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Victim Participation in the Criminal

Justice Process: Fifteen Years After the

Presidents Task Force on Victims of

Crime

Peggy M. Tobolowsky*

I. INTRODUCTION

The earliest criminal prosecutions were largely private proceedings

through which a victim sought retribution against and restitution from the

perpetrator of the crime.1 As countries became more organized and

structured, however, governments began to assume greater responsibility

for the initiation and conduct of criminal prosecutions, a change which

substantially reduced and often virtually eliminated the crime victims

previous role in the criminal justice process.2 This evolutionary trend

from private to public criminal prosecutions occurred in the United States

as this country moved from a collection of colonies to a federated nation

of states.3

The maintenance of a public criminal prosecution model and its accom-panying marginalization of the crime victim continued until the 1970s

when a victims movementemerged, which emphasized making the crime

victim an integral part of the criminal justice process once again.4

* Associate Professor and Associate Chair, Department of Criminal Justice,

University of North Texas; J.D., George Washington University, 1977.

1. See, e.g., A.S. DIAMOND, PRIMITIVE LAW 277-330 (2d ed. 1950); see alsoinfra notes 9-11 and accompanying text.

2. See, e.g., Richard E. Laster, Criminal Restitution: A Survey of Its Past His-tory and An Analysis of Its Present Usefulness, 5 U. RICH. L. REV. 71, 71-80(1970);see also infra notes 12-16 and accompanying text.

3. See, e.g., Juan Cardenas, The Crime Victim in the Prosecutorial Process, 9HARV . J. L. & PUB. POLY 357, 366-72 (1986); William F. McDonald, Towards a

Bicentennial Revolution in Criminal Justice: The Return of the Victim , 13 AM.

CRIM. L. REV. 649, 651-68 (1976); see also infra notes 17-26 and accompanyingtext.

4. See, e.g., Frank Carrington & George Nicholson, The Victims Movement:


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22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 25:21

Throughout the 1970s, the efforts of this grass roots movement began tobe translated into state and local legislation focusing on the crime victim

and his needs.5 Much of the initial legislation attempted to restore victim

entitlement or access to compensation or restitution for losses suffered asa result of the crime, but other means of involving the victim in the crimi-

nal justice process began to be identified as well.6

The efforts to reestablish a greater role for crime victims in the criminal

justice process received a major boost when President Ronald Reagan

established the Presidents Task Force on Victims of Crime in 1982.7 In

its Final Report issued that year, the Task Force proposed action recom-

mendations addressed to the federal and state executive and legislative

branches, criminal justice system agencies, and other professionals in-

volved in crime victim service delivery. These action recommendations,

including those for greater victim access to and participation in criminal

proceedings, were designed to restore balance to the criminal justice

system by better integration of the concerns of crime victims into the sys-

tem.8

In the fifteen years since the issuance of the Task Force Final Report,

there has been a literal explosion of federal and state action to increase

crime victim access to and participation in the criminal justice process. It

has largely centered on establishing and interpreting crime victims rights

to notice of and presence and hearing at critical stages of the criminal jus-

tice proceedings. This constitutional, legislative, and judicial action has

been accompanied by a wealth of policy advocacy and analysis and re-

search evaluation. This article examines the federal and state constitu-

tional, legislative, and judicial action, as well as its empirical and policy

analyses, to determine what has been accomplished regarding the expan-

An Idea Whose Time Has Come, 11 PEPP . L. REV. 1, 1-5 (1984); see generallyGeorge Nicholson, Victims Rights, Remedies, and Resources: A Maturing Pres-ence in American Jurisprudence, 23 PAC. L.J. 815 (1992); Victims Rights Sympo-

sium , 11 PEPP. L. REV. 1 (1984). During this period, the first of several nationalorganizations addressing crime victim issues was also established. The National

Organization for Victim Assistance (NOVA) was subsequently joined by MothersAgainst Drunk Driving (MADD), the Victims Assistance Legal Organization(VALOR), the National Victim Center (NVC), and other national groups. SeeCarrington & Nicholson, supra at 2, 5-6 & n.17; LeRoy L. Lamborn, Victim Par-ticipation in the Criminal Justice Process: The Proposals for a Constitutional

Amendment, 34 WAYNE L. REV. 125, 131 n.35 (1987).5. See John R. Anderson & Paul L. Woodard, Victim and Witness Assistance:

New State Laws and the Systems Response, 68 JUDICATURE 221, 222-23 (1985).6. See id. at 221-222.7. See PRESIDENTS TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT ii-iii

(1982) [hereinafter PRESIDENTS TASKFORCE].8. See id. at ii-v.


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Winter, 1999] VICTIM PARTICIPATION 23

sion of victim participation in the criminal justice process in the fifteenyears since the Presidents Task Force on Victims of Crime.

II. THE ROLE OF THE CRIME VICTIM PRIOR TO THE PRESIDENTSTASKFORCE

In ancient times, wrongs done to a person or his property were generally

regarded as private matters, subject to remedial action by a victim and his

family against an offender and his family. Norms of permissible retalia-tion and recompense arose among tribal and family-based cultures for

what are now regarded as criminal offenses against individual victims.9

The early centrality of the victims role in these primitive criminal pro-

ceedings is evidenced by provisions of the Torah, the Code of Hammu-

rabi, and other ancient codes. These codes require offenders repayment

in kind or extent to those suffering criminal victimization in addition to or

instead of prescribed retributive sanctions.

10

The goals of these early legalsystems were to make the victim whole and to minimize private revenge.11

This victim-centered system of redress continued in early Western law

until approximately the eleventh century.12 After this time, however,

monarchs and their governments became increasingly involved in ad-

dressing harm inflicted by their subjects on each other.13 Most individual

acts committed against a person or his property became offenses against

the kings peace or the crown rather than private matters to be resolved

by the affected parties.14 Fines paid by the offender to the government and

9. This system applied to acts ranging from theft and destruction of property tosexual assault and homicide. See DIAMOND, supra note 1, at 277-330; Harold J.Berman, The Background of the Western Legal Tradition in the Folklaw of the

Peoples of Europe , 45 U. CHI. L. REV. 553 (1978); Laster, supra note 2, at 71-75;Marvin E. Wolfgang, Victim Compensation in Crimes of Personal Violence, 50

MINN. L. REV. 223, 223-26 (1965). See generally A.S. DIAMOND, PRIMITIVE LAW

PAST AND PRESENT (1971) (describing evolution of early law). Disputed matterswere resolved by the community or its elders. See DIAMOND,supra note 1, at 194-201.

10. See DIAMOND,supra note 1, at 22-45, 85-133, 277-330.

11. See Berman, supra note 9, at 556-59; Laster, supra note 2, at 71-75; Wolf-gang,supra note 9, at 224-25.

12. See Berman,supra note 9, at 557, 575-76.

13. Historians attribute this shift in approach to various factors including theexpansion of central authority and kingship, the growth and influence of the

Church, the evolution of a structured court system, and evolving notions of pun-ishment. See Berman,supra note 9, at 567-86; Laster, supra note 2, at 74-75. See

generally FREDERICKPOLLACK& FREDERIC WILLIAM MAITLAND, THE HISTORY OFENGLI SH LAW BEFORE THE TIME OF EDWARD I (2d ed. 1959) (describing back-ground of English law).

14. See Berman,supra note 9, at 574-75. A transformation in notions of privateor civil as opposed to public or criminal wrongs occurred. In early legal systems,


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capital, corporal, and other forms of offender punishment increasinglyaccompanied and often replaced the previous requirements of offender

restitution to the victim.15 The crime victims role was thus substantially

reduced in the criminal proceedings which evolved over time generally toinvolve the government and the offendernot the victimas parties.16

only a few acts (including witchcraft, bestiality, and incest) were regarded ascriminal offenses, i.e., wrongs against the community or public as a whole. SeeDIAMOND,supra note 1, at 290-91. Most acts against individuals (including homi-

cide, personal injuries, rape, adultery, and theft) were treated as private or civilwrongs for which there were prescribed restitutive or retaliatory remedies for thevictims. See id. at 277-330. In this process of evolution, however, most of these

previously private or civil wrongs became criminal offenses subject to prosecutionin the professional court system created, in part, to deal with these offenses. See

id.; Berman,supra note 9, at 574-75; Laster,supra note 2, at 79.15. See DIAMOND, supra note 1, at 277-330; Laster, supra note 2, at 75-80;

Wolfgang,supra note 9, at 228-29.16. See Laster,supra note 2, at 79-80. In Western legal systems, crime victims

have retained varying rights of participation in criminal proceedings and varying

remedies from them. For example, in England, the legal system on which theAmerican justice system is most closely based, wide authorization of private (i.e.,victim) initiation and conduct of criminal prosecution existed until the nineteenth

century, as well as public or governmental criminal prosecution. See Cardenas,supra note 3, at 359-66. As a result of a confluence of factors (e.g., the advent of

modern police forces which assumed the primary responsibility for investigatingcrimes and initiating criminal complaints, a change in correctional philosophyinspired by Cesare Beccaria and advocated by Jeremy Bentham, and a concern

about abuses in the private prosecution system), Parliament enacted the Prosecu-tion of Offenses Act in 1879 which established the Office of Director of PublicProsecutions and strengthened public control over prosecutions initiated in Eng-

land. See id. Although private citizens theoretically retain a right to initiate andconduct prosecutions for many crimes, this right is rarely exercised and is gener-

ally limited to cases involving commercial or business offenses or very minorcrimes. See id.; Matti Joutsen, Victim Participation in Proceedings and Sentenc-ing in Europe, 3 INTL. REV. VICTIMOLOGY 57, 59-60 (1994); Andrew Sidman,Comment, The Outmoded Concept of Private Prosecution, 25 AM. U. L. REV. 754,756-62 (1976).

