13th Edition of NCVLI News

Newsletter of Crime Victim Law

Meg Garvin, M.A., J.D., Executive Director Sarah LeClair, J.D., Legal Publications Director

13th Edition

L E G A L P U B L I C AT I O N S P R O J E C T O F T H E N AT I O N A L C R I M E V I C T I M L AW I N S T I T U T E AT L E W I S & C L A R K L AW S C H O O L

Why Sentencing Recommendations in Victim Allocution are Permissible and Desirable*

by Meg Garvin, M.A., J.D. Balancing competing interests and equities in deciding a sentence can require a Solomon-like wisdom—and even Solomon heard from both sides. – a victim.1

IN THIS ISSUE 1

Why Sentencing Recommendations in Victim Allocution are Permissible and Desirable Meg Garvin, M.A., J.D.

2

Message from the Director Meg Garvin, M.A., J.D.

7

Victims of Online Fraud: Crime Victims Without Meaningful Rights?

Johanna Borkan, M.S.W. Terry Campos, J.D.

10

In the Trenches

14

Anti-Stalking Statutes May Criminalize Implied Threats Without Running Afoul of Free Speech Protections: The National Consensus Alison Wilkinson, J.D.

18

Case Spotlights: Recent Cases Discussing the Law Governing Victim Impact Statements

Crime victims are the persons most affected by the underlying crime and they should have an unfettered voice at sentencing. To be unfettered, the victims’ right must be the right to be personally heard by the sentencing body before sentence is imposed and it must allow them to speak about their victimization, the harm the crime inflicted, and the appropriate sentence. Although the right of crime victims to deliver a victim impact statement is well-accepted in this country, recognition and acceptance that this right includes the right to deliver a sentencing recommendation—either for mercy or aggravation—is not yet well-accepted due largely to confusion among courts caused

by United States Supreme Court precedent. This article provides a brief overview of why sentencing recommendations in victim allocution are permissible and desirable.

Brief History of Victim Input at Sentencing Commentators have identified at least four purposes underlying a victim’s right to be heard at sentencing—regardless of whether it is a capital or noncapital case: 1) providing information to the sentencing body; 2) benefitting and empowering the victim; 3) explaining the crime’s harm to the defendant; and 4) improving the perceived fairness of sentencing.2 In 1982, in part as a response to the recognition * This text has been adapted by Meg Garvin from NCVLI’s amicus curiae brief submitted in support of the State of Utah’s petition for certiorari to the United States Supreme Court in the case of Utah v. Ott, Case No. 10-490—authored by Professor Paul Cassell, J.D., Alison Wilkinson, J.D., and Meg Garvin—as well as from presentations by NCVLI. President’s Task Force on Victims of Crime, Final Report (1982), available at http:// www.ovc.gov/publications/presdntstskforcrprt/welcome.html.

2 See generally Paul G. Cassell, In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. Law 611, 619-25 (2009); see also Mary Margaret Giannini, Equal Rights for Equal Rites?: Victim Allocution, Defendant Allocution, and the Crime Victims’ Rights Act, 26 Yale L. & Pol’y Rev. 431, 444 (2008). When comparing the historical reasons for defendant allocution with the purposes underlying a victim’s right to be heard at sentencing, the purposes are remarkably similar. As Professor Giannini notes, defendants’ right of allocution has long been a part of criminal justice, stemming originally from a practice under which defendants were not guaranteed the right to counsel and allocution was the sole means by which they could personally present the court with legal defenses or mitigating evidence. Id. at 458-60. In commenting on defendant allocution in Green v. United States, the Supreme Court recognized its validity even though defendants now have counsel, stating: “[W]e see no reason why a procedural 1

continued on page 3 © 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 2

ncvli.org

Message from the Director

by Meg Garvin, M.A., J.D.

Board of Directors Sean M. Beers, C.P.A., J.D. Douglas E. Beloof, J.D. Carl K. Davis, J.D. Helene R. Davis John W. Gillis Douglas G. Houser, J.D. Candace A. Newland-Holley Staff Johanna Borkan, M.S.W. Terry Campos, J.D. Lisa Farrell Scott Flor, M.B.A. Meg Garvin, M.A., J.D. Philip Giles Jeff Hanson Rebecca S.T. Khalil, J.D. Julie Landrum Sarah LeClair, J.D. Amy C. Liu, J.D. Marti Long, J.D. Cassandra Mercer, M.A. Alison Wilkinson, J.D. Student Interns Brandon Green Colette McEldowney Jacqueline Swanson Amanda Tufts Preparation of NCVLI’s Newsletter of Crime Victim Law was supported by Grant No. 2008-DD-BX-K001, awarded by the Office for Victims of Crime (OVC), Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions expressed in this newsletter are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice. OVC is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, and the Office of Juvenile Justice and Delinquency Prevention.

On June 14 & 15, 2011, NCVLI will host its 10th Annual Crime Victim Law Conference.

At the Conference—10 Years of Rights Enforcement: Creating the Future of Crime Victim Law—we will celebrate the successes in victims’ rights law and litigation from the past decade, identify common elements from the most successful litigation, discuss the emerging challenges facing crime victims, and map a path to secure an even more progressive decade ahead for crime victims’ rights. This edition of NCVLI’s Newsletter of Crime Victim Law (formerly NCVLI News) begins these conversations.

Case Spotlights focuses on one of the longest standing and most accepted of victims’ rights— the right to be heard through a victim impact statement at sentencing. The cases summarized provide a snapshot into this evolving area of law. I also address one aspect of this right in Why Sentencing Recommendations in Victim Allocution are Permissible and Desirable, by analyzing how the right of crime victims to be heard through victim impact statements at sentencing is being improperly constricted due to confusion in the law. The unfortunate result of this confusion is the silencing of victims when it comes to sentencing recommendations—either for mercy or aggravation—in capital cases.

In Anti-Stalking Statutes May Criminalize Implied Threats Without Running Afoul of Free Speech Protections: The National Consensus, Alison Wilkinson looks at the crime of stalking, which has begun to receive much needed attention in recent years, and responds to an emerging challenge to anti-stalking legislation. Specifically, she analyzes whether criminalizing “threatening” words or conduct—as is common in stalking statutes—can withstand constitutional scrutiny based on free speech protections.

In Victims of Online Fraud: Crime Victims Without Meaningful Rights?, Johanna Borkan and Terry Campos provide an overview of the rapid proliferation of online fraud and the unique hurdles victims of these crimes must overcome to access traditional victim services and assert their legal rights. Because of the importance and scope of this topic, during the coming year NCVLI will follow this article with others addressing other aspects of online fraud.

Lastly, we highlight legal victories from across the country in In the Trenches. Despite these important victories—a few of the many resulting from decades of success in passing legislation, and 10 years of active litigation of rights—we face enduring and new challenges to victims’ rights. We hope this newsletter provokes conversation nationwide and we invite you to join us in Portland in June to help envision the decade ahead. © 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 3

ncvli.org Victim Allocution, continued from page 1

of these important purposes, President Reagan’s Task Force on Victims of Crime concluded, among other things, that “[v]ictims, no less than defendants, are entitled to have their views considered” at sentencing, and called for legislation requiring victim impact statements and for inclusion of victim input into presentence reports.3 In the aftermath of this call to action, all states passed legislation guaranteeing victims’ rights; of these, thirty-nine explicitly provide victims with a constitutional or statutory right to be heard at sentencing,4 and others have rights that afford the victim the right to be heard at “critical” proceedings or “when relevant,” which necessarily includes the right to be heard at sentencing.5 Similarly, on the federal level, the Crime Victims’ Rights Act (CVRA), 18 U.S.C. rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” 365 U.S. 301, 304 (1961).

3 President’s Task Force on Victims of Crime, Final Report (1982), supra note 1.

4 See, e.g., Ala. Const. amend. 557, Ala. Code § 15-23-74; Alaska Const. art. 2, § 24; Ariz. Const. art. 2, § 2.1(A)(4); Cal. Penal Code § 679.02(a)(3); Colo. Const. art. II, § 16a, Colo. Rev. Stat. § 24-4.1-302.5(10(g); Conn. Const. art. 1, § (8)(b)(8); Fla. Const. art. I, § 16, Fla. Stat. § 960.01(1) (k); Idaho Const. art. 1, § 22(6); Ill. Const. art. 1, § 8.1(a) (4); Ind. Code Ann. § 35-40-5-5; Iowa Code § 915.21(1) (b); Kan. Const. art. 15, § 15(a); La. Const. art. I, § 25, La. Rev. Stat. Ann. § 1842(2); Me. Rev. Stat. Ann. tit.

17-A, § 1174(1)(A); Md. Const. Decl. of Rights, art. 7(b), Md. Code Ann., Crim. Proc. § 11-403; Mass. Gen. Laws ch. 258B, § 3(p); Mich. Const. art. I, § 24(1); Minn. Stat. § 611A.038(a); Miss. Const. art. 3, § 26A(1), Miss. Code Ann. § 99-43-33; Mo. Const. art. I, § 32(1)(2); Neb. Const. art. I, § 28(1); Nev. Const. art. 1, § 8(2)(c); N.H. Rev. Stat.

Ann. § 21-M:8-k(I)(p); N.J. Stat. Ann. § 52:4B-36(n); N.M. Const. art. II, § 24(A)(7); N.C. Const. art. 1, § 37(1) (b); Ohio Rev. Code § 2930.14(A); Okla. Const. art. II, § 34(A); Pa. Const. Stat. § 11.201(5); R.I. Gen. Laws § 12-28-3(11); S.C. Const. art. I, § 24(A)(5); S.D. Codified Laws § 23A-28C-1(8); Utah Const. art. I, § 28(1)(b), Utah Code Ann. § 77-38-4(1); Vt. Stat Ann. tit. 13, § 5321(a)(2); Va. Const. art. I, § 8-A(3); Wash. Const. art. 2, § 35; Wis. Const. art. I, § 9(m); Wyo. Stat. Ann. § 14-6-502(a)(xvii).

