for their
personal misfortune. Looking back, the formation of the current American
criminal justice system began with private prosecutions for criminal acts, with
victims of crime vested with the ability to initiate criminal proceedings. 89 The
move to a public system of prosecution shifted the focus from the victim as an
individual to the victim as society as a whole, thus producing a move away
from victim participation. 90 Victims as stakeholders have never fully recovered.
Whether the reason was phrased as a mere practicality, 9' or cloaked
under the auspices of protecting defendants' rights, 92 the end result was the
same: victim exclusion from the criminal justice process was the norm. The
advent and growth of victims' rights movements across the country has
transformed victims, and provided the catalyst for change throughout the
criminal justice system. Nowhere can this be seen more than with states that
have opted to amend their constitutions to confer various inalienable rights to
crime victims.
87 See, e.g., Mary Margaret Giannini, Equal Rights for Equal Rites?: Victim Allocution,
Defendant Allocution, and the Crime Victims' Rights Act, 26 YALE L. & POL'Y REv. 431, 484
(2008) (concluding that debate should focus on the expanded role of victims in prosecution, not
whether victims should have a role at all).
88 U.S. CONST. amend. VI.
89 See Cellini, supra note 85, at 844.
90 See id. at 846 (stating that "[t]he victim's position in the American justice system was
radically altered as the purpose of a criminal trial became solely to vindicate the harm done to
society, not harm to the individual").
91 BELOOF ET AL., supra note 2, at 12.
92 Id. at 15.
Many states have amended their constitutions to afford some form of

victims' rights within their jurisdictions. 93 Some states have constitutional
amendments granting crime victims general, non-specific rights, and then
follow these amendments up with statutes containing very specific rights for
victims. And some states have both a general constitutional amendment,
followed (often years later) by a more specific constitutional amendment
granting detailed rights to crime victims. 94 In states where specific rights are
afforded to crime victims, those granted via constitutional amendment suggest
the greatest commitment to these victims. Though rights granted by statutory
initiative are certainly preferable to no rights at all, if a conflict were to arise
between a defendant's constitutional rights and a victim's statutory rights, the
95
constitutionally secured rights of the defendant would trump every time.
Thus, this Article will concentrate on the states with constitutional amendments
granting% detailed rights to crime victims at various stages from arrest to
parole.
The types of rights granted to victims are varied in nature. At their
core, they can be divided into rights that protect victims, and rights that
empower victims. Rights that protect victims encompass the right to notice of
the defendant's whereabouts. These include arrest information, court dates, and
parole or probation hearings. Crime victims and their families often live in fear
that they will encounter their assailants on the street, while the criminal case is
ongoing. 97 If they possessed the right to be informed of the status of the
93 There are states with statutory law granting rights to crime victims. This Article focuses
only on the states that have enacted some type of constitutional amendment granting rights to
crime victims.
94 For example, California enacted the more general Victims' Bill of Rights in 1982, see, e.g.,
Jeff Brown, Proposition 8: Origins and Impact-A Public Defender's Perspective, 23 PAC. L.J.
881, 881 (1992), and then granted more expansive rights to crime victims in 2008 with the
passage of the Victims' Bill of Rights Act of 2008, more commonly referred to as Marsy's Law,
see, e.g., Note, 2008 CaliforniaCriminal Law Ballot Initiatives, 14 BERKELEY J. CRIM. L. 173,
176-90 (2009).
95 See generally 16 AM. JUR. 2d Constitutional Law § 2 (2014) (distinction between
constitutions and statutes); 16 C.J.S. ConstitutionalLaw § 5 (2014) (conformance of statutory
and common law to constitution).
96 Thirty-three states have enacted constitutional amendments containing specific rights of
crime victims. They are Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida,
Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode
Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. See infra
note 100.
97 See, e.g., Lauren M. Ouziel, Legitimacy and Federal Criminal Enforcement Power, 123
YALE L.J. 2236, 2281 n.157 (2014). The family of California's Victims' Bill of Rights namesake,
Marsy Nicholas, literally ran into her killer at a local supermarket soon after he was released on
bail; this shocking confrontation in part was what inspired her brother, Broadcom founder Henry
Nicholas, to advocate on behalf of crime victims and their families. See, e.g., Frank Mickadeit,
criminal case against the defendant, such as whether the defendant has been
released from jail or when the next court date is calendared, they would be
armed with the ability to be prepared for such random encounters in public.
They can make informed choices with such information.
Rights that empower victims comprise the ability of victims to have
knowledge of, and participation in, the criminal procedural process. These
rights also give dignity back to the victims. Any psychological wounds inflicted
by the criminal act may heal with the ability to participate in the court
process.98 These rights allow victims to obtain discovery, to talk with the
probation department about the defendant's case, to attend certain court dates,
and to appropriate restitution for injuries. Crime victims are often the best
eyewitnesses to the event in question. If afforded the ability to see the police
report on their case, they can then assist both law enforcement and the
prosecutor with possible inconsistencies in the case. If permitted to be inside
the courtroom, they can "alert prosecutors to misrepresentations in the
testimony of other witnesses." 99 Further, an accurate understanding of the way
the criminal justice system operates can alleviate anxious feelings of
unpredictability toward the system.
Another significant right permits victims to consult with the prosecutor
on their case. This right to confer with the agency charged with prosecuting the
defendant has taken different forms in different states. Victims are often
granted statutory authority to speak with the prosecuting agency at some point
during the defendant's court case, usually at sentencing. Of the 33 states with
constitutional amendments for crime victims, 26 permit victims to be heard, or
to somehow become involved, in the criminal justice process at some point. 100
Seven states guarantee the right of victims to actually participate in the plea-
bargaining process in some manner. 10 1 This expansion of victims' rights into
On Victims' Day, Henry Nicholas Recalls Sister, ORANGE COUNTY REG. (Apr. 20, 2010),
http://www.ocregister.com/articles/nicholas-245053-marsy-victims.html.
98 BELOOF ET AL., supra note 2, at 716.
99 Id.
100 See ALA. CONST., art. I, § 6; ALASKA CONST. art. I, § 24; ARdz. CONST. art. 2, § 2; CAL.
CONST. art. I, § 28; COLO. CONST. art. II, § 16(a); CONN. CONST. art. I, § 8(b); FLA. CONST. art. I,
§ 16; IDAHO CONST. art. I, § 22; ILL. CONST. art. I, § 8.1; IND. CONST. art. I, § 13(b); KAN.
CONST. art. 15, § 15; LA. CONST. art. I, § 25; MD. CONST. art. 47; MICH. CONST. art. I, § 24;
MISS. CONST. art. 3, § 26(a); Mo. CONST. art. I, § 32; MONT. CONST. art. II, § 28; NEB. CONST.
art. I, § 28; NEV. CONST. art. I, § 8; N.J. CONST. art. I, § 22; N.M. CONST. art. II, § 24; N.C.
CONST. art. I, § 37; OHIO CONST. art. I, § 10(a); OKLA. CONST. art. II, § 34; OR. CONST. art. I, §
42; R.I. CONST. art. I, § 23; S.C. CONST. art. I, § 24; TENN. CONST. art. I, § 35; TEx. CONST. art. I,
§ 30; UTAH CONST. art. I, § 28; VA. CONST. art. I, § 8(a); WASH. CONST. art. I, § 35; WIS. CONST.
art. I, § 9.
101 The seven states with constitutional amendments that mention the right of crime victims to
be heard during a proceeding involving the plea-bargaining process are: Arizona, California,
Connecticut, Idaho, Missouri, Oregon, and South Carolina.
the plea-bargaining arena signals the willingness of states to permit crime