In terms of victim remedies, in addition to primary sanctions of imprison-ment, probation, and fines, compensation orders are now increasingly used inEngland. Mike Maguire & Joanna Shapland, Provision for Victims in an Interna-tional Context, in VICTIMS OF CRIME 211, 220 (Robert C. Davis et al. eds., 2d ed.1997). These orders are penal sanctions, enforced by the state, and have priority

over fines. See id. Recent legislation requires that the court give reasons for notissuing a compensation order if an identifiable victim has suffered a loss. See Jout-

sen,supra at 62; Maguire & Shapland,supra at 220-21.In most European jurisdictions, the crime victim has retained a legal right to

participate to some degree in the criminal prosecution. See Joutsen, supra at 59.Only in Finland does a victim have an independent right to prosecute for mostoffenses. See id. at 60. In some countries (e.g., Austria, Denmark, Germany,


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In this country, a similar evolution from a private to a public prosecu-tion system took place. In colonial America, law enforcement and the ad-

ministration of justice were primarily conducted by individual victims

with the assistance of public officials who charged fees for theirservices.17 The victim was responsible for arresting his offendereither

himself or with the aid of the local watchman, justice of the peace, or con-

stable for whose assistance the victim paid. The victim was also responsi-

ble, at his own expense, for investigating the crime, filing the formal

charges, and prosecuting the offender. In return for a successful prosecu-

tion, the victim could receive damages from offenders who could pay, or

keep or sell an indigent offenders services for a period corresponding to

the amount of damages owed.18

By the time of the American Revolution, however, significant changes

had begun to occur in the administration of justice.19 Philosophically,

Hungary, Norway, Poland, Russia, Scotland, and Yugoslavia), victims can initiateand maintain a private criminal prosecution only for minor crimes in which there

is no public interest in prosecution. See id. Austria, Norway, and Sweden alsoallow a victim a secondary right to prosecute if the public prosecutor declines toinitiate a criminal prosecution. See id. In Austria, Germany, Norway, Poland,

Sweden, and Yugoslavia, victims are allowed to function as subsidiary or sup-porting prosecutors by proposing or submitting evidence, commenting on submit-

ted evidence, and being heard on the charges in court. Seeid. at 61.Although imprisonment, probation, and fines have become the most common

sanctions in Europe, compensatory payments to the victim are authorized either as

an independent sanction (e.g., in Greece, Ireland, Scotland, and Turkey) or as acondition of probation or a suspended sentence (e.g., in Austria, Denmark, Ger-many, France, Greece, Italy, the Netherlands, Norway, Poland, and Sweden). See

id. at 61-62. Austria, France, Germany, and the Netherlands also allow a victim topursue a civil claim against the offender in the same proceeding as the criminal

trial. See Maguire & Shapland,supra at 219-20.Reflecting a general concern for the victims role, the United Nations Gen-

eral Assembly adopted a Declaration of Basic Principles of Justice for Victims ofCrime and Abuse of Power in 1985 which encourages the facilitation of judicialand administrative responsiveness to crime victim needs by allowing the views

and concerns of the victims to be presented and considered at appropriate stages ofthe proceedings where their personal interests are affected, without prejudice tothe accused and consistent with the relevant national criminal justice system.

Matti Joutsen, Listening to the Victim: The Victims Role in European CriminalJustice Systems, 34 WAYNE L. REV. 95, 119-20 & n.84 (1987).

17. See Cardenas, supra note 3, at 366-68; Deborah P. Kelly, Victims, 34WAYNE L. REV. 69, 82-83 (1987); McDonald,supra note 3, at 651-54.

18. See Cardenas, supra note 3, at 366-68; McDonald, supra note 3, at 652-53.The victim was also responsible for the offenders pretrial and sometimes post-conviction incarceration expenses. See Cardenas, supra note 3, at 367-68;McDonald,supra note 3, at 653.

19. See Cardenas,supra note 3, at 368, 371; McDonald,supra note 3, at 654.


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these changes were motivated by Enlightenment notions that criminalprosecutions should serve societal interests of deterrence and retribution

rather than interests of individual victims in private redress.20 Practically,

the changes were influenced by the increasing urbanization and diversifi-cation of American life which rendered the previous private prosecution

system ineffective and sometimes corrupt.21

Consequently, professional

government-operated police forces began to replace the previous system

of volunteer or privately paid law enforcement officers, informers, and

bounty hunters.22 Imprisonment and fines replaced capital and corporal

punishments as the primary criminal sanctions.23 Restitutive damages to

the victim were no longer actively pursued through the criminal justice

process.24 Finally, a public prosecution system evolved in which a public

prosecutornot the victiminitiated and conducted the criminal prose-

cution on behalf of the government.25 By the middle of the nineteenth

century, these changes had substantially transformed the American crimi-

nal justice system from a private to a public system. This transformation

moved the crime victim from occupying the central role to one of lookingon from the sidelines in the administration of justice in this country.26

The crime victim remained effectively sidelined in the American

criminal justice process until the convergence of several factors in the

middle of this century. Just as Enlightenment philosophical and theoreti-

cal thought had shifted the focus of the criminal justice process from the

victim to society in the eighteenth century,27 a new theoretical approach

which focused on the crime victim and became known as victimology

20. See Cardenas,supra note 3, at 369; McDonald,supra note 3, at 654-56. Seegenerally CESARE BECCARIA, ESSAY ON CRIMES AND PUNISHMENTS (1764) (de-

scribing the criminal justice philosophy of the most influential Enlightenmenttheorist in this regard).

21. See Cardenas,supra note 3, at 368-69; McDonald,supra note 3, at 653-54.22. See McDonald,supra note 3, at 665-67.23. See id. at 657.

24. See id. at 656-59.25. See Cardenas, supra note 3, at 369-71; McDonald, supra note 3, at 660-61.

Historians dispute whether the American system of public prosecutors and prose-

cutions evolved from the English Attorney-General or Justice of the Peace, theDutchschout, or the French prosecutor de roi, or whether it was a purely Ameri-

can response to the needs of this emerging nation. See Cardenas, supra note 3, at369-71; Josephine Gittler, Expanding the Role of the Victim in a Criminal Action:

An Overview of Issues and Problems, 11 PEPP. L. REV. 117, 125-32 (1984); Sid-man,supra note 16, at 762-65.

26. See McDonald,supra note 3, at 654-68.27. See Cardenas, supra note 3, at 369; McDonald, supra note 3, at 654-56;

supra note 20 and accompanying text.


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emerged in the middle of the twentieth century.28

In addition to exploringtheoretical bases for the study of victimology, researchers began to ex-

plore the psychological impact of victimization on victims, as well as the

impact of their significant exclusion from the criminal justice process.29

Researchers also began to identify proposed changes in the criminal jus-

tice system which they felt would be more responsive to victim needs and

desires. These changes included the restoration of restitutive remedies

and greater victim participation and input in the criminal justice process.30

28. Most trace the modern study of victimology to the seminal works of Hans

von Hentig and Benjamin Mendelsohn in which they established victim typologiesand explored various aspects of the victim-criminal relationship. See STEPHEN

SCHAFER, VICTIMOLOGY: THE VICTIM AND HIS CRIMINAL 33-41 (1977); WILLIAM

G. DOERNER& STEVEN P. LAB, VICTIMOLOGY 4-7 (2d ed. 1998). See generallyHANS VON HENTIG, THE CRIMINAL AND HIS VICTIM: STUDIES IN THE SOCIOBIOLOGY

OF CRIME (1948); Benjamin Mendelsohn, The Victimology, ETUDESINTERNAT IONA LES DE PSYCHO-SOCIOLOGIE CRIMINELLE, July 1956, at 23. Subse-quent theorists expanded the study of victimology to encompass other aspects of

crime victims and victimization generally. See DOERNER & LAB, supra at 12-14(describing general victimology); R.I. MAWBY & S. WALKLATE, CRITICAL

VICTIMOLOGY 7-22 (1994) (describing positivist, radical, and critical victi-

mology concepts); SCHAFER, supra at 41-97 (describing evolving theoretical ap-proaches and early supporting empirical research).

29. See, e.g., Lynne N. Henderson, The Wrongs of Victims Rights, 37STAN. L.REV. 937, 953-66 (1985) (discussing feelings of fear, isolation, mortality, and lossof control as victims seek meaning to victimization); Robert F. Kidd & Ellen F.