5 See Douglas E. Beloof, Constitutional Implications of Crime Victims as Participants, 88 Cornell L. Rev. 282, 299-305 (2003) (collecting state constitutional and statutory laws that afford victims the rights to “be heard,” to “speak,” or to “make a statement,” either at sentencing, when relevant, or at critical stage proceedings, and arguing that these laws create a right to be heard at sentencing).

§ 3771(a)(4), provides a crime victim with “[t]he right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”

In 1991, the constitutionality of victim impact statements was upheld by the United States Supreme Court in Payne v. Tennessee.6 The cornerstone of the Court’s decision in Payne was fairness. Quoting the Tennessee Supreme Court approvingly, the Court said: It is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.7 In light of this, the Court held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.”8 With this decision, the Court overruled its decision from four years earlier in Booth v. Maryland.9

Law Governing Content of Victim Impact Statements Following Payne, debate over the propriety of victim impact statements has largely been resolved such that victim participation at sentencing is generally wellaccepted. There are, however, unresolved issues that continue to impinge upon a victim’s unfettered right to be heard at sentencing.10 Among these issues is the 501 U.S. 808 (1991).

Id. at 826 (quoting State v. Payne, 791 S.W.2d 10, 19 (Tenn. 1990)).

8 Id. at 822.

9 482 U.S. 496 (1987).

10 Although a thorough examination of most of these issues is beyond the scope of this article, a brief mention is appropriate of the debate surrounding the range of permissible media for conveying victim impact statements—for example, whether victims may use PowerPoint, video, and audio presentations of varying kinds. In 2008, the Supreme Court denied certiorari in two cases that raised questions related to these issues. In one of these cases, Kelly v. California, 129 S.Ct. 564 (2008), two petitioning murderers asked the Court to review the admission of victim impact videos into evidence at the sentencing phase of their trials. Although the full Court denied certiorari, two members—Justices Souter and Stevens—dissented from the denial of certiorari. Justice Stevens explained that 6 7

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 4

ncvli.org

scope of permissible content of a victim’s statement.

Case law and commentators alike recognize three categories of content in victim impact statements: 1) information relating to the victim and the impact of the crime on the victim and the victim’s family; 2) characterizations and opinions about the crime and the defendant; and 3) characterizations and opinions about the appropriate sentence. It is the final category— characterizations and opinions regarding the appropriate sentence—that is most contentious. Although there is consensus among courts nationwide that, with regard to non-capital cases, victims may include information in all three categories in their victim impact statements,11 courts are split regarding whether sentencing recommendations are permissible in capital cases.

As noted above, the Payne Court overruled Booth, holding there was no per se constitutional bar to victim impact statements. In so ruling, however, it limited the scope of its decision with the following footnote: Our holding today is limited to the holdings of Booth v. Maryland, 482 U.S. 496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989) that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing. Booth also held that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case.12 Unfortunately, this footnote has confused rather than clarified the legal landscape. This is true because the he would have granted review because: “In the years since Payne was decided, this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms.” Id. at 566.

11 Beloof, supra note 5, at 289 n.51 (“Every state ruling on the constitutionality of victim recommendations in noncapital cases has held that trial court judges can hear all three types of impact evidence, including sentencing recommendations that are in the public interest.”).

12 Payne, 501 U.S. at 830 n.2 (emphasis added). See also id. at 833 (O’Connor, J., concurring) (“Booth also addressed another kind of victim impact evidence—opinions of the victim’s family about the crime, the defendant, and the appropriate sentence. As the Court notes in today’s decision, we do not reach this issue as no evidence of this kind was introduced at petitioner’s trial.”).

Court’s description of the facts in Booth are, in fact, misstatements. The Court in Booth was not presented with and did not address victims’ characterizations about the appropriate sentence.13 Thus, Payne ascribed to Booth a category of victim information that was not present in the case. The result of this mischaracterization is that the scope of what Payne overruled and what constitutional bars may exist to victim impact statements is far from clear.14 Admittedly, most courts that have considered the issue have determined that sentencing recommendations in capital cases—whether the victim requests leniency or the most severe sentence—are prohibited by Supreme Court jurisprudence.15 The flaw in the reasoning of these As one court has noted: “The victims’ statements in Booth only indirectly hinted at the punishment the victims were recommending. Indeed the only statements regarding sentencing were that the victims did not ‘think anyone should be able to do something like [the murders at issue] and get away with it’ and that ‘the people who did this could never be rehabilitated.’ Booth, 482 U.S. at 508. No specific recommendations regarding sentencing were made.

Thus the facts in Booth make it unclear whether the Court in that case considered the effect of the Eighth Amendment on opinions regarding sentencing.” Lynn v. Reinstein, 68 P.3d 412, 416 n.4 (Ariz. 2003).

14 See Elijah Lawrence, Victim Opinion Statements: Providing Justice for Grieving Families, 12 J.L. & Fam. Studies 511, 522 (2010) (“The split in authority in the lower courts is apparent. This state of confusion is the result of the U.S. Supreme Court’s ambiguous holding in Booth, followed by its obfuscating opinion in Payne. Some courts are construing the Court’s ruling in Payne to mean the Eighth Amendment creates a per se bar on the admission of victim opinion statements in capital cases.”); Wayne A. Logan, Opining on Death: Witness Sentence Recommendations in Capital Trials, 41 B.C. L. Rev. 517, 528 (2000) (reviewing authorities and noting that “it is readily apparent that marked uncertainty now persists over the extent, and indeed the continued existence, of the prohibition [against victim sentencing recommendations] ostensibly established in Booth”).

15 The federal right to be heard found in the CVRA has yet to be interpreted on this issue, although the legislative history makes clear that Congress intended this right to include the right to give a sentencing recommendation. See 150 Cong. Rec. S2468 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (“When a victim invokes this right [to be heard] during plea and sentencing proceedings, it is intended that he or she be allowed to provide all three types of victim impact-the character of the victim, the impact of the crime on the victim, the victims’ family and the community, and sentencing recommendations.”); see also id. (statement of Sen. Feinstein) (“The victim of crime, or their counsel, should be able to provide any information, as 13

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 5

ncvli.org

courts’ decisions, however, is that they do not critically Addressing Common Objections to Victim analyze the assertion that Booth considered sentencing Sentencing Recommendations recommendations, or that Payne left intact a per se bar There are a number of objections to victim impact against victim sentencing recommendations. Among the statements that are made regardless of whether the case courts that have so ruled are the Courts of Appeals for the is a capital case or not, with the additional objection in Tenth Circuit,16 the Eighth Circuit,17 the Fifth Circuit,18 capital cases being a vague “death is different” statement. and the Fourth Circuit19 in dictum, and the highest courts Each objection to a victim of Alabama,20 Maryland,21 New speaking at sentencing, Jersey,22 Ohio,23 Tennessee,24 including to a victim giving a To help victims secure unfettered victim Utah,25 Virginia,26 and sentencing recommendation, voice at sentencing, in fall 2010, NCVLI Washington.27 Although the can be overcome. Detailing all submitted an amicus curiae brief in the Arizona Supreme Court did possible objections and the best case of Utah v. Ott, Case No. 10-490, on question the assertion that Booth responses is beyond the scope petition for certiorari review to the United erected a per se bar against of this article; however, a few States Supreme Court. The case squarely sentencing recommendations, the key points should be made. presents the question for the Court of court ultimately agreed with the whether the Eighth Amendment erects other jurisdictions in holding that First, with regard to the a per se bar against a victim’s sentencing sentencing recommendations in general comment that “death recommendation in a capital case. capital cases are impermissible.28 is different,” although it is NCVLI has urged the Court to grant true that in a capital case review in the case to finally resolve the In contrast, the Oklahoma Court defendant’s life is at issue issue. We will keep you updated! of Criminal Appeals, the State’s and that is a solemn reality, criminal court of last resort, has the saliency of this difference reached the opposite conclusion. in the context of sentencing This court has consistently recommendations is difficult permitted victims to recommend to determine.

As noted earlier in this article, no court has the appropriate sentence in capital cases, without Supreme held that the Constitution prohibits victims from opining Court reversal.29 on the appropriate sentence in non-capital cases.30 Further, in capital cases in most jurisdictions, defendants enjoy a right of allocution that permits not only the defendant, well as their opinion, directly to the court concerning the but also his family, to recommend a sentence to the jury.31 release, plea, or sentencing of the accused.”).

16 Consequently, an argument against an injection of emotion Hain v. Gibson, 287 F.3d 1224, 1238-39 (10th Cir. 2002) into the sentencing determination as grounds for exclusion (quoting Payne, 501 U.S. at 830 n.2). See also Hooper v. of victim input only—and in capital cases only—seems Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002).

17 unsustainable.

See Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999), cert. denied, 529 U.S. 1038 (2000) (dictum).

18 Ultimately, any constitutional rationale for excluding See Woods v. Johnson, 75 F.3d 1017, 1037-38 (5th Cir. certain types of victim impact information in capital cases 1996) (dictum).

19 would turn on the possibility of prejudice to the jury.32 See Ivey v. Catoe, 36 Fed. Appx. 718, 725-26 (4th Cir. But social science research “contradicts the assumption 2000) cert. denied, 537 U.S. 952 (2002) (dictum).

20 that jurors are readily influenced, much less prejudiced, See Ex parte McWilliams, 640 So. 2d 1015, 1017 (Ala. by participant recommendations.”33 Moreover, the 1993).