victims to participate to a fuller extent in the justice process. Before the
enactment of victims' constitutional rights, victims were considered mere
spectators in the process. Their contributions consisted simply of watching the
criminal proceedings-most of which they more than likely did not
understand-and waiting for an outcome. The frustrations and indignities of
being trivialized have now given way to the inclusion of victims at perhaps the
most important stage of the criminal proceedings, that of the plea bargain.
However, the exact language used by each of the seven states is still
rather vague, and none of the seven states' constitutional amendments clarify at
what stage during the plea-bargaining process a victim may exercise his or her
constitutional rights. This specificity is crucial. The United States Supreme
Court has determined that the plea-bargaining stage of the criminal justice
process is indeed a "critical" one. 10 2 It affects 95% of all of the criminal
caseload in the country. 103 If the right to be "heard" during plea-bargaining is
now bestowed upon victims, it follows that it should be bestowed at a point that
matters.
The ability of a crime victim to address the court (and the defendant)
post plea-bargaining, once the sentence has been predetermined, is better than
nothing. It can act as a cathartic coping mechanism for the victim. It may
satisfy their need to talk about the series of events that happened to them and of
which they usually had little, or no, control. But if the victim is actually
allowed to contribute during the actual plea-bargaining process, meaningful
input can occur. The victim then has the power to affect the plea bargain itself.
To the extent that a plea bargain affects the amount of incarceration facing a
defendant, any sentencing differential between the plea bargain and the
maximum exposure allowed by law most certainly could be influenced by the
victim.104 The seven states permitting victims to be "heard" during the plea-
bargaining stage appear to grant this right without clear instructions as to how
102 See Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (holding that "the negotiation of a plea
bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective
assistance of counsel").
103 See Missouri v. Frye, 132 S. Ct. 1399, 1407 (2014) (citing DEP'T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, tbl. 5.22.2009,
http://www.albany.edu/sourcebook/pdf/t5222009.pdf (last visited Sept. 15, 2014)) (stating that
94% of all state convictions and 97% of all federal convictions in 2010 resulted in a plea
bargain).
104 It is important to note that some victims disfavor the practice of plea-bargaining. With little
to no participation in the negotiated sentence and only sporadic "rights" to engage in the process
at all, victims often feel the most marginalized at this critical stage of the criminal justice process.
Chemerinsky and Levenson note that "[p]lea bargaining can be particularly frustrating for
victims. They are ordinarily not direct participants in the process and must stand by as defendants
plead guilty to crimes that do not reflect the seriousness of the offense or receive sentences less
severe than what the victims believe they deserved." CHEMERINSKY, supranote 23, at 817.
this right should be implemented. If the victims' rights movement is meant to

merely appease crime victims, rather than empower them, then clarity is not
needed. Cynicism aside, it becomes apparent that statutes and constitutional
amendments must be more precise and provide more guidance to ensure that
the voices of crime victims are heard as intended.
Seven states have imbued crime victims with the right to participate in
plea-bargaining procedures via constitutional amendment. Yet the exact point
at which victims may be heard by the prosecution, or the court, is not
mentioned by any of the states' constitutional amendments, nor is it addressed
in case law. The provisions all vary in verbiage and specificity. A closer look at
each state is warranted.
A. Evaluating the Seven States with ConstitutionalLanguagePermitting

Victims to Participatein the Plea-BargainingProcess
1. Arizona
Arizona's constitutional amendment, passed by 58% of the voters in

1990,105 guarantees that a crime victim has a right "to be heard at any
proceeding involving a post-arrest release decision, a negotiated plea, and
sentencing." 106 Arizona also has a statute in its criminal code, referenced within
this amendment, which directly addresses victims' rights during plea
negotiation proceedings. 01 7 It was enacted to implement the constitutional
amendment referenced above, and it specifies that a victim may be present and
heard at any proceeding in which a "negotiated plea" is presented to the
court. 10 8 Further, the court cannot accept a plea agreement unless there is
sufficient evidence that the prosecutor has made efforts to speak with the
victim, and has advised the victim of their right to be present and heard at that
105 State Victims' Rights Amendments: Arizona, NAT'L VICTIMS' CONST. AMENDMENT
PASSAGE, http://www.nvcap.org/states/arizona.htm (last visited Oct. 10, 2014).
106 ARIz. CONST., art. 2, § 2.1(A)(4).
107 ARIZ. REV. STAT. ANN. § 13-4423 (2014) states:
(A) On request of the victim, the victim has the right to be present and be
heard at any proceeding in which a negotiated plea for the person accused of
committing the criminal offense against the victim will be presented to the
court. (B) The court shall not accept a plea agreement unless: (1) The
prosecuting attorney advises the court that before requesting the negotiated
plea reasonable efforts were made to confer with the victim ... (2)
Reasonable efforts are made to give the victim notice of the plea
proceeding... and to inform the victim that the victim has the right to be
present and, if present, to be heard. (3) The prosecuting attorney advises the
court that to the best of the prosecutor's knowledge notice requirements of
this chapter have been complied with and the prosecutor informs the court of
the victim's position, if known, regarding the negotiated plea.
108 Id.
proceeding. 109 If the prosecutor knows how the victim feels about the proposed
plea agreement, it must be made110known to the court prior to the acceptance of
the plea agreement by the court.
Arizona's statute directly requires a prosecutor to seek out crime
victims prior to the acceptance of a negotiated plea bargain, thus prioritizing
victims during this important stage of the criminal proceeding. However, it is
worth noting that this right comes in the form of a statute referenced within the
state's constitutional amendment, and not within the amendment itself. It is
thus unclear whether the citizens of Arizona feel that a victim's right to be
heard during the plea bargaining stage is somehow subservient to, or less
deserving of protection, than the other rights enumerated in Arizona's actual
constitutional amendment.
In 2005, an Arizona appellate court decided State ex rel. Thomas v.
Foreman.Ill In this case, the trial court initially held the Arizona statute giving
crime victims and their representatives the right to present victim impact
evidence at a sentencing hearing unconstitutional, because it did not allow for
the defendant to cross examine the victim. 11 2 The appellate court reversed the
trial court's ruling. It clarified that the confrontation clause of the Sixth
Amendment does not provide the constitutional right to pretrial discovery in a
criminal case. 113 Therefore, though crime victims are not required to disclose
victim impact statements to the defendant, "Arizona courts have consistently
held that a criminal defendant has no vested or substantive right to a [particular
discovery method]"1 14and thus the defendant was not deprived of his
constitutional rights.'
Finally, Arizona's constitutional rights for crime victims may be more
specific than in most other states, but they still do not guarantee victims the
right to affect the plea bargain itself by being able to be "heard" either as the
plea is being created, or before the plea is officially offered to the defendant.
Crime victims have the right to be heard "at any proceedings involving" a
negotiated plea; further specificity might lead to more meaningful participation
by Arizona crime victims.
Arizona's adoption of the Victims' Bill of Rights does appear to have
bestowed some sense of comfort to crime victims and their families.
Unfortunately, these rights came too late for some victims, such as Rich and
Nancy Wilson. Their nine-year-old daughter was abducted in Flagstaff,
109 Id.
110 Id.
III 118 P.3d 1117 (Ariz. Ct. App. 2005).
112 Id. at 1120.
113 Id. at 1121.
114 Id. (alteration in original).
Arizona, and murdered. 1 5 When this occurred in 1988, constitutional rights for
crime victims did not exist in the state of Arizona. "We were told we could not
be in the courtroom, that the trial could take years, and the defendants would be
interviewing us. We left devastated, feeling like we 16
did something wrong. We
realized the system was broken," they recounted.'
In spite of these constitutional strides, disparities have been noted
between the law on the books and the law as a practicality. For example,
academics in the state of Arizona have publicly commented that Arizona crime
victims are not always provided with notice of the initial court appearances for
their assailants."l 7 It appears that this right meant to protect crime victims may
be in words only; a mere appeasement to the crime victims movement. If this is
true, then it is unclear whether significant impact has been established for
victims of crime in Arizona.
2. California
California has long led the nation in recognizing crime victims and in
granting them constitutional rights." 8 A voter initiative in 1982 led to the
enactment of rather generalized rights for victims through the Victims' Bill of
Rights. 119 More recently, in November of 2008, California voters affirmed the
passage of the Victims' Bill of Rights Act of 2008, also known as Marsy's
Law. 12
was addedMarsy's Law has been
as an amendment codified
to the California's122Penal Code' 2' and
underConstitution.
California
115 Amanda Lee Myers, Man Who Killed 9-Year-Old Girl in 1988 Is Executed, USA TODAY
(June 30, 2011), http://usatoday30.usatoday.com/news/nation/states/arizona/2011-06-30-

