Crime Victims’ Rights After Passage of SB 233
Overview
Compliance & Enforcement
• Compliance is when state personnel fulfill legal responsibilities; efforts to reduce willful or inadvertent failure to fulfill those duties by making systemic changes are “compliance efforts.”
– Tools & remedies are best practices, training & education, and administrative complaint systems.
– Last piece has not yet been finalized BUT Oregon DOJ is working to establish process.
• Enforcement is a victim’s ability to seek a judicial order that governmental personnel comply with victims’ rights laws or that provides a remedy for a violation of those laws.
– Tools & remedies are motion practice (by victim or prosecutor) that seeks 1 of 2 remedies: “stop” or “do over”
Changes Made to Move to Enforcement
• §§ 42(3)(d), 43(5)(d)
– Suspension is permitted unless it would violate Defendant’s constitutional rights.
• §§ 42(3)(a), 43(5)(a)
– “Every victim … shall have remedy by due course of law for violation of a right established in this section.”
• §§ 42(3)(b), 43(5)(b)
– “A victim may assert a claim for a right established in this section in a pending case, by a mandamus proceeding if no case is pending or as otherwise provided by law.”
SB 233
• What it does:
– Establishes a set of procedures for claims
– Provides court with information to allow it to make decision whether to proceed without victim
• What it does NOT do:
– Create any additional rights
– Change any existing rights
Beginning of any plea or sentencing
Section 5
• DDA shall inform the court whether v is present
• If D is charged with violent felony.
– If V requests, prosecutor shall make reasonable efforts to consult before final plea
– Before court accepts plea:
• If v is present court SHALL ask whether v agrees or disagrees and wants to be heard
• If v is not present, court SHALL ask whether v requested to be notified and consulted, and if so, whether agrees or disagrees
• If court finds that v requested and no reasonable efforts, court MAY NOT accept plea without findings
2. Oregon Victims’ Constitutional Rights & Comparison to National Landscape
(What do enforceable rights “look” like)
Right to be Present
• The Language:
– In Oregon: “The right to be present at . . . any critical stage of the proceedings held in open court when the defendant will be present.” Or. Const. art. I, § 42 (1)(a).
– Federal: “The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding” 18 U.S.C. § 3771
• Case Examples:
– State v. Williams, 960 A.2d 805 (N.J. Super. Ct. 2008) (rejecting D’s argument that allowing V to remain in courtroom after testifying and thereafter be recalled to make an in-court voice identification violated his constitutional rights; court noted that D has no constitutional right to exclude witnesses, yet victim has a state constitutional right to be present).
– U.S. v. Edwards, 526 F.3d 747 (11th Cir. 2008) (criminal D has no constitutional right to exclude witnesses from the courtroom).
Right be Informed / Notice
• The Language:
– Oregon: “The right . . . , 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.” Or. Const. art. I, § 42 (1)(a).
– Federal: “The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding involving the crime or of any release or escape of the accused” 18 U.S.C. § 3771.
• Case Examples:
– Edens v. Oregon Bd. of Parole Marion County, Case Nos. 07C22594, 07C22595 (granting v’s petition for writ of mandamus asking that board be directed to vacate order reducing term after finding violations of victim’s rights, including of the 30-day notice requirement which resulted in failure to afford the victim “adequate opportunity to prepare for the hearing and to obtain counsel,” and by limiting time to be heard, which “has a chilling effect on the full exercise of the victim’s rights”).
– Clatsop County Case: D, who while intoxicated broke V’s door, was charged with Criminal Mischief II, disorderly conduct, and resisting arrest. Unbeknownst to victim he was cited into municipal court where judge allowed a plea to resisting arrest and dismissed the criminal mischief charge. V filed for restitution and notice violation. Before decided; D paid in full.
Right be Heard
• The Language:
– Oregon: “The right . . . to be heard at the pretrial release hearing and the sentencing or juvenile court delinquency disposition.” Or. Const. art. I, § 42 (1)(a).
– Federal: “The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.” 18 U.S.C. § 3771
• Case Examples:
– Kenna v. District Court, 435 F.3d 1011 (9th Cir. 2006) (finding victim had indefeasible right to be heard akin to defendant’s right to allocution).
– Columbia County: 18 year old former high school wrestler facing a Measure 11 mandatory min. for injuring 17-year-old student from another school. First trial was a hung jury; set for retrial. D sought permission to move to CA pending trial. V feared D would not return for trial but prosecutor was not opposed because D had no prior failures to appear. Victim independently opposed and D’s request was denied.