21 See Ware v. State, 759 A.2d 764, 783-86 (Md.), cert. denied, 531 U.S. 1115 (2000).

2002), cert. denied, 538 U.S. 985 (2003); Turrentine v.

22 See State v. Koskovich, 776 A.2d 144, 177 (N.J. 2001).

State, 965 P.2d 955, 980 (Okla. Crim. App. 1997), cert.

23 See State v. Fautenberry, 650 N.E.2d 878, 882 (Ohio), denied, 525 U.S. 1057 (1998); Ledbetter v. State, 933 P.2d cert. denied, 516 U.S. 996 (1995).

880, 890-91 (Okla. Crim. App. 1997); Conover v. State, 24 See State v. Middlebrooks, 995 S.W.2d 550, 558 (Tenn.

933 P.2d 904, 920 (Okla. Crim. App. 1997).

30 1999).

Beloof, supra note 5, at 289 n.51.

25 31 See State v. Ott, 247 P.3d 344 (Utah 2010).

In the vast majority of states “courts regularly allow 26 See Beck v. Commonwealth, 484 S.E.2d 898, 903-04 (Va. ‘pleas for mercy’ by defense witnesses. Allocution, when 1997). the capital defendant himself addresses the sentencing 27 See State v. Pirtle, 904 P.2d 245, 269 (Wash. 1995), cert. authority on the question of death, inevitably bears a close denied, 518 U.S. 1026 (1996). similarity as well.” Logan, supra note 14, at 545-46.

28 32 Lynn v. Reinstein, 68 P.3d 412, 416 n.4 (Ariz. 2003).

Id. at 526 n.60.

29 33 See Murphy v. State, 47 P.3d 876, 885 (Okla. Crim. App. Id. (citing Theodore Eisenberg et al., Victim Characteris© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 6

ncvli.org

evidentiary rules, under which “courts routinely exclude evidence that is unduly inflammatory,” can contain any risk that a victim’s sentencing recommendation to a capital jury would be unduly prejudicial.34 Similarly, the Due Process Clause protects a defendant’s rights by controlling the risk of prejudice in cases where “a witness’ testimony or a prosecutor’s remark so infects the sentencing proceeding as to render it fundamentally unfair.”35

Conclusion As Justice Cardozo said in Snyder v. Massachusetts: “Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”36 By overwhelmingly passing legislation allowing victims to speak freely at sentencing, states across the country recognized that to keep the balance true, victims—who are most affected by the underlying crime—should, like defendants, have an unfettered voice at sentencing. The Ninth Circuit Court of Appeals, when interpreting the CVRA’s right of a victim to be heard at sentencing, has also incorporated this concept of fairness in noting that a victim has an “indefeasible right to speak, similar to that of the defendant . . . .”37 In light of the fact that Supreme Court jurisprudence does not establish a constitutional bar to the victims’ voice including a sentencing recommendation, and to ensure that the victims’ right to be heard fulfills its purposes and is akin to defendant’s, victims should be allowed to comment on the appropriate sentence. tics and Victim Impact Evidence in South Carolina Capital Cases, 88 Cornell L. Rev. 306, 340 (2003)).

34 Payne, 501 U.S. at 831 (O’Connor, J., concurring).

35 Id. 36 291 U.S. 97, 122 (1934).

37 Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006).

Intern Spotlight

Colette McEldowney is a second-year law student at Lewis & Clark Law School who began interning with NCVLI in the fall of 2010. During her internship, Colette has worked on a wide range of projects involving victims’ rights, including compiling a state survey of statutes of limitations for child sexual assault prosecutions and preparing a legal memorandum analyzing whether the Oregon practice of providing conditional immunity to juvenile sex offenders when

they disclose additional assault victims during sex offender treatment violates victims’ rights. NCVLI is lucky to have the help of talented and passionate interns such as Colette contributing valuable legal work to the victims’ rights field. Colette has this to say about her internship with NCVLI: I have absolutely loved my time at NCVLI. Not only have I been able to expand my knowledge in an area that I am passionate about, but I have also been blessed to work with inspiring leaders in victims’ rights who amaze me every day. I have had the benefit of guidance from some of the most talented attorneys I have encountered, who work hard to not only empower victims but to share their wisdom and talent with those around them.

During my internship I have learned about areas of the law that I was previously unaware of, and how they apply in a practical sense. My work here has allowed me to step beyond the parameters of work done in the classroom, to see how things apply in the real world. The skills and lessons that I learned in my time at NCVLI will stay with me throughout the duration of my legal career. I have always desired to give a voice to those who may be unable to speak, and as I move toward my summer employment with the District Attorney’s office, I know I will do so with an enriched knowledge of what justice entails.

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 7

ncvli.org

Victims of Online Fraud: Crime Victims Without Meaningful Rights?

by Johanna Borkan, M.S.W., and Terry Campos, J.D.

What is Online Fraud?

Although fraud—understood generally as “[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”1—is an age-old phenomenon, the relatively recent creation of the Internet affords perpetrators a plethora of new ways to target, access, and deceive victims. From auction site postings of fictional goods, to viruses that infect computers to capture personal information, to advance fee scams claiming that the recipient has won money but must first advance a fee for administrative costs, to online romances that become financially exploitative relationships, online fraud comes in an infinite variety of forms and is constantly evolving.2 Online fraud (also known as Internet fraud), “refers generally to any type of scheme that uses one or more components of the internet—such as chat rooms, e-mail, message boards, or web sites—to present fraudulent solicitations to prospective victims, to conduct fraudulent transactions, or to transmit the proceeds of fraud to financial institutions or to others connected with the scheme.”3 The incidence of this type of fraud is growing rapidly.4 As an example of this trend, the Internet Crime Complaint Center, a partnership of the Federal Bureau of Investigation, the National White Collar Crime Center,

and the Bureau of Justice Assistance, saw a 22 percent increase in Internet-related crime complaints between 2008 and 2009—from 275,000 to more than 336,000.5 In the same time period, the Internet Crime Complaint Center also noted a striking increase in dollars lost by victims of Internet-related crimes—from $265 million to $560 million.6 Although the statistics reveal that the numbers of Internetrelated crimes are increasing, the numbers are only the tip of the iceberg. A host of unique obstacles face victims of online fraud that contribute to low reporting rates.

Although victims of white-collar crimes, in general, have extremely low reporting rates—in one study only 11.7 percent of such victims reported their victimization to law enforcement or to another crime control agency7—online fraud victims often face additional barriers that further decrease reporting rates.

The unique reporting challenges faced by victims of online fraud foreshadow the bumpy road for these victims in accessing justice and in exercising their rights in the criminal justice system. This is so because, even when these crimes are reported, they are rarely investigated; when they are investigated, they are rarely prosecuted.8 Nat’l White Collar Crime Ctr., supra note 4.

Id. 7 Rodney Huff et al., Nat’l White Collar Crime Ctr., National Public Survey on White Collar Crime (2010), 8, available at http://crimesurvey.nw3c.org/docs/nw3c2010survey.pdf.

8 See Debbie Deem et al., Victims of Financial Crime, in Victims of Crime 125, 137-38 (Robert C. Davis et al. eds., 3rd ed. 2007) (“Even when they report to law enforcement, few victims of financial crimes see their cases result in successful prosecutions or convictions. Many victims report that law enforcement officials refused to take reports or simply filed a complaint with no investigation, citing lack of resources, jurisdiction, criminal options, leads, or because the losses did not meet minimum thresholds (even in cases where there are multiple victims whose collective loss would meet the threshold). Cases are also less likely to be investigated when perpetrators do not live in the same areas as their victims, which is often the case, or when victims are viewed as stupid, greedy, or naïve.”

See also Edwin L. Klett & Rochelle L. Brightwell, Internet Crime – Modern-day Piracy, 12 Law. J. 4, 6 (2002) (“The SEC actively investigates Internet fraud allegations and, in many cases, has made important strides to combat cyber fraud. But others question whether the SEC is doing 5

Black’s Law Dictionary 670 (7th ed. 1999).

2 Similar tactics are used in other forms of mass marketing fraud using the mail and telephone. Although many of the themes discussed in this article are applicable to all mass marketing fraud victimization cases, this article focuses on online fraud in an effort to explore the unique aspects of crime involving the Internet.

3 Debra E. Ross, internet fraud, in 2 Encyclopedia of White-Collar & Corporate Crime 439 (Lawrence M. Salinger, ed., 2005).

4 See generally Jonathan Rusch, U.S. Attorneys’ Bulletin: The Rising Tide of Internet Fraud, http://www.justice.gov/ criminal/cybercrime/usamay2001_1.htm (“By all accounts, the United States leads the world in using the Internet for commerce and communication, and in spending on electronic commerce. There are growing indications that along with the expansion of legitimate Internet use, the United States is experiencing a rising tide of fraud that exploits the Internet.”); Nat’l White Collar Crime Ctr., 2009 Internet Crime Report, available at http://www.ic3.gov/media/annualreport/2009_IC3Report.pdf. (describing an increase in complaints to the Internet Crime Complaint Center from approximately 17,000 in 2000, to more than 336,000 in 2009).

1

6

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 8

ncvli.org

And even when instances of online fraud are prosecuted, victims often encounter obstacles in accessing justice and ensuring that they are afforded their rights.9

Unique Obstacles Faced

by Victims of Online Fraud

aware, however, that these victims often suffer numerous adverse effects, including financial instability, relational strains, adverse mental health symptoms, and reduced confidence in handling financial transactions.11

Victims of online fraud face unique jurisdictional and other challenges that make it particularly difficult for them to access victim assistance services and to exercise their legal rights in the criminal justice system.

Victims of online fraud face a number of obstacles that make it particularly difficult for them to access victim assistance services and to exercise their legal rights in the criminal justice system. Three of these obstacles are addressed here.

