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]


Victim Rights in the Pretrial Process

Welcome to DC Public Safety – radio and television shows on crime, criminal offenders and the criminal justice system.

See http://media.csosa.gov for our television shows, blog and transcripts.

Radio Program available at http://media.csosa.gov/podcast/audio/2011/05/victim-rights-in-the-pretrial-process/

We welcome your comments or suggestions at leonard.sipes@csosa.gov or at Twitter at http://twitter.com/lensipes.

[Audio Begins]

Len Sipes:  From the national’s Capital this is DC Public Safety. I’m your host Leonard Sipes. Back on our microphones – Will Marling, the Executive Director of the National Organization for Victim Assistance, www.trynova.org. NOVA has a long history, decades-long history, of protecting victims’ rights and the topic of the show today is going to be victim’s issues and pretrial release. What happens when a person is arrested and then released back out to the community and what it means to victims and victim protection? To discuss the pretrial end of it we have Tim Murray. He is the Executive Director of the Pretrial Justice Institute – www.pretrial.org. Before we begin the show a couple of announcements. I’ve been asked to promote a variety of organizations.  One is the National Reentry Resource Center. It’s a project of the Bureau of Justice Assistance, Office of Justice Programs, US Department of Justice. It is a comprehensive website in terms of reentry issues. You can reach them via the website – www.nationalreentryresourcecenter.org. The American Probation and Parole Association, they’ve asked me to promote the fact that there is an entire week in July promoting the work of probation agents, not only in the United States, but throughout the world. You can reach them via their website at www.appa-net.org and also it’s interesting. I spoke to our friends down at the Louisiana Department of Corrections. They’re the only other entity in the country doing radio shows on reentry. The Louisiana Department of Corrections Division of Parole and Probation and their web address is simply way too long for me to give out on the radio. It’ll be in the show notes and so we get back to Will Marling and Tim Murray. Welcome to DC Public Safety.

Will Marling:  Hey, Len. Good to be with you.

Tim Murray:  Thanks Len. Appreciate it.

Len Sipes:  Well, gentlemen, this is an interesting topic. It really is and I can’t think of anything dicier or more controversial than this issue because, Will Marling, the victims’ issues are something that the entire criminal justice system should be embracing. I’m not quite sure if we embrace them to the fullest possible extent, but we are here not only for the protection of citizens, we’re here, needless to say, for the protection of victims and you and I have had a variety of discussions where the criminal justice system just is not as good as it should be in terms of protecting victims’ rights. And now we have Pretrial Justice Institute, Tim Murray, to discuss this whole issue of pretrial. The problem is that states and local jurisdictions throughout the country are complaining bitterly.  Their jails are filled to capacity and what they’re saying is that either builds another jail – either invests hundreds of millions of dollars in terms of construction and operating costs – or we have to make decisions as to who we let go before trial. That the more dangerous individual needs to stay – nobody would doubt that, but the lesser offender – that means that he is going to be put out on some sort of bail or some sort of pretrial release. In the District of Columbia we have an entire organization, The Pretrial Release Agency, The Pretrial Services Agency, who’s there to supervise people on pretrial, but citizens object to that, that somebody gets arrested and three hours later the person is back on their block. So there’s a lot of controversy involved in this. Will, did I frame all this correctly?

Will Marling:  Yeah. I think you covered the bases pretty well, but the question and the whole operation for us is where do victims stand? How are they involved? Are their needs represented specifically, first and foremost, for safety and security? But then, of course, the approach to justice and all of these things, mixed together sometimes not clearly and we’re just constantly trying to affirm that victims always…the Pew Institute’s research regarding safety and security, the one thing that comes out in that research is…that’s the number one thing in all of these discussions communities agree on and that is we want safe and secure communities. Of course, the disagreement or the discussion, if I could soften it even there is, well, what does that look like and how does that work? And so when we’re looking at this pretrial justice issue and saying what are the realities because most people aren’t well educated on it? And I’m coming up to speed myself so that I can better serve victims.

Len Sipes:  Tim?

