A Constitutional Amendment for Crime Victim Rights-NOVA-DC Public Safety

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Radio Program available at http://media.csosa.gov/podcast/audio/2013/02/a-constitutional-amendment-for-crime-victim-rights-nova-dc-public-safety/

[Audio Begins]

Len Sipes: From the nation’s capital, this is DC Public Safety. I’m your host, Leonard Sipes. Back at our microphones, Will Marling, he is the Executive Director of the National Organization for Victim Assistance – www.trynova.org – www.trynova.org. We’re going to be dealing with a variety of victims’ issues in the United States, number one, an upcoming Constitutional amendment, something that NOVA has been pursuing for quite some time. We’re going to be talking about mass shootings throughout the country and victim response, and we’re going to be talking about victim trauma, and Will, I can’t imagine three more complicated, more difficult issues to talk about. Let’s talk off with the Constitutional amendment. This is something that is near and dear to the heart of the victims’ community because there are a variety of state constitutional amendments that provide protection to victims of crime but there’s nothing at the federal level, correct?

Will Marling: Len, thank you so much for have me on. You are exactly right. 23 prescribed rights for the accused in our Constitution, our United States Constitution, all of which are very appropriate. We need to pursue justice thoughtfully, deliberately. Someone accused of a crime needs to have that level of justice applied to their situation. We want the guilty convicted and the innocent not; but there are zero rights for victims in the United States Constitution, and we think the balance needs to be adjusted there. There’s not one right for victims in the United States Constitution.

Len Sipes: How many states have Constitutional amendments now, Will?

Will Marling: Thirty-three.

Len Sipes: Okay, so there are 33 states out there with Constitutional amendments. Embodied within the state Constitutions are very specific protections for victims of crimes, correct?

Will Marling: That’s exactly right, and you’ll see a parallel to commonly the accused rights, for instance appropriate due process related to the trial, communication, an understanding of proceedings – very similar rights that we would offer to the accused of course in the course of justice, we believe, and the states also acknowledge that victims should have that level of right as well.

Len Sipes: And do you know, considering that those of us in the criminal justice system, we come into contact with victims all the time, it is profound to me that victims need Constitutional provisions that somewhere along the line, starting back in the 1970s, there was simply a recognition that the criminal justice system did not really take victims’ issues into consideration, that we basically ignored the victim. The victim was supposed to be this anonymous entity off to the side. We were supposed to plug them into the criminal justice process when necessary by taking information, by bringing them into court and having that person testify, but beyond that, there was no real recognition of the rights of the victim of crime, the rights to information, the rights to being properly, the right to be kept informed as the proceedings went down the line. I mean, it’s pretty clear that at a certain point victims were almost, shall I say, disrespected by the criminal justice system.

Will Marling: Well, that’s a fair statement. The balance that I would offer – and your insights are very true. They reflect a seasoned professional law enforcement professional who’s been part of this process and worked with many victims. Historically, just a very simple historical primer, basically historically, victims themselves were charged with prosecuting the case, and of course that made the system very balanced toward people who had the resources to do that so the state too, on that burden. The state said, okay, this isn’t fair especially for people who don’t have the resources. It’ll now be the state versus the accused, the state versus the perpetrator. Well when you have that, the victim actually was assumed to be a part of the process but was not official unless the victim was testifying on behalf of the state; the victim was a witness for the state. So in one sense in wanting to think positively or at least looking at it from an expected angle, the victims were excluded but not intentionally. But what we’ve realized over the years is we’re a rule of law society. We inculcate into a written document, whether that’s state code or federal code or the United States Constitution, we inculcate in that what we believe. So we say, you know, “We hold these things to be self-evident,” whatever they are, and we have of course prescribed ones but that’s what’s missing. Most people when asked, “Well, do you have rights as a victim,” even under the Constitution, you know, it’s as high as like 80% will say, “well, yeah” because their assumption is that that will be the case. In reality it’s not the case so it’s not just not the fact.

Len Sipes: And because that is the heart and soul of it, regardless as to how individuals in the criminal justice system feel regarding victims’ issues, regarding how society feels about victims’ issues, they need to be, as you say, inculcated. They need to be in writing. They need to be within the body of law, and that’s the whole idea behind a national or a federal Constitutional amendment. In the same way that we amend the United States Constitution for any other issue, which is a long, drawn-out, very complicated process. It’s not easy to amend the United States Constitution. But we feel at this stage of the game that we need those rights articulated within the United States Constitution so that everybody within the federal criminal justice system and consequently the state criminal justice system honors the rights of victims.

