Over the past decades, the role of the victim in criminal cases has grown significantly in most jurisdictions.1 More than thirty states now have a constitutional crime victims’ “bill of rights” that confer various participatory rights and sometimes a broader right to fair treatment throughout the criminal process.2 In 2004, Congress passed the Crime Victim’s Rights Act, which extended national-level protection to victims of federal crimes.3 Victims are now afforded a range of rights at the federal and state level that are provided during criminal proceedings, at sentencing, and at various points in the parole hearing process.
Proponents of these laws originally argued that the criminal justice system had become increasingly defendant focused, often excluding victims from the process.4 However, some scholars claim that there is a lack of support for the premise that victims’ rights have actually been “thwarted by defendants’ claiming constitutional protection,”5 or argue that these laws distort the role of the victim in an adversarial system.6 The victim’s role in parole release proceedings has been criticized as well by those who contend that such decisions should focus on an inmate’s likelihood of re-offense and the degree of institutional rehabilitation and reentry readiness rather than the harm caused by the original crime.7
Several of the rights conferred upon victims under these laws may affect decisions about parole release. Perhaps most importantly, victims are notified of an offender’s release eligibility or parole hearing date and then allowed to present their views on the potential release of an inmate.8 In 2008, a comprehensive survey of paroling authorities showed that 93.6% of jurisdictions allowed some form of victim input. 80.9% of these jurisdictions require victim input for release in cases involving sex or violence. 40% of the jurisdictions reported that victim input was ‘very influential’ in their release decision.9 In a survey of American parole releasing authorities published in 2016 by the Robina Institute, victim input was reportedly considered by 38 of 40 responding states. The survey also found that in 28 of those jurisdictions, victim input is treated as confidential.10
This leads to a key question: who is entitled to be a victim or represent a victim, and thus participate, provide input or otherwise exert influence over the parole process? To examine this question in depth, this short article will compare statutes from some of the states recently researched by the Robina Institute; some of this research is currently available on our website. The Institute’s long-term goal is to publish parole profiles for every state and the U.S. Parole Commission. The states include Colorado, Connecticut, Georgia, Michigan, Missouri, Pennsylvania, Texas, and Utah.11 What follows offers an account of those individuals (and sometimes legal entities) that may be considered victims or victim representatives in these states.
Who can be a victim?
Natural persons, individuals, and other entities. In Colorado, Missouri, and Utah, the law specifies that victims’ rights pertain only to natural persons.12 In Michigan and Pennsylvania, victims are “individuals,” and appear to be limited to natural persons rather than legal entities for the purposes of victim input.13 In Georgia, a victim is “a person,” but “person” is defined as “an individual.”14 In Connecticut, while the definition of “person” in the statute is not clear, any “person” must suffer personal injury or death to qualify as a victim.15 Similarly, in Texas, a victim is also “a person” who has fallen victim to aggravated robbery, sexual assault, or kidnapping; or has suffered bodily injury or death as the result of criminal conduct has standing at a parole hearing.16 More discussion about a victim’s relationship with the crime is discussed below.
Victim harm. Whether or not a victim must be harmed (or must even be aware that they have been victimized by a crime) varies between jurisdictions. In some of the states examined, one can only be the victim of a completed crime that results in some form of personal injury. In other states, a mere attempt at a crime or a crime that does not result in either injury or economic loss may result in victim standing. The table below details the definition of victim, including the degree of harm a victim must suffer in each jurisdiction to have standing.