Tim Murray:  Yeah. I appreciate the opportunity to talk about this on your broadcast and I appreciate the opportunities that have developed with Will and with NOVA. When Will and I first started having conversations about these issues we both shared a remarkable number of concerns. I think criminal justice professionals have done a less than adequate job in recognizing and effectively dealing with victim issues, needs and concerns and that’s despite the fact that many localities have passed very robust victims’ Bills of Rights and similar legislation. When you get to the bread and butter practitioner, the men or women that are working in our courts or our jails or with our probation or parole populations, they’re relatively unversed as to what services are available to victims; how victims access those services and they’re relatively unversed in how to deal with victims who confront them regarding their dissatisfaction or misunderstanding of how the justice system works. The one thing that Will and I come to constant and consistence agreement regarding is the public’s demand and expectation for safety and even though we both work at organizations that on the face of it might seem fields apart in terms of our individual interests, there is congruence when we start talking about public safety. I think that victims, as you’re described, Len, often don’t understand how the justice system works and I think the justice system often – these are my words – runs and hides from victims when victims raise concerns and I think Will and I have agreed to agree to do what we can with our organizations to remedy both of those situations.

Len Sipes:  Tim, the issue here, it strikes me, is making a proper assessment of the individual within our custody on a pretrial basis and to make sure that if the person poses a clear and present risk to society that that person is kept behind bars. If the person is not that clear and present risk or danger to society, alternative means need to be considered either through monetary bail or through what we do in the District of Columbia is actually have a Government-funded organization to supervise offenders in the community on a pretrial basis. So I think the heart and soul of this in terms of being fair to victims and fair to the larger issue of justice is our ability to figure out who’s dangerous and who’s an acceptable risk. Am I correct?

Tim Murray:  Yeah. I think you’re correct on most of that. I would probably pick apart a couple of assumptions you’re making, but let me first start by saying I think that all of us expect the justice system to make sense and in this particular part of the criminal process it often does not. In this part of the criminal case process if you have a pocketful of cash, regardless of how dangerous you are, you are likely to be released in almost every jurisdiction in this country except the District of Columbia and one or two others because in most localities in this country, cash is what’s used to determine who gets out of jail and, conversely, who stays in jail and cash on the same front does absolutely nothing to enhance or maintain community safety. Once I pay that money as someone’s has been arrested to a bail bondsman, I don’t get that money back if I behave and I don’t lose more money if I misbehave. That money has already changed hands. The jail door has opened and I’ve walked back into the community unfettered by supervision, accountability or monitoring. The conversations that I’d had with Will have focused on the need to change that paradigm. Cash is often used as a reason why the bail system is broken in this country because it discriminates against the poor and while that is absolutely true, what is not discussed often enough is that it also pays no service to community safety. It endangers victims. It endangers communities as a whole. Just within the last few months there have been tragic instances where people have paid money to a bondsman shortly after arrest – the kind of area you described, Len, at the beginning of your show – a case just in the last two weeks that the man was arrested in a domestic violence case.

We’re all familiar with the challenges associated with domestic violence and hopefully we would all agree that a rational response to domestic violence is not requiring someone to give someone else a couple of hundred bucks. In this case, in Washington State, there seemed to be a joint charge for domestic violence. He pays the $2,000 bond, goes homes, burns down his house with his five children in it as well as him killing himself and I wish that was an isolated instance. It is not. We know that people who get arrested are problematic. Some of them pose significant dangers. We believe and support the idea that danger can’t be addressed, identified in lesser degrees of danger can be transparently managed in the community rather than hide behind dollar amount and pretend we’re all safer because a dollar amount has been fixed on someone’s pretrial freedom or liberty.

Len Sipes:  I’m going to brag for a second. Our Pretrial Services Agency here in the District of Columbia, which is a federally-funded agency, has a much lower failure to return rate than most Pretrial Service Agencies throughout the country and that’s a pretty decent track record and they’ve been able to combine both public safety and getting the overwhelming majority of people in court to trial, but, Will, again, Tim mentioned it, this is a real dichotomy for victims. This is a real dichotomy for citizens. I agree with Tim that the average person doesn’t really understand the criminal justice system and if think that’s principally our fault within the criminal justice system for not being vocal enough, which is why we do these programs, but it is tough for that person to understand. I mean the person has committed a crime. As far as they’re concerned, the person is as guilty as sin because they watched him do it or they were the victims themselves and how that person could be released within hours of being arrested as far they’re concerned their safety is jeopardized by that release and how we overcome that, how we explain that, well, we’ve got limited finances. We can’t keep everybody behind bars for every crime that’s been committed. We have to pick and choose between the most dangerous and the people who pose an acceptable risk to public safety. That’s an almost impossible concept for victims of crime to understand.

