Crime Victim Rights in the US-NOVA
A Constitutional Amendment for Victim Rights
National Organization for Victim Assistance
DC Public Safety Radio
Radio show available at http://media.csosa.gov/podcast/audio/2014/11/crime-victim-rights-in-the-us-nova/.
LEONARD SIPES: From the nation’s capital, this is DC Public Safety; I’m your host Leonard Sipes. Back at our microphones ladies and gentlemen Will Marling, the Executive Director of the National Organization for Victim Assistance, www.trinova.org www.trinova N O V A .org talking about victim’s rights in the United States. Before we hit the record button there is a whole laundry list of things that we’re talking about, number one if you’ve been listening to the show at all, that you know the NOVA is trying to do a constitutional amendment, the United States constitutional amendment to better protect victim’s rights. We’re also going to be talking about the limitations of incarceration, and the possibility of a holistic approach as to involving victims credentialing, and what NOVA is doing to bring people into, up to speed I suppose in terms of making sure that they have the skills necessary to be victim’s advocates. A BJS report from the Department of Justice talking about the harm, the tremendous harm documented by victims of crime and the final question, whether or not victims of crime, and the issues of victims of crime has lessened in impact in the last couple of years, as we shift over to a conversation about incarceration, Will Marling welcome back to DC Public Safety.
WILL MARLING: Thank you Len, always a pleasure, always a pleasure.
LEONARD SIPES: Will, give us an update in terms of the United States constitutional amendment to better protect victims of crime.
WILL MARLING: Well thanks, we’ve been working in the 113th congress, which is the one, it is just coming to a close now, post-election, that covers men and women, as well as of course, or really in the lame duck period now as we conclude the year. But for the past two years, which is the length of congressional session, we have been working hard to educate legislators, particularly on the House of Representatives side, to understand this need for victim’s rights. In 33 states, crime victim’s rights are inculcated in the state constitutions, but that leaves 17 states without, and that means that there is not a constitutional amendment. I will also admit that even among the 33 states, it’s not as consistent as we might want it to be. So we recognize the need for a United States constitutional amendment to address victim’s rights. In the context of the last two years, we have been working very hard to educate those congressional leaders, particularly on the House side, to understand this need, and to focus on it. The challenges have been abundant, just with Congress itself, but just as an average there are roughly 20, to 25,000 bills introduced into a congressional session of two years. Between 2% and 4% of those pass, of course many of those bills are symbolic, everybody recognizes that, but at the same time, the math on that shows you that legislation itself is a real challenge. Then when we’re talking about moving it to the level of a United States constitutional amendment that, of course, ups the ante tremendously.
LEONARD SIPES: Constitutional amendments were made by our founding fathers, to be difficult. But the constitution as a living breathing document is susceptible to change. It does change, it has changed, but it’s not that easy to get a change in terms of the United States Constitution.
WILL MARLING: Well that’s exactly right, you have to have that two thirds in the house, and two thirds in the senate, and then three quarters of the known states. The only reason I say it that way, is back when the constitution was ratified by that same process, 13 colonies, 13 states had to do that. So three quarters of 13 states had to pass an amendment. Well now when you’re talking 50 states, you know there’s a lot more to that, and of course a lot more legislators that are representing, particularly in the House side, because we’ve always had two representatives in the Senate side from each state. So the math on that is the intriguing thing, but also the environment orient people don’t really understand that victims don’t have rights. It’s an assumption that victims should have rights, they’re at the core of the criminal justice process, people believe, but in reality the justice system is the system that’s working out its own form of justice, and that can be cumbersome.
LEONARD SIPES: Let’s set the stage here so people understand that the United States Constitutional amendment would apply to federal crimes, not necessarily state crimes, but the assumption is, for those 17 states without any victim protections at all, in terms of their own constitutions. The assumption is that if there’s a federal US constitutional amendment to protect victims of crimes, the rest of the states will fall in line, probably if it’s done at the federal level.
WILL MARLING: Yes the United States Constitution trumps basically state constitutions in that we recognize from the Bill of Rights, which is the first ten amendments that that will still apply to every citizen. So it can— a state constitution can be argued for affirming somebody’s rights, but the end of the day it’s going to be the United States Constitution that represents the extensive rights that the Supreme Court for instance is going to judge. So we’re just suggesting that, just like those accused in a given state of a crime, they can appeal to the United States Constitution for a number of rights, up to 23 perspective rights. We just want victims to have an affirmation of rights themselves, they don’t even need 23, but the dignity, the respect, the right to information, the right to protection, those can be part of the United States Constitution as well to protect them.
