Brief Urges Legislators To Create Enforcement Agency

In the past 10 to 20 years, quite a bit of progress has been made in the area of crime victims’ rights, due largely in part to the work of interest groups convincing the public that victims’ rights are an issue and leading to changes in state and federal laws and procedures.

“The fact that we have a Crime Victims’ Compensation Fund, for example (in Texas)—which is designed to provide assistance to victims, whether it’s medical, cleaning up a crime scene, moving, lost wages, all that kind of stuff—to help those victims who aren’t able to shoulder that burden on their own, those are real positive things,” said Glen Kercher, professor of criminal justice and director of SHSU’s Crime Victims’ Institute.

However, more is needed, namely an agency that would ensure that victims’ rights are maintained, as well as ensure that there is recourse for a victim when their rights are denied.

That was the suggestion Kercher, along with graduate student Matt Johnson, recently made in a legislative brief the two wrote for the Texas Legislature giving the background of agencies across the country that handle such matters.

The four-page document sent to legislators in Texas outlines agencies in Colorado, Connecticut, South Carolina, Wisconsin, Minnesota, Alaska and Arizona. The brief looks at the similarities and differences of the agencies, as well as how they operate and which are most effective.

“Almost every state in the union has somehow provided a statutory basis for crime victims’ rights. In Texas, it is an amendment to our State Constitution, the Bill of Rights for Crime Victims,” he said. “This is kind of an educational piece: here are what the rights of crime victims are, but what was missing was what if those rights are not, in fact, delivered? What if they’re violated? What recourse does a victim have?”

Victims’ rights, according to the Texas Crime Victims Bill of Rights, vary somewhat depending on the type of crime. In a violent crime, for example, the victim has a right to know if other financial resources available to them and the right to be present at all public court proceedings related to the offense, among others.

“Suppose that the attorneys and the judge meet and work out a plea agreement with the offender. Does the victim have a right to say something about that?” Kercher said. “In Texas, they do not. We’re trying to change that, but so far, the victim does not have that right.”

That seems to be opposed to the intent of the provision in the Constitution because allowing the victim to be present when a plea agreement is accepted by the courts is somewhat “after-the-fact, because it’s already a done-deal,” according to Kercher.

“The victim can stand in court and try to get the attention of the court, but they don’t have to recognize the victim,” he said. “I’ve had victims write me or leave messages talking about the victimization and how the DA (district attorney) and the judge are negotiating a plea that the victims are vehemently opposed to, and they say, ‘the courts are going to go ahead with it anyway; do we have to accept it?’

“In Texas, they don’t have any recourse; they have to accept it,” he said. “They can rant and rave all they want, but it’s at the court’s discretion.”

That discretion is what makes the need for an agency to support victims’ rights even more of a necessity, he said.

“A lot of, or some, judges are not eager to have victims too prominent in prosecutions because it slows down the process,” Kercher said. “They have a heavy docket, they want to clear the docket, and when we start insisting that victim rights be honored, they’re going to be displeased because it slows it down. It’s somewhat of a conflict.

“Courts, judges and prosecutors, have a lot of discretion at how cases are handled and how they settle a case,” he said. “If victim rights are going to be honored, if a victim is going to have a voice, there will of necessity be some curtailing of that discretion, and that’s what makes it really controversial.”

Kercher’s solution, what he suggests in the brief, is to create an agency in Texas similar to the one in Alaska.

“They went a long way in ensuring the autonomy of that agency, that is they are relatively free of reprisals from the legislature, from judges, from whomever,” he said. “It insulates them a little bit, and that’s an important piece.

“The reason I like what Alaska did is it insulates the ombudsman from a lot of political pressure,” he said. “Given the sensitive nature of an ombudsman’s job, that’s a really important element that they be fiscally independent and they be fairly independent.”

The agency would have the authority to make inquiries, obtain information, the power of subpoena and even, in some cases, institute legal sanctions against people who are cooperating with an investigation.

While Kercher said there isn’t any data to show how often victims’ rights are infringed upon in any state, it was a common enough occurrence for the seven states to do something to remedy the situation.

“Based on the experiences of other states, there is some merit to doing that,” he said. “The State of Alaska opened 240 cases over the course of a year, July ’03 to June ’04—240 cases. Alaska is a sparsely populated state; if you can project that into a state like Texas, we’re talking about thousands of cases.”

The report has received complimentary feedback from the speaker of the house, who “seemed interested in doing something with it.”

And while the process will be a long one, he sees it as a good thing, Kercher said.

“We hope it will (make a difference), but our job is not to lobby the legislature. In fact, as a state agency we cannot do it. Ours is simply to provide information and hope that it catches someone’s attention and they move on it,” he said. “It’s something that the victims want; understandably they do.”

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SHSU Media Contact: Jennifer Gauntt
July 31, 2006
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