Will Marling: You are spot on. I mean, I could not say it better. You’ve articulated exactly what we believe we need to do, and in reality, judges, lawyers, whoever is at work in the system, even a police officer, as you know, is going to look at the law. They’re going to look at what is written. So we might say, “Well, I’m sympathetic to your situation, ma’am or sir, but under the law, this is what I’m obligated to do.” You know, so we could argue about the right thing to do for victims and, you know, in reality many people in the system would say, “Yes, I see your point, I believe you, but I am obligated by law to do certain things,” and that’s what need to change. The recent history issue is we have 33 states with Constitutional amendments, as I mentioned. We also now have a really good test case, which is the Crime Victims’ Rights Act, okay, that’s a federal statute within the past ten years, and so we’ve learned from that. The equivocation for an amendment during that period was, okay, we don’t want to amend the Constitution casually, of course who can but having amended it, what are the implications? Well, we couldn’t get it amended so folks said, “Well, why don’t you try this at a federal level? Work on a statute and see what happens.” Well, we’ve been working that statute and we’ve discovered that giving victims rights at a federal level works, and the states have learned this. It doesn’t break the bank. It affirms things that we know to be true, and it gives people respect because they have rights, and of course enforcement of any right is always an issue in a free society but we have that data.  So some people might argue, “Well, we shouldn’t amend the Constitution because it’s just not meant to be amended” and I would say, “Well, rarely is it.” I think James Madison said that, “Rarely are we to amend it” but we can amend it and sometimes should, and this is a case where we’ve learned that victims under the law, even a federal statute, even under state statutes, even under 33 state Constitutional amendments, victims still are not treated with respect. It’s not enough. It hasn’t done the job.

Len Sipes: So the whole idea is that, well, first of all let me clarify that there is a federal law now that deals very specifically with the rights of crime victims, and that applies to the federal criminal justice system, the state criminal justice systems, or both?

Will Marling: It only applies to federal victims, yeah. The Crime Victims Rights Act only applies to official federal victims.

Len Sipes: Okay. Now the whole idea behind doing a Constitutional amendment would to, again, apply to the federal criminal justice system, the state criminal justice systems, or both?

Will Marling: Well, a United States Constitutional Amendment represents the law of the land.

Len Sipes: Right.

Will Marling: So certainly it can be argued, when you have a federal statute or a United States Constitutional issue, there are lower-court issues and decisions and the process that goes through but there is ultimately an appeal to the highest court in the land. Victims don’t have that standing. The only standing they have – and I’m not minimizing our appreciated commitment by states to do this – but ultimately they can only go to the state level. Now let me give you an example of where that’s a problem. You are an Ohio resident, and under Article 10 you have victim’s right. You go across the state line to Pennsylvania and you are a crime victim. Let’s say it’s a serious harm, whatever that is, and under Pennsylvania, you don’t have crime victim’s rights. I’m not minimizing state statutes and commitments at that level, of course, but you can’t appeal to the – you can’t even appeal under a Constitutional amendment to Pennsylvania to say, “Hey, I’m being mistreated,” and it didn’t happen in Ohio where you do have rights. So even just on the borders, the amendments for each state are different. They’re similar but different so it’s a patchwork. Enforcement is different. California is kind of our gold standard for victim’s rights under what’s called Marsy’s Law but again, you go across the border to another state and what are you going to have? You don’t even know.

Len Sipes: It’s a different set of circumstances. Now my question is this, will a federal Constitutional Amendment apply to the states and make it uniform, victim’s rights uniform throughout the entire country? – So it would apply to the federal government, and will it apply in a de facto to state government as well?

Will Marling: Well, yes. It should bring conformity, appropriate conformity, because commonly what do the states want to do when it’s a federal issue and a federal Constitutional issue; there is compliance at that level. So we have this thing called “Miranda,” and my kids, I’ve got teenagers, and they know what Miranda is because they’ve seen enough cop shows. Well, Miranda started with a traffic stop kind of thing and went all the way up. Well, every state in the union now talks about Miranda and works to apply it at some level in the state.