LEONARD SIPES: Yes and I don’t want to bore the audience in terms of technicalities, but the Bill of Rights, or search and seizure, the right to remain silent, they were at one time, only applied to federal crimes, the nationalization of the Bill of Rights, came gradually through a wide variety of Supreme Court cases, beginning back at the beginning of the 20th century. So if there was a federal constitutional amendment, I’m assuming that the same process would hold that they apply to federal crimes, not necessarily the state crimes, they could eventually apply to state crimes, through a nationalization of this particular amendment. Am I right or wrong?
WILL MARLING: Well fair enough Len, I mean you know I’m not a constitutional lawyer for sure, but I think the precedent that we all discuss among my friends who are lawyers, and trying to imbue these rights for victims of crime, would reflect that precedent exists. That a state individual accused now can truly appeal by precedent at the very least, to federal rights as a United States citizen. That’s what we would anticipate would happen, yes it would take time to go through a process, but we anticipate that that’s exactly what would happen.
LEONARD SIPES: But it would set the stage in terms of a national standard for protecting victim’s rights?
WILL MARLING: Yes you know I love that, I love the way you said that, that is really, that’s good.
LEONARD SIPES: There you go. So we have a change in Congress now, does that help you, or hurt you, or it’s just a slog to sit down with the individual members and their staff, and to go through what a United States Constitutional amendment to protect victim’s rights would mean?
WILL MARLING: Great question, strategically, in terms of the discussion at this point, I think we look at it, and we say well it doesn’t hurt. Now you know, the House and the Senate are now controlled by one party, and we were working with the House, that was controlled by the Republican side, and looking to educate them. Now, with the Senate controlled by the Republican side that can make for greater continuity. The work really comes down to educating all members of both sides of Congress into the importance of this issue, the value that it represents, and the deep reasons we should have it. I mean very few people will believe we ought to amend the Constitution with any frequency, and I would be one of those. At the same time there are good reasons to amend the Constitution, and I would suggest, with even some simple research you can see that victim’s rights would be one of those reasons. The long standing impact would be very positive for our society.
LEONARD SIPES: Okay so the bottom line behind the effort to create a constitutional amendment for victim’s rights, is that it’s an ongoing process, and probably will be an ongoing process for the next year or two.
WILL MARLING: That’s exactly right, we’re going to be looking obviously into the next congressional session, trying to build on what we’ve established here in this one. Learning from that but also seeing the opportunities as we move forward.
LEONARD SIPES: Okay let me shift gears for a couple of seconds because the larger question before we get into this debate on the limitations of incarceration and the need as you said it, in terms of a holistic approach. Is a report from the Bureau of Justice Statistics from the United States Department of Justice, the statistical arm of the US Department of Justice. They did a piece of research on victimization, and come to find that in terms of serious victimization, that the harm, both the psychological and financial harm to those victims were profound. If memory serves me correctly that 80% were talking about the devastating impact of being a victim of violent crime, and what it meant to them, again psychologically, and emotionally, and financially. So there’s no doubt, it simply quantifies what we’ve been talking about for decades, is the fact that violent victimization has an immense impact on American citizens.
WILL MARLING: Yes there’s no question, now I haven’t seen the report that you’re referencing and I’m looking forward to doing just that. This is something that we have known at the very least by anecdotal testimony of victims, 30 years ago when President Reagan’s taskforce for victim’s of crime, toured the country interviewing people, they had that same conclusion anecdotally that the long term impact of the losses created by violence specifically, and other levels of harm I would say. They ripple through our society, they touch a lot of people, but they affect us financially. I mean the losses from workplace violence alone, are measured in billions of dollars. Loss of productivity, insurance claims, disability claims, and so on. So we need to address remediation on the backside, no question, we need to support people who have been harmed. My contention Len as you bring this up, is that discussing victim’s right on the front end, and raising the profile of those needs, at a societal constitutional level, begins to put it on people’s radar, their awareness to say, okay people have rights. Just like with many other rights that are inculcated, through civil rights and so on, we say, okay this actually gives me a new awareness. I need to be thinking about that, and I need to be respecting and reflecting on those rights that victim’s of crime should have.