– State v. Guzek, 86 P.3d 1106 (Ore. 2004) (finding victims had right guaranteed under Oregon’s constitution to provide victim impact statement).
Right to Restitution
• The Language:
– In Oregon: “The right to receive prompt restitution from the convicted criminal who caused the victim’s loss or injury.” Or. Const. art. I, § 42 (1)(d).
– Federal: “The right to full and timely restitution as provided by law” 18 U.S.C. § 3771
• Case Examples:
– United States v. Cienfuegos, 462 F.3d 1160 (9th Cir. 2006) (holding that “lost income” under MVRA includes future lost income).
– In re Isiah F, 2005 WL 3047954 (Cal. Ct. App. Nov. 15, 2005) (upholding award of restitution for one year weekly psychotherapy sessions; self defense training; purchase of a guard dog; train ticket for victim’s mother to attend proceedings; psychotherapy sessions for victim’s parents; and payment for parent’s missed work).
– In Oregon:
• V moved to adjust restitution payment schedule from $25 to $200/month. Question was presented of whose burden it is to plead inability to pay. Some judges are seeing SB 233 as putting this on V.
• D ordered to pay restitution to murder victim’s mother and others. While D was incarcerated mother and CVSD paid other payees in full to avoid collections. County gave credit to D for these payments and closed cases. Had to move to remedy - issue of substitution of payees.
Right to Confer/Be Consulted
• The Language:
– In Oregon: “The right to be consulted, upon request, regarding plea negotiations involving any violent felony.” Or. Const. art. I, § 42 (1)(f).
– Federal: “The reasonable right to confer with the attorney for the Government in the case.” 18 U.S.C. § 3771
• Case Examples:
– State v. Acker, 27 P.3d 1071 (Or. Ct. App. 2001) (finding prosecutor could confer with and consider the victim’s opinions in deciding whether to prosecute so long as the prosecutor did not determine whether to extend a plea offer to the defendant based solely on the victim’s wishes)
– U.S. v. Heaton, 458 F. Supp. 2d 1271 (D. Utah 2006) (refusing to dismiss charge on government’s motion because no evidence that right to confer had been afforded).
Right to Protection
• The Language:
– In Oregon:
• “The right to be reasonably protected from the criminal defendant or the convicted criminal throughout the criminal justice process and from the alleged youth offender or youth offender throughout the juvenile delinquency proceeding..” Or. Const. art. I, § 42 (1)(a)
• “The right to have decisions by the court regarding the pretrial release of a criminal defendant based upon the principle of reasonable protection of the victim . . .” Or. Const. art. I, § 43 (1)(b).
– Federal: “The Right to be reasonably protected from the accused.” 18 U.S.C. § 3771.
– Routinely used nationwide to argue conditions of release
3. General Breakdown of SB233
• Section 1: Definitions
– Authorized prosecuting attorney
– Critical stage proceedings
• Excludes arraignments
– Reasonable efforts to inform
• Section 2: victim standing (victim, prosecutor, victim’s attorney)
• Section 3: Bulk of prosecutor’s duties
– Critical stage proceedings (not arraignment)
– Victims not in charging document
– Did victim ask prosecutor to assert and enforce
– Inform judge if victim present
• Section 4: schedule a hearing to reconsider release decision
– This covers arraignments
– Discretionary
•Section 5: plea and sentencing
– Victim is present
– Violent felonies (consult)
• Victim must know right to consult
• Section 6: Assertion of claims and Court’s duties
– File within 7 days
– Orally or form
– Facially valid notice to everyone
• Section 7: Court and Prosecutor
– Notice
– Ct issues Order to show cause
• Victim/def/pros may contest claim
– Pros good cause to suspend where minor victim or gang
• Section 9: Deadlines for challenging rights impact trial
– Victim or prosecutor assert within 35 days arraignment
– Defendant object to victim presence within 35 days of arraignment
• Section 10: Suspension of proceedings
– Only proceedings directly impacted by the right
– Ct shall consider several criteria whether to reschedule.
– Pretrial release only 14 days
– Trial
• Section 11: Court to issue order
• Section 12: Waiver of remedy
• Section 14: Interlocutory appeal with Supreme Ct
Adapted from a presentation by the National Crime Victim Law Institute.