First, victims of fraud have been overlooked by the criminal justice system because of a long-standing dichotomy that exists in the victim services field between violent and non-violent crimes. Second, online fraud is often embedded in an extremely complex jurisdictional maze that makes reporting, investigation, and eligibility for and access to victim assistance services particularly challenging. Finally, many online fraud cases are mass victimization cases, which present additional hurdles for victims in reporting, accessing information about the investigation and prosecution, and exercising their legal rights.

Bias Against Victims of Online Fraud

A dichotomy exists in the victim services field that separates victims of financial crimes—such as online fraud—from victims of violent crimes. Within this dichotomy, the impact of fraud is often invalidated and its victims viewed as less deserving of help than victims of violent crime. The commonly held perception that victims of fraud “fall for” scams and are otherwise complicit in their victimization discourages these victims from disclosing their victimization, and further contributes to underreporting.10 Those who serve these victims are well enough, or whether that agency possesses the resources to do more. With over 40 million websites and a plethora of chat rooms, regulation is certainly a daunting task. Experts point out that only an extremely small percentage of the SEC’s enforcers work full time on Internet fraud in the agency’s Office of Online Enforcement. Experts estimate that the SEC is able to prosecute only a small percentage of the fraud actually taking place on the Internet.”) (internal citations omitted).

9 This article focuses on identifying and analyzing some of the most significant obstacles faced by victims of online fraud in accessing services and exercising their legal rights in the criminal justice system. NCVLI will offer strategies to help overcome these obstacles in another article, to be published in the coming year.

10 See H. Copes et al., Reporting Behavior of Fraud Victims and Black’s Theory of Law: An Empirical Assessment, 18

Furthermore, fraud victims—like victims of crime generally—may be members of vulnerable populations such as the elderly, those with limited English proficiency, or people living with disabilities.

Although research has shown that there is no typical online fraud victim,12 and that online fraud affects a diverse range of people, members of vulnerable populations may need additional support and may have increased difficulty in recovering from the crime.13 Victims of online fraud, like victims of all crimes, need access to victim assistance and legal services. Despite this clear need, the victim services field is deficient in services for victims of financial fraud. Services that are generally available to victims of violent crimes, such as crime victims compensation to cover expenses resulting from the crime, are often not made available to online fraud victims.

Just. Q. 343, 359-60 (2001) (discussing how the common perception that fraud victims are complicit in their victimization contributes to underreporting); Neal Shover et al., Consequences of Victimization by White-Collar Crime, in Crimes of Privilege: Readings in White-Collar Crime 74, 84-85 (Neal Shover & John Paul Wright eds., 2001) (same).

11 See Deem et al., supra note 8, at 133-36; Debbie Deem, Notes from the field: Observations in working with the forgotten victims of personal financial crimes, 12 J. Elder Abuse & Neglect 33, 36-38 (2000). Preliminary research has corroborated practitioner observations, although further research on financial crime victims is needed to better understand and serve this population. For an example of research on the effects of financial fraud on victims, see Linda Ganzini et al., Victims of Fraud: Comparing Victims of White-Collar and Violent Crime, in Crimes of Privilege: Readings in White-Collar Crime 87, 87-94 (Neal Shover & John Paul Wright eds., 2001).

12 Staff Report of the Bureaus of Economics and Consumer Protection, Fed. Trade Comm’n, Consumer Fraud in the United States: The Second FTC Survey (2007), http://www. ftc.gov/opa/2007/10/fraud.pdf.

13 See Deem, Notes from the field: Observations in working with the forgotten victims of personal financial crimes, supra note 11, at 36-37; Lisa Nerenberg, Forgotten victims of financial crime and abuse: Facing the challenge, 12 J. Elder Abuse and Neglect 49, 68-71 (2000).

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 9

ncvli.org In fact, it was not until 1997 that federal regulations governing the use of Victims of Crime Act (VOCA) funds14 were revised to include victims of financial crime, despite the fact that the majority of VOCA funds are collected from “white collar” offenders.15 And even after this change in the federal regulations, few states have modified their VOCA guidelines to include victims of financial crimes, such as online fraud. As of 2005, only six states had amended their procedures to explicitly include financial crime victims in those groups eligible for assistance or compensation funds.16 Also, services that generally accompany prosecution—such as prosecution-based victim advocacy—are often unavailable to victims of online fraud because prosecutors’ offices tend to prioritize allocating limited resources to victims of violent crime.

Center or other appropriate agencies. Also, many investigatory agencies lack resources to investigate the sometimes convoluted schemes involved in online fraud, and often cite complexities arising from jurisdictional issues as reasons for not following up on reports.20 Simply trying to report online fraud can become an insurmountable task for these victims who become “hot potatoes”— referred from one agency to another, without receiving meaningful assistance.

The complexity of these multi-jurisdictional crimes also results in strikingly low investigation and prosecution rates,21 despite the fact that growing international online fraud crime rates are leading some nations to devote increased resources to pursuing these criminals. But even when these crimes are prosecuted in foreign jurisdictions, there are currently no systems in place by which to notify Jurisdictional Challenges Faced by American victims regarding: the progress of any criminal Victims of Online Fraud case or any rights that they may have in the foreign Victims of online fraud face challenges in accessing jurisdiction, the intricacies of the foreign justice system, services and exercising their legal rights in the criminal and the services available for these victims. In fact, a justice system because of the often victim may never know that a complex jurisdictional issues prosecution occurred in a foreign inherent in crimes involving the country because they are often Many online fraud cases are mass Internet. For example, although left out of the process entirely. victimization cases, which present the criminal acts associated with As a result, such victims are additional hurdles for victims in many crimes occur in the same prevented from recovering their exercising their legal rights—including place as the victim, when the losses or exercising any of their the rights to be present, to be heard, and crime is committed by use of the rights.22 Similar challenges exist to restitution.

Internet, the perpetrator may be for domestic federal or multi-state operating from a different state, or even a different country, than the victim.17 In fact, reports to the Internet Crime Complaint 20 Deem et al., supra note 8, at 137-38; Nerenberg, supra Center reveal a high number of complaints lodged by note 13, at 50-54. victims in the United States against offenders residing in 21 Deem et al., supra note 8, at 137-38; Klett & Brightwell, places such as Nigeria and the United Kingdom.18 supra note 8, at 6.

The reality of perpetrators living in a different state or country than their victims results in challenges in knowing the appropriate authority to which a victim should report the crime.19 Local police departments are often not trained to refer these complaints to the Internet Crime Complaint The Victims of Crime Act (VOCA), passed by Congress in 1984, provides funding for programs that serve crime victims. The Office for Victims of Crime of the Department of Justice administers the funding for states to use for crime compensation funds and victim assistance programs.

15 Deem et al., supra note 8, at 136.

16 Id. at 137. NCVLI is undertaking a comprehensive 50-state survey to update this information.

17 Susan W. Brenner, Toward a criminal law for cyberspace: a new model of law enforcement?, 30 Rutgers Computer & Tech. L.J. 1, 26 (2004).

18 Nat’l White Collar Crime Ctr., supra note 4.

19 Nerenberg, supra note 13, at 53; Copes et al, supra note 106, at 360.

14

As part of its Responding to Online Fraud Project, funded under a grant from the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice, NCVLI facilitates legal and support services for victims located in the United States whose cases are being tried in the Romanian judicial system. Through this pilot project, NCVLI is (1) coordinating with national and foreign law enforcement to serve as a source of information and notification for these American victims, (2) working collaboratively with Romanian attorneys to ensure legal representation for victims in Romanian courts, (3) notifying the victims of their rights in the foreign jurisdiction and explaining how they can assert those rights, and (4) facilitating other needed domestic support services. Using a victim-centric approach, NCVLI serves as a liaison between the victims and other involved parties to ensure that the victims are informed and afforded their rights throughout the criminal justice process. For more information about this project, see NCVLI: Responding to Online Fraud, http://www.lclark.edu/law/centers/national_crime_ victim_law_institute/online_fraud/.

22

© 2011 National Crime Victim Law Institute

continued on page 12

NCVLI Newsletter 13th Edition

Page 10

ncvli.org

e-year-old the murder of his fiv ith w d ge ar ch t an nd ARIZONA A defe inuances. NCVLI’s g of requests for cont in str a in r he ot an ith assistance son filed for Crime Victims, w ice Vo na izo Ar e th c, hts to Arizona clini r why the victims’ rig fo ts en m gu ar rth fo t in the from NCVLI, set lay were preeminen de le ab on as re un m ndant’s proceedings free fro al court denied defe tri e th ts, en m gu ar e es case. After hearing th duling order. nce and issued a sche ua in nt co request for a naed statutory rape subpoe ith w d ge ar ch t an nd fe The case was one CALIFORNIA A de educational records. d an th al he l ta en m s’ rights the victim’s e constitutional victim bl ica pl ap e th as n, the right of first impressio This law provides for ts. ur co e th in d ste ery request by law had not been te , deposition, or discov iew rv te in an se fu re to ial information or of victims sclosure of confident di e th t en ev pr to d successfully defendant, an as assisted by NCVLI, w ho w , ey rn to at ’s records. The victim ting the victim’s oenas, thereby protec bp su e th h as qu to argued privacy. during the retrial of anted to be present w tim vic A DO RA ith her during COLO tim advocate to sit w vic a d te an w d an t, subpoenaed defendan support. Defendant y ar ss ce ne e th e id witness trial and prov r to invoke the rule of de or in al tri at fy sti t the advocate’s the advocate to te so complained abou al t an nd fe De

n. tio g during the sequestra which included cryin al, tri st fir e th g rin . NCVLI’s behavior du d out of the courtroom an in tim vic e th ng assistance trial and escorti ctim Law Center, with Vi ain nt ou M y ck Ro ld be present.

