Criminal Procedure Crime Victims' Bill of Rights

• Citation: Vol. 27 No. 1
• Publication year: 2010

Georgia State University Law Review‌‌‌

Volume 27

Issue 1 Fall 2010 Article 2

9-1-2010

CRIMINAL PROCEDURE Crime Victims' Bill of Rights

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(2010) "CRIMINAL PROCEDURE Crime Victims' Bill of Rights," Georgia State University Law Review: Vol. 27: Iss. 1, Article 2. Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss1/2

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CRIMINAL PROCEDURE

Crime Victims’ Bill of Rights: Amend Chapter 11 of Title 15, Title 17, and Article 3 of Chapter 9 of Title 24 of the Official Code of Georgia Annotated, Relating to Juvenile Proceedings, Criminal Procedure, and Examination of Witnesses, Respectively, so as to Expand Provisions Relative to Victims’ Participation in the Court System in Juvenile and State Courts; Change Provisions Relating to Victim Impact Statements in Delinquency Proceedings; Provide That Victims May Be Present in Juvenile Court Hearings; Require Courts to Hear Victim Impact Testimony; Require the Court to Make a Finding Regarding Restitution in Sentencing Every Accused Person; Add Legislative Findings to the “Crime Victims’ Bill of Rights”; Define Certain Terms; Expand the List of Crimes Covered by the “Crime Victims’ Bill of Rights”; Change Provisions Relating to Victim Notification to the Victim of Matters Relative to a Criminal Case; Provide for Victim Notification of Events When an Accused Is Committed to the Department of Behavioral Health and Developmental Disabilities; Change Provisions Relating to the Prosecuting Attorney’s Duties Relative to Victim Notification and Provide for Notice to Victims Relating to Restitution; Provide for Procedures for a Victim to be Interviewed by an Accused or His or Her Attorney or Agent; Require That Victims of Crimes be Present in the Courtroom Except Under Limited Circumstances; Change Provisions Relative to the Rule of Sequestration; Provide Privilege Protections to Communications between Victim Assistance Personnel and Victims; Require the Attorney General to Notify Prosecuting Attorneys of Certain Matters in Death Penalty Cases; Provide for Victims to Prevent an Accused from Sending Any Form of Written, Text, or Electronic Communication to Such Victim, the Victim’s Family, or the Victim’s Household; Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, Relating to Conditions of Detention, so as to Change Certain Provisions Relating to Transmittal of Information on Convicted Persons and Place of Detention; Change the provision that Allows Convicted Persons to Remain in Local Jails under Certain Circumstances; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes.

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30 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:1

CODE SECTION: O.C.G.A. §§ 15-11-64.2, -78, -155

(amended); 17-10-1.2 (amended); 17-

14-3 (amended); 17-17-1, -3, -5

(amended); 17-17-5.1 (new); 17-17-8

(amended); 17-17-8.1 (new); 17-17-9

(amended); 17-17-9.1 (new); 17-17-12

(amended); 17-17-12.1 (new); 24-9-

61.1 (amended); 42-5-50 (amended)

BILL NUMBER: HB 567

ACT NUMBER: 403

GEORGIA LAWS: 2010 Ga. Laws 214

SUMMARY: The Act provides for crime victims’ rights in Georgia and creates substantive mechanisms for directing agencies to carry out these rights. It establishes comprehensive reform providing nine basic victims’ rights. These include the right to be present and heard in the sentencing phase of a criminal proceeding against the accused, including proceedings in juvenile court. The Act also provides that victims must be notified regarding the disposition of criminal proceedings or the status of the accused, such as release or escape, and requires the prosecuting attorney or the corrections department to provide such notice. Judges are also required to make a finding in every case as to whether restitution to the victim from the accused is appropriate. Further, it provides that the victim may refuse an interview from an agent (such as an attorney) of the accused and that such an agent must clearly identify that he represents the accused. Victims and families are also protected against contact from the accused. Finally, the

2010] LEGISLATIVE REVIEW 31

Act provides for changes relating to the transportation of convicted persons to correctional institutions.