Len Sipes: And I think this is a fairly complicated subject for a lot of people who are listening to the program today because the Constitutional rights were gradually incorporated into state law piece by piece by piece by Supreme Court decisions so the Constitutional rights say in terms of a speedy trial, the Constitutional rights in terms of search-and-seizure were gradually incorporated into state law through a variety of Supreme Court decisions over the course of several decades so that’s why I’m asking. Will it take on that process again if we have a Constitutional Amendment to protect victim’s right or do you think it will be automatically adjusted and inculcated and adopted by the states that do not have a Constitutional Amendment, or maybe states that have Constitutional Amendments that are not nearly as stringent as a federal Constitutional Amendment to protect victim’s rights. It’s a legal question but it goes back to the history of the nationalization of the Bill of Rights.

Will Marling: Yeah, again, you’ve hit an important issue. I would say – and I’m not speaking as a lawyer. I’m speaking as a citizen who’s thinking about my children’s future, and I am not kidding about that. This is as much about the future of our nation and the future of my kids and my potential grandkids. Will it take hold immediately? – Not likely because being in a free society, we have different values and perspectives and we argue those out in courts of law. So what would happen most likely is that we’d have this Constitutional Amendment and somebody would challenge it at some level, which is all part of the process, and through the course of a local court proceeding or a state court proceeding or a federal court proceeding and then a Supreme Court proceeding, we finally get a rendering and then we make a decision. What could that mean? It could mean ten years. But again, in human history, it’s important.

Len Sipes: Let me see if I can summarize it. It sets the stage to take rights for crime victims and to – it sets the stage for the incorporation of rights for crime victims in every state and every territory throughout the United States. Am I right or wrong?

Will Marling: You’re right. I mean, it affirms that we all believe in rights, for one. Potentially it could help states that want still their own crime victim’s rights in their state Constitutions to embrace those, but it would also give another measure of protection for every citizen of the United States including the United States Military, that’s these —

Len Sipes: And considering all – go ahead, please.

Will Marling: No, that was enough because you’re asking great questions.

Len Sipes: No, no, no. I’m just thinking to the second topic of today’s program, mass shooting, and we’re going to take a break to reintroduce you in a couple minutes, but the issue of crime and the issue of victimization, as we speak there are hearings going on in Capitol Hill talking about mass shootings, talking about what can be done so this is a very timely topic. The issue of crime and victims, and respect of crime victims, is now taking center stage after being absent for quite a few years and so there obviously does seem to be a need to reemphasize the rights of crime victims not just at the state level but at the national level. Now seems to be the time. Again, am I right or wrong?

Will Marling: I would agree with you that there seems to be a coalescence or energies and focus and efforts. My simple testament to this is I had to kind of come to this myself. I not only had to be educated but you know, I wasn’t excited necessarily about amending the Constitution. It’s served well. We know it needs to be amended. But then I realized in thinking through it personally and then listening to very seasoned legal scholars in the victim’s rights world that we inculcate what matters. So some would say, “Well, it’s just policy and it’s just what goes on in Washington,” and of course I could understand that because I was kind of thinking that way in the beginning for me but then I realized no. We articulate in that Constitution what we believe is important. Rights are important and then it comes down.  So the Constitution is a reflection of our cultural commitments, and our cultural commitments are reflected in our Constitution, and that’s why we need both. We can’t just change the Constitution. I would suggest that the discussions about this violence also reflect a need to discuss cultural change but that’s just kind of general out there, I mean, things need to change. Well, that’s not really helpful, it’s just too general. Well, we can start with a discussion, a national discussion about, “Well, do these people even have rights after this has happened? What is their legal standing?” And then let’s talk about how we respect them, and then let’s keep going. How do we protect people? The number one thing that everybody agrees upon is community, public safety, and security. – Everybody. You know, you poll anybody and the most violent gang member wants to live in a safe community.

Len Sipes: Everybody wants to live in a safe community, but let me reintroduce you. We’re more than halfway through the program. Ladies and gentlemen, today we’re talking to Will Marling, the Executive Director of the National Organization for Victim Assistance – www.trynova.org – www.trynova.org. The National Organization for Victim Assistance has been around for decades. When I first entered the criminal justice system, there NOVA was, and we always paid a lot of attention to NOVA because it seems as if the victims’ community carries a certain moral authority to the rest of us within the criminal justice system in terms of how we should be treating people. So Will, let me get back and ask also, before we get on to the issue of the mass shootings, you know, the chances for a Constitutional Amendment happened, again, it’s extraordinarily difficult to modify the United States Constitution. On a scale of 1 to 10, 10 being the highest chance, what do you think the possibilities are of actually getting a Constitutional Amendment? Do you have the people within the House and the Senate and the White House lined up behind it?