996037664_x.htm.
116 Mara Knaub, Parentsof Slain Girl Campaignedfor Victims' Rights, YUMA SUN (Apr. 26,
2012, 12:00 AM), http://www.yumasun.com/parents-of-slain-girl-campaigned-for-victims-
rights/article_3c621 f5f- 1553-5f6b-a2d4-b269bbe3e387.html.
117 See Steven J. Twist & Daniel Seiden, The Proposed Victims' Rights Amendment: A Brief
Point/Counterpoint,5 PHOENIX L. REv. 341, 347 (2012), ("In Arizona, most crime victims still
are not given notice of initial appearances, despite the fact that for some the chance to see a judge
before a release decision is made may be a matter of life or death. This is true even though the
right to notice has been a command of the Arizona Constitution for almost twenty-two years.").
118 In 1965 California became the first state to protect crime victims by creating a victim
compensation program. See CAL. Gov'T. CODE §§ 13959-74 (2014); see Cellini, supra note 80.
119 CAL. PENAL CODE § 1191.1 (West 2014).
120 Marsy's Law was named after Marsy Nicholas, a University of California, Santa Barbara
student who was stalked and then violently murdered in 1983. Dr. Henry Nicholas, Marsy's
brother and co-founder of Broadcom, was instrumental in fighting to insure this legislation
passed. Michael L. Fell & Elizabeth N. Jones, Understanding and Utilizing Marsy's Law,
ORANGE COUNTY LAWYER, Nov. 2013, at 24.
121 CAL. PENAL CODE § 679.026 (West 2014).
122 CAL. CONST. art. I, § 28.
Article 1, section 28(b) details the 17 constitutional rights afforded to

crime victims. With regard to the plea-bargaining process, section (b)(8) states
that crime victims have the right "to be heard, upon request, at any proceeding,
including any delinquency proceeding, involving a post-arrest release decision,
plea, sentencing, post-conviction release decision, or any proceeding in which a
right of the victim is at issue."' 123 However, the timing of a victim's right to be
"heard" is not specified. Arguably, if a victim is only "heard" post-plea, then
the victim is not really helping to see that the defendant is "sufficiently
punished in both the manner and length of the sentences imposed by the courts"
as set forth in the first part of the amendment. 124 Ideally, crime victims in
California would have the opportunity to meet with the prosecutor both before
and during the plea bargain formation. Since it is the prosecutor's job to
consider an appropriate plea offer, input from the actual crime victim could
prove helpful in determining, among other issues, length of sentence, type of
incarceration (if any), and restitution.
An additional hurdle for victims to overcome in California is the need
to specifically request this right to be heard at proceedings involving pleas. The
phrase "upon request" appears throughout the amendment, and requires crime
victims to actively call for their constitutional right to "be heard.., at any
proceeding... involving a plea .... It also appears in other states'
amendments. 126 However, once this request is made, crime victims 27 may
immediately assert their rights throughout the criminal proceedings. 1
Though no case law has been generated regarding California's 2008
constitutional amendment, there has been some regarding the preceding
initiative of victims' rights legislation. In People v. Jones, a California
appellate court was called upon to decide whether the state's Victims' Bill of
Rights encompassed statements at a sentencing hearing made by child victims
regarding the crime, the person responsible, and restitution. 128 In this case, an
eight-year-old child was repeatedly sexually assaulted by her biological
123 Id. § (b)(8) (emphasis added).

124 Id. § (a)(5).
125 Id. § (b)(8).
126 See, e.g., ALASKA CONST. art. I, § 24 ("[C]rime victims... shall have the following
fights... the right to be allowed to be heard, upon request, at sentencing .... "); IDAHO CONST.
art. I, § 22 ("[A] crime victim.., has the following rights: (6) To be heard, upon request, at all
criminal justice proceedings ... "); MD. CONST. art. 47(b) ("[A] victim of crime shall have the
right to be informed of the rights established in this Article and, upon request and if practicable,
to be notified of, to attend, and to be heard at a criminal justice proceeding ... "); Mo. CONST.
art. I, § 32 ("Crime victims.., shall have the following rights, as defined by law: (2) Upon
request of the victim, the right to be informed of and heard at guilty pleas .... ").
127 Victim Rights: Notification & Participation,ST. OF CAL. - DEP'T OF JUST. - OFF. OF THE
ATr'Y GEN., http://oag.ca.gov/victimservices/rights (last visited Oct. 10, 2014) (listing
instructions and contact information for victims to avail themselves of their rights).
128 10 Cal. App. 4th 1566 (1992).
father. 129 The father was eventually arrested and ultimately convicted under
Penal Code § 288.5, continuous sexual abuse of a child. 130 Several special
allegations and sentencing enhancements were also found to be true.' 31 At the
sentencing hearing, the girl, who was now nine years old, presented a victim
impact statement in which she told the court that she recommended that her
father, the defendant, be sentenced to a 21-year state prison term "so that he
wouldn't be able to hurt other little girls."' 132 He was then sentenced to the
upper term of 16 years in state prison, and appealed his sentence in part based
on the claim that the victim's "recommendation" was impermissible under the
current statute because her statement did not fall under an allowable category of
viewpoints that may be expressed at a sentencing hearing. 133
The court evaluated California Penal Code § 1191.1, which allowed for
victims to make a statement "concerning the crime, the person responsible, and
the need for restitution."' 134 The court recognized that this code section was
enacted as a result of California's Victims' Bill of Rights initiative, and that its
purpose was to "expand the rights of victims, not to restrict the scope of
judicial inquiry into sentencing alternatives."' 35 The court interpreted the
victim's statement did in fact fall within the permissible categories of victim
impact statements because it was "simply a summary of [her] views about the
crime and defendant, i.e., that it was a very serious crime, and one which
defendant might well repeat, if not incarcerated. . 36
3. Connecticut
While Connecticut does not specify the right to participate in the

offering of a plea bargain, it does use detailed language regarding the plea-
bargaining process. Its constitutional amendment, passed by 79% of the voters
in 1996, 137 provides that crime victims may voice their opposition to, or
approval of, a plea bargain "entered into by the accused" and may speak to the
court prior to the acceptance of the plea. 38 At first glance, this language seems
129 Id. at 1569.

