Monday, October 20, 2008

Focus on Proposition 9: Introducing Victims' Perspectives to Corrections

In 1964, Herbert Packer published his classic piece (later to become the centerpiece of his 1968 book), Two Models of the Criminal Process. The piece, inspired by the Warren Court changes to criminal procedure, presented two hypothetical models of criminal justice administration: the Crime Control model, whose main purpose is efficiency, and the Due Process model, which aims at reducing mistakes. In a crime control model, the process is shaped to weed out, at the earliest stages, cases in which guilt is dubious; the best way to do this is in the police investigation stage, which is not hindered by legal technicalities, and which is ideally designed for investigative truth-finding. After the problematic cases are removed from the system, we can assume a statistical, non-normative, "presumption of guilt" about the other cases, which can later be handled via plea bargaining. By contrast, a due process model is willing to sacrifice efficiency for the purpose of avoiding any chance of convicting the innocent. It therefore includes various guarantees for defendants' rights, including the normative "presumption of innocence", and indicates a preference for adversarial trials as truth-finding mechanisms over biased and overzealous police investigations. Existing legal systems, Packer suggested, could be placed along the spectrum; the Warren Court's enterprise could be explained as a shift along that continuum from crime control to due process.

Packer's analysis became a classic in the field, but was immediately the source of much criticism. Some argued that crime control and due process were not both hypothetical, normative models; while due process was a normative prescription, much empirical research conducted in the 1960s and 1970s showed that the realities of crime control subverted constitutional provisions. Others pointed out the absence of an important factor: the victim.

Soon after the publication of Packer's work, John Griffiths argued that the typology does not offer the opportunity for less adversarial, more conciliatory models, which might help victim and offender, with the help of the community, bridge their differences. A different type of victim-inclusive model was provided by Douglas Evan Beloof, who argues that a model sensitive to victims requires adding that third perspective. In his 1997 article, he argues that victims' rights are not adequately served by automatically aligning them with crime control and "war on crime" models. While sometimes victims seek more punitiveness and safety, in other settings their interests could align with the defendants (for example, if the victim and the defendant have reconciled and the government pursues the case), or could be adverse to both defendants and government (for example, if the latter parties have reached a plea agreement and the victim would like a trial).

Kent Roach offers a richer analysis, including two different victim-inclusive models: a punitive perspective, which he likens to a rollercoaster, and a non-punitive, restorative-justice-oriented model. The first model is driven by victims and their advocates, who are heard at any step of the process, and who invariably oppose any leniency. The second model is driven by a community seeking to address, and redress, wrongs that have been done, and advocates reparation and reconciliation. For more insights on victims' role in the criminal process, see Leslie Sebba's article.

Which of these models is the one advocated by Prop 9? It seems that Prop 9 has aligned itself with the punitive version of the victim-inclusive model. By voting "yes" on Prop 9, one has not only to agree that victims could, and should, be active participants in the criminal process; one also has to agree that victims' interests require putting more limitations on parole, including representation in parole hearings. This assumes that victims' interests will always side with the government against the defendant, which seems to be a less nuanced approach to the diverse realm of victim experiences, but which aligns with various similar legislation initiatives, such as those requiring registration and notification of sex offenders. It should be pointed out, though, that Prop 9, or "Marsy's Law", is not limited to sex offenders.

Prop 9 proposes a constitutional amendment to our Bill of Victims' Rights, which would include the following rights:
o punishment and deterrence of the offender
o finality of the legal process
o public safety and protection from the defendant (bail and parole)
o fairness and respect
o confidentiality about details regarding the victims' personal lives
o notice of trial developments and conference with prosecution
o hearing at any proceedings

Among other things, the victim would be entitled to see the presentence report and to receive the scheduled release date of the offender. Prop 9 also prioritizes monetary restitution to victims.

Other main provisions of Prop 9 address parole hearings, presumably under the assumption that the victims' natural interest is in hindering them. Some of these proposed changes are summarized below:

Parole hearings
o the victim, as well as the inmate, is entitled to stenographic record of all proceedings
o the parole hearing date should be established so that suitability for parole can be established
o after denial of parole, the next hearings should be scheduled only after consultation with the victim
o a big change: parole denial postpones the next hearing by longer periods of time (ranging from 3 to 15 years for lifers). Only one request to expedite will be considered every three years. This seriously limits inmates' access to parole hearings.
o parole hearings become de novo hearings; they do not rely on findings in previous parole hearings. However, inmates do not have a right to interrogate the victims during the hearing.

Victim notification and attendance
o the victim would be notified of a parole hearing 90 days in advance, and has to notify back about his or her intention to attend 30 days in advance.
o the victim can attend with limited number of family and representatives (including victim advocates!) all of whom can provide testimony at the hearing.

Parole revocation hearings:
o inmates would only be entitled to counsel in parole revocation hearings if they are indigent and some special circumstances apply.

By linking "War on Crime" considerations with victim rights, does Prop 9 violate the single-subject rule? Your opinion is as good as mine. It is clear, however, that if it doesn't, it certainly chooses one particular type of victim model over others.

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