Will Marling:  Well, sure. If you take each individual victim and look at the loss that they’ve experienced, the injustice that they’re endured, we naturally absorb a reaction from them, an anger from them that says, “I’d really like something to be done about the perpetrator.” We recognize that and we certainly honor and respect it. We also try to educate victims on these issues to say, “Now, what’s realistic in the world in which we live, in the justice system in which you are now engaged? What is truly realistic?” And victims were sensible people, most of them, before they were victimized and they’re sensible people after they’re victimized. So you can discuss these issues. I think what Tim and I have engaged on in respecting and reflecting on this issue, respecting one another, is that there are some clearly nonsensical things going on that to say that a person and the risk that he or she poses to society is based solely on a relatively subjective monetary standard…

People don’t realize that’s what’s transpiring. They figure that there’s got to be some sophisticated thought that went into determining that and that it has some level of protection and what we’re realizing is that is just not the case. So we want to look at the issue for the sake of victims because you go to the doctor and you want that doctor’s opinion on behalf of your medical condition, even though you might have perceptions. You might defer saying, “Okay, I understand that you’re focused on this.” So we want to be representing the needs of victims while also working sensibly to bring about meaningful change within the system and so that’s why Tim and I, we’re collaborating on this issue because we believe ultimately it serves society, it serves victims and it serves the process. We’re in a period in our lives, in our culture, in our society, where finances have to be considered. So now we’re driven to consider these things because the jails are overcrowded. We can’t build enough prisons and so on. So this is a good time actually to discuss this. What truly works, what’s truly meaningful in addressing the risk factors? What is sensible for serving victims?

Len Sipes:  I think your example yesterday, Will, when we were talking about this. Okay, so the guy is a major drug dealer. He’s involved in organized crime and what happens is he gets $10,000 bail. He gets a $25,000 bail. That’s a considerable amount of money, but for people involved with organized crime it may not be and that person posted the $25,000 bail and the person’s suddenly out. So there the decision is not necessary made on the dangerousness to society. It’s done purely because he has access to the money.

Will Marling:  Well, absolutely.

Tim Murray:  Len, if I can jump in here.

Len Sipes:  Yeah, Tim.

Tim Murray:  I think it’s important for everybody who is listening to remember that our nation’s court have always dealt with the issue of danger when they set pretrial release conditions, but our traditional way of dealing with danger is setting a dollar amount and keeping our fingers crossed that the bad guy doesn’t have the money and in many cases that turns out to be exactly the case, but decision-makers never know for sure. Maurice Clemens was a defendant in Tacoma, Washington, a year and a half ago or so. They sent a $190,000 bond on this guy with, I believe, child molesting, sexual molestation of an underage child – $190,000 bond. He pays it and shortly thereafter he walks into a diner and shoots and kills four deputies.

Now, as a result of that tragedy the state of Washington is looking at creating legislation that resembles the legislation in the District of Columbia and that’s something that Will and I have talked about. The court should have the power to detain someone pending trial and the Prosecutor makes a case, rebutted by Defense in an open evidentiary hearing and when the Prosecutor makes the case that this defendant is so dangerous that no condition of supervision or combination of conditions can reasonably assure appearance, then that individual, as is currently the case in DC and in the federal system, is helped. He has some safe bets that go along with that. Their trial has to be accelerated. You can’t just keep them locked up on an accusation for years at a time, but that is a fair transparent and rational and, I believe, an honest way of dealing with an issue that the courts have always had to deal with, but have done so in a hypocritical way – by pretending that a $100,000 bond is actually going to protect the community. It only protects the community if the defendant doesn’t have it and in some cases…the case that you discussed yesterday. Those cases raise the issue….in the case of a drug dealer who get s $25,000 bond, where did he get the money to pay the bond? And it’s not unheard of in this country that defendants make deals with commercial bondsman. They pay them over time. They literally get released. Go out and commit further crimes, creating more victims, in order to pay the bounty for their release. It’s just no way to administer justice and it’s really time to end it once and for all and I think the voice of the victim’s community is a powerful one and when people like Will start having these conversations out loud, officials take notice and listen and I think that’s an important conversation for officials to pay attention to.