130 Id.
131 Id.
132 Id. at 1576.
133 Id.at 1569.
114 Id.at 1574.
135 Id.at 1575.
136 Id. at 1576.
137 State Victims' Rights Amendments: Connecticut, NAT'L VICTIMS' CONST. AMENDMENT
PASSAGE, http://www.nvcap.org/states/connecticut.htm (last visited Oct. 10, 2014).
138 CONN. CONST. art. XXIX(b)(7) states that victims have the right "... . to object to or support
any plea agreement entered into by the accused and the prosecution and to make a statement to
to connote a rather passive role by the victim. It is merely a comment on an

already-offered plea bargain. However, it is possible that the judge might
change her mind after hearing the victim speak. In fact, case law has suggested
that the right of crime victims to meaningfully participate in the plea bargaining
phase of the criminal139
justice system is in fact taken very seriously by the
Connecticut courts.
For example, in the 2010 case of State v. Thomas, defendant Dereck
Thomas was charged with multiple counts of sexual assault upon a child.140 At
first, the 15-year-old victim told the prosecutor that she favored a more lenient
sentence for the defendant, and so the prosecutor asked for five years of state
prison. 141 The judge indicated that the court would accept a plea bargain giving
the defendant five years in prison, which would be suspended after only one
year was served, followed by ten years of probation. 142 However, between the
initial plea negotiations and the sentencing, the young victim changed her
mind, instead recommending to the probation department that the defendant
should be incarcerated for 100 years. 143 The judge allowed the victim to appear
in court and to testify pursuant to Connecticut's victims' rights amendment.
Upon hearing her testimony, the judge refused to honor the initial lenient plea
agreement, and instead vacated the defendant's plea and set the matter for
trial. 144 The court emphasized that "in accordance with the victims' rights
amendment of our state constitution, the court must provide an opportunity for
the victim to meaningfully participate in the defendant's sentencing... when
the victim chooses to make a statement, acceptance of a guilty plea must be
contingent upon hearing from the victim in order to provide the 145 victim with a
meaningful right to participate in the plea-bargaining process."
The court bolstered its authority to support the "meaningful right" of
crime victims to be heard during plea-bargaining by referencing the state
legislature's "clear intent" to provide such guarantees to victims of crime as
the court prior to the acceptance by the court of the plea of guilty or nolo contendere by the
accused." Id. § (b)(8) also allows for "the right to make a statement to the court at sentencing."
139 See, e.g., State v. Thomas, 995 A.2d 65, 75 (Conn. 2010) ("[W]hen the victim chooses to
make a statement, acceptance of a guilty plea must be contingent upon hearing from the victim in
order to provide the victim with a meaningful right to participate in the plea bargaining
process.").
140 Id. at 68; see also Rich Meehan, Victims Can Weigh in on Plea Bargains,CTNEwS.COM
(May 20, 2010), http://blog.ctnews.com/meehan/2010/05/20/victims-can-weigh-in-on-plea-
bargains/.
141 Thomas, 995 A.2d at 68.
142 Id.
143 Id. at 69. The victim's initial request for a 100-year sentence was followed by her
subsequent recommendation of a ten-year state prison term for the defendant. Id.
144 Id.
145 Id. at 75.
demonstrated through the legislative history of Connecticut's victims' rights

amendment. 146 Specifically, the court noted that during legislative debate over
the amendment, a representative commented that "[this amendment] would
provide victims a 'true role in the process' and that it would address the
recurring concern among... crime victims advocating for the adoption of the
amendment that they should no longer be excluded from the plea-bargaining
process."' 14 ' Further, another representative commented that "adoption of the
amendment would '[e]nsure that at the stage where a plea 148 bargain is put on the
record... a victim has a meaningful right to be heard."'
4. Idaho
Idaho's victims' rights amendment was passed by 79% of the voters in

1994.149 In 2006, a victim's right "to be heard" was evaluated in the case of
State v. Leon. 150 In that case, a man murdered his estranged wife and pled
guilty to first-degree murder.151 At the sentencing hearing, the victim's mother
was allowed to show the court a four and a half minute DVD video, containing
both a montage of still photos of the victim and her family set to music and
video images with audio accompaniment. 52 The defendant objected to the
video, claiming that it was not a legally permissible way for the victim's family
to "be heard" through a victim impact statement because the video was not
actually a "statement."'' 53 The Court of Appeals of Idaho acknowledged that
Idaho's constitutional amendment granting
54
victims' rights did not specifically
define what it means to be "heard."'
Accordingly, the court analyzed the history of victims' rights
legislation in Idaho. The court compared Idaho's original broad statute with
that of the more detailed 1994 constitutional amendment. The statute allowed
146 Id. at 75 n.ll.

t47 Id.
148 Id.
149 State Victims' Rights Amendments: Idaho, NAT'L VICTIMS' CONST. AMENDMENT PASSAGE,
http://www.nvcap.org/states/idaho.htm (last visited Oct. 10, 2014). IDAHO CONST. art. I, § 22(6)
states that crime victims have the right "to be heard, upon request, at all criminal justice
proceedings considering a plea of guilty, sentencing, incarceration or release of the defendant,
unless manifest injustice would result."
150 132 P.3d 462 (Idaho 2006).
151 Id. at 464. Defendant Abel Ramirez Leon pled guilty to first degree murder in exchange for
avoiding the death penalty by entering an "Alford plea" in which he was permitted to plead guilty
to the crime but avoid an actual admission of guilty by acknowledging that the State "possesses
sufficient evidence to support a conviction if the defendant were to go to trial." Id. at 464 n. 1.
152 Id.
153 Id.
154 Id.
victims the opportunity "to address under oath, the court at sentencing," which
was commonly referred to as the right to make a "victim impact statement."
However, the subsequent constitutional amendment granted victims the broader
right "to be heard," which the court interpreted as providing "something
different than providing victims the opportunity to make a sworn statement at
sentencing." Here, the court found that the video presentation was in fact a
permissible way for the victim's family to "be heard."
5. Missouri
Missouri's victims' rights amendment was passed by 84% of the voters

