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About that crime victims’ amendment

Friday, Apr 11, 2014

* Back in 1992, Illinois voters approved a new constitutional amendment

SECTION 8.1. CRIME VICTIM’S RIGHTS.
(a) Crime victims, as defined by law, shall have the following rights as provided by law:

    (1) The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
    (2) The right to notification of court proceedings.
    (3) The right to communicate with the prosecution.
    (4) The right to make a statement to the court at sentencing.
    (5) The right to information about the conviction, sentence, imprisonment, and release of the accused.
    (6) The right to timely disposition of the case following the arrest of the accused.
    (7) The right to be reasonably protected from the accused throughout the criminal justice process.
    (8) The right to be present at the trial and all other court proceedings on the same basis as the accused, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial.
    (9) The right to have present at all court proceedings, subject to the rules of evidence, an advocate or other support person of the victim’s choice.
    (10) The right to restitution.

(b) The General Assembly may provide by law for the enforcement of this Section.
(c) The General Assembly may provide for an assessment against convicted defendants to pay for crime victims’ rights.
(d) Nothing in this Section or in any law enacted under this Section shall be construed as creating a basis for vacating a conviction or a ground for appellate relief in any criminal case.

There was a lot of false or misleading info in comments yesterday about the new constitutional amendment, which will go before voters this November. So, let’s clear up a few things.

* The big compromise back in 1992 was that no “enforcement” provision would be put into the Constitution. The enforcement provision in state statute doesn’t give victims any standing.

From the Marsy’s Law website

Why is a constitutional amendment necessary?

The Illinois Constitution currently guarantees crime victims certain rights, but these rights are technically unenforceable, making them ineffective and weak… Illinois is the only state that actually bars the enforcement of victims’ rights.

* When the attorney general’s office held discussions on this topic a few years ago, it was decided that the best way to proceed was through another constitutional amendment. This is from AG Madigan’s office…

Illinois has both a constitutional and statutory Victims’ Bill of Rights. Article I, Section 8.1 of the Illinois Constitution states that “nothing in the section addressing the rights of crime victims or any law enacted under the section shall be construed as creating a basis for vacating a conviction or a ground for appellate relief in any criminal case.”

Consequently, victims who are denied their rights have no redress because the denial is literally not subject to any kind of review. Because the problem lies with the Constitution, the only way to correct it is via constitutional amendment.

* The Illinois State Bar Association was opposed to a similar effort two years ago and testified against it. The group opposed it this year, but didn’t testify. They weren’t even in the room during the two public hearings. That’s usually Statehouse code for “we got the best, least offensive deal possible.”

* The new amendment gives victims some more rights, including

The right to be heard at any post-arraignment court proceeding in which a right of the victim is at issue and any court proceeding involving a post-arraignment release decision, plea, or sentencing

They also would now have the right to be notified of the conviction, sentence, etc., instead of just the right to the information.

* There’s also this

The right to have the safety of the victim and the victim’s family considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.

* But while the victims are given standing, there are clear restrictions

The victim has standing to assert the rights enumerated in subsection (a) in any court exercising jurisdiction over the case. The court shall promptly rule on a victim’s request.

The victim does not have party status. The accused does not have standing to assert the rights of a victim. The court shall not appoint an attorney for the victim under this Section.

Nothing in this Section shall be construed to alter the powers, duties, and responsibilities of the prosecuting attorney. […]

Nothing in this Section or any law enacted under this Section creates a cause of action in equity or at law for compensation, attorney’s fees, or damages against the State, a political subdivision of the State, an officer, employee, or agent of the State or of any political subdivision of the State, or an officer or employee of the court.

These are all quite reasonable changes and that’s why it was overwhelmingly approved by both chambers.

* And, believe it or not, big kudos go to Cook County State’s Attorney Anita Alvarez. Alvarez led the charge against this effort two years ago, but when changes were made and AG Madigan convinced her to switch positions she forcefully argued for the new draft. She even reportedly convinced DuPage County State’s Attorney Robert Berlin to back off his opposition. Berlin also hotly opposed the effort to amend the Constitution two years ago.

- Posted by Rich Miller        


18 Comments
  1. - Upon Further Review - Friday, Apr 11, 14 @ 10:27 am:

    I had my doubts until it was explained that the current law does not provide much protections to the crime victims. The Defendants and their lawyers have too much ability to circumvent the existing laws.


  2. - Mason born - Friday, Apr 11, 14 @ 10:37 am:

    Rich thanks for fleshing that out. Really helps to have the details layed out.


  3. - Formerly Known As... - Friday, Apr 11, 14 @ 10:51 am:

    Great post, as usual. It really helps pull together the bigger picture.

    The only thing I don’t really see anywhere online: Does anyone know the basis for the Bar Association’s opposition to this? It must be a decent reason.