Will Marling: Well, we need to line them up, I will acknowledge that. We’re on the front end of a new phase of synergy here; I will acknowledge that as well. We have attempted this a couple other times, and actually we came quite close, and that’s just with a grass roots impetus, with just people just giving grit. There is some indication that, again, from the coalescing standpoint, we have a commitment of resources and expertise and capacity that, all things being equal – and you’ll probably hate me as a journalist for this kind of response – but all things being equal, I think it’s a 10. Now, can I predict all those things to be equal? – Ah, no. But based upon what you’ve already described and what I know about the momentum that we can generate in this particular Congressional session, and the needs that victims have that have come to the forefront, and the commitment of some in our community – and I mean that specifically the victim’s community – to put forward significant resources, time, and energy, I believe – I’m a little idealistic, I’ll acknowledge that – but I actually believe we can get this done. I really believe we can do it.

Len Sipes: NOVA and a variety of organizations did try this in the past and you came fairly close in the past, correct?

Will Marling: Yeah, we came very close. The last time it was tried, we came within 2 votes of it moving – 2 full Senate votes. We needed 60 but we came within 2 votes because once things get to the floor of the House or the Senate on these kinds of issues, it’s very rare that they get voted down because it’s just, you know, it doesn’t make any sense for anybody who wants to be in political leadership.

Len Sipes: Sure.

Will Marling: So that was with just folks, you know, calling and trying and volunteering but we have decided that the time to move forward is now, and we have some folks who were not part of that impetus before who are making the commitment, it seems, and so there’s going to be a real, real effort put forward. There’s going to be significant momentum that’s going to build shortly.

Len Sipes: And the emphasis needs to be on the Senate, correct, for Constitutional Amendments?

Will Marling: Both.

Len Sipes: Both the House and the Senate.

Will Marling: We need two-thirds of the House and two-thirds, two-thirds of the Senate, and two-thirds of the states, I believe.

Len Sipes: Okay, and then it goes to the President for signature, and then two-thirds of the states need to approve it.

Will Marling: Actually in this context, the President does not sign it.

Len Sipes: Really?

Will Marling: No. The President is not really involved. We hope the President would want to speak out for victim’s rights, we would expect that, certainly, but in reality it needs to pass the House and Senate, and then it goes to the states for ratification, at least two-thirds of the states.

Len Sipes: Ah, and two-thirds of the states need to ratify it, then.

Will Marling: That’s right, so we need 37 states to ratify, and of course, you know, realistically speaking, we think we’ve got at least 33. You know, you don’t know. Times have changed since they passed their amendments but you want to believe, if they’ve already gone that pass, they’re going to firm it up for the United States Constitutional Amendment. So we’d need 5 more states and where Congress, the things they’re struggling with at this point, you know, honestly we know that that’s a challenge there but we do have some commitments particularly in both sides of Congress to at least push forward. We know the folks that know this needs to get done, and you know candidly, they’ve got other things they need to do as well so we recognize that.

Len Sipes: Okay. And the details regarding the Constitutional Amendment are on your website at www.trynova.org, right?

Will Marling: They are, yes. There is a Crime Victims Rights. There’s one on the front page that rotates but if you get to “I’m a Victim” and you find the crime victim’s rights, you will see the amendment that has been drafted and really, by consensus, agreed upon by the Victim’s Rights the Victim’s Services Organization and movement, and it’s nicely written. I mean, every lawyer’s going to argue about every word because that’s what lawyers do, right? I mean, words matter, but it’s a great piece of work, I would say.

Len Sipes: Within the context of the conversation – and we’ve chewed up probably two-thirds, more than two-thirds of the program dealing with the Constitutional Amendment, which is extremely, but if it’s done within the context of mass shootings – and again, as I mentioned before, as we speak there are hearings on Capitol Hill only about a mile from where I sit talking about mass shootings and what can be done. Mass shootings, when it comes to victim’s issues, becomes extraordinarily complex. I do know that the Office of Justice Programs, U.S. Department of Justice, their Victim’s Unit does go overboard to try to provide money and support to the Department of Justice, try to provide money and support to local organizations in terms of mass shootings, but the larger issue here are the individual victims themselves and whether or not the individual victims are protected when you have the world descending upon Sandy Hook, when you have the world descending upon Aurora, California, when you have the world descending upon all of these places that experience these mass shootings. I mean, I just could not imagine what it would be like to be a victim, a crime victim, in the midst of all that whirlwind of media coverage and a police investigation. So how do we protect victims’ rights during mass shootings?