in 1992.155 Though crime victims are granted the constitutional right to be
"heard" at guilty pleas, there is no further definition of this term, nor is there
any case law helping to define this term. In a 1999 case, a Missouri Court of
Appeals ruled that a crime victim's statement at sentencing is considered a
mere "collateral" consequence of a guilty plea, rather than a direct
consequence.1 56 Accordingly, the defendant's attorney was not required to
inform his client of the right of a crime victim to be "heard" at sentencing
pursuant to a guilty plea, since it was only a collateral consequence of the
plea. 157 In this case, the defendant pled guilty to two separate charges, with the
understanding that the prosecutor would not request that the defendant be
sentenced to consecutive terms in prison.5 8 At sentencing, the victim's family
member recommended that the defendant's terms run consecutively, and
without the possibility of parole. 59 The defendant objected, claiming that the
prosecutor had breached his agreement to "stand silent" and not request a
consecutive prison term and that his attorney should have notified him that the
prosecutor could, in effect, indirectly request consecutive terms via the victim's
statement. 60 The court clarified that victim impact statements are not imputed
to the State and, as such, did not violate the prosecutor's promise to "stand
silent" on the issue of sentencing in this case. 161
155 State Victims' Rights Amendments: Missouri, NAT'L VICTIMS' CONST. AMENDMENT
PASSAGE, http://www.nvcap.org/states/missouri.htm (last visited Oct. 10, 2014). MO. CONST. art.
I, § 32.1(2) provides that crime victims have the right "[u]pon request ...to be informed of and
heard at guilty pleas, bail hearings, sentencings, probation revocation hearings, and parole
hearings, unless in the determination of the court the interests ofjustice require otherwise."
156 Weston v. State, 2 S.W.3d 111, 112 (Mo. Ct. App. 1999).
157 Id. at 115.
151 Id. at 113.
59 Id. at 114.
160 Id. at 114-15.
161 Id. at 115.
6. Oregon
Oregon's victims' rights amendment was passed in 1999 by 58% of the

voters. 162 In 2011, the Oregon Supreme Court vacated a defendant's sentence
and remanded the case back to the lower court for re-sentencing when a
defendant accepted a plea bargain and subsequently entered a guilty plea
without the victim being present. In State v. Barrett, defendant Ivey Wayne
Barrett was arrested and charged with stalking his estranged wife. 163 His wife,
the victim, met with a victim advocate at the prosecutor's office, where the
victim followed the correct procedures in requesting that she be present in court
when the defendant was to be sentenced. 164 The victim knew that the defendant
had an upcoming court date, but was advised by the victim advocate that she
did not need to be present in court on that date, as it was not scheduled for a
plea or sentencing. 165 However, the defendant did end up accepting 16a6
negotiated plea on the date that the victim was advised not to attend court;
when the victim found out, she filed a claim under Oregon's victims' rights
statute, declaring that her rights as a victim had been violated.' 67 The trial court
agreed that the victim's rights had been violated, but declined to vacate the
defendant's sentence. 168 The Oregon Supreme Court disagreed. It vacated the
defendant's sentence and sent the case back to the trial court for re-sentencing
so that the victim could assert her constitutionally guaranteed rights per the
Oregon constitutional amendment. 169 Though the victim's absence from the
court was accidental in nature, the Oregon Court honored the state's victims'
rights amendment in spirit and in letter.
162 State Victims' Rights Amendments: Oregon, NAT'L VICTIMS' CONST. AMENDMENT
PASSAGE, http://www.nvcap.org/states/oregon.htm (last visited Oct. 10, 2014). OR. CONST. art. I,
§ 42(1)(a) states the following:
The right to be present at and, upon specific request, to be informed in
advance of any critical stage of the proceedings held in open court when the
defendant will be present, and to be heard at the pretrial release hearing and
the sentencing or juvenile court delinquency disposition.
The Constitution also states that victims have "[tihe right to be consulted, upon request,
regarding plea negotiations involving any violent felony." Id. § 42(l)(f).
163 255 P.3d 472,475 (Or. 2011).
164 id.
165 Id.
166 id.
167 Id. at 476.
168 Id.
169 Id. at 482.
7. South Carolina
South Carolina's victims' rights amendment, passed by 90% of the

voters in 1996,170 remains vague as to the role of the victim in the plea-
bargaining process. Victims are guaranteed the right to be "heard" at
proceedings "involving" a plea.' 7' Its meaningful application within the
criminal justice system also remains vague. In 2012, Defendant Samuel
McCauley's ten year prison sentence for reckless homicide and felony DUI
(driving under the influence charge) was unilaterally cut in half by a South
Carolina circuit court judge. 172 Per the South Carolina Rules of Criminal
Procedure, the judge was not obligated to hold a proceeding at which to rule on
the defendant's plea for a sentence reduction. Because the judge opted to
subvert the proceeding, and reduce the sentence without a hearing, the victims'
family was without recourse per South Carolina's victims' rights amendment.
The defendant's attorney, in defending the reduced sentence for his
client, stated, "The Victims' Bill of Rights requires only that a victim has the
right to be present at criminal proceedings where the defendant has a right to be
present."' 7 And since this statement accurately reflects South Carolina law, the
victims' family was not permitted to be present nor to be heard when the
judge's decision was rendered.
B. Assessing the Efficacy of Victims' Rights Amendments
Meaningful rights for crime victims are still a distant axiomatic truth.
Amendments that confer the right to participate in the plea-bargaining phase of
criminal proceedings may appear incontrovertible, new constitutional
amendments that bestow the right to participate in the plea-bargaining phase of
the proceedings sound virtuous, but prove illusory when tested in court. Rights
that can be asserted only "upon re 1uest" may deter otherwise rightful victims
from participating in the system.' 7 The right to comment on a plea already
negotiated between the defendant and the prosecution signals a passive, benign
170 State Victims' Rights Amendments: South Carolina,NAT'L VICTIMS' CONST. AMENDMENT
PASSAGE, http://www.nvcap.org/states/southcarolina.htm (last visited Oct. 10, 2014).
171 S.C. CONST. art. I, § 24(A)(5) states that victims have the right to "be heard at any
proceeding involving a post-arrest release decision, a plea or sentencing."
172 Ray Rivera, Reduced Sentence Still Standsfor Man Convicted in FatalDUI, LIVE 5 WCSC
(Aug. 1, 2013, 2:41 PM), http://www.live5news.com/story/23010452/mccauley-ruling.
173 Id.
1' See CAL. CONST. art. I, § 28(b)(8); ARIz. REv. STAT. ANN. § 13-4423(a) (2014). But see
ARiz.. REv. STAT. ANN. §§ 13-4423(b)(1), (2) (requiring the prosecution to make "reasonable
efforts" to confer with the victim, to provide notice of the plea-bargain, to be present, and if
present to be heard).
role in the proceedings. 75 And vague terms and phrases must be clarified for
rights to maintain consequential import. 176 The current amendments may allow
victims to participate to some extent, but these limitations and ambiguities may
simply provide an appeasement in text only. For crime victims to possess
influential rights, the language of these rights must provide precision, clarity,
and transparency.
For a victim's rights to be meaningful, they must also transcend the
plea-bargaining stage and expand into other areas of the proceedings. Plea-
bargaining has now been deemed a "critical" right by the Supreme Court, but it
by no means is the only stage at which victims can provide input of
consequence. Throughout the criminal justice proceedings, victims must be
allowed to not only be present, but also to be allowed the opportunity to be
heard. Though some victims may not choose to participate in the process, it
nonetheless is vital that the chance to do so be presented to them.
When defendants are first brought to court and bail is set, victims
should be able to address the court regarding their feelings as to the amount of
the bail and any restrictions as to the defendants discharge from jail. For
example, these limitations could include such conditions as a "no contact," or
"stay away," order between the defendant and the victim and the victim's
family. Though bail schedules are statutory and some bail amount is usually
required, knowing the parameters of a defendant's release may soothe victims'
nerves and provide some measure of certainty as to the whereabouts of their
assailant. Even more importantly, knowledge of this information may alert
victims to seek help if defendants violate their terms of release.
Throughout the proceedings, victims should be allowed to voice their
opinions as to trial continuances. Such delays are an inevitable part of the
criminal process; nonetheless, it is important for judges to be aware of the
impact that trial continuances have upon the victims and their families.1 7 7 Some
victims may be required to travel long distances in order to attend court
hearings. Absences from work, school, and family obligations are also costs
that victims bear in order to assert their constitutional rights to be present and
heard at court proceedings. It is important for the various stakeholders in the
criminal case, including the prosecutor and the judge, to be aware of these
175 See CoNN. CONST. art. I, § 8(b)(7).