Chayet, Why Do Victims Fail to Report? The Psychology of Criminal Victimiza-tion, 40 J. SOC. ISSUES 39 (1984) (discussing the relationship of fear, helpless-ness, powerlessness, and threat of further victimization); Dean G. Kilpatrick &

Randy K. Otto, Constitutionally Guaranteed Participation in Criminal JusticeProceedings for Victims: Potential Effects on Psychological Functioning, 34

WAYNE L. REV. 7, 9-20, 26 (1987) (describing trauma, anxiety, fear, loss of con-trol, helplessness, vulnerability from victimization in terms of specific explanatory

psychological theories). See generally Pamela Tontodonato & Edna Erez, Crime,Punishment, and Victim Distress, 3 INTL REV. VICTIMOLOGY 33, 34-36 (1994)(providing overview of psychological research on victim responses to crime and

the criminal justice process).30. Researchers by no means reached unanimous conclusions as to the most

appropriate responses of the criminal justice system to crime victim needs. See,e.g., Ezzat A. Fattah, Toward a Victim Policy Aimed at Healing, Not Suffering, inVICTIMS OF CRIME, supra note 16, at 257 (suggesting that a restorative justice

system based on mediation, reconciliation, restitution, and compensation is moreresponsive to victim needs of healing, recovery, redress, and prevention of future

victimization than increased input and participation in a punishment-based sys-tem); Gittler, supra note 25, at 135-78 (identifying victim interests in restitutionand retribution and societal interests in reducing victim alienation from the crimi-nal justice system and responsive limited private prosecution opportunities, ex-

panded victim input and participation in criminal prosecutions, and potential lim-


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Theory was translated into action in this country in the 1960s as a resultof a renewed American interest in and concern about crime in general and

about victims of crime in particular.31 Following the models of predeces-

sor grass roots movements,32 a victims movement arose in the UnitedStates by the 1970s.33 During this decade, significant victim-centered

ited party status, as well as alternative arbitration and mediation approaches);Henderson,supra note 29, at 986-1012 (suggesting limited utility to the victim of

participation in sentencing process other than to assist in determination of restitu-

tion); Deborah P. Kelly, Victims Perceptions of Criminal Justice, 11 PEPP . L.REV. 15 (1984) (suggesting increased victim participation and status in the justicesystem would reduce victim dissatisfaction with the system and loss of controlfrom victimization); Kilpatrick & Otto, supra note 29, at 22-28 (theorizing thatguaranteed victim rights of input and participation in criminal proceedings could

reduce victim feelings of helplessness and lack of control and increase victim sat-isfaction with the criminal justice system).

31. See Carrington & Nicholson,supra note 4, at 1-5; Marlene A. Young, VictimRights and Services: A Modern Saga, in VICTIMS OF CRIME,supra note 16, at 194,195-96.

32. See Young, supra note 31, at 196. Although the victims movement wasinfluenced by the civil rights model, it emerged more directly from the evolvingwomens movement. See id. Many of the early leaders in the victims movement

were concerned about the criminal justice system treatment of the mostly femalevictims of sexual assault and domestic violence. See id. They attributed what they

viewed as an inadequate system response to these crimes as symptomatic ofwomens lack of status and power. See id.

33. See Carrington & Nicholson, supra note 4, at 1-6. Individual victims and

victim service and support providers and advocates had begun to network at thelocal level during this period. See id. at 2. There is no single moment or eventmarking the coalescing of these efforts into the victims movement. Some identify

Californias enactment, in 1965, of the first state statute providing compensationfor victims of violent crime, as the starting point of the movement. See id. Others

trace the movements origins to the first national conference on victim assistancein 1973. See Young,supra note 31, at 197. Some identify the subsequent estab-lishment, in 1975, of the National Organization for Victim Assistance, which wasformed to promote victim advocacy and issues nationwide and provide trainingopportunities for victim service providers. See id. Awareness of victimization and

victim needs was also increased during this period as a result of the developmentof national victimization surveys reflecting higher levels of crime and fear ofcrime than previously reported and of responsive initiatives funded by the federal

Law Enforcement Assistance Administration to improve victim services. See id. at195-97.

The development of this victims movement has not been without its critics.Some have been concerned that the establishment of professional victim service

providers would create dependency, distance victims from their own social net-works, result in dissatisfaction and frustration from unmet expectations, createvictim stereotypes, and delay the natural healing process from victimization. See,e.g., Robert Elias, Community Control, Criminal Justice and Victim Services, inFROM CRIME POLICY TO VICTIM POLICY: REORIENTING THE JUSTICE SYSTEM, at 290


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achievements were accomplished, including the enactment of legislationin a majority of states to provide compensation for victims of violent

crimes, the creation of victim service and assistance programs in many

locations around the country, the establishment of several national organi-zations focusing on general or specific crime victim issues, and the per-

formance of research on a variety of crime victim issues.34

Crime victim issues were truly raised to national prominence, however,

when President Ronald Reagan established the Presidents Task Force on

Victims of Crime in 1982.35 The nine-member Task Force reviewed ex-

isting literature on criminal victimization and held hearings around the

country to obtain input from professionals responsible for serving the

needs of crime victims and from victims of crime themselves.36 In De-

cember 1982, the Task Force issued a Final Report which included over

sixty action recommendations addressed to the federal and state legislative

and executive branches, criminal justice system agencies (i.e., the police,

prosecutors, judiciary, and parole authorities), and other professionals

(Ezzat A. Fattah ed., 1986); Ezzat A. Fattah, From Crime Policy to Victim Policy:The Need for a Fundamental Policy Change, in VICTIMS OF CRIME AND THE

VICTIMIZATION PROCESS, at 75, 80-83 (Marilyn McShane & Frank P. Williams III

eds., 1997); Fattah, supra note 30, at 268-69. As the victims movement becamemore concerned with effecting changes in the criminal justice system to provide

victims greater access and participation, some critics were concerned that victimactivists intentionally or inadvertently were creating a contest of rights betweenvictims and offenders or providing inappropriate responses to real victim needs.

See, e.g., Fattah, supra note 30, at 262-70; Henderson, supra note 29, at 961-66,986-1012; Christopher R. Goddu, Comment, Victims Rights or a Fair TrialWronged?, 41 BUFF. L. REV. 245 (1993). Moreover, system changes sometimes

espoused by those in or associated with the victims movement (e.g., denial ofbail, abolit ion of the exclusionary rule, mandatory sentencing, and elimination of

parole) have been criticized as a co-option of victim concerns by those with acrime control approach to criminal justice. See, e.g., Fattah, supra note 30, at261-63; Henderson, supra note 29, at 942-53, 966-86. See generally ROBERTELIAS, VICTIMS STILL: THE POLITICAL MANIPULATION OF CRIME VICTIMS (1993)(describing various forms of manipulation of victims); FRANK J. WEED,

CERTAINTYOF JUSTICE: REFORM IN THE CRIME VICTIM MOVEMENT (1995) (exam-ining the movements issues and organizations); Ezzat A. Fattah, Prologue: On

Some Visible and Hidden Dangers of Victim Movements, in FROM CRIME POLICYTO VICTIM POLICY: REORIENTINGTHE JUSTICE SYSTEM, supra at 1 (discussing allof the above concerns).

34. See Young,supra note 31, at 195-97.35. See PRESIDENTS TASK FORCE, supra note 7, at ii-iii; see Carrington &

Nicholson, supra note 4, at 7; Young, supra note 31, at 198. President Reaganseffort to increase the national visibility of crime victim issues is also demonstrated

by his proclamation of the first National Victims Rights Week in 1981. See Car-rington & Nicholson,supra note 4, at 7; Young, supra note 31, at 197.

36. See PRESIDENTS TASK FORCE,supra note 7, at ii-iii.


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involved in crime victim service delivery (i.e., health care personnel,clergy, lawyers, educators, mental health care providers, and relevant pri-

vate sector personnel).37

Several of these action recommendations encouraged greater victimaccess to and participation in the criminal justice process.38 Such recom-

mendations included those made to the police and prosecutors to inform

victims of the status of investigations and prosecutions.39 They included

recommendations to the federal and state legislatures to require victim

impact statements at sentencing.40 The Task Force also recommended that

prosecutors consult with victims and inform the court of the views of vic-

tims of violent crime regarding bail, pleas, sentencing and restitution.41 It

also suggested that prosecutors inform these victims of opportunities to

provide input to the court regarding sentencing.42 The Task Force recom-

mended that judges allow the victim and a family member to attend trial,

even if identified as witnesses, absent a compelling contrary need, and

allow and give appropriate weight to input at sentencing from victims of

violent crime.43

Finally, the Task Force recommended that paroleauthorities notify victims and their families of parole hearings and allow

them or their representatives to attend the hearings and tell the authorities

of the crimes effects on them.44 At the time of the Task Force Final Re-

port, few states required these means of victim access to and participation

37. Seegenerally PRESIDENTS TASK FORCE, supra note 7. These recommenda-

tions ranged from proposed changes in criminal justice process and procedure

(e.g., abolition of the exclusionary rule, establishment of preventive detention ofsuspects prior to trial, restrictions on judicial sentencing discretion, and abolitionof parole) to encouraged expansion of victim services, compensation, and restitu-

tion. See id. Recommendations also suggested practices to make the criminaljustice process and related victim service delivery system more victim friendly.

Seeid.38. See id. at 114. The Task Force also proposed that the Sixth Amendment to

the United States Constitution be amended to add: Likewise, the victim, in everycriminal prosecution shall have the right to be present and to be heard at all criticalstages of judicial proceedings. Id. See generally Symposium, Perspectives on

Proposals for a Constitutional Amendment Providing Victim Participation in theCriminal Justice System, 34 WAYNE L. REV. 1 (1987) (providing analysis of initialconstitutional proposals); Peggy M. Tobolowsky, Constitutionalizing CrimeVictim Rights, 33 CRIM. L. BULL. 395 (1997) (analyzing recent proposals).

39. See PRESIDENTS TASK FORCE,supra note 7, at 60-61, 64. The prosecutors

proposed duty to keep a victim of violent crime informed of the prosecutionsstatus extended through the parole hearing stage. See id. at 64.

