Oregon to Amend VRA
by John Stein
In its 2007 session, the Oregon legislature, by unanimous vote of both Houses, sent to the voters two proposals that would amend the Oregon Constitution's victim rights provisions. The new provisions would make all the rights previously enumerated in the state Constitution now enforceable in court. The pair of resolutions, House Joint Resolutions 49 and 50, will appear on the ballot at the next statewide election, the May 20, 2008, primary.
The original amendments (one covering basic participatory rights, the other a right to be reasonably protected from the defendant) were adopted in 1999. They were strong provisions, in the view of most NVCAP advocates, covering, for example, both criminal and juvenile court proceedings. However, a certain squeamishness among criminal justice officials was reflected in a ban not only against suits for money damages but also against any action that would "invalidate [a] ruling of a court . . . or otherwise suspend or terminate any criminal or juvenile delinquency proceedings." Compliance with the Constitutional rights of Oregon crime victims was therefore made entirely voluntary.
Connie Gallagher was until her retirement at the end of 2006 the administrator of Oregon's victim assistance and compensation programs. A few years ago, dissatisfied with the ongoing careless treatment of victims' rights, she applied for and was awarded an OVC grant to fund a victim rights' compliance project on the premise that justice officials might willingly draw up and adopt a set of procedures to turn the admonitions of the law into practical and detailed steps that all in the justice system could undertake to make sure the rights were honored. That project, housed in the Oregon Justice Department, is now in its second of three years and has achieved genuine progress. A Web site ( www.OregonCrimeVictimsRights.org) spells out constitutional and statutory rights by stage of proceeding and type of crime -- in English and six other languages. Responding law enforcement officers now give victims a card ( http://www.doj.state.or.us/crimev/cvr/pdf/note_most.pdf) the size of a business card but with two folds and eight panels that summarizes the rights and has useful contact information. The Committee of justice officials and victim advocates advising Attorney General Hardy Myers on the project has is finalizing a set of best practices to complement their compliance standards, and has drafted a set of procedures to resolve complaints of non-compliance, an administrative system Mr. Myers is seeking to implement.
To most observers, it seems that the project is living up to Connie Gallagher's hopes, harnessing the goodwill of the justice community to substantially improve how it honors the rights of victims. Pleased with that progress, Gallagher nonetheless maintained a kind of skepticism towards the enterprise, an attitude captured in Ronald Reagan's phrase, "Trust but verify." Substantial compliance, even with an effective grievance procedure, will always fall short of the ideal captured in the project's credo -- "Every Victim, Every Crime, Every Right, Every Time." Compliance would surely reach greater heights if the rights were also enforceable in court -- and victims whose rights were abused might get justice in their own cases, and not merely set a corrective course for future victims.
She somehow sensed that there might be a willingness among Oregon's 36 District Attorneys to reconsider the constitutional bar on enforcement. With Mr. Myers' encouragement, she asked for and received an invitation for Steve Twist, NVCAP's General Counsel, to give a half-hour address to the Summer 2006 conference of the Oregon DAs' association. His message to the 100-plus prosecutors was simple: we lawyers all know that there can be no "rights" without remedies -- a touchstone principle at the heart of Marbury v. Madison, the seminal Supreme Court case that established judicial supremacy as to Constitutional issues. So, he reasoned, the absence of remedies for Oregon's victims should discomfort us all as members of the bar. More tellingly, he urged the prosecutors not to fear the imposition of remedies by the courts. Citing his two decades of litigation to uphold victims' constitution-anchored rights in his home state of Arizona, Twist assured his audience that all the system actors have adjusted to the system -- a system all in the players in Arizona now agree is more just.
One audience member who was fully convinced by the Twist argument was the Benton County DA, Scott Heiser, who happened to be serving as the association's president. In a series of conversations with Attorney General Myers and his fellow executive committee members over the following weeks, he sought to build support for the proposed change in the state constitution. In a surprising development, when he offered a motion of endorsement of an enforceable-rights amendment at the next meeting of his executive committee, it was adopted.
To veterans of the struggle for victims' rights, the surprise was not the DAs' support -- many such associations, including the National District Attorneys Association, have in time, usually with reluctance, come on board -- but the fact that the Heiser proposal was supported unanimously, without comment. That represented a complete turnaround from the DAs' posture eight years earlier when they were the architects of the non-enforcement restrictions of that year's amendments.
More happy surprises followed: in a hearing before the House Judiciary Committee, most witnesses were warmly supportive of the resolutions Mr. Myers had offered, and the two that followed, representing the defense bar and the state's civil liberties union respectively, offered a thoughtful, lawyerly critique of the specific language and then a complaint by the civil libertarian that the draft was too limited -- every right enumerated in the state constitution, he argued, should wear the cloak of judicial enforceability.
That truly shocked the victims' rights veterans. In virtually every other legislative forum, state and federal, those two interest groups were vehement in their opposition to constitutional rights for victims.
The events that followed were therefore anti-climatic. The House Judiciary Committee supported the resolutions, as did its Senate counterpart, as did the full House and Senate -- all on unanimous votes. Meanwhile, Attorney General Myers is drafting an implementation statute which he hopes to send to the next legislative session -- as a consensus document, of course.
To members of the NVCAP Board and their supporters, the Oregon story provides encouragement and lessons. True, its success hinged largely on a tiny opening perceived by a friend of victims' rights who happened to be in the right place at the right time. But are there no Gallagher-like friends of victim justice in high places in states who have amendments badly in need of reform -- or no amendments at all? Is that remarkable change of sentiment among the Oregon DAs foreign to key institutions in the justice systems which have previously impeded victims' rights in other states? Doesn't the unanimous support of every member of one state's legislature suggest a new groundswell of support that might be launched elsewhere? And if representatives of criminal defense and civil liberties interests generally support improved constitutional guarantees for crime victims in one state -- a "blue" state at that, and quite friendly to those interest groups -- can any of us victim advocates be certain any longer that our traditional opponents remain unpersuadable to our cause?
There is another lesson from the Oregon experience -- as in Oregon, put on display Arizona's example (or that of any of the other states with long experience enforcing meaningful victim rights amendments and statutes). There are many justice officials in those states who will testify to the workability, affordability, and humanity of treating victims with the proverbial "dignity and respect" -- but now in practical ways that really matter.
There is another lesson that Arizona is especially useful. It has over fifteen years of experience of seeing that enforceable rights are actually enforced by the courts. The testimonials from that state will almost all say that the change has been profound -- that victim interests are now engrained in the culture of the justice system. But Arizona's "failure rate" also has lessons for others. The 200 or so wrongs uncovered and corrected by Arizona's victim rights lawyers are relatively few in number, suggesting that compliance with the law is the norm in most of the hundreds of thousands of criminal cases prosecuted in Arizona. As for the 200 victims who were helped, practically all were vindicated for an injustice done to them, and each deserved his or her day in court. But here's the telling insight: those numbers don't change in any significant way from year to year. Even in as victim-friendly state as Arizona, 200 crime victims will be deprived of their rights this year and next were it not for the mostly pro-bono lawyers filing the motions, making the arguments, and making things right.
So if Arizona tells the rest of us that victim rights are enforceable, it also tells us they need constant help to see that they're enforced. That state (and presumably the eight others with victims' rights law clinics) speak to the inability of even our best institutions to maintain high standards.
For more about the law clinics, go to http://www.ncvli.org/demoproject.html. A neighboring one may be a good ally in helping others to get on the Oregon Bandwagon.