Len Sipes:  We’re way more than halfway through the program. I want to re-introduce our guests. Will Marling, the Executive Director of the National Organization for Victim Assistance, www.trynova.org. Tim Murray, the Executive Director of the Pretrial Justice Institute, www.pretrial.org. Gentlemen, in the final minutes of the program, the final ten minutes, I want to cut to the chase now, okay? We’ve had a larger philosophical discussion. What I’m hearing is…what you’re saying, Tim, is that you want to see supervision upon release and you want to see that the person released from pretrial incarceration from our jails throughout the country, that release decision should be made solely upon the person’s level of dangerousness. So it’s supervision plus that conscious decision as to the degree of dangerousness. Do I have that correct?

Tim Murray:  Yeah. Let me try and give you very succinct answer. We had had the right to bail in most countries since 1789. That accompanies are presumption of innocence, but as you’ve described it, many people see the crime occurs. It’s a slam-dunk the crime occurred, as are that particular defendant. It’s not a shocking surprise to see the tremendously high conviction rate of those who are arrested. Cops arrest the right guy for the right reason most of the time. There are due process considerations, which we all support and defend. In making the constitutional right of determining who is released pending trial, when I am asked base that decision on the risk of that defendant not by the number of dollars he can get a hold of and if that defendant poses a risk that is greater that the community supports to manage it, then hold that defendant without the option for release and bring them to trial in a speedy manner.

Len Sipes:  Will Marling, the other issue is that we have these wonderful tools now and we’ve have thirty years of development trying to figure out who poses a clear and present risk to the public and who’s an acceptable risk in terms of release on a pretrial basis, but you’re not perfect.

Will Marling:  Sure.

Len Sipes:  And even under the best of circumstances the decisions that we within the criminal justice system make, some of them are going to blow up in our face and then the victims community is going to…well, not just the victims community, but society in general is going to rightly sit back and say, “Well, what’s up with this? I mean, don’t you guys know what you’re doing?” I mean, so somewhere along the line the victims community and society at large really has to give us a lot of leeway because we’re going to get it right 95% of the time, but that other 5% is going to kill us.

Will Marling:  Well, sure, and accountability works its way in there, hopefully, appropriately so because when things don’t go as they should go we naturally say, “Was there a gap? Did there need to be a change somewhere? Is there a policy change in view?” I think what really gets us is when the state is designed to fail, okay. When somebody gets out on bail and goes and injures children, for instance – like Tim was articulating in a recent story, a recent reality – we ask the question: Well, okay, where was the gap? Well, when you discover the gap is built in, the process is built in, that’s what creates the greatest outrage for us and victims, again, they’re sensible people and they say, “You mean actually it wasn’t based on risk assessment there? It was just based on money?” And that’s where we stop and say, “Now wait a minute. Come on. Let’s work on this.” Nobody can solve this problem perfectly because we’re humans, but clearly there’s a gap that we’re either brushing over or for other agenda reasons ignoring. That really becomes problematic and that’s what we’re advocating.

Len Sipes:  Tim, we have a criminal justice system. I’ve been in it for over forty years. You’ve been in it for quite some time. We’re overburdened. We have high caseloads. We have literally thousands upon thousands of offenders entering and leaving the criminal justice system. We have severe budget cuts all throughout the United States. The local jails as well as the prison system are basically saying that we’re maxed out. We just don’t have the capacity to hold everybody that everybody wants us to hold. So there’s almost at times a natural inclination. I mean, this isn’t NASA. I mean, this is really dealing with thousands upon thousands of decisions and I mean, are we that precise? Are we that good within the criminal justice system that we can get it right the vast majority of times?

Tim Murray:  No. We check in our decision-making because we’re naming dollar amounts associated with individual charges, not even based on the background on the individual, but simply by what the charge is. The way they all decided in this country, Len, from coast to coast is judges have a card on the bench and that card relates to an offence – let’s say car theft. And it names an amount and that’s what car theft costs in that jurisdiction. It doesn’t matter if you’re Jesse James or Mother Teresa.  That’s what it costs and for the very reasons you’ve just articulated – the fact that we’re in an economic downturn, the fact that public treasuries are smaller than they’ve been in any time in our lifetimes – we must make the best use of the resources available to our justice system. We must make the best decisions we can possibly make. It’s time to throw away the archaic way of doing business of the last hundred and fifty years from an economic standpoint and from a fairness standpoint and from a safety standpoint. It is a win all round. Will it have failure? Absolutely, it will. Is it foolproof? No, sir, it is not. Is it light years better than the system we currently suffer from? Undoubtedly.