LEONARD SIPES: But the idea here is that there’s a possibility that victim’s rights seems to be diminishing in the minds of a variety of people. I’m not the first person who brings that observation to the table, because we get into the other issue were are going to talk about today, the whole idea that what we need is a limitation on incarceration. That we over incarcerate, that there are probably a good two dozen groups out there with very prestigious names behind them, who are talking about less incarceration. The fact that we over incarcerate and every governor in the country is probably talking to his or her correctional administrator and saying, look we’re spending way too much on corrections. You’ve got to bring down the bill, I don’t have the money to build roads, I don’t have the money to build schools, I don’t have the money to do the different things that we want to do, because so much of it is going towards correction. So I’m hearing fiscal issue, I’m hearing what I believe some people would consider to be a moral issues, in terms of the fact that we have the highest rate of incarceration in the world. I’m not hearing much about victims of crime, that’s why I brought up the BJS report, is that it documents strongly what happens to victims of violent crime. Our experience, my experience, your experience is that there are literally hundreds of thousands, if not millions of victims of non-violent crime, where it becomes a life changing experience. So if this is all true, and if it’s having this devastating impact on people who are victims of crime. Why isn’t the conversation at a level that it was ten, 15, 20 years ago?
WILL MARLING: Well you know another great question that you pose. I would say 20 to 25 years ago when there was little discussion about any of this, in fact there was little awareness about the needs of victims of crime. People — we had kind of evolved in our society into this debt against society kind of motif that we built up in the early part of the founding of this country. We had adopted that, so if I commit a crime against somebody, it’s actually a debt to society. So how do I pay my debt to society? I do my penitence by going to a petitionary, that’s actually the historic route. Well the early stages of the victim’s rights movement and the victim’s rights and services movement was recognized, hey wait a minute, it’s got to be more than just state versus the perpetrator, where are the victims? That really catalyzed a lot of changes, today we have compensation programs in every state, and we have a lot of victim services, and as I mentioned, state constitutional amendments for victim’s rights. It’s like so many things, I think the cycle has waned a little bit, the energy, even from our movement to recognize, wait a minute, our work’s not done. Then also other truly pressing needs, like this over incarceration issue, that many of us even in the victim side recognize. If you’re going to incarcerate everybody for so many things, then the seriousness that should be reflected in incarceration for crimes that deeply and profoundly traumatize and hurt people, that they’re minimized in some sense, almost. It’s the classic, if I only have a hammer then everything is a nail. That’s what we’re trying to reorient, that’s why this kind of holistic commitment to saying, wait a minute let’s look at the process more holistically. We need to take a longer term approach than just a congressional season to fix these things. I’m personally a proponent, I’m not speaking for anybody in particular, but I’m a proponent of looking at a ten year strategy, to bring about, to analyze, to look, to bring together all the players in these processes. Including the people that are critical of over incarceration and other things, and say okay what, upon what do we agree? There are things at the center in this society that the average reasonable person agrees with the other reasonable person, even though they might be on different sides of a political aisle, or an issue aisle. We just need to have that conversation, and it needs to be facilitated rather than creating these caricatures of other people and labels quite frankly. I’ve gone into the social science here, but that’s a little bit, to me what needs to happen.
LEONARD SIPES: Well let me reintroduce you Will before we continue the conversation, ladies and gentlemen, we’re more than halfway through the show. Show examining victim’s rights in the United States, Will Marling, Executive Director of the National Organization for Victim Assistance, is by our microphones once again, www.trinova.org www.trinova.org National Organization for Victim Assistance has been around for a long time. I can remember years ago, being a member of the criminal justice system when NOVA called you, your organization was going to be held accountable. We all had great respect for NOVA, but going back to the holistic approach, I do get the sense that victim’s rights seems to have dropped off the radar screen, considerably. I like your idea of a holistic approach, as long as victims of crime are part and parcel to that holistic approach.
WILL MARLING: Yes I agree, why can’t they be, there are a lot of people on the ground who have been doing this work for 30 years, 40 years. Those folks should be brought to bear to this discussion. I don’t mean just the victim’s movement, there are a lot of people in the victim’s movement. NOVA’s the oldest victim assistance organization of its kind in the nation. Then there are folks who have been working on the incarceration issues and needs of the incarcerated, and post release issues, and we all generally tend to respect that. We’re talking about human beings, but how can we then address the needs and the priorities, and part of my other reflection on the diminishing impact for victim’s rights. Len I would say it’s maybe not as much that victim’s rights have been diminished, as much as just other voices have now become more popular. As you described it the physical impact of building more and more prisons, and dealing with incarceration issues, simply has taken hold, because state’s budgets are so impacted in profound ways by that. That causes governors and their accountants to turn around and say, hey wait a minute, how are we going to fix this, how are we going to solve it? I personally don’t think we should just throw out justice principles, and say well what’s the cheapest way we can get this done? At the same time can we ask ways for appropriate, cost effective, but also evidence approach, evidence appropriate ways to really address, justice, crime and victim advocacy in our society.