176 For example, what does the right to be "heard" encompass?
177 See Paloma Esquivel, Relatives of Seal Beach Shooting Victims Want Trial to Start Soon,
L.A. TIMES (Aug. 30, 2013), http://articles.latimes.com/2013/aug/30/local/la-me-083 1-seal-
beach-shooting-20130831. Here, family members of shooting victims opposed another
continuance requested by the defense. Id. One family representative told the judge, "[t]he agony
you are putting us through with delay after delay after delay, you don't understand." Id. Another
family member stated, "[o]ur lives are forever changed, and every time we come here we sit five
feet away, fifteen feet away, from a monster." Id.
inconveniences and, where practical, to reign in the number of times a case is

postponed.
The sentencing hearing is perhaps the most recognized time at which
the victims may speak. For victims' rights to have an influence on the
sentencing of a defendant, it follows that a victim's statement be made before
the final sentencing decision of the court. Both cathartic for the victim and
instructive to the court, victim impact statements acknowledge the victim's role
in the criminal case. The victim is aggrieved, harmed, forever changed; the
conclusion of the criminal case by no means signifies the end of the impact on
the victim. Sentencing may offer some closure but it does not always make the
victim complete again. If crime victims' sentencing statements fall on
previously determined judgments, the result is an attempt merely to placate. For
the court to fully appreciate a victim's story, that story must be told ahead of
the pronouncement of the defendant's sentence.
The passing of constitutional amendments favoring the rights of crime
victims is but the first step in the shifting paradigm of criminal proceedings.
These rights must proliferate throughout all of the states, and be clarified within
the text of the amendments themselves. They must also manifest without
special assertion by the victim. Such changes will go a long way toward the
realization of true rights for crime victims.
IV. HARMONIZING THE RIGHTS OF CRIME VICTIMS AND DEFENDANTS
[A]dvocating rightsfor victims does not mean lessening rights

for the offender. It is a question of balance, and it is a question
ofjustice.
178
- Paul Laxalt
The constitutional rights of criminal defendants have long been

recognized and protected. The rights of crime victims are only more recently
becoming recognized, and are protected to a lesser extent. Other than length of
existence, a significant difference is that victims must initially request certain
rights before being allowed to assert them in court. 17 9 Guaranteeing rights
without additional obstacle will in no way take away from the rights of criminal
defendants. Moreover, paying closer attention to and further refining victims'
rights does not limit defendants' rights. Obviously, the interests of crime victim
and assailant are often in conflict, but the importance of protecting both of their
rights under the Constitution is absolutely congruent.
178 NATIONAL VICTIMS' CONSTITUTIONAL AMENDMENT NETWORK, VICTIMS' RIGHTS
EDUCATION PROJECT: TALKING POINTS KIT (Feb. 27, 2004), available at http://www.nvcap.org/
vrep/NVCANVREPTalkingPoints.pdf.
179 See, e.g., CAL. CONST. art. I, § 28(b)(8); ARIz. REV. STAT. ANN. § 13-4423(a).
A. Protecting Victims' Rights While PreservingDefendants' Rights
The numerous rights of criminal defendants are entrenched in the

United States Constitution. From arrest and interrogation through arraignment
and in limine motions, defendants' rights are the focus of all criminal
proceedings pertaining to the criminal act. Defendants have the right to be
brought to court within a specified period and to be made aware of the charges
against them. 180 When defendants are interrogated, law enforcement must read
them specific rights to ensure that they understand the implications of speaking
to the police as well as their right to consult with an attorney throughout the
proceedings. 81 As the three recent Supreme Court cases demonstrate,
defendants have the right to be told of the consequences of any plea negotiation
on their immigration status, 182 the right to be made aware of any offered plea
bargains, 183 and the right to know of the maximum possible punishment for
their crimes. 84 Defendants may rightfully face their accusers in court, be
186
present at a jury trial, 185 and choose whether to testify in their own defense.
87
They have the right to be present and to speak at their sentencing hearings,
and to a sentence devoid of cruel and unusual punishment.' Finally,
defendants have the right to appeal guilty verdicts' 9 and to attend parole
hearings. 190

181 See Miranda v. Arizona, 384 U.S. 436 (1966).
183 Missouri v. Frye, 132 S. Ct. 1399 (2012).
184 Lafler v. Cooper, 132 S. Ct. 1376 (2012).
186 See Rock v. Arkansas, 483 U.S. 44, 51 (1987) (stating that the right to choose to testify in
one's own defense comes under the Compulsory Process Clause of the Sixth Amendment).
187 FED. R. CRIM. P. 32 (i)(4)(A).
188 U.S. CONST. amend. VIII.
189 Appeals are quite common in the American criminal justice system, but the
Supreme Court has never held that they are constitutionally required; the
Constitution does not specify the granting of a certain number of appeals to
each convicted criminal. In McKane v. Durston (1894), the Supreme Court
stated that a "review by an appellate court of the final judgment in a criminal
case, however grave the offense of which the accused is convicted, was not at
common law, and is not now, a necessary element of due process of law."
Even in the face of this decision, every state and the federal government has
rules providing a certain number of appeals.
Beyond Conviction and Sentencing, SAGEPUB.COM, available at http://www.sagepub.com/upm-
data/43887_8.pdf (last visited Oct. 10, 2014).
190 For example, in Ughbanks v. Armstrong, the Court "held that parole is not a constitutional
right but instead is a 'present' from government to the prisoner." Probationand Parole, JUSTIA
US LAW, http://law.justia.com/constitution/us/amendment-14/65-probation-and-parole.html (last
visited Oct. 10, 2014) (citing Ughbanks v. Armstrong, 208 U.S. 481 (1908)). Likewise, in Escoe
WEST VIRGINIA LAW REVIEW [Vol. 1 17
In contrast, states inconsistently provide crime victims with various