Colorado Clinic, the support person shou e th at th ed gu ar I, from NCVL t pleaded guilty.

Ultimately, defendan ered impact statement off tim vic e th to ed ct je ob ription of the past IDAHO Defendant hich included a desc w , tim vic e nc le vio Idaho Clinic, by a domestic defendant. NCVLI’s by r he on ed ct fli in e entire injuries and abus inic, argued that the Cl ts gh Ri s’ im ct Vi o e court the University of Idah g the arguments, th in er id ns co r te Af le. issib d defendant to statement was adm come in and sentence to t en m te sta e tir allowed the en years’ incarceration. the maximum of 10 ed the court ccessfully subpoena su t an nd fe de r te Af rds, NCVLI’s MARYLAND l and counseling reco ca gi lo ho yc ps ed al er, Inc., for the victim’s se ctims’ Resource Cent Vi e im Cr nd yla ar M and filed a Maryland Clinic, the mediately stepped in im I, VL NC m fro e nc tutory rights with assista constitutional and sta ’s tim vic e th d rte se r the motion that as leged. In a victory fo ivi pr e er w s rd co re e The and argued that th the victim’s motion. d te an gr e dg ju te ra ist fense counsel victim, the state mag here, however, as de d en t no d di tim vic assistance fight for this nd Clinic, again with yla ar M e Th n. io cis objected to the de strict court for the victory in the state di d re cu se en th I, VL ed sealed. from NC victim’s records remain e th at th g rin su en victim, thus

In the

Trenches

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 11

ncvli.org

OREGON Defen dant, who pleade d guilty to sexual minor victim, ch ly abusing the allenged the tria l co urt’s order awardi to that victim in ng restitution the amount of he r counseling expe argued that he sh ns es ould not be held . Defendant responsible in re because of the vi In this column, NCVLI publishes news from the frontlines of the crime stitution to the vi ctim’s emotiona ctim l and sexual hist an amicus curiae ory. NCVLI subm victims’ rights movement—information about cases we all want and brief—along w it te d ith NCVLI’s Orego Victims Law Cent n clinic, Oregon er— in support need to know about but that are not published in any of the reporters.

Cr ime of the victim’s rig this case, arguin ht to restitution g that this right Several of these cases are pending and will be updated in future in is available to al of their sexual hi l victims, regard story or emotiona columns, as information is available. If you know of a victims’ rights case less l condition at th victimized. The e time they were court of appeals that should be included in this column, please e-mail us at ncvli@lclark.edu. affirmed from th the trial court aw e bench the deci arding the victim sion of restitution.

UTAH After child -victims of sexual abuse were deni restitution from ed an order of a state agency (r elying on a Utah state agency to St at be ordered to pa ute that permits y treatment cost a is sexually abused s in cases where ), the victims atte a ch ild mpted to appeal that allowed for . But the provisio victim appeals su n ch as this one ha removed by the d been inadvert legislature by th ently e date of the adve Utah Clinic, the rse ruling. NCVLI Utah Crime Victim ’s s Legal Clinic, w NCVLI, relied on ith assistance from the legislative hi st ory of the reinst provision to argu atement of the ap e that its removal peal had been inadve that the victims rtent, and argued did have standing to appeal the de pending. cision. The case is 9TH CIRCUIT FEDERAL Defen District of Columbia a non-pr dant engaged in ofit organization a scheme to defr .

A s aud a re su lt of the crime, th dissolved and no e organization longer existed at the time of defe NCVLI assisted th ndan e prosecution in arguing that unde t’s sentencing.

Victims Restitut r the Mandatory ion Act, a court m ay order restitut non-victims: 1) io n to the followin the estate of a de g ceased victim; 2) agreed upon in a persons or entiti plea agreement; es as and 3) the Crime if the victim assi Victims Fund (Fun gns the victim’s d), interest in restit provided research ution to the Fund to support an ar .

N CV LI gu m order restitution ent that a court payments to the may sua sponte Fu nd when the vict restitution, but do im renounces es not explicitly assign restitutio case is pending. n to the Fund. Th e 11TH CIRCUIT - FEDERAL Seve ral young women of sexual assault who were victim sought justice th s rough the civil sy to do so using ps st em eudonyms rather , but wanted than their real na an amicus curiae mes brief in support of the young wom . NCVLI filed their privacy inte en, focusing on rests and the re-v ictimization they their personal in would suffer if formation was re vealed. Unfortu district court de na tely, the federal nied the request to proceed by ps women appealed eudonym. The yo and NCVLI filed ung a second amicus Eleventh Circuit curiae brief in th Court of Appeals. e Ultimately, the El that the district eventh Circuit ru court abused its led discretion when of the four youn it denied the requ g women to proc es ts ee d anonymously remand, the dist in the suit. On rict court held th at all the young anonymously. women could pr oceed

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 12

ncvli.org

Online Fraud, continued from page 9

cases in which the victims live in different states than where the crime is ultimately prosecuted.

Mass Victimization Cases: Difficulties with Reporting, Investigation and Prosecution, and Exercising Legal Rights Many online fraud cases are mass victimization cases.

The sheer number of victims involved in such cases can overwhelm the capacity of the reporting, investigatory, legal, and support systems to respond effectively, and can interfere with the ability of victims to access information about the investigation and prosecution of the perpetrator and to exercise their legal rights. Investigative tactics in cases with large numbers of victims are often complex and resource-depleting. Police departments may receive multiple online fraud reports every hour and, for the reasons cited above, these reports may be taken purely as a matter of formality or outright denied. Reports made to the Internet Crime Complaint Center are for the development of complaints and may or may not ultimately lead to a referral to an investigative agency pursuing the case.

Also, financial losses suffered by a victim typically must meet minimum thresholds for an investigation or prosecution to occur. Despite the fact that the combined losses incurred by victims in mass victimization cases would often far exceed the minimum threshold, investigation or prosecution does not occur because the victims’ individual losses do not each exceed this threshold.23 From the victims’ perspective, it can feel like reporting into a black hole because they generally do not receive any follow up on their reports, and even when a case moves forward to an investigation or prosecution, it is common for victims to experience silence for months or even years after reporting.

Mass victimization cases also pose one of the greatest obstacles to affording victims their legal rights in federal prosecutions of online fraud.24 The Crime Victims’ Rights Act (CVRA or the Act), 18 U.S.C. § 3771, provides online fraud victims with several enumerated rights in federal prosecutions, including the rights: to reasonable notice of any court proceeding involving the crime; to be present at public court proceedings; to be heard at any public proceeding involving release, plea, sentencing, or any parole proceeding; and to full and timely restitution.25 In online fraud cases where the number of victims may reach the thousands, the first major challenge to affording victims these and other legal rights is identification of all the victims.

Deem et al., supra note 8, at 137.

Online fraud is typically prosecuted under federal statutes prohibiting mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343.

25 18 U.S.C. § 3771(a)(2), (a)(3), (a)(4), (a)(6).

23 24

To qualify as a victim under the CVRA, a person must be “directly and proximately harmed as a result of the commission of a Federal offense.”26 As discussed above, there are extremely low reporting rates for online fraud and victims often report to the “wrong” law enforcement agency; as a result, the identities of victims may never be known by the investigating agency or the prosecutor.

Further, because there is no requirement that an individual be named in the indictment or even be the target of the crime to qualify as a legal victim under the CVRA,27 there may be hundreds or thousands of unidentified individuals who are entitled to rights under the Act, but remain in the dark about the prosecution of the person who victimized them.

Even when victims are identified, the nature of mass victimization cases creates significant hurdles to the exercise of their legal rights. 28 The CVRA addresses some of the challenges courts face with these cases in a multiplevictim provision that provides that: “In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.”29 The forms such alternative procedures may take vary from case to case, but many create additional barriers to victims exercising their rights.

For example, the CVRA provides victims of crime “[t]he right to reasonable, accurate, and timely notice of any public court proceeding . . . involving the crime . . . .”30 In mass victimization cases, the traditional methods of notification—such as by letter or by phone— 18 U.S.C. § 3771(e).

In re Stewart, 552 F.3d 1285, 1289 (11th Cir. 2008) (“The CVRA . . . does not limit the class of crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the charging document. The statute, rather, instructs the district court to look at the offense itself only to determine the harmful effects the offense has on parties. Under the plain language of the statute, a party may qualify as a victim, even though it may not have been the target of the crime, as long as it suffers harm as a result of the crime’s commission.”).

28 For information about protecting victims’ rights in multiple victim cases in the federal criminal justice system, see Meg Garvin, Ensuring Individual Rights are Not Diminished in the Face of Mass Victimization, NCVLI News (Nat’l Crime Victim Law Inst., Portland, Or.), 10th Ed. 2008, at 1, 3-4. For copies of this article, please contact NCVLI. 29 18 U.S.C. § 3771(d)(2) (emphasis added).

30 18 U.S.C. § 3771(a)(2).

26 27

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 13

ncvli.org may be impracticable given limited governmental resources. In these cases, courts have fashioned alternative procedures for notifying victims as allowed by the multiple victim provision, such as providing notice by publication in a national newspaper or posting to an informational government web site.31 Unfortunately, this “reasonable procedure” places the burden on victims to “seek out” information about the case—a case they may not even know exists.

proceedings indefinitely to hear from every victim in a mass victimization case. Even when multiple victims are permitted to speak, a victim may find his or her statement limited in time and scope. A judge may also require victims to edit statements because the statements are repetitive of what prior victims have already said—the “no need to hear it again” effect.36 When victims of online fraud are silenced, it reinforces the feeling that they are second class victims.

