Do Families of Victims Have Input Into Plea Bargains in Federal Criminal Cases?
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Status of the Police
When victims accept been permitted to provide input into plea agreements, the right has typically been granted at 2 stages of the criminal justice process: (1) when conferring with the prosecutor during plea bargaining and (2) when addressing the court, either orally or in writing, before the entry of the plea. Depending on the law of a detail state, a victim may be given the opportunity to comment on the proposed plea at either or both of these stages.
Correct To Confer With Prosecutor
Well-nigh states provide victims with some level of prosecutorial consultation virtually a negotiated plea agreement; even so, the extent of their participation varies widely from land to state. In no state is the correct to confer interpreted every bit the correct to direct the prosecution of the case or to veto decisions of the prosecutor. As the applicable police in Wisconsin specifically states, "The duty to confer . . . does not limit the obligation of the district attorney to exercise his or her discretion concerning the handling of any criminal charge confronting the defendant."2
In several states, victims are afforded a full general right to confer with the prosecutor. The laws of those states require prosecutors to consult or confer with victims apropos plea bargaining or negotiated plea agreements simply fail to state what "consult" and "confer" mean in this context.3
In other states, the obligation to confer appears to exist express to notifying, informing, or advising victims of a plea bargain or agreement that has already been reached before presenting the proposed plea to the court.four Prosecutors in Vermont must both inform and consult with victims throughout the plea agreement negotiation process.v Mostly, few procedural guidelines regarding the prosecutor's responsibilities to confer are included in these types of laws, however, leaving their implementation largely at the discretion of the prosecutor.
Obtaining Views of Victim
In at least 22 states, the victim'southward right to confer with the prosecutor requires a prosecutor to obtain the victim'southward views concerning the proposed plea.6 Whereas the laws in some of these states do not accost how victims will brand their concerns known, others specifically provide for written input. In Georgia, a victim's bear on statement "shall exist attached to the case file and may be used past the prosecuting attorney . . . during any stage of the proceedings against the defendant involving . . . plea bargaining."7 Country'southward attorneys in Illinois are required, where practical, to both consult with the victim and consider a written impact argument, if one has been prepared, before entering into a plea understanding.8 S Dakota victims also are permitted to provide their views both orally and in writing.nine Non simply practise victims have the right to offer written input into whether a plea bargaining agreement is proper, but also prosecutors must make a reasonable endeavour to provide them the opportunity to annotate on the understanding terms. In New Jersey, victims have the right to help with preparing and submitting to the prosecutor a written argument outlining the impact of the crime and any sentencing recommendations they experience are appropriate.10
Under this blazon of consultation law, crime victims are at least given an opportunity to fully inform the prosecutor's determination, although the terms and sentencing recommendations agreed to nether a negotiated plea are even so ultimately the decision of the prosecutor. Considering most states provide no consequences for noncompliance with such laws, however, crime victims are still frequently left out of the plea agreement process.