types of constitutional rights, if they allow for crime victims' rights at all. Most
state constitutional amendments use broad language that guarantees crime
victims the right either to be "present" or to be "heard" at court appearances in
which a defendant has the right to be present. The language of these
amendments varies greatly. Some amendments allow victims to be present "at
all crucial stages" of criminal proceedings. 1 9' Others specify the right to be
informed of, and to be present at, "all public hearings" of the criminal justice
process. 192 Still others identify all stages of "pre-conviction and post-conviction
proceedings."' 193 Though textual uniformity might provide more consistent
outcomes, the states with victims' rights amendments do all appear to allow for
victims' voices at hearings in which their assailants also enjoy the right to be
present.
However, the rights to be present and to be heard are often tempered by
requirements that victims must first "request" that their constitutional rights
attach. 194 Some states include language such as "if practicable" before
permitting victims to attend various proceedings. In addition, other states limit
the rights of crime victims to be heard depending upon what type of crime was
inflicted upon them by the defendant.' 95
v. Zerbst, "the Court's premise was that as a matter of grace the parolee was being granted a
privilege and that he should neither expect nor seek due process." Id. (citing Escoe v. Zerbst, 295
U.S. 490 (1935)). Additionally, "[t]hen-Judge Burger in Hyser v. Reed,... reasoned that due
process was inapplicable because the parole board's function was to assist the prisoner's
rehabilitation and restoration to society and that there was no adversary relationship between the
board and the parolee." Id. (citing Hyser v. Reed, 318 F.2d 225 (D.C. Cir. 1963)).
191 See, e.g., ALA. CONST. art. I, § 6.01(a) (stating that "Crime victims.., are entitled to the
right... to be heard when authorized, at all crucial stages of criminal proceedings"); COLO.
CONST. art. II, § 16(a) (stating that "a victim of a criminal act.., shall have the right to be
heard . . . at all critical stages of the criminal justice process").
192 Query whether this is really an addition to victims' rights at all, as criminal proceedings are
generally open to the public, and victims are certainly members of the public.
193 See, e.g., LA. CONST. art. I, § 25 (stating that "a victim of crime shall have the fight to
reasonable notice and to be present and heard during all critical stages of pre-conviction or post-
conviction proceedings .... ").
194 See, e.g., CAL. CONST. art. 1, § 28(b)(6)-(8), (1l)-(12) (requiring that each right asserted
by victims be allowed only "upon request" by the victim or a representative of the victim); IDAHO
CONST. art. 1, § 22(6) (requiring the right to be "heard at all criminal justice proceedings
considering a plea of guilty, sentencing, incarceration or release of the defendant" to be
contingent "upon request" by the victim); Mo. CONST. art. 47(b) (allowing victims to be "notified
of, to attend, and to be heard at a criminal justice proceeding" if this fight is made "upon request
and if practicable").
195 See, e.g., N.M. CONST. amend. art. II, § 24(A) ("A victim of arson resulting in bodily
injury, aggravated arson, aggravated assault, aggravated battery, dangerous use of explosives,
negligent use of a deadly weapon, murder, voluntary manslaughter, involuntary manslaughter,
kidnapping, criminal sexual penetration, criminal sexual conduct of a minor, homicide by
20141 THE ASCENDING ROLE OF CRIME VICTIMS
Imposing contingencies before rights attach takes away from the

significance of these rights. Victims, or their representatives, may not know
that they must speak up in order to assert their constitutional rights. Some may
be too intimidated to do so. Victims are not granted the right to an attorney, and
without such legal representation, victims find it difficult to navigate the
criminal justice process alone. It is also worth noting that the rights of the
defendant contain no such limitations. It is unclear why so many states opted to
set such harsh boundaries on the rights constitutionally bestowed to victims.
Once an assailant is arrested, victims' rights commence. It is important
to note that none of the rights of crime victims conflict with nor supersede
those of defendants. For example, victims may have the right to be present at
the various proceedings of the defendant, but these hearings are open to the
public anyway. Victims' rights to be heard are simply that-victims have the
right to state their feelings and opinions as to various happenings in their
assailants' case. 196 This is no different from the right of the prosecutor to
advocate for a particular result. There are no requirements that the court give
more weight to a victim's voice than that of a defendant.
Certainly the interests of defendants and their victims are separate and
distinct. Defendants want no or low bail so as to be free from incarceration, and
victims want a higher bail to ensure the defendants' return to court. Defendants
may be willing to post bail, but do not want further limitations placed on their
freedom; victims may want conditions of release imposed on defendants, or for
a GPS tracking device to monitor defendants' out-of-custody movements.
Defendants want a plea deal with minimal penal consequences; victims want
the charges to adequately reflect the crimes committed. Victim impact
statements are often not beneficial to defendants, but they do not infringe on
constitutional rights. Just as defendants have the right to present mitigating
evidence and testimony before sentencing, so too may victims present
aggravating evidence. These competing interests are to be expected given the
proceedings, but they do not indicate any stifling of defendants' rights.
Acknowledgment that any constitutional right the crime victim may
possess will not infringe or take away from any of the defendants'
constitutional rights will go a long way toward legitimizing crime victims as
worthy of participation throughout the criminal proceedings. Such recognition
is vital to guarantee that victims of crime are not "re-victimized" by a criminal
justice system centered solely on the defendant.
vehicle, great bodily injury by vehicle or abandonment or abuse of a child or that victim's
representative shall have the following rights .... ").
196 Perhaps a more precise description would be to refer to the case as the victim's case,
precipitated by the defendant's conduct.

B. Accommodating Rights with Limited JudicialResources
Court systems are overworked and understaffed, and have been for
some time. 197 Judicial budgets are limited and have seen finances slashed over
the years.' 98 The criminal justice system in particular relies on expediency, and
it too has been hard hit by shrinking revenue and limited staff. Incarcerated
defendants have limited time frames in which their cases must be heard by the
court, thus presenting exigencies absent in civil calendars. 199 Time waivers
have enabled criminal prosecutions to continue past mandatory time limits,
which unfortunately has created long delays and made cases with multiple trial
dates a common occurrence.200 In light of these troubled economic times, it is
important to examine the financial impact-if any-of encouraging further
involvement in the criminal justice process by victims.
Meaningful involvement of crime victims in the prosecution of their
assailants may have some impact on judicial resources. Victim participation in
proceedings necessarily increases the time, however slight, involved in
resolving cases. It requires subordinate judicial officers, such as probation
workers and victim-witness coordinators, to meet with victims, explain their
rights and responsibilities, and record their testimonials. Court time must be
spent allowing victims to address the court with regard to continuances,
negotiated offers, and sentencing. All of these events contribute to higher court
costs in the form of more time expended and fewer cases heard by the court.
The financial costs of allowing victims to participate during the plea-
bargaining process in particular are minimal. Separate hearings are not
197 See, e.g., Justice Barker Says Judges Overworked, Courts Underfunded, CHATTANOOGAN
(July 22, 2004), http://www.chattanoogan.com/2004/7/22/53208/Justice-Barker-Says-Judges-
Overworked.aspx.
198 See, e.g., Maura Dolan, New California Budget Fails to Ease Court Woes, Chief Justice
Says, L.A. TIMES (June 20, 2014), http://www.latimes.com/localllanow/la-me-chief-justice-
budget-20140620-story.html.
199 All states have adopted statutes to address a defendant's federal constitutional right to a
speedy trial. See, e.g., Gerstein v. Pugh, 420 U.S. 103 (1975) (holding that state procedure may
vary but all must provide incarcerated defendants a non-adversarial probable cause review within
a reasonable time period "either before or promptly after arrest").
200 See, e.g., William Glaberson, Faltering Courts, Mired in Delays, N.Y. TIMES (Apr. 13,
2013), http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-
in-delays.htmlpagewanted=all&_r-0 (stating that in New York City, "[t]he number of felony
cases citywide that exceed the courts' own guidelines for excessive delay-180 days in most
felony cases-has more than doubled since 2000, even as the total number of felony cases has
dropped by nearly a quarter"); Greg Bluestein, State Budget Cuts Clog Criminal Justice System,
NBC NEWS, Oct. 26, 2011, http://www.nbcnews.com/id/45049812/ns/usnews-
crime-and courts/t/state-budget-cuts-clog-criminal-justice-system/#.VAOKdUJqvzI (noting that
the "National District Attorneys Association estimates that hundreds of millions of dollars in
criminal justice funding and scores of positions have been cut amid the economic downturn,
hampering the ability of authorities to investigate and prosecute cases").
20141 THE ASCENDING ROLE OF CRIME VICTIMS
required, as victims merely have the right to be present at each appearance at