40. See id. at 33.41. See id. at 65-66.42. See id.43. See id. at 76-78, 80.44. See id. at 83-84.


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in the criminal justice process.45

Authorization for victim participation in the criminal justice process has

increased exponentially in the fifteen years since the issuance of the Task

Force Final Report. Currently, the federal government and the majority ofthe states have constitutional or legislative provisions (or both) which re-

quire victim notification of important events and actions in the criminal

justice process and allow, to varying degrees, crime victim presence and

hearing at critical stages of the criminal justice process.46

Over the past

fifteen years, federal and state courts have been required to construe and

interpret these victim rights of participation. In addition, researchers have

attempted to assess the merits and effectiveness of these rights, when im-

plemented.47 The remainder of this article examines the above-described

constitutional, legislative, judicial, and research actions which have estab-

lished, interpreted, and analyzed crime victim rights to notice of and pres-

ence and hearing at critical stages of the criminal justice process.

45. A report on the progress of implementation of the Task Force recommenda-

tions reflected that, prior to 1982, only two states required victim notification ofcrucial developments in the proceedings, one state authorized victim input into key

prosecutorial decisions, eight states required a victim impact statement at sen-tencing, three states authorized victim allocution at sentencing, and six states al-lowed victims and other members of the public to attend parole hearings. OFFICE

OF JUSTICE PROGRAMS, U.S. DEPTOF JUSTICE, FOUR YEARS LATER: A REPORT ONTHE PRESIDENTS TASK FORCEON VICTIMSOF CRIME 4 (1986) [hereinafter OFFICEOF JUSTICE PROGRAMS].

46. See, e.g., Deborah P. Kelly & Edna Erez, Victim Participation in the Crimi-nal Justice System, in VICTIMSOF CRIME, supra note 16, at 231, 233-35; David L.

Roland,Progress in the Victim Reform Movement: No Longer the Forgotten Vic-tim, 17 PEPP. L. REV. 35, 48-57 (1989); Tobolowsky, supra note 38, at 397-422;Karyn Ellen Polito, Note, The Rights of Crime Victims in the Criminal JusticeSystem: Is Justice Blind to the Victims of Crime?, 16 NEW ENG. J. ON CRIM . &CIV. CONFINEMENT 241, 242-60 (1990). See generally NATIONAL NETWORK TO

END DOMESTIC VIOLENCE, SURVEY OF STATE LAWS AND CONSTITUTIONAL

PROVISIONS REGARDING CRIME VICTIMS RIGHTS (1997) [hereinafter NATIONAL

NETWORK]; NATIONAL VICTIM CENTER, THE 1996 VICTIMS RIGHTS SOURCEBOOK:

A COMPILATIONAND COMPARISON OF VICTIMS RIGHTS LAWS (1996) [hereinafterNVC] (containing compilations of laws regarding victim rights of participation

and certain other rights); OFFICE FOR VICTIMS OF CRIME, U.S. DEPT OF JUSTICE,NEW DIRECTIONS FROM THE FIELD: VICTIMS RIGHTS AND SERVICES FOR THE 21

ST

CENTURY (1998) (reviewing progress in implementation of Task Force recommen-dations and making additional recommendations).

47. See generally Kelly & Erez,supra note 46, at 235-42 (providing overview ofsome of the court decisions and research studies regarding victim participation inthe criminal justice process).


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III. VICTIMS CURRENT RIGHTS OF PARTICIPATION IN THE

CRIMINAL JUSTICE PROCESS

A. Introduction

In the fifteen years since the issuance of the Task Force Final Report,

the federal government and all of the states have enacted legislation that

provides at least some victim rights of participation in the criminal justice

process, such as the rights to be notified of key proceedings and outcomes,to consult with the prosecutor about important decisions in the prosecu-

tion, and to be present and heard at significant court or correctional pro-

ceedings.48 Twenty-nine states have ratified victim rights constitutional

amendments which generally include victim rights of participation to

some degree.49 These legislative and constitutional provisions and the

48. The legislative materials addressing victim rights to notice regarding and

presence and hearing at critical stages of the proceedings which are referenced inthis article are generally current through 1997. They represent the most frequently

provided victim participatory rights. A few states provide additional participatoryrights. See, e.g., ALA. CODE 15-14-53 (1995) (allowing the victim to be seated at

counsel table with the prosecutor); CAL. PENAL CODE 868.5 (West Supp. 1998)(authorizing a supporting witness for a testifying victim); 725 ILL. COMP . STAT.ANN. 120/4.5 (West Supp. 1998) (providing an advocate or supporting person for a

victim at court proceedings); IOWA CODE ANN. 910A.20 (West Supp. 1998) (al-lowing a victim counselor to be present in proceedings with a victim); N EV.REV. STAT. ANN. 178.571 (Michie 1997) (allowing a victim attendant during

testimony); OHIO REV. CODE ANN. 2930.09 (Anderson 1996) (permitting a per-son to accompany a victim in court and provide support). Some states even

authorize limited forms of private prosecution or private assistance in publicprosecutions, approaches endorsed by some commentators. See, e.g., 725 ILL.COMP . STAT. ANN. 120/4.5 (West Supp. 1998); LA. REV. STAT . ANN. 46:1844(West Pamp. 1998); Cardenas, supra note 3, at 372-98; Gittler, supra note 25, at150-63, 168-71; Abraham S. Goldstein, Defining the Role of the Victim in Crimi-

nal Prosecution, 52 MISS. L.J. 515, 547-61 (1982); Ellen Yaroshevsky, BalancingVictims Rights and Vigorous Advocacy for the Defendant, 1989 ANN. SURV. AM.L. 135, 145-46 (1989). But see, e.g., ALA.CODE 15-23-66 (1995); MISS. CODE

ANN. 99-36-5 (1994); VT. STAT. ANN. tit. 13, 5319 (Supp. 1998); Donald J.Hall, The Role of the Victim in the Prosecution and Disposition of a Criminal

Case, 28 VAND.L. REV. 931, 984 (1975); Sidman,supra note 16, at 754. See gen-erally Herbert B. Chermside Jr., Annotation, Power of Private Citizen to Institute

Criminal Proceedings Without Authorization or Approval by Prosecuting Attorney,66 A.L.R. 3d 732 (1975).

49. As of 1997, twenty-nine states have ratified victim-related constitutionalamendments. See ALA. CONST. amend. 557; ALASKA CONST. art. I, 24; ARIZ.CONST. art. II, 2.1; CAL. CONST. art. I, 28; COLO. CONST. art. II, 16a; CONN.


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court decisions interpreting them vary widely.At the outset, although the federal government and every state have

either legislation or a constitutional provision (or both) regarding at least

some of the victim rights of participation in the criminal justice process,not all of these provisions apply to victims50 of all crimes.51 Most states

CONST. art. XXIX; FLA. CONST. art. I, 16; IDAHO CONST. art. I, 22; ILL. CONST.art. I, 8.1; IND. CONST. art. I, 13; KAN. CONST. art. XV, 15; MD. CONST. art.47; MICH. CONST. art. I, 24; MO. CONST. art. I, 32; 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, 10a; OKLA. CONST. art. II, 34; OR.CONST. art. I, 42; R.I. CONST. art. I, 23; S.C. CONST. art. I, 24; 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, 9m.

Proposals for a federal victim rights constitutional amendment are pendingin the United States Senate and House of Representatives. See S.J. Res. 6, 105th

Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997); see also 143 CONG. REC. S163,S561 (daily ed. Jan. 21, 1997) (containing text of S.J. Res. 6); File hj71.ih (visitedJune 24, 1998) (containing text of

H.R.J. Res. 71); cf. H.R. 1322, 105th Cong. (1997) (providing proposed legislationto implement constitutional amendment and to replace existing federal statutoryvictim rights provisions in 42 U.S.C.A. 10606, 10607 (West 1995)); File

h1322.ih (visited June 24, 1998) (containing text of H.R. 1322).

See also generally NATIONAL NETWORK, supra note 46; NVC, supra note46; Kelly & Erez, supra note 46, at 233-35; Symposium, supra note 38; Tobolow-sky,supra note 38, at 405-15 (describing constitutional provisions).

50. The prescribed victim rights are typically extended to the direct crime victimor a family member (or other designated victim representative) in the case of amurdered, incapacitated, incompetent, or minor victim. See, e.g., 42 U.S.C.A.

10607 (West 1995); COLO. REV. STAT. ANN. 24-4.1-302 (West Supp. 1998); KY.REV. STAT. ANN. 421.500 (Michie Supp. 1996); N.H. REV. STAT. ANN. 21-

M:8-k (Supp. 1997); S.C. CODE ANN. 16-3-1510 (Law. Co-op. 1997); State v.Roscoe, 912 P.2d 1297 (Ariz. 1996) (en banc) (holding that a policeman was avictim under state constitutional victim rights provisions and declaring con-flicting statute and procedural rule unconstitutional). But see, e.g., State v. Supe-rior Court of County of Maricopa, 922 P.2d 927 (Ariz. Ct. App. 1996) (finding that

person who committed suicide after a sexual assault was not murdered and thusparents were not victims in the sexual assault prosecution); Wallace v. State,486 N.E.2d 445 (Ind. 1985), cert. denied, 478 U.S. 1010 (1986) (concluding that

particular victim rights provision applied only to direct victim of crime and not tohomicide victims mother).

Some states expressly exclude individuals in custody and the accused fromtheir victim rights provisions. See, e.g., ALA. CODE 15-23-60 (1995); ARIZ.