Another example is the right under the CVRA of every victim to “not to be excluded from any . . . 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.”32 In mass victimization cases only a small minority of victims will be called to testify; therefore, most victims of online fraud will have an unqualified right to be present at the proceedings.33 But in a case with 200,000 victims, even if only one tenth of one percent of the victims wanted to be present, a courtroom could not physically accommodate all of these victims.34 In addition to capacity limitations, the location of the criminal proceedings will have significant ramifications on a victim’s ability to exercise this right.

Because online fraud is a borderless crime, victims may be spread out across the United States, and many victims lack the resources or time to travel to and from proceedings in another state.

Lastly, in mass victimization cases, a victim faces an uphill battle in getting restitution from the person who defrauded them. The CVRA grants victims the right “to full and timely restitution as provided in law.”37 In addition, under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663, fraud victims are entitled to restitution for the value of the defrauded property, as well as for expenses arising out of participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.38 Similar to the CVRA, the MVRA contains a multiple victim provision. But under the MVRA, a court may deny victims restitution if the court finds that “the number of identifiable victims is so large as to make restitution impracticable” or that “determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.”39 Thus, under the MVRA, convicted defendants may benefit from the sheer number of people victimized if they are able to argue successfully that restitution would be impracticable as a result.40

Yet another example of the challenges created in mass victimization cases implicates the right of a victim under the CVRA “to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”35 The most significant obstacle to exercising this right is likely to be judicial economy. A court will not delay sentencing See, e.g., United States v. Saferstein, Crim. No. 07-CR557, 2008 WL 4925016, at *4 (E.D. Pa. Nov. 18, 2008) (finding publication in national newspaper and an informational Government Web site monitored by the court to be “reasonable procedures” under multiple victim provision of CVRA of notifying the approximately 300,000 victims in the case).

32 18 U.S.C. § 3771(a)(3).

33 See, e.g., United States v. Okun, Crim. No. 3:08cr132, 2009 WL 790042 (E.D. Va. Mar. 24, 2009) (granting government’s motion to permit up to 577 fraud victims to be present for the entirety of the trial pursuant to the CVRA because defendant made no showing that victims would materially alter their testimonies).

34 See United States v. Purdue Frederick Co., 495 F. Supp.

2d 569, 573 (W.D. Va. 2007) (employing a procedure to accommodate victims by providing a second courtroom equipped with an audio and video feed for the overflow).

35 18 U.S.C. 3771(a)(4).

31

See, e.g., United States v. Skilling, Criminal No. H-04025-SS, 2009 WL 806757, at *1 (S.D. Tex. Mar. 26, 2009) (“If it appears that multiple victims wish to make the same points, the court may limit the number of victims who speak in order not to unduly complicate or prolong the resentencing hearing.”). From court records, it appears that the victims in this case did not petition for writ of mandamus to challenge the district court’s order as a violation of their right to be heard under the CVRA by improperly limiting the content of their victim impact statements.

37 18 U.S.C. § 3771(a)(6).

38 18 U.S.C. §§ 3663A(a)(3), (b)(4).

39 18 U.S.C. § 3663A(c)(3). See, e.g., In Re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 559 (2d Cir. 2005) (upholding the trial court’s denial of restitution under the MVRA based on the trial court’s determination that there were numerous victims and restitution determinations would “extend the sentencing process inordinately”).

40 But see, e.g., United States v. Catoggio, 326 F.3d 323, 327-28 (2d Cir. 2003) (rejecting defendant’s argument that there were too many victims to order restitution under the MVRA in a case in which the government had a 1,700page victims’ restitution report detailing $192 million in 36

© 2011 National Crime Victim Law Institute

continued on page 19

NCVLI Newsletter 13th Edition

Page 14

ncvli.org

Anti-Stalking Statutes May Criminalize Implied Threats Without Running Afoul of Free Speech Protections: The National Consensus

by Alison Wilkinson, J.D.

What is Stalking?

The portrayal of stalking in popular culture typically takes one of two forms. In the first incarnation, stalking is portrayed as harmless and often humorous—think of the 1998 film There’s Something About Mary, in which Cameron Diaz’s character is pursued obsessively by at least four men, including a personal investigator hired by one of them to dig up information about her personal life. Alternatively, stalking is portrayed in an over-thetop fashion, with an overtly psychotic stalker getting plastic surgery to resemble a deceased spouse, tattooing the victim’s name across his chest, or delivering swift and immediate death to anyone who comes between him and his victim.

In reality, of course, stalking may take a variety of forms and is anything but funny for the millions who experience it. Although the legal definition varies from state to state, stalking can be generally defined as a pattern of repeated and unwanted attention, harassment, contact, or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear. Stalking has a significant impact on those who are being stalked.

Studies find that about 30 percent of stalking cases result in physical violence against the victim.1 Even when there is no overt physical violence, victims of stalking commonly experience physical harm, such as anxiety, post-traumatic stress disorder, and sleep disturbances.2 Stalking generally does not take the “over the top” form seen in many madefor-television movies. It is more likely to take forms such as repeatedly following the victim too closely in her car and thereby causing the victim distress, or sending unwanted letters and presents to the victim, or the victim’s family, friends, or co-workers, even after the stalker has been told to stop.

See J. Reid Meloy, Stalking and Violence, in Stalking and Psychosexual Obsession: Psychological Perspectives for Prevention, Policing, and Treatment 106-07 (J. Boon and L. Sheridan, eds., 2002) (collecting ten studies, which had basal violence rates of approximately 21 to 76 percent); David V. James et al., Stalking and Serious Violence, 31 J. Am. Acad. Psychiatry Law 432, 435 (2003) (finding that “serious violence” resulted in 32 percent of stalking cases studied).

2 Michele Pathe et al., Management of Victims of Stalking, 7 Adv. Psychiatr. Treat. 399, 401 (2001).

1

Over 3.4 million people are stalked every year.3 Approximately 14 in every 1,000 people age 18 and older are stalked every year.4 In response to the stalking epidemic, all states have enacted anti-stalking legislation.5 Although the legal definition of stalking varies based on jurisdiction, one common element is to prohibit “threatening” words or conduct.6 Many jurisdictions explicitly include “implied threats” as falling under the conduct prohibited or otherwise do not limit the prohibited conduct to overt threats.7 This article focuses on the “threat” requirement found in many anti-stalking statutes. Please know, however, that every state’s stalking statute is unique, and there are numerous other issues that space constraints prevent discussion of here. Please contact NCVLI with any questions you may have about your jurisdiction’s antistalking legislation.

Free Speech Challenges to Anti-Stalking Legislation By prohibiting the stalker from making certain verbal or written communications with the victim, anti-stalking legislation can raise potential free speech concerns.

The First Amendment broadly proclaims that “Congress shall make no law . . . abridging the freedom of speech . . . .”8 The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. 9 Additionally, many states have adopted protections similar to those in the First Amendment under their state constitutions.

Katrina Baum et al., U.S. Department of Justice, Office of Justice Programs, National Crime Victimization Survey: Stalking Victimization in the United States, 1 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svus.pdf.

4 Id. 5 California was the first state to enact anti-stalking legislation in 1990; by 1998, every state had adopted anti-stalking legislation. Carol E. Jordan et al., Stalking: Cultural, Clinical and Legal Considerations, 38 Brandeis L.J. 513, 516 (2000).

6 See, e.g., Ala. Code § 13A-6-90; Ariz. Rev. Stat. § 132923; Ark. Code Ann. 5-71-229; Cal. Pen. Code § 646.9; Colo. Rev. Stat. § 18-9-602.

7 See, e.g., Ala. Code § 13A-6-90; Ariz. Rev. Stat. § 132923; Cal. Pen. Code § 646.9; Colo. Rev. Stat. § 18-9-602.

8 U.S. Const. amend. I. 9 Gitlow v. New York, 268 U.S. 652, 656 (1925).

3

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 15

ncvli.org Because of the importance this country places on free speech, a special—more demanding—–body of law has developed around laws that involve speech. When a statute implicates free speech, it must be narrowly tailored so that it is neither overbroad (meaning it reaches a substantial amount of protected speech) nor vague (meaning the average person would not understand what speech is prohibited).10

The Great Weight of Authority Agrees that Prohibiting Implied Threats Does Not Run Afoul of Constitutional Free Speech Protections Although numerous defendants have argued that prohibiting “threats”—defined to include implied threats—raises overbreadth and vagueness concerns, with near-unanimity courts have found that an overt threat requirement is not required for an anti-stalking statute to pass Constitutional muster.

Using case-specific analysis based on the language of their statutes, courts find that prohibiting implied threats does not per se run afoul of free speech.11 In one such case, the Georgia Supreme Court rejected defendant’s argument that an overt threat was required to survive constitutional scrutiny, finding instead that the definition of “threat” was not unconstitutionally vague or overbroad because it was clearly defined and did not prohibit a substantial amount of protected speech .12 An Alabama appellate court found that A statute is “overbroad” if it “prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008). A statute is “vague” if it does not provide a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly[,]” or if it does not “provide explicit standards for those who apply [the laws].” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

11 See, e.g., Culbreath v. State, 667 So. 2d 156, 159-60 (Ala. Crim. App. 1995) (finding a “credible threat” requirement, defined to include implied threats, did not run afoul of free speech protections); People v. Borrelli, 77 Cal. App. 4th 703, 719-20 (Cal. Ct. App. 2000) (same); Johnson v.

State, 449 S.E.2d 94, 96 (Ga. 1994) (refusing to interpret the state’s anti-stalking statute as requiring an overt threat); State v. Whitesell, 13 P.3d 887, 900-03 (Kan. 2000) (finding that an anti-stalking statute that prohibited behavior that seriously “alarms, annoys, torments, or terrorizes” the victim without an overt threat requirement, to be neither vague nor overbroad); Salt Lake City v. Lopez, 935 P.2d 1259, 1265 (Utah Ct. App. 1997) (finding that an anti-stalking law that did not require overt threats was not unconstitutionally vague or overbroad).