which the defendant also has a right to be present. Discussing procedures with
probation departments and conferring with prosecutors appear to be negligible
costs associated with victim contribution.
One area that may impose a burden of civil responsibilities onto
criminal courts is that of restitution. Where financial losses are identifiable,
victims are entitled to a restitution hearing at the conclusion of the criminal
proceeding. States vary as to possible restitution verdicts, ranging from mere
out-of-pocket expenses to general damages. Since fault has already been
determined in the form of a guilty plea or verdict, issues as to liability do not
exist. Rather, victims have the right to a restitution hearing to determine
financial losses payable by the defendant, and defendants then have the right to
challenge the restitution amount set by the court. Tantamount to a civil trial,
these restitution hearings certainly consume court time involved in resolving
cases, as well as resources expended in conducting the hearings.
To some extent, the costs of constitutional rights are ones that the
judicial system is prepared to bear. Victims of crime may be newly accepted
participatory stakeholders, but their rights are no less substantial than those of
traditional parties.
V. CONCLUSION
Victims of crime deserve the constitutional right to meaningfully

participate in the prosecution of their assailants. These rights should extend to
all stages of the case, and not be tempered by unfounded concerns of inequity.
Interpreting vague legislation and overly broad constitutional language as
encompassing, rather than as limiting, crime victims in their pursuit of justice
promotes a fairer and more balanced criminal justice system.
The United States Supreme Court's decisions in Padilla,2 ° 1 Frye,2 °2
and Lafler203 provide the opportunity for re-examination of the progress (or
lack thereof) victims have made in securing constitutional rights to be present
and heard whenever the defendants in their case are permitted to be present and
heard. Recognition of plea-bargaining as a critical phase of the process serves
as a reminder of the important role that crime victims ought to play in ensuring
just results from these negotiated sentences. The significance of guaranteeing
these rights in constitutional form is made even clearer by the weight given to
the importance of black letter safeguards by Justice Scalia in his dissents.
Finally, moving beyond plea-bargaining and ensuring constitutional
rights for victims throughout their journey in the criminal justice system is
imperative. Our system of resolving criminal cases must strive to include crime

202 Missouri v. Frye, 132 S. Ct. 1399 (2012).
203 Lafler v. Cooper, 132 S. Ct. 1376 (2012).
134 WEST VIRGINIA LA W RE VIEW [Vol. 117
victims at every juncture, and to provide every opportunity for victims to seek
justice.

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Volume 117 Issue 1 Article 6

The Ascending Role of Crime Vctims in Plea-Bargaining and

Follow this and additional works at: https://researchrepository.wvu.edu/wvlr

Part of the Constitutional Law Commons

This Article looks to the nationwide trend of promoting a victims'

Victims of crime have a unique role to play in the prosecution of their

handful of states have supplemented general constitutional rights for crime

forthcoming with the police, prosecution, and probation department regarding

12 559 U.S. 356 (2010).

His apprehension that additional areas of the law might increasingly be

21 See Stephanos Bibas, Incompetent Plea Bargainingand ExtrajudicialReforms, 126 HARv.

II. CONTINUING CONCERN FOR THE PROTECTION OF DEFENDANTS'

All I want is to be treated like a common criminal.

A series of United States Supreme Court cases has illuminated the

22 NAT'L VICTIMS' CONSTITUTIONAL AMENDMENT NETWORK, VICTIMS' RIGHTS EDUCATION

Whether defense counsel should be held accountable for advisements

by the Sixth Amendment.35 The United States Supreme Court disagreed. It

The companion cases of Lafler v. Cooper and Missouri v. Frye were

In Missouri v. Frye, Galin Frye was charged with driving on a revoked

49 Frye, 132 S. Ct. at 1404.

In Lafler v. Cooper, Mr. Anthony Cooper was charged with assault

A main complaint of Justice Scalia in all three opinions seems to be

III. INCREASING AWARENESS OF THE NEED FOR VICTIMS' RIGHTS UNDER

The system must no longer step over the body of a victim to

The movement 85 toward recognizing crime victims and vesting them

Many states have amended their constitutions to afford some form of

the plea-bargaining arena signals the willingness of states to permit crime

this right should be implemented. If the victims' rights movement is meant to

A. Evaluating the Seven States with ConstitutionalLanguagePermitting

Arizona's constitutional amendment, passed by 58% of the voters in

(June 30, 2011), http://usatoday30.usatoday.com/news/nation/states/arizona/2011-06-30-

Article 1, section 28(b) details the 17 constitutional rights afforded to

123 Id. § (b)(8) (emphasis added).

While Connecticut does not specify the right to participate in the

129 Id. at 1569.

to connote a rather passive role by the victim. It is merely a comment on an

demonstrated through the legislative history of Connecticut's victims' rights

Idaho's victims' rights amendment was passed by 79% of the voters in

146 Id. at 75 n.ll.

Missouri's victims' rights amendment was passed by 84% of the voters

Oregon's victims' rights amendment was passed in 1999 by 58% of the

South Carolina's victims' rights amendment, passed by 90% of the

B. Assessing the Efficacy of Victims' Rights Amendments

175 See CoNN. CONST. art. I, § 8(b)(7).

inconveniences and, where practical, to reign in the number of times a case is

IV. HARMONIZING THE RIGHTS OF CRIME VICTIMS AND DEFENDANTS

[A]dvocating rightsfor victims does not mean lessening rights

The constitutional rights of criminal defendants have long been

178 NATIONAL VICTIMS' CONSTITUTIONAL AMENDMENT NETWORK, VICTIMS' RIGHTS

A. Protecting Victims' Rights While PreservingDefendants' Rights

The numerous rights of criminal defendants are entrenched in the

180 U.S. CONST. amend. VI.

In contrast, states inconsistently provide crime victims with various

Imposing contingencies before rights attach takes away from the

precipitated by the defendant's conduct.

B. Accommodating Rights with Limited JudicialResources

required, as victims merely have the right to be present at each appearance at

Victims of crime deserve the constitutional right to meaningfully

201 Padilla v. Kentucky, 559 U.S. 356 (2010).

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