Will Marling: Well, let me give you a little bit of context for the work we do in this area so that your listeners understand out of which I speak. For over 25 years, we have been training people and at certain times deploying people to respond to these situations. Now when you have a mass-casualty crime, you’re going to have first responders. You’re going to have law enforcement fire, EMS, investigators, obviously appropriate and necessary and part of the process. Our particular [PH 0:24:46] trade and modality is the second responder so you’ve got commonly incredible amounts of trauma. You need crime victim advocates in there and so they might be part of the system as well that, you know, we’re not training necessarily but probably we could well have trained them. And then they might request, because of the nature of the mass casualty resources that are needed, they might request a crisis response team. So we will send in teams and there’ll be trauma mitigation. They’ll serve to consult and guide and help in terms of managing the emotional aftermath of these kinds of things, and we’ve been doing this, as you heard, for quite a while, and we’ve also trained over 10,000 people. So we have people all over the nation who’ve been trained to do this kind of things and they might be wearing a NOVA hat when they go in or they might just be NOVA-trained and they’re an advocate, a first responder, work out of the prosecutor’s office. Who knows. So that’s the context in which we speak. When it comes to this kind of thing, we call it convergence. Specifically with a mass-casualty crime, we call it convergence where so many things converge. You might have some media interest on, you know, a horrible homicide that goes on but, you know, we are unfortunately kind of used to that and now it has to be scaled, so you’ll even hear the media unfortunately kind of setting these barriers like, you know, “This is the worst shooting in U.S. history” or whatever. Well what that does, of course, is that creates the opportunity for then the next one that becomes the bigger or the greater, you know, to somebody who might want to do it but even in our thinking, unfortunately we might be drawn to say, “Well, until it goes bigger than that, it doesn’t matter because I’m used to hearing this stuff.” And what we contend is along with the horrible things that happen in these mass-casualty shootings, just with the issue of homicide, there are basically 48 homicides every day in our nation, you know. They happen individually or maybe they happen in a small scale, but those represent tremendous loss to the loved ones.

Len Sipes: We only have a couple of minutes left. The bottom line in my mind, the bottom line question is do you think that the families, the individual victims themselves, their families, their friends, their community who are all just unbelievably traumatized when one of these mass shooting occur, do you believe that the system, whether it be through NOVA – I mean, you trained thousands of people, you trained the Victim’s Response for the Department of Defense. A lot of people need to understand that. I mean, you’ve been doing this for decades. Do you think that through state government, through NOVA, through local government, do you think they get the services that they need or do you think there’s room for improvement?

Will Marling: Well, there’s always room for improvement because kind of the definition of a disaster or mass casualty is it’s chaos. There’s rarely enough resources and even if there are a lot of resources, getting those resources to the right place at the right time is all part of the logistical challenge so there can be gaps. What we contend is first of all we need to be thinking about it. That’s why we train, so we help communities identify we call them risk or affinity groups that might not even be on the radar with trying to respond. We call them the “walking worried,” in other words they’ve been impacted by this but they’ve not been physically harmed, but emotionally, psychologically, even financially they could be impacted, and the focus is of course at the epicenter, naturally upon the dead, the survivors, the injured, their family members. And so what we contend is that as we educate people about the nature of trauma, first of all that helps us better support, recognize that there’s a lot of trauma. There are a lot of victims in these situations, not just the ones that are most readily identified but also many others that kind of transcend out in concentric circles.

Len Sipes: And Will, I’m going to have to ask you to wrap in about ten seconds so we can close.

Will Marling: Gotcha.

Len Sipes: So what do you think the final thought is?

Will Marling: Final thoughts are victims face loss and we need to respect the fact that with those losses, we want to be there to serve and help them recover as much as possible.

Len Sipes: And certainly one thing in terms of mass shootings and in terms of the everyday shootings, one thing that can help would be a Constitutional Amendment.

Will Marling: We believe, yeah, it is at a high level but it certainly reflects that.

Len Sipes: All right. Well, I’m going to have to stop you there. Ladies and gentlemen, this is DC Public Safety. We’ve been talking to Will Marling, Executive Director of the National Organization for Victim Assistance – www.trynova.org – www.trynova.org. We appreciate your calls, letters, and your comments, one way or the other, and we want everybody to have themselves a very pleasant day.

[Audio Ends]

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