REV. STAT. ANN. 13-4401 (West Supp. 1997); UTAH CODE ANN. 77-38-2(Supp. 1997); Stapleford v. Houghton, 917 P.2d 703 (Ariz. 1996) (finding thatcellmate victim of defendants assault was in custody and thus excluded from

prescribed victim rights); Knapp v. Martone, 823 P.2d 685 (Ariz. 1992) (en banc)(concluding that mother of children allegedly murdered by their father was still a


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limit their victim participatory rights to victims of certain crimes only.52

The most frequent limitations are the restriction of these rights to victims

of felony cases of any kind,53 to victims of crimes involving physical or

sexual violence or injury,54 or to victims of specifically enumerated of-fenses.55 The federal system and several states use a hybrid approach

restricting certain of the designated rights to victims of specific types of

crimes and authorizing other rights to apply to broader categories of vic-

tims.56

Only a few states extend the authorized participatory rights to vic-

victim despite potential but, as yet uncharged, role in the offense). Althoughthey are not addressed in this article, some states have separate rights provisionsfor victims of juvenile offenders. See, e.g., ARIZ. REV. STAT. ANN. 8-281 (WestSupp. 1997); MICH. COMP . LAWS ANN. 780.781 (West 1998); TEX. FAM. CODE

ANN. 57.001 (West 1996 & Supp. 1998). See generally NVC,supra note 46 (describing definitions of victims in state

victim rights statutes).51. In their victim rights constitutional provisions, most states entrust the defi-

nition of the crimes to be covered to their legislatures. See, e.g., COLO. CONST.

art. II, 16a; ILL. CONST. art. I, 8.1; MO. CONST. art. I, 32; VA. CONST. art. I, 8-A. Of the eight states with constitutional provisions that do not expressly dele-gate the definitional responsibility to their legislatures, Florida and Rhode Island

provide no limitations on the victims of crime covered (see FLA. CONST. art. I, 16; R.I. CONST. art. I, 23); New Jersey, Oregon, and South Carolina extend their

provisions to those suffering physical, psychological, property or financial harmfrom crime (see N.J. CONST. art. I, 22; OR. CONST. art. I, 42; S.C. CONST. art.I, 24); Utah and Washington primarily limit their coverage to victims of felony

offenses (see UTAH CONST. art. I, 28; WASH. CONST. art. I, 35); and NewMexico enumerates specific offenses covered by the provisions (see N.M. CONST.art. II, 24). In the proposed federal constitutional provisions, the Senate pro-

posal limits the specified rights to victims of violent crimes and other crimes de-fined by Congress. See S.J. Res 6, 105th Cong. (1997). The House of Represen-

tatives proposal covers victims of felonies and any other violent crime. See H.R.J.Res. 71, 105th Cong. (1997).

52. See generally NVC, supra note 46 (describing provisions regarding crimesto which victim rights apply).

53. See, e.g., ARIZ. REV. STAT. ANN. 13-4401 (West Supp. 1997) (including

violent misdemeanors); IDAHO CODE 19-5306 (1997) (including violent misde-meanors); MISS. CODE ANN. 99-36-3 (1994); OHIO REV. CODE ANN. 2930.01(Anderson 1996) (including 9 additional specified crimes); UTAH CODE ANN. 77-

38-5 (Supp. 1997).54. See, e.g., ALA. CODE 15-23-60 (1995); TEX. CODE CRIM . P. ANN. art.

56.01 (West Supp. 1998).55. See, e.g., COLO. REV. STAT. ANN. 24-4.1-302 (West Supp. 1997); N.M.

STAT. ANN. 31-26-3 (Michie Supp. 1998).56. See, e.g., 42 U.S.C.A. 10606, 10607 (West 1995); FED. R. CRIM. P. 32;

ALASKA STAT . 12.61.010, .015 (Michie 1996 & Supp. 1997); CAL. PENAL CODE 679.01, .03, .04 (West 1988 & Supp. 1998); IOWA CODE ANN. 910A.1, .9(West Supp. 1998); KAN. STAT . ANN. 22-3727, 74-7333 (1995 & Pamp. 1997);


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tims of virtually all crimes.57

Yet, for crime victimshowever definedto exercise their participa-

tory rights, they must first be made aware that such rights exist. Obvi-

ously, the sooner that a victim is notified of the existence of these rights,the greater the opportunity for the victim to exercise them. The federal

system and most states require that victims be given notice of the exis-

tence of their participatory rights and expressly entrust the notification

responsibility to the investigating law enforcement agency, the prosecutor,

or victim services personnel.58 Again, these notification provisions vary

significantly. In the federal system and the approximately twenty states

which require law enforcement personnel to make the rights availability

notification, the federal system and most of the states require that notifi-

cation be given at the initial contact with the victim or within a specific or

more general time period following the initial contact.59 Of the approxi-

mately twenty states that require prosecutors to notify victims of their

rights, most prescribe either general or no time limits for the notice.60

MD. ANN. CODE art. 27, 773, 776, 780, 784, 847 (1996 & Supp. 1998); MASS.ANN. LAWS ch. 258B, 1, 3; ch. 279, 4B (Law. Co-op. 1992 & Supp. 1997).

In addition, many states provide some victim rights which are available only

on victim request. See, e.g., ARK. CODE ANN. 16-21-106 (Michie Supp. 1997);MICH. COMP . LAWS ANN. 780.756, .763 (West 1998); TEX. CODE CRIM . P.

ANN. art. 56.02 (West Supp. 1998).57. Approximately five states generally do not impose restrictions on the crimes

for which victims are entitled to participatory rights. See ARK. CODE ANN. 16-

21-106 (Michie Supp. 1997); N.J. STAT. ANN. 52:4B-39 (West Supp. 1998);OKLA. STAT . ANN. tit. 19, 215.33 (West Supp. 1998); OR. REV. STAT. 131.007(Pamp. 1998); VT. STAT. ANN. tit. 13, 5301 (Supp. 1998).

58. Whatever entity is entrusted with the notification responsibility, most of thestates which require this rights notification require that victims be provided with

the information regarding the availability of their rights in written form. See, e.g.,FLA. STAT . ANN. 960.001 (West Supp. 1998); MICH. COMP . LAWS ANN. 780.756 (West 1998); N.Y. EXEC. LAW 646-a (McKinney 1996); TENN . CODEANN. 40-38-107 (1997). But see, e.g., IDAHO CODE 19-5306 (1997). See gen-erally NATIONAL NETWORK,supra note 46; NVC,supra note 46 (describing notifi-

cation of availability of rights provisions).59. See, e.g., 42 U.S.C.A. 10607 (West 1995) (requiring notification at the

earliest opportunity after detection of the crime); GA. CODE ANN. 17-17-6

(Harrison Pamp. 1997) (requiring notification upon initial contact with the vic-tim); OHIO REV. CODE ANN. 2930.04 (Anderson 1996) (specifying notification

promptly after the initial contact with the victim); WYO. STAT . ANN. 1-40-204(Michie 1997) (requiring notification without undue delay). But see, e.g. , LA.

REV. STAT. ANN. 46:1844 (West Pamp. 1998) (specifying no time period fornotification).

60. See, e.g., DEL. CODE ANN. tit. 11, 9411 (1995) (specifying notificationpromptly after the commencement of prosecution); IOWA CODE ANN. 910A.2(West 1994) (designating no time period for notification); MINN . STAT . ANN.


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Some states require notification by both the investigating law enforcementagency and prosecutor.61 Less than ten states give the notification respon-

sibility to their victim assistance personnel.62 Approximately ten states

either do not expressly assign the responsibility to make this notificationto any specific entity or do not expressly require that victims be notified of

the existence of their rights.63

The potential significance of a victims right to receive notice of the

existence of his rights is illustrated by the appellate courts decision in

State ex rel. Hance v. Arizona Board of Pardons and Paroles.64 In this

case, a victim was raped more than fifteen years prior to the ratification of

the Arizona constitutional victim rights amendment and the enactment of

its implementing legislation.65 These provisions require victim notifica-

tion of the existence of applicable rights, such as the right to be informed

of and to appear at post-conviction release proceedings as well as to be

informed of all releases from custody.66

The offender was still in custody

at the time that these rights provisions became effective.67 The State

Board of Pardons and Paroles subsequently held a hearing at which it ap-proved the offenders release to home arrest.68 The hearing was conducted

without notice to the victim of the release proceedings, opportunity to

appear at the proceedings, or the proceedings outcome.69 When she sub-

sequently learned of the offenders scheduled release to home arrest, the

611A.02 (West Pamp. 1998) (requiring notification within a reasonable timeafter the offender is charged). But see, e.g., N.M. STAT. ANN. 31-26-9 (Michie

Supp. 1997) (specifying notification within seven working days after filing of theformal charge);TEX. CODE CRIM . P.ANN. art. 56.08 (West Supp. 1998) (requiringnotice within 10 days after return of indictment or information).

61. See, e.g., DEL. CODE ANN. tit. 11, 9410, 9411 (1995); OHIO REV. CODEANN. 2930.04, .06 (Anderson 1996 & Supp. 1997).

62. See, e.g., CONN. GEN. STAT. 54-203 (1997); R.I. GEN. LAWS 12-28-10(1994).

63. In their constitutional victim rights provisions, Missouri, North Carolina,Oregon, and South Carolina require that victims be informed of their rights, but donot designate any entity to make the notification. See MO. CONST. art. I, 32;

N.C. CONST. art. I, 37; OR. CONST. art. I, 42; S.C. CONST. art. I, 24. Alaska,Arkansas, Hawaii, Nebreska, Nevada and North Dakota do not have express con-stitutional or legislative provisions requiring that victims be notified of the exis-

tence of their rights in the criminal justice process. See NVC,supra note 46.64. 875 P.2d 824 (Ariz. Ct. App. 1993).