Overview
- Post-Constitutional Amendment & SB 233: Oregon is in a Compliance & Enforcement Scenario
- Oregon Compared to the National Landscape – The Language and What Courts are Saying
- Breakdown of SB 233
Compliance & Enforcement
• Compliance is when state personnel fulfill legal responsibilities; efforts to reduce willful or inadvertent failure to fulfill those duties by making systemic changes are “compliance efforts.”
– Tools & remedies are best practices, training & education, and administrative complaint systems.
– Last piece has not yet been finalized BUT Oregon DOJ is working to establish process.
• Enforcement is a victim’s ability to seek a judicial order that governmental personnel comply with victims’ rights laws or that provides a remedy for a violation of those laws.
– Tools & remedies are motion practice (by victim or prosecutor) that seeks 1 of 2 remedies: “stop” or “do over”
Changes Made to Move to Enforcement
• §§ 42(3)(d), 43(5)(d)
– Suspension is permitted unless it would violate Defendant’s constitutional rights.
• §§ 42(3)(a), 43(5)(a)
– “Every victim … shall have remedy by due course of law for violation of a right established in this section.”
• §§ 42(3)(b), 43(5)(b)
– “A victim may assert a claim for a right established in this section in a pending case, by a mandamus proceeding if no case is pending or as otherwise provided by law.”
SB 233
• What it does:
– Establishes a set of procedures for claims
– Provides court with information to allow it to make decision whether to proceed without victim
• What it does NOT do:
– Create any additional rights
– Change any existing rights
Beginning of any plea or sentencing
Section 5
• DDA shall inform the court whether v is present
• If D is charged with violent felony.
– If V requests, prosecutor shall make reasonable efforts to consult before final plea
– Before court accepts plea:
• If v is present court SHALL ask whether v agrees or disagrees and wants to be heard
• If v is not present, court SHALL ask whether v requested to be notified and consulted, and if so, whether agrees or disagrees
• If court finds that v requested and no reasonable efforts, court MAY NOT accept plea without findings
2. Oregon Victims’ Constitutional Rights & Comparison to National Landscape
(What do enforceable rights “look” like)
Right to be Present
• The Language:
– In Oregon: “The right to be present at . . . any critical stage of the proceedings held in open court when the defendant will be present.” Or. Const. art. I, § 42 (1)(a).
– Federal: “The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding” 18 U.S.C. § 3771
• Case Examples:
– State v. Williams, 960 A.2d 805 (N.J. Super. Ct. 2008) (rejecting D’s argument that allowing V to remain in courtroom after testifying and thereafter be recalled to make an in-court voice identification violated his constitutional rights; court noted that D has no constitutional right to exclude witnesses, yet victim has a state constitutional right to be present).
– U.S. v. Edwards, 526 F.3d 747 (11th Cir. 2008) (criminal D has no constitutional right to exclude witnesses from the courtroom).
Right be Informed / Notice
• The Language:
– Oregon: “The right . . . , 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.” Or. Const. art. I, § 42 (1)(a).
– Federal: “The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding involving the crime or of any release or escape of the accused” 18 U.S.C. § 3771.
• Case Examples:
– Edens v. Oregon Bd. of Parole Marion County, Case Nos. 07C22594, 07C22595 (granting v’s petition for writ of mandamus asking that board be directed to vacate order reducing term after finding violations of victim’s rights, including of the 30-day notice requirement which resulted in failure to afford the victim “adequate opportunity to prepare for the hearing and to obtain counsel,” and by limiting time to be heard, which “has a chilling effect on the full exercise of the victim’s rights”).
– Clatsop County Case: D, who while intoxicated broke V’s door, was charged with Criminal Mischief II, disorderly conduct, and resisting arrest. Unbeknownst to victim he was cited into municipal court where judge allowed a plea to resisting arrest and dismissed the criminal mischief charge. V filed for restitution and notice violation. Before decided; D paid in full.
Right be Heard
• The Language:
– Oregon: “The right . . . to be heard at the pretrial release hearing and the sentencing or juvenile court delinquency disposition.” Or. Const. art. I, § 42 (1)(a).
– Federal: “The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.” 18 U.S.C. § 3771
• Case Examples:
– Kenna v. District Court, 435 F.3d 1011 (9th Cir. 2006) (finding victim had indefeasible right to be heard akin to defendant’s right to allocution).