    And if we are the last state not to have this enforceability in place for the victims, what’s been standing in the way? It seems kind of weird this wouldn’t have been addressed years ago.


  4. - crazybleedingheart - Friday, Apr 11, 14 @ 11:09 am:

    “These are all quite reasonable changes and that’s why it was overwhelmingly approved by both chambers.”

    That’s one read.

    Another is that it’s the kind of bill that members simply don’t vote against. Seems to me that the couple who did are pretty courageous.


  5. - Demoralized - Friday, Apr 11, 14 @ 11:11 am:

    @crazybleedingheart:

    Do you have a problem with the proposed amendment?


  6. - Walker - Friday, Apr 11, 14 @ 11:13 am:

    Boy, has our State Constitution become a mess! A more general document, about 1/3 the current size, that deals with rights, structure, governmental process, and responsibilities, is needed. It’s become the repository of whatever details haven’t been fixed by the legislature, what protection the most powerful lobbies think they might need from normal legislative or executive action, or the political flavor of the day. Much of what’s in there is more properly the domain of statute and rule making.


  7. - crazybleedingheart - Friday, Apr 11, 14 @ 11:18 am:

    Yeah, Demoralized, I do. But I’m sure it will prove nearly as popular in the ballot box as it was on the floor.


  8. - Demoralized - Friday, Apr 11, 14 @ 11:22 am:

    @crazybleedingheart:

    Care to share what your problems are? Not being flippant. Serious question as I would like to get the perspective of the opponents.


  9. - Upon Further Review - Friday, Apr 11, 14 @ 11:32 am:

    @Walker:

    I am also surprised by the sudden push to add multiple amendments to the Illinois Constitution.

    I can see how crime victims are displeased at how the current system is not working as promised, but a few of the other proposed amendments seem unneeded.

    That is sort of my take on the proposed amendment on voting rights. It is duplicative and really serves no purpose inasmuch as it reiterates guarantees that are already provided elsewhere.

    Even if you are opposed to voter photo identification laws (which Illinois does not utilize except for early voting), it does not really bar a future legislature from enacting such a law, provided that the future act was tailored to conform to the SCOTUS decisions on the subject.

    It seems as if many of these proposals are meant to gin up voter turnout in November.


  10. - crazybleedingheart - Friday, Apr 11, 14 @ 11:37 am:

    Demoralized - I’m sorry. I’m not trying to play coy, but I don’t think I should share my substantive objections here and should limit my remarks to process/politics.

    Yes, this was a negotiated bill. Jones went neutral on it and ISBA opposed but didn’t testify. And yes, it is indeed much better than it started. (And it’s so much better than the horrifying mess in California that it shouldn’t even have the same nickname.)

    Still, it’s a poor and unnecessary constitutional amendment.

    The upside is that we shouldn’t have to have yearly new ballot initiatives for constitutional expansion for victims and this 6-year process (as proponents put it) can be put to bed.

    (maybe…unless this is the turnout-driver discussed above)


  11. - Chicago Publius - Friday, Apr 11, 14 @ 11:40 am:

    Good to see this Constitutional Amendment moving. On the ground, the lawyers and administrators associated with corrections have done everything they could to keep crime victims out of the courtroom, except when those victims were willing to get in line with a very tight script. This thing is moving for 2 reasons: first, the amendment is going to address some real inequities that affect crime victims; second, the amendment has the like of courtney nottage pushing it along. When you get those two things together — legislation to benefit people who are disadvantaged and nottage, it’s a pretty winning combo.


  12. - FormerParatrooper - Friday, Apr 11, 14 @ 11:57 am:

    Quick read of it is interesting. Thanks for the info here, Rich.


  13. - Formerly Known As... - Friday, Apr 11, 14 @ 12:01 pm:

    It would be interesting to see statistics on the number of GA proposed amendments that have appeared on the ballot over the past 10, 20 or 30 years, as well as what the average number typically is since the last Constitutional Convention.

    Unfortunately, I don’t see anything readily available online.


  14. - Rich Miller - Friday, Apr 11, 14 @ 12:11 pm:

    ===it’s the kind of bill that members simply don’t vote against===

    Yeah, that totally explains why it took six years to get this done and why opponents killed it in the House two years ago.


  15. - train111 - Friday, Apr 11, 14 @ 12:22 pm:

    I shared in a previous thread about guns about how I lost my stepdaughter to gun violence earlier this year.
    My family is going through this whole court process as I am writing this.
    I’ve mulled about what I have to say about this bill for the past two days.
    My answer–meh!!
    Honestly, the far West Suburban county state’s attorney’s office has done an outstanding job in keeping in contact with us. We have been notified of every court date. We have met the people who will be actually prosecuting the case. We have a ‘vicims liason’ assigned to us to answer any questions.
    As far as being free from physical harm, in our case the bond is set so high that the alleged perpatrator is going nowhere. I do not know how I’d feel if it were different.