65. See id. at 826. The offender was convicted in 1974. See id. The constitu-tional and legislative provisions became effective in 1990 and 1992, respectively.

See id. at 826 & n.3.66. See id. at 826, 829.67. See id. at 826.68. See id.69. See id.


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victim sought to have the release order set aside and a reexaminationhearing held, remedies available under Arizona law for violation of these

notice provisions.70

The appellate court granted the victims special action petition, soughton her behalf by the state.71 The appellate court concluded that the victim

was entitled to the above-described notification rightsincluding the right

to notice of their existencebecause the offender was still in custody

when the provisions became effective.72

The court rejected the Boards

assertion that it had no duty to notify this victim of the release proceedings

because the victim had not requested such notice, as she was required to

do under the statutory provisions.

The state cannot now use the victims failure to request notice as a defense

against the victims right to appear at the release proceeding because the

state failed to first fulfill its constitutional obligation to inform her of that

right. The constitutional mandate is clear: victims must be informed of their

rights. Armed with this knowledge, victims may choose to exercise theserights. Conversely, an uninformed victim may not exercise her rights be-

cause she is unaware of them, or unaware that the right to notice of a release

hearing requires that she first file a request for such a notice.

The Victims Rights Implementation Act also makes clear that the victims

right to be informed imposes a corollary duty on the state to provide the in-

formation. This legislation creates specific obligations on state government

to inform victims of their rights at various stages of criminal proceedings.

While the statutory provisions do not specifically address how the state is to

inform victims of pre-Bill of Rights crimes, the overriding principle is clear:

70. See State ex rel. Hance, 875 P.2d at 826-27. In 1974, the offender was con-

victed for the rape and sentenced to incarceration for 25 years to life. See id. at826. The parole board last notified the victim of an upcoming parole hearing (pur-

suant to prior law) in 1984, when the notification letter was returned as undeliver-able. See id. After 1984, neither the parole board nor the local prosecutor hadattempted to notify the victim of subsequent parole hearings. See id. The legisla-tion implementing Arizonas constitutional victim rights provisions required suchnotification only upon victim request. See id. at 830.

At the 1993 parole hearing (of which the victim received no notice), theparole board denied parole, but approved the offenders release to home arrest. See

id. Information as to the offenders impending release apparently reached the vic-

tim, who contacted the governor and the local prosecutor. Both unsuccessfullysought to have the parole board conduct a probable cause hearing to determine

whether the release should be rescinded. See id. at 827. In addition to materialsfrom the victim, materials opposing the offenders release from his prison coun-

selor and the state corrections department director were submitted. See id. Thelocal prosecutor initiated the instant special action shortly before the offendersscheduled release. See id.

71. See id. at 832.72. See id. at 829-30.


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the linchpin of Ariz. Const. art. 2, 2.1(A)(12) is the right of victims to be

informed of their constitutional rights, and the state has an affirmative obli-

gation to so inform them.

This victim was never informed of her constitutional right to request notice

of and to participate in post-conviction release proceedings. It is this omis-

sion that violated her rights and rendered the release proceedings defective.73

Consequently, the appellate court set aside the offenders release order andordered a reexamination hearing at which the victim could be present andheard.74

As theHance case illustrates, notification of the existence of a victims

rights of participation in the criminal justice process is in many ways the

most important victim participatory right because it is the right on which

the exercise of all other rights depends. Although the federal system andthe overwhelming majority of states provide this notification right to eli-

gible victims, the effectiveness of its actual implementation determines

whether it is the linchpin of or the barrier to the exercise of the remaining

participatory rights.75

B. Notice of Important Proceedings and Outcomes in the Criminal

Justice Process

Just as a crime victim must be made aware of the existence of partici-

patory rights in order to exercise them, the victim must be notified of theparticular proceedings at which such rights may be exercised in order to

use the rights. Even if a crime victim chooses not to actively participate in

relevant proceedings, the victim can maintain involvement in the process

if informed of important actions and outcomes in the prosecution and

punishment of the offender. Prior to the issuance of the Task Force FinalReport, only two states explicitly required that victims be notified of im-

portant developments in the proceedings.76

Recognizing the importance of

73. Id. at 830 (citation omitted). The appellate court also rejected the parole

boards claim that it had made reasonable efforts to locate the victim. See id. at

830-31.74. See id. at 831-32. Although this decision represents a broad judicial effec-

tuation of enacted victim notification rights, its significance is tempered by the

fact that few states provide such a remedy for post-conviction notice violations.See infra notes 99, 258 and accompanying text (describing these provisions).

75. See infra note 231 and accompanying text (describing problems with victimnotification).

76. See OFFICE OF JUSTICE PROGRAMS,supra note 45, at 4. The Presidents TaskForce recommended that prosecutors keep victims informed of the status of theircases commencing with the time of the initial charging decision. See PRESIDENTSTASK FORCE, supra note 7, at 64. As to victims of violent crime, the Task Forcerecommended that such notice continue through parole determinations. See id.


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these rights to notice, the federal system and the vast majority of statescurrently provide crime victims with notice of significant proceedings and

outcomes in the criminal justice process.77

As to criminal justice proceedings themselves, notification is most fre-quently required regarding bail or pretrial release hearings, trial, sentenc-

ing, and parole hearings.78

In their constitutional or legislative provisions,

some states explicitly require victim notification of some or all of these

specific proceedings.79

The federal system and other states more generally

require victim notification as to all critical, crucial, or important

stages of the criminal justice process or proceedings or as to court pro-

ceedings or public hearings in the case generally.80 Although these unde-

The Task Force also recommended that parole authorities notify victims of parole

hearings and parole release. See id. at 83-84.77. See generally NATIONAL NETWORK, supra note 46; NVC, supra note 46;

Tobolowsky,supra note 38 (describing notification provisions).The Senate and House of Representatives versions of the proposed federal

constitutional amendment include the rights to notice of public proceedings re-

lating to the crime (including public parole proceedings) and non-public paroleproceedings to the extent the right to notice is given to the offender, as well as theright to notice of a release or escape from custody. They require that the proper

authorities make a reasonable effort to provide the prescribed notice. S.J. Res.6, 105th Cong. (1997); H.R.J. Res. 71, 105th Cong. (1997). The implementing

legislation proposed in the House of Representatives provides further details re-garding the above-described notice and also requires notice of the acceptance of a

plea by the offender or the rendering of a verdict after trial and the sentence im-

posed. See H.R. 1322, 105th Cong. (1997); Tobolowsky,supra note 38 at 410-415.78. Some states also require victim notification of canceled or rescheduled

hearings, post-trial relief and appellate proceedings, pardon or commutation hear-

ings, and miscellaneous other proceedings. See generally NATIONAL NETWORK,supra note 46; NVC,supra note 46 (describing provisions).

79. See, e.g., MO. CONST. art. I, 32; NEB. CONST. art. I, 28; COLO. REV.STAT. ANN. 24-4.1-302 to -302.5 (West Supp. 1997); FLA. STAT. ANN. 960.001 (West Supp. 1998).

80. See, e.g., ALA. CONST. amend. 557 (providing victim right to be informed atall crucial stages of the criminal proceedings); IDAHO CONST. art. I, 22 (speci-

fying right to notice of trial court, appellate, and parole proceedings); OR. CONST.art. I, 42 (regarding any critical stage of the proceedings where the defendantis present); UTAH CONST. art. I, 28 (regarding important criminal justice hear-

ings related to the victim); 42 U.S.C.A. 10606, 10607 (West 1995) (requiringnotice of each court proceeding which the victim is required or entitled to attend

and of parole hearings); IND. CODE ANN. 33-14-10-5 (Michie 1992) (requiringnotice of all scheduled hearings and proceedings); MD. ANN. CODE art. 27,

770 (Supp. 1997) (regarding notice of all court proceedings if practicable);MICH. COMP . LAWS ANN. 780.756 (West 1998) (regarding notice of scheduledcourt proceedings); N.H. REV. STAT. ANN. 21-M:8-k (Supp. 1997) (regardingall court proceedings); N.M. STAT. ANN. 31-26-4 (Michie Supp. 1997) (re-garding court proceedings); OHIO REV. CODE ANN. 2930.06 (Anderson Supp.


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fined provisions have typically not been judicially construed and thus aresubject to the interpretation of those officials entrusted with the notifica-

tion responsibility, for purposes of this analysis, these general provisions

are interpreted to include at least the above-listed proceedings. In terms ofthe notification provisions regarding these proceedings, the federal system

and over thirty states have specific or general notification provisions re-

garding bail or pretrial release hearings.81 Moreover, the federal system

and over forty states have specific or general provisions requiring victim

notification of trial,82 sentencing,83 and parole84 proceedings.

1997) (regarding scheduled court proceedings); TENN. CODE ANN. 40-38-103(1997) (regarding all pertinent stages in the proceedings); TEX. CODE CRIM . P.ANN. art. 56.08 (West Supp. 1998) (regarding any scheduled court proceedings);

VA. CODE ANN. 19.2-11.01 (Michie Supp. 1998) (regarding judicial proceed-ings). When the term general provision or right is used subsequently, it refers

to the above-listed types of provisions from which the specifically referenced rightmay be inferred. See, e.g., infra notes 81-84 and accompanying text.