LEONARD SIPES: Before hitting the record button you were talking about delineating levels of harm, because the question was, okay if we’re going to decide to take individuals and not put them in prison. If we’re going to agree that we have over incarcerated, we do have the highest rate of incarceration in the world. The governors are complaining about the cost of the budget, people do believe that this is a moral issue. Then fine, if we go along with that, then who doesn’t go to prison? Who are those people? So you introduced this concept of level of harm, that there’s got to be some delineation that a person who comes to the table, who has committed a violent crime. Let’s say it’s aggravated assault, but let’s say it’s two brothers, and let’s say one hits the other over the head with a beer bottle, which is an aggravated assault it’s with a weapon. But neither brother has an extensive criminal history, does that person go to prison? I mean there comes a point where it does— you start having to slice it and dice it at that level, do you not?
WILL MARLING: Well you do, here’s where I would bring in a slight philosophical issue that becomes very practical. This is the victim’s side movement where we can engage but then we need to recognize realities. Let’s use the example of, a horrible example unfortunately of a homicide. When somebody is murdered in this country, that is an infinite loss to most loved ones, surviving family members, surviving friends. What the justice system by necessity has to do is immediately put a price tag on that. So what is that infinite life worth? It’s worth 25 to life or something like that right? So what we miss in this is really helping calibrate victim’s expectations that the infinite is not going to be reclaimed by a finite system. It is our best attempt to reflect what we consider to be the value of a person’s life, and the justice commencer it with their violation of another human being. That’s why I say it’s levels of harm. I think there are ways, not perfect, that we can look and say, okay what is the harm that’s caused? Recognize that and then yes it’s going to have to have tangible price tags to it. Sometimes what’s missing is that there are profound issues of crime in our society that create harm, and we’re say they’re not violent. Therefore they’re not as harmful, and I would just suggest to you, because we take toll free victim assistance calls, and people calling for help. That those can be profoundly devastating, and in some ways are more devastating than what we might say is that violent crime, like the assault that you gave, the two brothers. Well what about the older couple, who have everything stolen from them through a data breach, or maybe some other nefarious way, and now they’re completely impoverished, they don’t have a wait to sustain themselves, they might end up on some kind of support system. The level can be profound there to the point that we’ve had people that have taken their lives because they simply can’t cope with that loss. So our examples obviously are pretty simple, but they’re still real, as we think about the impact.
LEONARD SIPES: The examples are real, they’re simple but drop back, you could have, and I’ve encountered all throughout my career, individuals who have been victimized by a property crime, who are profoundly affected by that. I’m preaching to the choir when I’m saying this to you, okay so they came into their house and they stole something off the porch, or they stole something out of the garage. There are people who move based upon that, destroy the character of a neighborhood, take away tax dollars from a city. There are people who are suddenly frightened and the idea of somebody either in their house, or near their house, this is a profoundly moving event for them. So the question becomes, once you start measuring the degree of harm, that I think really begins to put things into perspective, and makes the conversation a lot muddier in terms of who goes to prison and who doesn’t. If you psychologically damage people to the point where they hurt an entire community, by withdrawing from that community, you’ve done something pretty bad.
WILL MARLING: Yes you have.
LEONARD SIPES: But at the same time you can’t put everybody in prison.
WILL MARLING: Well that’s right and that doesn’t mean the result for everybody should be prison. What I would suggest at the risk of sounding like I’m speaking for victims which I don’t do, we try to empower victims individually, to extend their voice. What I would suggest though is they need options, victims need options for remediation number one, but also for support and validation in these things. Sometimes even just the simple acknowledgment by the justice system, we do recognize that this is a profound loss, we can’t reclaim that loss for you, but we respect you and we acknowledge that yes, a lot was lost in this. You, your neighbors, your society, community and so on. Even there the whole issue of victim’s rights isn’t in view, we’re not even using that kind of language. Just like when we think we need to respect another person civilly, there’s civil rights, why? Because they’re a human being. We’ve raised that conversation up to a societal level, and do we have Civil Rights violations in our country? Of course every day, but now at least it’s a discussion that people’s rights are violated, as opposed to yes I treat people like this because I’m better than they are, or whatever. That’s what I would suggest can happen with raising the profile of victims and their needs, and then to having a discussion, ask victims.