Table 1. Victim Definition
|State||Definition of What Constitutes a Victim|
|Connecticut17||A person who has suffered “personal injury or death which resulted from “(1) an attempt to prevent the commission of crime or to apprehend a suspected criminal or in aiding or attempting to aid a police officer so to do, (2) the commission or attempt to commit by another of any crime [as defined by state, federal, or local law or ordinance].”|
|Colorado18||“Any natural person against whom any crime has been perpetrated or attempted.”|
|Georgia19||“A person against whom a crime has been perpetrated or has allegedly been perpetrated.”|
|Michigan20||“An individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.”|
|Missouri21||“A natural person who suffers direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime.”|
|Pennsylvania22||“An individual against whom a crime has been committed or attempted and who as a direct result of the criminal act or attempt suffers physical or mental injury, death, or the loss of earnings under this act.”|
|Texas23||“A person who is a victim of sexual assault . . .aggravated robbery, or felony stalking; or has suffered bodily injury or death as the result of the criminal conduct of another.”|
|Utah24||“A person against whom the defendant committed a felony or class A misdemeanor offense, and regarding which offense a [parole] hearing is held under this chapter.”|
Victims and the crime of conviction. In Connecticut, Pennsylvania, Texas and Utah, victim standing at a parole hearing exists where the inmate is serving a sentence based on a crime that affected the victim.25 In Colorado an inmate must have been convicted of a crime against the victim.26 In Georgia, victims have rights in regard to anyone “suspected of and subject to arrest for, arrested for, or convicted of a crime against” them.27 In Michigan, victims have rights in regard to anyone who committed a crime against them and was charged with or convicted of a crime, or found not guilty by reason of insanity.28 Finally, in Missouri, it is unclear whether a conviction or a sentence based on a conviction is necessary for victim standing; however, victims may lose access to services for failure to initially report a crime within a reasonable amount of time.29
Requirement of non-participation in crime. In Utah, individuals cannot be a victim under the general victims’ rights statute if they are the accused or appear to be “accountable or otherwise criminally responsible for or criminally involved in the crime or conduct or a crime or act arising from the same conduct, criminal episode, or plan as the crime.”30 In Colorado, people cannot be victims if they are “accountable for the crime or a crime arising from the same conduct or plan as crime is defined under the laws of [Colorado] or the United States.”31
In Georgia, Michigan, and Pennsylvania the defendant is expressly prohibited from having legal standing as a victim.32
Requirement that victim not be incarcerated. In Utah, the right to be present as a victim may not be conferred on “any person who is in custody as a pretrial detainee, as a prisoner following conviction for an offense, or as a juvenile [offender], . . . or who is in custody for mental or psychological treatment.”33 In Colorado, the victims’ rights statute “shall not be construed to imply that any victim who is incarcerated by the department of corrections or any local law enforcement agency has a right to be released to attend any hearing or that the department of corrections or the local law enforcement agency has any duty to transport such incarcerated victim to any hearing.”34 However, incarcerated victims in Colorado may participate in hearings via telephone.35
Witnesses conferred rights of victims. In Missouri, witnesses can request in writing to have the same rights as a crime victim.36 In Pennsylvania, a minor child who is a material witness in an attempted or completed homicide, aggravated assault, or rape against a member of their family has the same rights as a crime victim.37
Who Can Represent a Victim, and Under What Circumstances?
Representatives for victims. In most states, there are provisions that allow certain close family members or other individuals to stand in for victims who are deceased or otherwise incapable of representing themselves. States vary in terms of who can be a representative, as well as what circumstances trigger representation. For example, in Missouri and Pennsylvania, only homicide victims may be represented after death.38 In Utah, the death must have been the result of the crime for which the offender is incarcerated.39 In some other states, as listed in table 2 below, death unrelated to the crime itself may also result in victim representation.
In Connecticut and Utah, any victim, regardless of whether or not they are incapacitated or deceased, is allowed a representative.40 However in Utah this does not appear to extend to representation at parole hearings.41 In Connecticut, the law also states that nothing in the statute defining victims’ rights should “be construed to prohibit the [parole] board from exercising its discretion to permit a member or members of a victim's immediate family to appear before the panel and make a statement.”42 This may mean that both a victim and their family member would be allowed to make a statement.
Requirement that victim representative not be incarcerated. In Michigan and Georgia, a parent, guardian, or custodian may not be a representative of an incapacitated victim if they are currently incarcerated.43
Table 2. Representatives for Deceased Victims
|State||Close family members?||Other representatives?|
|Connecticut44||Yes.||Statute defines how representative is appointed by a living victim who is now deceased.|
|Colorado45||Yes.||Family members, significant others, legal guardians, other lawful representatives.|
|Georgia46||Yes, but only specific ones.||None.|
|Michigan47||Yes, but only specific ones.||None.|
|Missouri48||Yes, but only for homicide victims.||None.|
|Pennsylvania49||Yes, but only for homicide victims.||None.|
|Utah51||Yes, but only if death is related to the crime.||None.|
Table 3. Representatives for Incapacitated Victims/Minors.52
|State||Incapacitated victims||Minor victims|
|Connecticut||Legal representative||Legal representative|
|Colorado53||Family members, significant others, legal guardians, other lawful representatives||Family members, significant others, legal guardians, other lawful representatives|
|Georgia||Parent, guardian, or custodian||Parent, guardian, or custodian|
|Michigan||Parent, guardian, or custodian||Parent, guardian, or custodian|
|Missouri||Family members||Family members|
|Pennsylvania||N/A||Parent or legal guardian|
While victim’s rights legislation has been popularized throughout the U.S. and confers similar rights at parole release hearings throughout the country, the definition of a victim varies widely between the eight states surveyed. In a survey of all fifty states, it might be possible to find yet more variation. The broader the definition of who can be a victim, the greater the number of individuals who may submit an impact statement or make a recommendation concerning parole. Though very few victims opt to engage in parole proceedings, when they do their principal motivation for doing so is to oppose an offender’s release.55 This may be especially problematic where victims do not have to suffer any harm to be eligible for hearing rights. How these issues are resolved in statute serves to facilitate or constrict victims’ opportunities to offer comments, often confidential, within the context of a parole hearing.
