Overview of State Victims' Rights Statutes and Procedural Protections

98 CASSELL ET AL. [Vol. 104 the criminal justice process.*!* Moreover, every state has adopted a statute that either enforces its constitutional amendment or creates independent statutory rights for crime victims.”'” As a result, state legislatures and state employees have attempted to give victims a voice in the criminal justice process across the country. Notably, while the strength of these rights varies from state to state, nearly forty states require the prosecuting attorney to notify or confer with the victim regarding plea negotiations.**’ Several jurisdictions involve the victim in the charging decision.” In some states, law enforcement and prosecutors must involve the victim at any “critical’”?”? 14 stage 220 or “crucia of the criminal proceeding; and in a minority of jurisdictions, the judge must ascertain whether the prosecutor has afforded the victim statutory protections prior to accepting a plea agreement.””° The general contours of state provisions suggest that several state governments have recognized the value in informing victims of their nghts and involving them in the criminal process prior to the formal filing of charges.”*° Indeed, a brief look at the statutory protections illustrates the extent to which states have attempted to afford protections to victims long before the formal filing of charges. 718 See Victims’ Rights Laws by State, NAT’L CRIME VictTIM L. INsT. (Oct. 17, 2013), http: //goo.gl/pdDx1 w (listing and linking to state laws and constitutional amendments). 719 See LAFAVEET AL., supra note 168, § 21.3(f), at 1041-42. 220 See generally DEAN G. KILPATRICK ET AL., NAT’L INsT. oF Justice, U.S. DEp’T oF JUSTICE, THE RIGHTS OF CRIME VICTIMS—DOES LEGAL PROTECTION MAKE A DIFFERENCE? (1998), available at http://go0.g//EzH61S. 21 See Peggy M. Tobolowsky, Victim Participation in the Criminal Justice Process: Fifteen Years After the President’s Task Force on Victims of Crime, 25 NEw ENG. J. oN CRIM. & CIV. CONFINEMENT 21, 64 & n.168 (1999) (citing to victims’ rights statutes in Connecticut, Hlinois, and Michigan, among others). Unfortunately, as some commentators have noted, the notice and conferral provisions in some states are ambiguous, and the absence of case law precludes a definitive understanding of the reach of the night in some Jurisdictions. See LAFAVEET AL., supra note 168, § 21.3(f), at 1041-42; see also, e.g., KAN. Stat. ANN. § 74-7333(a)(5) (2002) (“The views and concerns of victims should be ascertained and the appropriate assistance provided throughout the criminal process.”). In some jurisdictions, the ambiguous use of an illustrative list could be read as suggesting that a particular right, such as conferral, hinges on formal charges. See, e.g., Ky. REV. STaT. ANN. § 421.500(6) (LexisNexis Supp. 2012) (requiring consultation on “disposition of the case including dismissal, release of defendant pending judicial proceedings, any conditions of release, a negotiated plea, and entry into a pretrial diversion program,” but failing to define “disposition” or “case”). 22 See Tobolowsky, supra note 221, at 59-60. 223 Bg., LA. REV. STAT. ANN. §§ 46:1842(2), 46:1844(K) (2010). 24 Fg. FLA. Const. art. I, § 16(b) (refraining from identifying the term). 225 See LAFAVEETAL., supra note 168, § 21.3(f), at 1041. 26 See Victims’ Rights Laws by State, supra note 218. HOUSE_OVERSIGHT_014077