Len Sipes:  Is it fair to say that both you gentlemen want an individual supervised regardless of how they’re released, whether it be monetary bond or whether it be by a Pretrial Services Agency? You want them supervised regardless, correct? You want them to be held accountable. Drug tested. You want them to check in with people.

Tim Murray:  Yeah.

Will Marling:  I mean, there should be accountability when a person is charged with a crime. The level and nature of that, of course, is what we’re considering, but any victim wants to know that the person that injured them is going to be held accountable and even before the official court proceedings, the official justice processes, we want to believe that their safety is still in view and they’re being held in good measure, so sure. Absolutely.

Len Sipes:  So the bottom line…

Tim Murray:  I think that accountability reaches the justice professionals that staff of criminal justice systems throughout the country and I don’t believe that we have even come close to the kind of professional accountability, which with regard to victims that is essential to justice. I think victims, as I kind of mentioned at the beginning of the show, are oftentimes simply pushed to the side by this system and by system actors. I think accountability extends not only to the defendant, but to the justice system as well. When a victim shows up at the door of the Pretrial Services in a community and says, “I got hit over the head last night. I hear the perpetrator was in court. Where do I go?” They should get clear and concise and accurate information as how to connect with victims coordinators; how to reach the prosecutor’s office before that court hearing, where and when that hearing will occur and what their options are regarding the same.

Just as they should have explained to them clearly and concisely what the defendant’s obligations are, how we needs to be held accountable if, in fact, he is released. I would argue with you that the law should release me on the year that defendants who post money have done nothing, but move cash from one pocket to another. Money does nothing to ensure community safety. It simply separates those who have I from those who don’t and I don’t believe money is part of this conversation in a meaningful way when it comes to determined pretrial release.

Len Sipes:  Well, you‘re not going to hear any disagreement from me, Tim, in terms of the fact that the criminal justice system really does need to…I mean, it just can’t be a victim’s coordinator. It has to be an entire fundamental change and we have all of these federal and state constitutional amendments talking about what it is that we could do and what it is that we should do. I mean, these are mandates, but I think it’s a philosophical understanding that we have to do a much better job of protecting victims’ rights, but from talking to practitioners, as you do, sometimes I just simply get the sense that we’re exhausted by the process and victims. It’s like “Oh my God! I just don’t have the time to sit with this person for half an hour. I’ve got a thousand other things to do.” I sometimes feel that that’s the dichotomy of very overworked, overburdened, challenge criminal justice system that just lacks the penance, the wherewithal, to give victims the sensitivity and the time that they deserve.

Tim Murray:  Yeah, but we’re not talking about handholding. We’re talking about delivering as public servants essential services that individuals are guaranteed. Whether that guarantee comes under the Bill of Rights for the right to bail or that comes as to the rights that each victim of crime has. We can’t turn our back on either set of lives. We are in the business of serving the public and we have to get better and smarter and more effective at doing that job.

Len Sipes:  We’re out of time and one of the things that I do want to do…Will, let’s do this again in a couple of months because I feel that we’ve barely scratched the surface on this issue, but I really am appreciative that you and Tim were coming on today to discuss this whole issue of pretrial and victims’ issues. It just needs further explanation, I think, but Will Marling, our guest today, Executive Director of National Organization for Victim Assistance; the web address for NOVA – www.trynova.org. Tim Murray, the Executive Director of the Pretrial Justice Institute, www.pretrial.org.

Again, as I said at the beginning of the programs, we’ve been asked to promote the National Reentry Resource Center, www.nationalreentryresourcecenter.org, a project of the US Department of Justice of the Office of Justice Programs and the American Parole and Probation Association. Again, they do want you to respect and honor the sacrifice of parole and probation agents, what we call Community Supervision Officers here in the District of Columbia. www.appa-net.org. Ladies and gentlemen, this is DC Public Safety. We really appreciate all of your calls and letters and interaction with us. Watch for us next time as we explore another very important topic in today’s criminal justice system. Please have yourselves a very, very pleasant day.

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