12 Johnson, 449 S.E.2d at 96.

10

Local Sponsors & Supporters NCVLI is grateful to its many supporters, each of whom helps advance victims’ rights. In this issue we thank the community partners and businesses that support our work. We would also like to thank the many generous federal employees who support NCVLI each year through the Combined Federal Campaign—your support makes a difference for victims around the country!

Community Partners & Business Sponsors Hon. Brad Berry, J.D., Yamhill County District Attorney Brandon Simmons, J.D., Staff Attorney, Utah Crime Victims Legal Clinic Candace Newland-Holley, NCVLI Board Member Chris Wilson, Psy.D., Psychologist Debra Bridges, Victim Advocate, Yamhill County District Attorney’s Office Helene Davis, NCVLI Board Member, Mothers Against Murder and Assault Janine Robben, J.D., Executive Director, Oregon Crime Victims Law Center Melissa Owens, MA, LPC, CADC1, Therapist Helen O’Brien, Program Coordinator, Victims’ Assistance Program, Multnomah County District Attorney’s Office Hon. Paul Cassell, J.D., Professor of Law, S.J. Quinney College of Law, University of Utah Anne Amie Vineyards Annie Bloom’s Books Archery Summit Bellagio’s Pizza The Benson Hotel CARES Northwest Columbia Sportswear Full Sail Brewing Company GoodSearch.com Greater Portland Chapter of Parents of Murdered Children Lan Su Chinese Garden Mainlander Investments Mister Fisk Nike Oregon Anti-Crime Alliance Foundation P.F. Chang’s China Bistro Pittock Mansion Portland Beavers Baseball Portland Marriott Downtown Waterfront Starbucks Victims’ Services Division of the Oregon Department of Justice

continued on page 16 © 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 16

ncvli.org

Stalking, continued from page 15

the use of “credible threat” in its stalking statute—defined to include implied threats—did not render the statute unconstitutional because the term was clearly defined.13 Similarly, a California appellate court found that the use of “credible threat” in its anti-stalking statute—defined to include implied threats—was not vague or overbroad because it was sufficiently defined and because it was intended to prohibit conduct that presented a danger to society, and was thus outside First Amendment protection.14 Although the courts’ analyses are dependent on the specific language of the respective anti-stalking statutes, two overarching themes emerge clearly from these cases.

First, courts find that stalking behavior—even when it manifests itself in words—is not the sort of behavior intended to be protected by free speech laws: “[T]he goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, ‘communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs . . . .’”15 When speech moves away from these values, and toward interference with Culbreath, 667 So. 2d at 159-60.

Borrelli, 77 Cal. App. 4th at 719-20.

15 Id. at 715 (quoting Shackelford v. Shirley, 948 F.2d 935, 938 (2d Cir. 1991) (quoting Tribe, American Constitutional Law (2d ed. 1998) § 12-8, pp. 836-37).

13 14

Pro Bono

Corner

another’s Constitutional rights—such as the rights of privacy and to pursue happiness—it becomes abusive and moves into unprotected behavior: “While the right to free speech guarantees a powerful right to express oneself, it does not include the right to repeatedly invade another person’s constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress.”16 As the Maine Supreme Court has eloquently stated: “Simply put, stalking another person is not constitutionally protected behavior.”17 Second, courts cite to the right and the duty of states to protect their citizens from harassing and dangerous behavior.

For example, the Utah Court of Appeals has noted that speech restrictions imposed by virtue of its anti-stalking legislation were “justified by the state’s compelling interest in protecting its citizens from threatening and harmful Id. at 716. See also Virginia v. Black, 538 U.S. 343, 358-59 (2003) (noting that the First Amendment permits restrictions upon the content of speech when it is “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”) (citing R.A. V. v. City of St. Paul, 505 U.S. 377, 382 (1992)); Whitesell, 13 P.3d at 900-01 (“Despite our First Amendment rights, we are not free to harm others under the guise of free speech.”).

17 State v. Elliott, 987 A.2d 513, 520 (Me. 2010).

16

NCVLI is grateful for the outstanding work of attorneys who serve as pro bono counsel to help crime victims. In this issue we thank four attorneys who have recently served as local counsel in our amicus curiae efforts.

Steve J. Kelly. Mr. Kelly, of Miles & Stockbridge, P.C., in Towson, Maryland, served as local counsel in LaFontant v. State, a case in which NCVLI filed an amicus curiae brief in the Maryland Court of Special Appeals, arguing that crime victims and their representatives have an independent right to request restitution that cannot be waived by the prosecution in a plea agreement without the victim’s express consent.

Erin Olson. Ms. Olson, of The Law Office of Erin Olson, P.C., in Portland, Oregon, served as local counsel in State v. Delanty, a case in which NCVLI filed an amicus brief with the Court of Appeals of the State of Washington, arguing that it would be an impermissible interpretation of the state’s criminal rules to compel victims to give tape-recorded interviews.

Mark Racanelli and Stephanie Lloyd Brill. Mr. Racanelli and Ms. Lloyd Brill, of O’Melveny & Myers LLP, in New York, New York, served as local counsel in People v. Robinson, a case in which NCVLI filed an amicus curiae brief with the Supreme Court of the City of New York, arguing that victims have the right to retain their own attorney and have that attorney act as their representative by participating in the case while it is being prosecuted.

Charles Van Cott. Mr. Van Cott, of Stevens & Van Cott, PLLC, in Paradise Valley, Arizona, served as local counsel in Martin-Costa v. Kiger in the Arizona Supreme Court, a case in which NCVLI filed an amicus brief. The case involved the important and recurring issue of whether Arizona courts will recognize that crime victims have standing to be heard about violations of their rights under Arizona law. Mr. Van Cott also served as local counsel in Morehart v. Barton, another case in which NCVLI filed an amicus curiae brief in the Arizona Supreme Court.

In the Morehart brief, NCVLI argued that the Court of Appeals correctly held that the trial court erred in granting defendant’s motion for an ex parte hearing to discuss unspecified “mitigation issues” involving out-of-state subpoenas and denying the crime victims’ right to be present. © 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 17

ncvli.org behavior.”18

into the law.21 It held that in order to survive scrutiny under Oregon’s Constitution,22 the law must be aimed at The Georgia Supreme Court similarly explained that: prohibiting unwanted effects of speech—not the speech itself.23 Additionally, the underlying communicative act A state legislature is not constitutionally must itself be unprotected.24 To meet this requirement, precluded from defining prohibited “harassing the court held that a “proscribable threat” requirement and intimidating” conduct must be read into the statute.25 The more broadly than the making court defined a “proscribable threat” of “an overt threat of death or as “a communication that instills in the This winter, NCVLI submitted bodily harm” or the causing addressee a fear of imminent and serious an amicus curiae brief in the case of substantial “emotional personal violence from the speaker, is of State v. Ryan, Case No. SC distress.” To the contrary, our unequivocal, and is objectively likely S059065, on petition for review to General Assembly is clearly to be followed by unlawful acts.”26 the Oregon Supreme Court. The authorized to enact statutes Recently, Oregon’s appellate courts case invites the Court to revisit “intended to protect the citizens have determined that this same showing the Rangel showing as applied to of Georgia from intimidation, must be made to obtain relief for the victims who have already received violence, and actual and violation of a stalking protective order— stalking protective orders against implied threats.”19 even though the defendant is already their stalkers. The petition was prohibited from making contact with the granted this spring, and NCVLI As social science evidence makes victim under the order, and even though appeared at the merits stage as well. clear, explicit threats do not the victim has already been required to No decision has been reached yet. always presage violence.20 In make the Rangel showing in order to order to fully protect their citizens, obtain the order.27 states recognize that they must be permitted to intervene even if Oregon’s case law is distinguishable the stalker does not make overt threats. As such, antifrom that of other states. Oregon courts have interpreted stalking legislation is appropriately aimed at intervening in Oregon’s constitutional speech protections extremely potentially violent situations before the violence occurs. broadly, finding Oregon’s free speech laws to be even more protective than the protections found in the First Amendment. Most states do not have such stringent The Exception: Oregon free speech protections. NCVLI is fighting hard to In contrast to this great weight of authority, Oregon change the law in Oregon so that victims of stalking in courts have found that punishing a stalker for making that state may experience the same protections that implied threats runs afoul of free speech protections. victims in other states enjoy.

Facially, Oregon’s anti-stalking statute has no overt threat requirement. In State v. Rangel, however, the Oregon Conclusion Supreme Court read an unequivocal threat requirement Just because anti-stalking laws regulate speech, it does not follow that they violate free speech protections. To the 18 contrary, the great majority of courts that have addressed Lopez, 935 P.2d at 1264. See also Johnson, 449 S.E.2d this issue have concluded that prohibiting implied threats at 96 (“[O]ur General Assembly is clearly authorized to does not per se run afoul of free speech. If you are facing enact statutes ‘intended to protect the citizens of Georthis issue in your jurisdiction, please contact NCVLI for gia from intimidation, violence, and actual and implied resources and assistance. threats.’”) (internal citation omitted); Elliott, 987 A.2d at 520 (“Because the State has a legitimate interest in protecting public safety by prohibiting defined types of behavior 21 977 P.2d 379 (Or. 1999). that infringe on the rights of another person, [defendant’s] 22 It is important to note that Oregon’s state free speech law prohibited conduct toward [the victim] was not constituis extremely broad, providing that: “No law shall be passed tionally protected.”). restraining the free expression of opinion, or restricting the 19 Johnson, 449 S.E.2d at 96. right to speak, write, or print freely on any subject what20 Phillip J. Resnick, Stalking Risk Assessment, in Stalkever; but every person shall be responsible for the abuse of ing: Psychiatric Perspectives and Practical Approaches 63 this right.” Or. Const. art. I, § 8.