81. See, e.g., MICH. CONST. art. I, 24 (regarding court proceedings); S.C.

CONST. art. I, 24 (regarding hearings affecting bond or bail); GA. CODE ANN. 17-17-5 (Harrison Pamp.1997) (regarding judicial proceeding at which accusedsrelease will be considered); 725 ILL. COMP . STAT. ANN. 120/4.5 (West Supp.

1998) (regarding any court hearing the effect of which may be the release of de-fendant from custody); KY. REV. STAT . ANN. 421.500 (Michie Supp. 1996)

(regarding judicial proceedings relating to the defendants release on bond); MO.ANN. STAT . 595.209 (West Supp. 1998) (regarding bail hearings); N.Y. E XEC.LAW 646 (McKinney 1996) (regarding judicial proceedings as to the release of

an accused pending judicial proceedings); R.I. GEN. LAWS 12-28-3 (1994) (re-garding proceeding before a court empowered to set bail); S.C. C ODE ANN. 16-3-1525 (Law. Co-op. Pamp. 1997) (regarding bond hearing); UTAH CODE ANN.

77-38-2, -3 (Supp. 1997) (regarding court proceeding to determine whether torelease a defendant).

82. See, e.g., ILL. CONST. art. I, 8.1 (specifying right to notice of court pro-ceedings); KAN. CONST. art. XV, 15 (identifying victim right to be informed ofpublic hearings of the criminal justice process, as defined by law); S.C.CONST. art. I, 24 (regarding criminal proceedings which are dispositive of thecharges where the defendant has the right to be present); W ASH. CONST. art. I,

35 (regarding trial); ALA. CODE 15-23-60, -63 (1995) (regarding criminal pro-ceedings defined as those before a trial court); CONN . GEN. STAT . 51-286e(1997) (regarding trial proceedings); IOWA CODE ANN. 910A.6 (West Supp.

1998) (regarding trial); MISS. CODE ANN. 99-36-5 (1994) (regarding relevantcourt proceedings); MONT. CODE ANN. 46-24-203 (1997) (regarding trial

date); VT. STAT. ANN. tit. 13, 5304 (Supp. 1997) (regarding court proceed-ing).

83. See, e.g., IND. CONST. art. I, 13 (providing victim right to be informed ofpublic hearings); NEB. CONST. art. I, 28 (regarding sentencing proceedings);

N.C. CONST. art. I, 37 (regarding court proceedings); VA. CONST. art. I, 8-A(regarding judicial proceedings); ARIZ. REV. STAT . ANN. 13-4409 (West Supp.1997) (regarding sentencing proceeding); DEL. CODE ANN. tit. 11, 9411 (1995)


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A similar pattern is reflected in the constitutional and legislative provi-sions regarding important actions or outcomes in the criminal justice proc-

ess. The federal system and more than thirty states require victim notifi-

cation of an offenders pretrial release85 and final disposition orsentence.86 The federal system and over forty states require victim notifi-

cation regarding an offenders plea bargain87

and parole.88

(regarding sentencing hearing); IND. CODE ANN. 35-38-1-8.5 (Michie 1998) (re-garding sentencing hearing); ME. REV. STAT. ANN. tit. 17-A, 1172 (West Supp.

1997) (regarding sentencing); N.J. STAT. ANN. 52:4B-44 (West Supp. 1998)(regarding sentencing); WASH. REV. CODE ANN. 7.69.030 (West Supp. 1998)(regarding sentencing hearing).

84. See, e.g., COLO. CONST. art. II, 16a (providing right to be informed of allcritical stages of the criminal justice process); FLA. CONST. art. I, 16 (regarding

all crucial stages of criminal proceedings); CAL. PENAL CODE 679.02 (WestSupp. 1998) (regarding parole hearings); IDAHO CODE 19-5306 (1997) (regarding

parole hearings); LA. REV. STAT. ANN. 46:1844 (West Pamp. 1998) (regardingparole hearings); MASS. ANN. LAWS ch. 127, 133A (Law. Co-op. 1989 & Supp.1997) (regarding parole hearings); OR. REV. STAT. 144.120 (Pamp. 1998) (re-

garding parole hearings); S.D. CODIFIED LAWS 24-15-3 (Michie 1988) (regardingparole hearings); W. VA. CODE 62-12-23 (1997) (regarding parole hearings).

85. See, e.g., ALASKA CONST. art. I, 24; IDAHO CONST. art. I, 22; MICH.

CONST. art. I, 24; 42 U.S.C.A. 10606, 10607 (West 1995); 725 ILL. COMP .STAT. ANN. 120/4.5 (West Supp. 1998); KY. REV. STAT. ANN. 421.500 (Michie

Supp. 1996); LA. REV. STAT . ANN. 46:1844 (West Pamp. 1998); MD. ANN. CODE

art. 27, 770 (Supp. 1997); R.I.GEN. LAWS 12-28-3 (1994); VT. STAT. ANN. tit.13, 5305 (Supp. 1997).

86. See, e.g., ILL. CONST. art. I, 8.1; NEV. CONST. art. I, 8; WIS. CONST. art.I, 9m; 42 U.S.C.A. 10606, 10607 (West 1995); ALA. CODE 15-23-75(1995); DEL. CODE ANN. tit. 11, 9411 (1995); IOWA CODE ANN. 910A.7 (West

1994); ME. REV. STAT. ANN. tit. 15, 6101 (West Supp. 1997); OHIO REV. CODEANN. 2930.12 (Anderson 1996); WASH. REV. CODE ANN. 7.69.030 (West Supp.

1998); WIS. STAT . ANN. 950.04 (West 1996).87. See, e.g., 42 U.S.C.A. 10606, 10607 (West 1995); ARIZ. REV. STAT . ANN.

13-4419, -4423 (West Supp. 1997); CAL. PENAL CODE 679.02 (West Supp.1998); HAW. REV. STAT . ANN. 801D-4 (Michie 1994); KAN. STAT . ANN. 22-3436 (1995); MINN. STAT . ANN. 611A.03 (West 1987 & Pamp. 1998); N.J. STAT.

ANN. 52:4B-44 (West Supp. 1998); OKLA. STAT . ANN. tit. 19, 215.33 (WestSupp. 1998); S.D. CODIFIED LAWS 23A-28C-1 (Michie 1998); TEX. CODE CRIM.P. ANN. art. 56.08 (West Supp. 1998); W. VA. CODE 61-11A-6 (1997).

88. See, e.g., N.C. CONST. art. I, 37; OKLA. CONST. art. II, 34; VA. CONST.art. I, 8-A; 42 U.S.C.A. 10606, 10607 (West 1995); ALASKA STAT .

33.16.120 (Michie 1996); IDAHO CODE 19-5306 (1997); MO. STAT. ANN. 595.209 (West Supp. 1998); N.C. GEN. STAT. 15A-825 (Supp. 1997); 71 PA.

CONS. STAT . ANN. 180-9.3 (West Supp. 1998); VA. CODE ANN. 53.1-155 (Mi-chie Supp. 1997).

Some states also require victim notification of the dismissal of a criminalcharge, an offenders escape, pardon or commutation, or final discharge from sen-tence, and miscellaneous other outcomes in the criminal justice process. See gen-


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Notification provisions as to these proceedings and outcomes appear tobe quite extensive, but many do have explicit or implicit limitations. For

example, most states require notification of some or all of these proceed-

ings and outcomes only when the victim requests it.89 Some states makethe rights contingent on victim cooperation with the prosecution.90 Al-

though the prosecuting or correctional authorities are usually given ex-

press responsibility for the applicable notification, the procedures for noti-

fication often are not addressed in the provisions91

and actual notification

procedures may or may not provide effective victim notification. Finally,

many states limit their notification requirements to those which are rea-

sonable or practicable under the circumstances.92

erally NATIONALNETWORK,supra note 46; NVC,supra note 46 (describing provi-

sions).89. See, e.g., ARIZ. CONST. art. II, 2.1; MD. CONST. art. 47; TEX. CONST. art. I,

30; ARK. CODE ANN. 16-21-106 (Michie Supp. 1997); CAL. PENAL CODE 679.02 (West Supp. 1998); 725 ILL. COMP . STAT. ANN. 120/4.5 (West Supp.1998); IOWA CODE ANN. 910A.1, .6 (West Supp. 1998); LA. REV. STAT . ANN.

46:1844 (West Pamp. 1998); NEV. REV. STAT. ANN. 178.5698 (Michie Supp.1997); N.J. STAT. ANN. 52:4B-44 (West Supp. 1998); OR. REV. STAT. 144.098(Pamp. 1998); TENN. CODE ANN. 40-38-103 (1997); WASH. REV. CODE ANN.

7.69.030 (West Supp. 1998); WYO. STAT. ANN. 1-40-203 (Michie 1997).90. See, e.g., N.M. STAT. ANN. 31-26-5 (Michie Supp. 1997); R.I. GEN. LAWS

12-28-3 (1994).91. See, e.g., CAL. PENAL CODE 679.02 (West Supp. 1998); (allowing notice

by any reasonable means available); FLA. STAT . ANN. 960.001 (West Supp.