Most people likely picture the victim of a traumatic and possibly violent crime when considering victim’s rights. Clearly, that picture is inaccurate. Some of these statutes allow for potential vindictive behavior on the part of individuals who were barely touched by crime. In addition, in some of the states a victim who has since died in a manner completely unrelated to the crime may continue to be heard by a parole board, through representatives, for many subsequent years.
This short article takes no position on the desirability of victim input into parole release decisions. However, it does point out that the definition of “victim” itself is not universally defined, an issue that carries significant implications for victim participation and impact in the parole release process.
- 1. See, e.g., Andrew Nash, Victims by Definition, 85 Wash. U. L. Rev. 1419 (2008); 91 A.L.R. 5th 343 (“Validity, Construction, and Application of State Constitutional or Statutory Victims’ Bill of Rights).
- 2. Paul G. Cassell et al., Crime Victims’ Rights During Criminal Investigations? Applying the Crime Victims’ Rights Act Before Criminal Charges Are Filed, 104 J. Crim. L. & Criminology 59 (2014) citing Nat’l Victims Constitutional Amendment Passage, State Victim Rights Amendments, http://www.nvcap.org/states/stvras.html. States that have “right to fair treatment” language in their victims’ rights statutes include Arizona, Michigan, Texas, and California.
- 3. Justice for All Act of 2004, Pub. L. No. 108-405 (2004) (codified as amended at 18 U.S.C. § 3771 (2016)).
- 4. Cassell et al., supra note 2; President’s Task Force on Victims of Crime, Final Report (1982), http://www.ovc.gov/publications/presdntstskforcrprt/87299.pdf
- 5. Robert P. Mosteller, The Unnecessary Victims’ Rights Amendment, 1999 Utah L. Rev. 443 (1999).
- 6. See, e.g. Rachel King, Why a Victim’s Rights Constitutional Amendment is a Bad Idea, 68 U. Cin. L. Rev. 357 (2000); Paul H. Robinson, Should the Victim’s Rights Movement Have Influence Over Criminal Formulation and Adjudication?, 33 McGeorge L. Rev. 749 (2002).
- 7. See, e.g., Julian V. Roberts, Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole, 38 Crime & Just. 347 (2009). Edward E. Rhine, Joan Petersilia, and Kevin R. Reitz, The Future of Parole Release, in Crime and Justice: A Review of Research, vol 49, ed. Michael Tonry, University of Chicago Press, (Forthcoming 2017).
- 8. See, e.g., N.Y. Exec. Law § 259-i(2)(c)(A) (McKinney 2016); Tex. Code Crim. Proc. Ann. art. 56.02 (West 2016); Ga. Code Ann. § 17-17-13 (2016).
- 9. Susan C. Kinnevy & Joel M. Caplan, Findings from the APAI International Survey of Releasing Authorities 16-18 (2008), http://www.apaintl.org/resources/documents/surveys/2008.pdf .
- 10. Ebony L. Ruhland et al., Robina Institute of Criminal Law and Criminal Justice, The Continuing Leverage of Releasing Authorities: Findings from a National Survey 28-29 (2016) http://robinainstitute.umn.edu/publications/continuing-leverage-releasing-authorities-findings-national-survey. Note that this survey included the U.S. Parole Commission.
- 11. State parole profiles for Colorado, Pennsylvania, and Texas may be retrieved by going to the website for the Robina Institute of Criminal Law and Criminal Justice at: www.robinainstitute.umn.edu. Other states’ profiles will be posted in the months ahead.
- 12. Colo. Rev. Stat. Ann. § 24-4.1-302(5) (West 2016); Mo. Rev. Stat. § 595.200(6) (2016); Utah Code Ann. § 77-38-2 (9)(a) (West 2016).
- 13. Mich. Comp. Laws § 780.752(1)(m) (2016); 18 Pa. Stat. Ann. § 11.103 (2016).
- 14. Ga. Code Ann. § 17-17-3(8), (11) (2016).
- 15. Conn. Gen. Stat. Ann. § 54-209(a) (2016); See also § 53a-3(1) (“Person” [under the Penal Code] means a human being, and, where appropriate, a public or private corporation, a limited liability company, an unincorporated association, a partnership, a government or a governmental instrumentality.”).
- 16. Tex. Gov’t Code Ann. § 508.117(3).
- 17. Conn. Gen. Stat. Ann. § 54-209(a) (2016). Connecticut defines “victim” for the purpose of parole hearings by referring to the definition within the state’s crime victim’s compensation statute.
- 18. Colo. Rev. Stat. Ann. § 24-4.1-302(5).
- 19. Ga. Code Ann. § 17-17-3(11). Georgia allows victim standing for alleged crimes because victims have pre-trial and trial rights, including the right to be notified of a suspect’s arrest and a right to be present during court proceedings. See §§ 17-17-5, 17-17-9.