Victim Impact Testimony at Plea Entry
The bear upon of the criminal offence is too an important consideration in determining the appropriateness of a plea agreement, and the victim tin can offer the court a unique perspective on the affect of the crime. A third of the states let the victim to exist heard, either orally or in writing, at plea entry proceedings.11 In Missouri, for example, "[p]rior to the acceptance of a plea bargain by the court, . . . the courtroom shall allow the victim of such offense to submit a written statement or announced before the court personally or past counsel for the purpose of making a statement."12 Although Kansas only requires prosecutors to inform victims of the nature of a plea agreement, victims take the right to take their views and concerns heard throughout the criminal justice procedure and to take those views and concerns brought to the courtroom'due south attention when personal interests of the victim are affected.thirteen
In a few states, a written bear on statement may be submitted early in the criminal justice process and used by the courtroom when the plea agreement is presented. Rhode Island victims have the correct to prepare a written impact statement for insertion in the prosecutor'south case files.14 The statement is submitted for court review, or the victim is given a gamble to accost the court before the plea is accepted.15 Similarly, the same victim impact statement fastened for use by Georgia prosecutors may be used by the judge when considering a plea agreement.16 In Texas, "[b]efore accepting a plea of guilty, . . . the court shall inquire as to whether a victim impact statement has been returned to the attorney representing the land and ask for a copy of the statement if one has been returned."17
Prosecutor To Inform the Court of Victim'southward Views
As an alternative to—and, in some states, in addition to—permitting the victim to address the court or submit a victim impact statement, the prosecutor must inform the court of the victim's position on the plea agreement. For case, in Minnesota, if a victim is non present to limited his or her opinion of the plea agreement, the prosecutor must bring to the attention of the court any known objections expressed by the victim.18 Similarly, prosecutors in Arizona and Maine are required to inform the court of the victim'south position on the plea, fifty-fifty when the victim is present and addresses the court at the fourth dimension the plea is entered.nineteen In Washington, "the prosecutor shall make reasonable efforts to inform the victim . . . of the nature of and reasons for the plea agreement, . . . and ascertain any objections or comments the victim has to the plea understanding."twenty The courtroom must be informed on the tape whether any victim has objected or commented on the proposal.21 South Dakota prosecutors also are required to disembalm victims' comments on the record.22 In Oregon cases in which the victim has requested notification and consultation regarding plea discussions, judges must ask the prosecuting attorney whether the victim is in agreement or disagreement with the plea.23 In this way, the objections and concerns of victims who are unable to address the court themselves will be available to judges who tin make informed decisions on a proposed plea agreement.
Certification of Compliance With the Court
Although many state legislatures give crime victims the right to consult with prosecutors concerning plea bargains, few include enforcement provisions in the laws to ensure compliance.
A few states have attempted to hold prosecutors accountable for compliance with such laws past requiring certification of prosecutors' efforts to confer with the victim. For example, in Arizona,
The courtroom shall non accept a plea agreement unless—
1. The prosecuting attorney advises the court that earlier requesting the negotiated plea[,] reasonable efforts were made to confer with the victim.
2. Reasonable efforts are made to give the victim detect of the plea proceeding . . . and to inform the victim that the victim has the right to be nowadays and, if present, to be heard.
iii. The prosecuting chaser advises the court that to the best of the prosecutor'due south knowledge[,] notice requirements . . . have been complied with and the prosecutor informs the court of the victims' position, if known, regarding the negotiated plea.24
Both Alabama and Indiana accept similar laws in effect.25 In Maine, the chaser for the state must disclose to the court any and all attempts to notify the victim of the plea understanding and whatsoever victim objections to the plea proposal.26 Prosecutors in Delaware must country on the record that the victim has been notified of a plea agreement to a reduced charge and given the opportunity to discuss the plea before entry. If find is non made or practically possible, the prosecutor must state what steps were taken to inform the victim.27 In Oregon, the estimate is responsible for determining whether the victim has asked to exist notified and consulted regarding plea discussions.28
Prosecutors' efforts must exist recorded even in some of the states that grant victims only a full general right to confer and do non explicitly require prosecutors to ascertain the views of the victim(s) concerning the agreement. Mississippi courts are prohibited from accepting a plea agreement unless the prosecuting chaser advises that reasonable efforts were made to confer with the victim and to provide him or her with observe of the plea proceeding.29 At the time a plea is entered in Utah, the prosecutor must provide written assurance to the courtroom that the victim has been contacted and the agreement explained.thirty Nebraska requires the canton attorney to make a proficient faith effort to consult the victim regarding the contents and reasons for the plea and to record consultation efforts in his or her file.31 In Ohio, the courtroom is to annotation on the record any failure by the prosecutor to confer with the victim and the reasons for such failure.32
Court certification of compliance efforts provides a system of checks and balances that tin can help preserve victims' consultation rights without placing undue burden on the criminal justice process.
| Victim Input Into Plea Agreements, Legal Series Bulletin #vii | November 2002 |
Source: https://www.ncjrs.gov/ovc_archives/bulletins/legalseries/bulletin7/2.html
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