(Debra A. Pinals, ed., 2007) (noting that approximately 2523 Rangel, 977 P.2d at 383.

50 percent of stalkers who make threats become physically 24 Id. violent toward the victim, and “[i]n approximately 15% of 25 Id. at 384. cases . . . male and female stalkers were violent without 26 Id. prior threats”).

27 See State v. Ryan, 239 P.3d 1016 (Or. Ct. App. 2010); State v. Nguyen, 243 P.3d 820 (Or. Ct. App. 2010).

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 18

ncvli.org

Case Spotlights

Victim impact statements—typically presented at the sentencing phase of a criminal trial or in advance of a decision regarding the release of a prisoner—provide crime victims the opportunity to face their offender and express, among other things, the personal harms caused by the offense and the need for restitution.

The law governing what is permissible in terms of the content and form of victim impact statements, and the identification of relevant processes, is evolving. As examples, three recent cases discussing this important aspect of victim participation are summarized here.

United States v. Rhodes, No. 10-5126, 2010 WL 4882833 (6th Cir. Nov. 24, 2010) (slip copy). Defendant appealed his sentence on a single count of bank fraud, arguing, inter alia, that the district court erred in allowing both the victim and the victim’s attorney to address the court during his sentencing hearing. Defendant argued that although the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, and the Federal Rules of Criminal Procedure require the district court to permit the victim to be reasonably heard, neither provision permits both the victim and the victim’s attorney to address the court on the issue of sentencing.

The court rejected defendant’s interpretation as imposing an inappropriate limit on the information a sentencing court is permitted to consider. The court explained that the victim “may not have had a right to present both his statement and [his attorney’s] statement at the hearing,” but it held that it was well within the district court’s broad discretion to hear from both the victim and the victim’s attorney regarding an appropriate sentence. Assuming without deciding that the district court erred by failing to give defendant prior notice that both the victim and the victim’s attorney would be allowed to speak at sentencing, the court found the error to be harmless. The court vacated defendant’s sentence on other grounds and the case was remanded for resentencing.

State v. Bixby, 698 S.E.2d 572 (S.C. 2010). Defendant appealed his death sentence for the murder of two police officers, arguing, inter alia, that the trial court erred when, during the penalty phase of the trial, it admitted into evidence a seven-minute video showing portions of the funeral for one of the slain officers. Defendant argued that the video introduced an arbitrary factor into the sentencing phase of his trial in violation of South Carolina law and the Eighth Amendment. The state responded that the video was admissible as “victim impact” evidence and was not unduly prejudicial. The court conducted its analysis in three parts: First, addressing defendant’s arguments, it found the video distinguishable from that at issue in State v. Northcutt, 641 S.E.2d 873 (2007), in that the victim impact statement

disallowed in that case “was a staged dramatization[,]” which had “more of a tendency to elicit passion and prejudice than a videotape showing excerpts from a victim’s actual funeral.” The court found that the videotape “was relevant to show the uniqueness of the victim, the harm committed by [defendant], and the impact of the victim’s death on his family and society,” and that its probative value was not substantially outweighed by the danger of unfair prejudice. Second, addressing the state’s argument, the court found that the video was victim impact evidence according to Payne v. Tennessee, 501 U.S. 808 (1991), because it “demonstrat[ed] the general loss suffered by society[,] . . . [and] . . . display[ed] for the jury the specific impact of the murder on particular members of society.”

Third, addressing the dissent’s concern that the video was moving and could have caused the jurors to feel sympathy for the mourners and “outrage at the person who inflicted the suffering,” the majority summarized its previous findings on this issue by stating that: “simply saying that evidence such as this was ‘moving’ is not enough to require reversal of a capital sentence.” Concluding that there was no evidence in the record sufficient to establish a finding of prejudice, the court affirmed defendant’s sentence.

State v. Jordan, 325 S.W.3d 1 (Tenn. 2010). Defendant was convicted of the first-degree murders of three individuals, including his wife, as well as the attempted first-degree murders of two other people, and was sentenced to death. Defendant appealed his convictions and sentences, arguing, inter alia, that the trial court erred in permitting an “excessive” number of witnesses to offer victim impact testimony about the murder of one of the victims, and more specifically, in permitting the fiancé of this victim to offer victim impact testimony. The court rejected defendant’s arguments, holding that it was not error for the trial court to permit the fiancé, brother, and son of one of the victims to testify about the impact of defendant’s crimes at the sentencing hearing. The court explained that the statute permitting the murder victim’s family members, or representatives of the victim’s family, to offer victim impact testimony does not place any restriction on the number of witnesses who may testify about the murder’s impact; further, the testimony by the victim’s fiancé, brother, and son was brief, limited to appropriate topics, and was not cumulative or unduly prejudicial. The court also concluded that it was not error for the trial court to allow the victim’s fiancé—who resided with the victim before his death— to provide victim impact testimony because the statute expressly provides for a representative of the family to testify, and because the state’s Victim’s Bill of Rights contemplates that a person residing with a deceased victim may exercise the victim’s rights. The court then affirmed defendant’s convictions and sentence, concluding that although there were several trial errors unrelated to the victim impact testimony, the combined effect of the errors had no impact on the jury’s verdicts.

© 2011 National Crime Victim Law Institute

NCVLI Newsletter 13th Edition

Page 19

ncvli.org

Vision 21: Transforming Victim Services

The crime victims’ field is at a critical juncture in its short history. Despite the field’s growth and the expansion of new resources, there remains the important task of creating a comprehensive, reflective, and forwardthinking strategy to extend the reach and effectiveness of the crime victims’ field in our Nation’s response to crime.

Through funding from the Office for Victims of Crime (OVC), Office of Justice Programs, U.S. Department of Justice, NCVLI is participating in a comprehensive effort to transform the future of victim services.

In the summer of 2010, NCVLI was awarded a grant

by OVC under the “Vision 21: Transforming Victim Services” initiative. The goal of “Vision 21” is to develop a philosophical and strategic framework for defining the role of the field in our response to crime and moving the field forward. The four areas to be explored are: (1) the role of the crime victims’ field in the overall response to crime and delinquency in the United States; (2) building capacity in the crime victims’ field to better serve victims of crime; (3) enduring challenges in the crime victims’ field that are still being addressed; and (4) emerging challenges that the crime victims’ field has yet to address.

The grant NCVLI received is to address area (1)—the role of the crime victims’ field in the overall response to crime and delinquency in the United States. For this project, NCVLI has brought together many diverse perspectives in a Stakeholder Group to critically examine and create consensus on foundational questions and proposed answers related to who is a crime victim, and the field’s response to underserved and unserved victims through enhanced partnerships and better integration of the field into the broader criminal justice field to advance crime victims’ rights. The Stakeholder Group is comprised of a large network of national experts on issues including, but not limited to, child welfare, health, mental health, victims’ rights enforcement, judiciary, law enforcement, legal, ID theft, sex trafficking, gangs, violence against women, at-risk juveniles, corrections, and homelessness. This Stakeholder Group is further augmented by an Expanded Partner Group consisting of a wide range of professionals to help ensure that every sector of the crime victims’ field will be represented in the process. In addition, NCVLI will allow for input from the field at large through an online process.

The outcome of this initiative will be a final synthesis report that reflects broad input from practitioners in the field, and hopefully a level of consensus that can be used to enhance partnerships and create a new horizon for the field. NCVLI’s work under this grant will be integrated with that of the other projects to assist OVC in charting the direction of the field, including identification of potential demonstration projects to implement recommendations in the final report. *For more information on this project, contact Julie Landrum at julielandrum@lclark.edu or by phone at (503) 768-6835. For more information on the Vision 21 Initiative, visit www.ovc.gov/vision21.

Online Fraud, continued from page 13

Conclusion As online fraud proliferates, so does a growing victim population that faces unique obstacles to accessing justice and exercising their rights. The historical bias against victims of fraud that minimizes the harm suffered by these victims, complex jurisdictional issues, insufficient resources, and the challenges inherent in mass victimization cases combine to create a population of victims seemingly without rights. Because of the critical importance of ensuring that victims of online fraud receive the services they need and are afforded their legal rights in the criminal justice system, NCVLI will publish another article in the coming year offering strategies to help overcome these obstacles.

losses to approximately 10,000 victims).

© 2011 National Crime Victim Law Institute

NON PROFIT ORGANIZATION U.S. POSTAGE PAID PERMIT NO. 438 PORTLAND, OR

at Lewis & Clark Law School

310 SW 4th Avenue, Suite 540 Portland, OR 97204 (503) 786-6819 | (866) 301-8794 fax ncvli@lclark.edu

Conference Preview

NCVLI’s 10th Annual Crime Victim Law Conference, to be held June 14-15, 2011, will include a celebration of 10 years of litigation successes as well as an examination of the emerging challenges to victims’ rights. It is a broader goal of the Conference to grow the national community of law students, attorneys, and advocates that understand rights enforcement and to engage this community in a national conversation to: (1) evaluate progress in advancing victims’ rights; (2) identify strategies for overcoming challenges to continuing progress; and (3) articulate plans to shape the future of victims’ rights enforcement.

NCVLI’s Crime Victim Law Conference is the only national conference dedicated to rights enforcement in criminal cases, which is a critical but often overlooked component of holistic victim services. The Conference provides participants with the knowledge and practical skills necessary to provide effective legal representation to victims of crime.

Registration for the Conference is now open at www.ncvli.org. © 2011 National Crime Victim Law Institute