1998) (describing victim notification card procedure); MO. STAT . ANN. 595.209(West Supp. 1998) (specifying notice by certified mail); NEB. REV. STAT. 81-1848 (1994) (describing varying notification procedures); N.M. STAT. ANN. 31-

26-9 (Michie Supp. 1997) (allowing oral or written notice in a timely fashion);OHIO REV. CODE ANN. 2930.03 (Anderson 1996) (authorizing notice by any

means reasonably calculated to provide prompt actual notice); UTAH CODE ANN. 77-38-3 (Supp. 1997) (stating that notices can be given in any reasonable man-ner); State ex rel. Hance v. Arizona Board of Pardons and Paroles, 875 P.2d 824,830-31 (Ariz. Ct. App. 1993) (noting that determination of reasonable effort to

provide victim notification requires case-by-case analysis and does not always

require that actual notice has been given). See generally Susan E. Gegan &Nicholas Ernesto Rodriguez, Note, Victims Roles in the Criminal Justice System:

A Fallacy of Victim Empowerment?, 8 ST. JOHNS J. LEGAL COMMENT. 225, 244-

47 (1992) (describing problems concerning victim notification procedures).92. See, e.g., MD. CONST. art. 47 (requiring notification rights if practicable);

ME. REV. STAT. ANN. tit. 15, 6101; tit. 17-A, 1172 (West Supp. 1997) (re-quiring prosecutor to make good faith effort to notify victim when practica-

ble); N.H. REV. STAT. ANN. 21-M:8-k (Supp. 1997) (granting rights [t]o theextent that they can be reasonably guaranteed by the applicable authorities); V A.CODE ANN. 19.2-11.01 (Michie Supp. 1997) (requiring advance notificationwhen practicable); WASH. REV. CODE ANN. 7.69.030 (West Supp. 1998) (re-quiring reasonable effort to ensure rights).


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Neither these extensive notification provisions nor their language norlimitations have received much judicial interpretation. The decision by

the Supreme Court of Kansas in State v. Holt93 is one of the few instances

in which victim notification provisions have been construed. In this case,the trial court sentenced the offender to a one-year term of incarceration

on the misdemeanor theft charge of which he was convicted.94

At the

sentencing hearing (which the victim attended and in which she addressed

the court), the judge stated that he would consider the offenders request

for service of his sentence in the community at a future time.95 Subse-

quently, at a hearing of which the victim received no notice, the court sua

sponte granted the offender parole release from his partially served sen-

tence of incarceration.96 When the prosecutor objected to the hearing be-

ing conducted without notice to the victim, the court stated that victim

notification was required under the state victim rights provisions only for

hearings required to be open to the public and that no such public hearing

was required for the instant action of judicial parole release.97

In its appeal from the courts action, the state contended that the trialcourt erred in concluding that the victim had no right to notice of the pa-

role proceedings.98 At the outset, the Kansas Supreme Court noted that

the victim rights recognized under Kansas law were merely directive or

permissive rather than mandatory and that the provisions did not in-

clude enforcement provisions or sanctions for violations.99

The reviewing

93. 874 P.2d 1183 (Kan. 1994).

94. See id. at 1184. In a plea agreement, the defendant entered a plea of nocontest to misdemeanor theft regarding property stolen in a residential burglary.See id. He also agreed to make full restitution to the burglary victims for unrecov-

ered property from the burglary. See id. The state agreed to dismiss related felonycharges. See id.

95. See id.96. See id.97. See id. at 1184, 1187. The reviewing court noted that the trial court and the

parties referred to the trial courts action as probation, but that the action wasmore appropriately considered to be a parole from a partially served jail sentence.

See id. at 1186.98. See id. at 1184. The provisions requiring victim notification also required

the opportunity for victim presence at the applicable proceedings. See id. at 1185.

99. See Holt, 874 P.2d at 1186. Neither the federal system nor many states pro-vide enforcement mechanisms or sanctions for victim rights violations of any kind.

See infra notes 269-80 and accompanying text. To the extent that jurisdictionsspecifically address notification rights violations, most provide no remedy or li-

ability for the failure to provide victim notice. See, e.g., 42 U.S.C.A. 10607(West 1995); GA. CODE ANN. 17-17-15, 42-1-11 (Harrison Supp. 1997); 725ILL. COMP . STAT. ANN. 120/9 (West Supp. 1997); ME. REV. STAT. ANN. tit. 17-A, 1175 (West Supp. 1997). Arizona, however, has a procedural rule requiring thecourt to inquire whether notice provisions have been satisfied at the commence-


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court also noted that the constitutional and legislative notification provi-sions were limited to public hearings at which the offender had the

right to be present and be heard and which were required to be open to

the public.100 The Kansas Supreme Court determined that Kansas law didnot require such a public hearing when a trial judge sua sponte grants

parole to a convicted misdemeanant.101

It determined that the granting of

parole and the holding of a hearing in this situation were purely discre-

tionary actions and thus did not necessitate victim notification.102

Al-

though the Kansas Supreme Court found no abuse of discretion by the trial

court and thus denied the states appeal, it encouraged trial courts to re-

member the spirit of the Kansas victim rights provisions and to consider

conducting public hearings with victim notification in similar circum-

stances when such could be accomplished without undue burden on the

judicial system.103

ment of proceedings in which a victim has a right to be heard. A RIZ. R. CRIM. P.39. If notice has not been provided, the court should not proceed unless public

policy, the specific provisions of a statute, or the interests of due process other-wise require. Id. The court also has the discretion to reconsider rulings made at

proceedings for which the victim did not receive requested notice. See id. South

Carolina requires that bond hearings be delayed if necessary to ensure that victimshave received notice of them. See S.C. CODE ANN. 16-3-1525 (Law. Co-op.

Supp. 1997). Hawaii provides that certain failures to notify victims can be thebasis of disciplinary action. See HAW. REV. STAT . ANN. 706-670.5 (MichieSupp. 1997). Arizona and a few other states have reexamination or reconsideration

hearing remedies for post-conviction release notification violations. See, e.g.,ARIZ. REV. STAT . ANN. 13-4436 (West Supp. 1997); OKLA.STAT. ANN. tit. 57, 332.2 (West Supp. 1998); TENN. CODE ANN. 40-28-505 (1997).

100. See Holt, 874 P.2d at 1186-87. The reviewing court distinguished thissituation involving the judicial parole of a convicted misdemeanant from public

hearing requirements in other circumstances, such as the probation of a felon. Seeid.101. See id. at 1187.102. See id.103. See id. at 1187-88. Interestingly, the Kansas legislature subsequently

amended its notification law and extended the notification requirements to pro-ceedings such as those involved in the instant action. KAN. STAT . ANN. 74-7335(Supp. 1997). The legislature expanded the definition of public hearing by de-

leting the limitation that the hearing be one at which the offender has a right toappear and be heard and by expressly including a hearing involving the granting

of probation or parole by a judge in the statutory list of examples of publichearings which are open to the public. See id. In addition to the notification re-

quired regarding public hearings, the legislature also required victim notificationof the right to be present at any proceeding where probation or parole is consid-ered or granted by a judge whether or not a public hearing is conducted or re-quired. Id.

The Kansas Supreme Court decided another case construing the interplay


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The Kansas Supreme Courts point about the absence of enforcementmechanisms and sanctions in Kansas law was echoed by a California ap-

pellate court inPeople v. Superior Court ex rel. Thompson.104 In this case,

the victim of a battery which took place on a school campus was not noti-fied of the sentencing hearing despite the provision of the right to such

notification by California law.105

At a hearing to set aside the probation

order the trial court had entered at sentencing, the court stated that it had

proceeded at sentencing on the assumption that the victim had been noti-

fied of the hearing and had chosen not to attend.106 The trial court denied

between the public hearing and victim notification requirements prior to thischange in the law. In State v. Sims, 887 P.2d 72 (Kan. 1994), it rejected the defen-dants claim that the trial courts failure to hold a hearing on his motion to modify

his sentence violated the Kansas victim rights statute. See id. at 79. It found thatno public hearing and thus no victim notification or presence were required under

Kansas law. See id.In an Illinois case, however, the appellate court upheld an award of costs to

a crime victim who filed suit against the prosecutor after his repeated requests for

information regarding the status of the investigation went unanswered. See Myersv. Daley, 521 N.E.2d 98, 100 (Ill. App. Ct. 1987). The appellate court found thatthe purposes of the state victim rights legislation would be frustrated if a victim

were forced to file suit to learn the status of his case, and were also burdened withthe costs of that suit. Id. Cf. State v. Contreras, 885 P.2d 138, 142 (Ariz. Ct.

App. 1994) (finding that victim did not waive right to mandatory restitution byfailing to respond to ambiguous notice from probation department requestingvaluation of losses from the crime).

In a case reflecting the significance that an offender attaches to a victimsparticipation in the criminal justice process, a state prison inmate challenged thedenial of his parole request in federal court on the ground that, inter alia, the

states retroactive application of a victim notification provision to his parole pro-ceeding violated the ex post facto provision of the United States Constitution.

Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991). The offender claimed that thenotification statute would increase the likelihood that victims would provide inputinto the parole process which would, in turn, reduce the likelihood of his parole.See id. at 1341. The appellate court noted that the parole authorities had always

been able to receive victim input. See id. The contested provision merely required

victim notification of the parole hearing, not a change of the criteria for grantingparole. See id. at 1340. The appellate court thus concluded that the offender hadfailed to establish that the notification provision changed any substantive rights

in violation of the ex post facto clause. See id. at 1340-41; see also Alston v.Robinson, 791 F. Supp. 569, 592 (D. Md. 1992) (finding no ex post facto violation

from provisions allowing notice to and hearing from victims regarding parole re-lease).

104. 202 Cal. Rptr. 585 (Cal. Ct. App. 1984).105. See id. at 586. Although the victim was not present at the sentencing hear-

ing, statements by the victim were included in the probation officers report. Seeid.106. See id.


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