Giving Crime Victims More of Their Say

W. Patrick Kenna felt cheated. In 2000, he invested $20,000 with a currency trading company, hoping to earn enough to start a new business. Instead, he lost nearly the entire sum, defrauded along with dozens of other investors. A Los Angeles businessman, Kenna took some comfort in knowing that the two men responsible—father-and-son owners of the company—would spend significant time behind bars, but he wanted to make sure the judge knew just how much trouble they had caused.

Patrick Kenna won the right to speak against those who defrauded him.

Kenna made his anger clear during the father's 2005 sentencing, but when the son's day in court arrived three months later, the federal judge denied Kenna's request to speak. "I listened to the victims the last time," Judge John Walter said. "There just isn't anything else that could possibly be said." Kenna was furious. "We didn't feel that the judge was taking into consideration the victims in the case," he says. So he turned to the U.S. Court of Appeals for the Ninth Circuit, which ordered the judge to let Kenna speak at a new hearing.

The reversal in Kenna's case reflects the growing influence of crime victims since the passage in 2004 of landmark federal legislation granting them new and expanded rights. Three years later, the changes are beginning to have an impact, shifting the balance of a legal system that historically has been solely a two-party affair. One result is tension between legal parties and concern among defense attorneys who fear that a greater role for victims conflicts with the right of defendants to a fair trial.

Historically, the adversarial legal system has carved out roles in criminal cases only for the prosecutor and the accused. Victims have been relegated to the sidelines unless they were testifying. Although the interests of prosecutors usually align with those of victims, they are not always the same: for instance, when victims want tougher sentences than prosecutors do. Victims' rights advocates hope the changes are just the start and are pushing to put victims on an equal footing with defendants and prosecutors. "What our goal should be is to put the victim back into the position as if no crime had been committed," says Paul Cassell, a former federal judge who resigned this year to advocate for victims.

Crime victims began winning rights at the state level decades ago, but the 2004 legislation brought the protections to the federal level for the first time. Victims now must be notified about court developments. They must be allowed to speak during bail and sentencing hearings. And most important, the law gives them the ability to appeal rulings when they think their rights are being violated, as Kenna did. The Justice Department is even funding three legal clinics, in Maryland, Arizona, and South Carolina, to help victims assert these rights in court.

Bias. But defense attorneys say that changing the adversarial system further would have dangerous consequences. Most problematic, they say, would be allowing victims more control over prosecutorial decisions. Victims can be biased, attorneys say, and they sometimes fail to understand how their case fits into the system as a whole.

It's often hard to define a victim in the first place. For instance, is a woman a victim in a marijuana-dealing case because her boyfriend beat her while he was high on drugs he bought from the dealer? A court said no. Could an Arizonan tell the judge he opposed the death penalty at the sentencing hearing for the man who killed his wife? That judge, too, said no.

Defense attorneys are also wary of the influence that victims may have on plea agreements. And they point out that a victim's testimony, in bail or sentencing hearings, is not subject to the same cross-examination as is the testimony of other witnesses. Overall, they worry that inserting victims more broadly into the process pits the defendant against not one, but two, adversaries.

Victims' rights advocates make just the opposite argument. They say the victims' rights laws are not uniformly enforced on a federal level—and are almost nonexistent in many states. Instead, they say, victims often get little guidance from the government. Mindful of such problems, a small group of advocates is helping victims with appeals and other legal issues through the federally funded clinics. "Having the attorney there is starting to turn the rights into more than rhetoric," says Meg Garvin, a lawyer at Lewis and Clark Law School who coordinates the clinics.

One satisfied client of the clinic is Marylander Tracy Palmer, a 41-year-old mother of two who had been trying to escape her ex-husband since 1994, when he first was convicted of assaulting her. In 2001 he was sentenced to 15 years in jail, but it was only by chance that Palmer found that a judge was about to release him after just four years. She protested that she was not notified of the hearing. A judge rebuffed her, butthe federal clinic helped her win another review of her ex-husband's release, a decision now on appeal.

The victims' rights laws are changing the system for prosecutors like Trey Gowdy in Spartanburg, S.C. He now may have to make an extra phone call to keep victims' lawyers in the loop, but Gowdy says he's never had a major conflict. Still, he thinks the best service for victims—as for defendants—is the government doing its job well. "The better the prosecutors," says Gowdy, "the less you will feel victims having needs."