LEONARD SIPES: Two quick issues, number one, the issue is that I’ve never heard within the victim’s community animosity towards rehabilitation programs, towards reentry programs, towards changing the criminal justice system, towards less incarceration, most of the people that I’ve talked to, including you and other people from the victim’s community, seem to be willing to have that discussion. They simply want to be part of that discussion, which gets us right back to the constitutional amendment for victim’s rights.
WILL MARLING: Yes, no you’re exactly right I would say that most people, sensible folk, who’ve gone through things, have suffered at the hands of another. They understand that there are limitations to the changes that post incarceration issues, and all of these things. They just want to help inform people’s thinking about what that could look like, and that is a very reasonable consideration. People are scared of victims because many times when they see a victim whose suffered harm, they see them immediately afterwards, and the expressions of emotion, of anger, of angst, and so on, are very present, and very prominent. You know I always say commonly, if a person was sensible before their victimization, they’re sensible after their victimization, they’re just a lot more informed and aware about what that kind of victimization looks like for them personally.
LEONARD SIPES: Well the — I think that both of us agree that the level of discourse needs to be raised in terms of including a victim. So that’s the bottom line that’s why we’re looking at the constitutional amendment, that’s why we’re having this conversation. Victims simply want to be at the table, they don’t want to be ignored, they want their voice to be heard, they’re not against change, they understand change, they understand reentry, they understand reentry programs. They simply want to be part of that conversation, and they simply don’t want to be shoved off to the side, is that the bottom line?
WILL MARLING: Yes and I would say thank you Len, as well, because you’re actually helping to include this kind of dialogue and discourse in the context of our conversation. This is what we should be doing, let’s talk out the issues, let’s have a reasonable, sensible conversation, that impacts not just today, and people’s society today, but I got kids, and I’m thinking about how all these things will impact them as adults, and the posterity for the future.
LEONARD SIPES: Well this program goes into an awful lot of college classrooms, not only throughout the country, but throughout the world. We have 150 organizations that pick up this feed automatically and post it on their websites, and I’d say that probably two thirds of those are colleges. So we get involved in a lot of interesting conversations with people who come back to us and say I heard a show on victim’s rights, and we discussed it in the classroom. So that’s all important. So we’re going to go from all of these big issues, in the final minute and a half, two minutes of the program. I do want to get into the fact that you’re still working with the military, you’re still working with the Department of Defense, you’re still doing credentialing, you’re still doing training of individuals to be victim’s reps correct?
WILL MARLING: That’s right, I appreciate the query there, we are focused on best practices and advocacy, and the National Advocate Credentialing Program really reflects that commitment to those standards. We’re working with the Department of Defense and the standards that we have helped them establish for the very same kind of advocacy in the sexual assault victim assistance arena. What I’m very proud of is our network, and this doesn’t just network NOVA it’s the network, this profoundly incredible network of folks that iceberg so to speak, where we’re just the tip. That do this work, day in and day out, reflect the best professional standards, service and compassion, competence and commitment. Those are the three legs of my stool, compassion, competence and commitment, and credentialing reflects that. So I’m very proud of the team that really has joined together as an allied professional network, to say look, we do good work, and these are the standards that we reflect, and these are the best practices that we promote in advocacy.
LEONARD SIPES: Well and advocacy nevertheless the people need to be trained, they need education, they need to know what to do, and how to do it. When you’re dealing with a person who is suffering from the post-traumatic stress of a violent crime, or a property crime, they have to be dealt with in a certain way. So they have to be credentialed and they have to be trained.
WILL MARLING: That’s exactly right, I mean that’s important today to reflect those standards, and those standards in our context do reflect a certain kind of training, experience, background. It doesn’t necessarily require a certain kind of education, but that as well can be acknowledged in the process of credentialing. It’s on the ground ability to serve those people at their worst possible moment, and provide the resources that they need to help them cope and move forward.
LEONARD SIPES: We have been talking today to Will Marling, Executive Director of the National Organization for Victim Assistance, we all are always appreciative of Will coming on and talking to us. Will thank you, www.trinova.org, www.trinova.org. Ladies and gentlemen this DC Public Safety, we appreciate your comments, we even appreciate your criticisms, and we want everybody to have themselves a very, very pleasant day.