– Columbia County: 18 year old former high school wrestler facing a Measure 11 mandatory min. for injuring 17-year-old student from another school. First trial was a hung jury; set for retrial. D sought permission to move to CA pending trial. V feared D would not return for trial but prosecutor was not opposed because D had no prior failures to appear. Victim independently opposed and D’s request was denied.
– State v. Guzek, 86 P.3d 1106 (Ore. 2004) (finding victims had right guaranteed under Oregon’s constitution to provide victim impact statement).
Right to Restitution
• The Language:
– In Oregon: “The right to receive prompt restitution from the convicted criminal who caused the victim’s loss or injury.” Or. Const. art. I, § 42 (1)(d).
– Federal: “The right to full and timely restitution as provided by law” 18 U.S.C. § 3771
• Case Examples:
– United States v. Cienfuegos, 462 F.3d 1160 (9th Cir. 2006) (holding that “lost income” under MVRA includes future lost income).
– In re Isiah F, 2005 WL 3047954 (Cal. Ct. App. Nov. 15, 2005) (upholding award of restitution for one year weekly psychotherapy sessions; self defense training; purchase of a guard dog; train ticket for victim’s mother to attend proceedings; psychotherapy sessions for victim’s parents; and payment for parent’s missed work).
– In Oregon:
• V moved to adjust restitution payment schedule from $25 to $200/month. Question was presented of whose burden it is to plead inability to pay. Some judges are seeing SB 233 as putting this on V.
• D ordered to pay restitution to murder victim’s mother and others. While D was incarcerated mother and CVSD paid other payees in full to avoid collections. County gave credit to D for these payments and closed cases. Had to move to remedy - issue of substitution of payees.
Right to Confer/Be Consulted
• The Language:
– In Oregon: “The right to be consulted, upon request, regarding plea negotiations involving any violent felony.” Or. Const. art. I, § 42 (1)(f).
– Federal: “The reasonable right to confer with the attorney for the Government in the case.” 18 U.S.C. § 3771
• Case Examples:
– State v. Acker, 27 P.3d 1071 (Or. Ct. App. 2001) (finding prosecutor could confer with and consider the victim’s opinions in deciding whether to prosecute so long as the prosecutor did not determine whether to extend a plea offer to the defendant based solely on the victim’s wishes)
– U.S. v. Heaton, 458 F. Supp. 2d 1271 (D. Utah 2006) (refusing to dismiss charge on government’s motion because no evidence that right to confer had been afforded).
Right to Protection
• The Language:
– In Oregon:
• “The right to be reasonably protected from the criminal defendant or the convicted criminal throughout the criminal justice process and from the alleged youth offender or youth offender throughout the juvenile delinquency proceeding..” Or. Const. art. I, § 42 (1)(a)
• “The right to have decisions by the court regarding the pretrial release of a criminal defendant based upon the principle of reasonable protection of the victim . . .” Or. Const. art. I, § 43 (1)(b).
– Federal: “The Right to be reasonably protected from the accused.” 18 U.S.C. § 3771.
– Routinely used nationwide to argue conditions of release
3. General Breakdown of SB233
• Section 1: Definitions
– Authorized prosecuting attorney
– Critical stage proceedings
• Excludes arraignments
– Reasonable efforts to inform
• Section 2: victim standing (victim, prosecutor, victim’s attorney)
• Section 3: Bulk of prosecutor’s duties
– Critical stage proceedings (not arraignment)
– Victims not in charging document
– Did victim ask prosecutor to assert and enforce
– Inform judge if victim present
• Section 4: schedule a hearing to reconsider release decision
– This covers arraignments
– Discretionary
•Section 5: plea and sentencing
– Victim is present
– Violent felonies (consult)
• Victim must know right to consult
• Section 6: Assertion of claims and Court’s duties
– File within 7 days
– Orally or form
– Facially valid notice to everyone
• Section 7: Court and Prosecutor
– Notice
– Ct issues Order to show cause
• Victim/def/pros may contest claim
– Pros good cause to suspend where minor victim or gang
• Section 9: Deadlines for challenging rights impact trial
– Victim or prosecutor assert within 35 days arraignment
– Defendant object to victim presence within 35 days of arraignment
• Section 10: Suspension of proceedings
– Only proceedings directly impacted by the right
– Ct shall consider several criteria whether to reschedule.
– Pretrial release only 14 days
– Trial
• Section 11: Court to issue order
• Section 12: Waiver of remedy
• Section 14: Interlocutory appeal with Supreme Ct
Adapted from a presentation by the National Crime Victim Law Institute.