- 20. Mich. Comp. Laws § 780.752(1)(m).
- 21. Mo. Rev. Stat. § 595.200(6). Victim’s rights are automatically conferred on victims (or victims of an attempt) of first-degree murder, voluntary manslaughter, sexual offenses, or domestic assault. Other victims are afforded rights upon written request.
- 22. 18 Pa. Stat. Ann. § 11.103. This may also include Pennsylvania residents “against whom an act has been committed or attempted that would otherwise constitute a crime but for its occurrence in a location other than the Commonwealth […]”
- 23. Tex. Gov’t Code Ann. § 508.117(g)(3). A broader definition included in the victims’ rights statute also includes victims of trafficking in persons or injury to a child, elderly individual, or disabled individual. Tex. Code Crim. P. Ann. § 56.01.
- 24. Utah Code Ann. § 77-27-1(19) (Note that a broader definition of “victim” is also available under the state’s victims’ bill of rights: “[A]ny natural person against whom the charged crime or conduct is alleged to have been perpetrated or attempted by the defendant or minor personally or as a party to the offense or conduct or, in the discretion of the court, against whom a related crime or act is alleged to have been perpetrated or attempted […]”. See § 77-38-2 (9)(a)).
- 25. Conn. Gen. Stat. Ann. § 54-126a; 61 Pa. Stat. Ann. § 6140; Tex. Gov’t Code Ann. § 508.117(a); Utah Code Ann. 77-27-1(19) (West).
- 26. Colo. Rev. Stat. Ann. 24-4.1-302.5.
- 27. Ga. Code Ann. 17-17-3(1).
- 28. Mich. Comp. Laws Ann. § 780.752(1)(d).
- 29. Mo. Ann. Stat. § 595-206. Victims may lose eligibility for services by failing to report a crime within five days of occurrence or discovery unless the prosecuting attorney finds that a good cause existed for not having done so.
- 30. Utah Code Ann. § 77-38-2 (9)(a)).
- 31. Colo. Rev. Stat. Ann. § 24-4.1-302(5).
- 32. Ga. Code Ann. § 17-17-3(11)(C); Mich. Comp. Laws Ann. § 780.752(3); 18 Pa. Stat. Ann. § 11.103 (In Pennsylvania, the statute also makes clear that the alleged offender cannot be a victim).
- 33. Utah Code Ann. § 77-38-2(9)(a).
- 34. Colo. Rev. Stat. Ann. § 24-4.1-302.5(2).
- 35. Id. at § 24-4.1-302.5(1)(d.5)
- 36. Mo. Ann. Stat. § 595.209(1).
- 37. 18 Pa. Stat. Ann. § 11.103.
- 38. Id., Mo. Ann. Stat. § 595.200.
- 39. Utah Code Ann. § 77-27-1(19) (West).
- 40. Conn. Gen. Stat. Ann. § 54-126a; Utah Code Ann. § 77-27-1(19) (West).
- 41. Utah Code Ann. § 77-27-9.5 (West).
- 42. Conn. Gen. Stat. Ann. § 54-126a (d).
- 43. Ga. Code Ann. § 17-17-3(11)(C); Mich. Comp. Laws Ann. § 780.752(2).
- 44. Conn. Gen. Stat. Ann. § 54-126a; See also Conn. Gen. Stat. Ann. § 1-56r (defining how someone may be appointed as a representative by a now-deceased victim).
- 45. Colo. Rev. Stat. Ann. § 24-4.1-302(3)–(6) “Lawful representative means any person who is designated by the victim or appointed by the court to act in the best interests of the victim.”
- 46. Ga. Code Ann. § 17-17-3(11) (West) (“In the event of the death of the crime victim, the following relations if the relation is not either in custody for an offense or the defendant: (i) The spouse; (ii) An adult child if division (i) does not apply; (iii) A parent if divisions (i) and (iii) do not apply; (iv) A sibling if divisions (i) through (iii) do not apply; or (v) A grandparent if divisions (i) through (iv) do not apply.”).
- 47. Mich. Comp. Laws Ann. § 780.752(m) (this is very similar to the Georgia statute directly above).
- 48. Mo. Ann. Stat. § 595.200(6).
- 49. 18 Pa. Stat. Ann. § 11.103.
- 50. Tex. Crim. Proc. Code Ann. §§ 56.01, 56.02.
- 51. Utah Code Ann. § 77-27-1(19).
- 52. See citations from Table 2, supra notes 33–40.
- 53. Note that non-emancipated minor victims under the age of 18 are considered incapacitated in this state.
- 54. Victim representatives are allowed in these cases under the broader victims’ rights statute. See Utah Code Ann. § 77-27-9.5 (West).
- 55. Supra note 7.