    My final thought from the vicitms perspective is this: If you are looking for the justice system or the courts to right the wrong, to fill the void, to make everything right again, then good luck.

    train111


  16. - background participant - Friday, Apr 11, 14 @ 1:00 pm:

    The State’s Attorneys’ opposition two years ago was to the particular language of the proposed amendment. Both Alvarez and Berlin testified that they supported amending the constitution to strengthen victims’ rights, but were concerned that the language then under consideration could be interpreted to not only create a right to court-appointed lawyers for victims in addition to the defendant, but also that the victim or her lawyer could challenge the prosecutor’s decisions as to how to proceed in a particular case. Despite these concerns, the Attorney General and the other proponents refused to amend their proposed language at the time. After the bill failed (due in part to the State’s Attorney’s concerns, but also those of the defense bar and the judiciary), the AG and the other proponents significantly reworked the language to address their concerns. Once that was done, Alvarez and Berlin and all the State’s Attorneys happily signed on. So, in reality, it would be more accurate to say Alvarez convinced Madigan to change course, not the other way around.


  17. - Demoralized - Friday, Apr 11, 14 @ 1:03 pm:

    ==I’m not trying to play coy, but I don’t think I should share my substantive objections here and should limit my remarks to process/politics.==

    Ok. I find that an odd position to take but whatever.


  18. - Jennifer Bishop Jenkins - Saturday, Apr 12, 14 @ 10:28 am:

    Rich, thanks for shedding more light than heat on the natural questions arising about the constitutional amendment repairing victims rights enforcement in Illinois. What your inquiring readers need to know is that the current constitutional language for crime victims passed in 1992, which was a good start, but it actually created the problem that has to be repaired now with the passage of Marsy’s Law. We are the only state in the nation that has language that blocks the application of victims rights in post-conviction proceedings. That means without an appellate process there is no way to repair a mistake made, such as when I was not allowed to make a victim impact statement at the sentencing of my sister’s murderer(the Sentence of LWOP was mandatory). Illinois has to amend its constitution to fix that problem that was actually foreseen by the General Assembly during the 1992 debate - you can read it in the transcripts. The other somewhat technical problem that has to be repaired only through constitutional amendment seems minor but it has major real world impact on residents in Illinois who are going through one of the most difficult periods in their lives - the aftermath of a violent crime. That is, we have to explicitly state that crime victims have “standing” to assert their rights before the court. Their standing is strictly limited only to their listed rights - to be present at court proceedings, to be notified, to communicate with the State, to be kept safe during court processes, to get restitution, to have a support person with them, to make a statement at sentencing about the impact of the crime on them, etc. These rights are often respected in Illinois but sometimes the huge criminal justice bureaucracy can forget or marginalize the concerns of the victim of the crime for the simple reason that because the victim does not currently have recognized STANDING they cannot file a motion to even notify the court that their rights were violated. This constitutional amendment really does only those two small things - lifts the appellate relief problem and recognizes that crime victims do have a relationship to the case (standing) that allows them to file a motion if necessary to ask the court to rule on an issue pertaining to their rights. 30 other states already do these things - the system works very well. Communication between all key stakeholders in a case happens earlier and better throughout. None of this prevents the only two parties to the case (the State and the Accused) from all the proper proceedings. It just grants a method to repair any problem that might come up with regards to the victim’s relationship to the case. Also Marsy’s Law does add two new rights to victims in Illinois - first, it requires that the court consider the safety of the victim in any offender release decisions, and it creates a mechanism where victims can ask the court to protect their privacy should it be warranted. For example, a rape victim’s diary was subpoenaed for the purpose of trying to blame her for the rape simply because she had a private life. This case was outrageous enough that it got the Illinois Attorney General involved. There was no legal mechanism for the victim to object to the inclusion of her diary that contained no evidence or information about the rape. I certainly cannot speak for the ISBA that officially opposes this, but I can tell your readers that they chose (after we made MANY accommodations to their concerns in the language of this bill) to not actively campaign against it, I can give my view on why the Bar association, mostly made up of Defense Attorneys, will always nationally say they oppose victims rights protections. They wrongly in my view believe that there is some sort of zero-sum game going on here. That if a victim is better protected that somehow takes away from the protections for the accused. This is simply not true. These rights are parallel at best and do not intersect. The rules of evidence, the constitutional protections for the accused, none of those things are affected by victim rights. But some commonly used Defense-team strategies will be more difficult to use. For example, Defense teams will often put victims on a witness list to keep the jury from seeing a grieving mother, etc. They never intend to call them as witnesses. After the passage of Marsy’s Law victims will be able to ask the court to make a specific finding about whether or not their potential testimony would be materially affected by their presence in the courtroom. The court will still be in charge of making ALL these decisions, balancing the various rights and interests, as they do every day. We really appreciate everyone’s interest in learning more about why this amendment is a good idea.


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