EFFECTIVE DATE: July 1, 2010

History

The Crime Victims’ Bill of Rights provides that victims of crime and their families have rights including the following: to be heard in court; to have a hearing on restitution where appropriate; and to be notified regarding the status of the accused or convicted offender.1 Additionally, the Act, for the first time, expands the victims’ right to be heard during juvenile proceedings.2 In its final form, House Bill (HB) 567 passed with little opposition in the House by 158 “yeas” to 1 “nay”3 and passed unanimously in the Senate.4 The bill, however, went through numerous changes and faced stiff opposition, primarily based on a controversial version of Section 11 included in the bill’s earlier versions.5 Work on crafting legislation covering victims’ rights actually began sometime in June 2009, when a group of legislators were instructed to create a draft of the potential bill to be introduced.6

Victim impact statements previously were disfavored at law. Prior to the 1990s, victim impact statements were not allowed to influence sentencing in Georgia courts. In the 1974 Muckle v. State decision, the Georgia Supreme Court reversed a life imprisonment sentence

1. O.C.G.A. § 17-17-1 (Supp. 2010).

1. Id. § 15-11-64.2(d); see also Video Recording of House of Representatives Judiciary Non-Civil Committee Proceedings, Jan. 5, 2010 at 26 min., 39 sec. (remarks by Spencer Lawton, Prosecuting Attorneys’ Council),

   http://media.legis.ga.gov/hav/09/comm/judynon/judynon010509.wmv [hereinafter House Comm. Jan. 5

   Video]. Code section 17-17-1 does not apply to juvenile court proceedings. See 1996 Ga. Op. Att’y Gen. U96-1.

2. Georgia House of Representatives Voting Record, HB 567 (Mar. 26, 2010).

3. Georgia Senate Voting Record, HB 567 (Apr. 14, 2010).

4. See Telephone Interview with Don Samuel, Partner, Garland, Samuel and Loeb, Member, Georgia Association of Defense Attorneys (Apr. 1, 2010) (on file with the Georgia State University Law Review) [hereinafter Samuel Interview]; see also HB 567 (LC 29 4112ERS), § 11, p. 10–11, ln. 337–60, 2009 Ga. Gen. Assem. (deleted subsection Section 11(f) which provided for contempt of court for attorneys who violated this Act).

5. House Comm. Jan. 5 Video, supra note 2, at 15 min., 6 sec. (remarks by Subcomm. Chairman Rep. Rich Golick (R-34th)).

32 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:1

imposed on a rapist and remanded for a new sentencing.7 The rape victim’s husband and her university professor were allowed to testify as to her change in personality and decreased academic performance following the attack.8 Accordingly, the Georgia Supreme Court held

that current Georgia law did not allow the “severity of the punishment [to] depend on the emotional state of the unfortunate victim.”9

Additionally, the Eighth Amendment to the United States Constitution was once construed to disallow victim impact statements in capital murder trials.10 In Booth v. Maryland, the Supreme Court reasoned that allowing victim impact statements would cause the

death penalty to be imposed in an arbitrary manner: some victims either would not leave behind a family or be less articulate in describing their loss even if it was equally severe to the loss of others.11 Likewise, the Court was concerned that such evidence shifted focus away from the defendant and what he knew when he committed the crime.12 Relying on Booth, the Supreme Court in South Carolina v. Gathers affirmed that a prosecutor engaged in improper conduct during a capital murder prosecution, when he read from the religious literature a murder victim carried at the time of his death and inferred positive qualities about him.13

The Supreme Court reversed itself a short time later in Payne v. Tennessee.14 The majority held that “the Eight Amendment erects no per se bar” to victim impact statements.15 The Court reasoned that it was unfair to allow the defendant to put on mitigating evidence about

7. Muckle v. State, 233 Ga. 337, 338, 211 S.E.2d 361, 363 (1974).

8. Id. at 337, 362.

9. Id. at 339, 363.

10. Booth v. Maryland, 482 U.S. 496, 509 (1987), overruled by Payne v. Tennessee, 501 U.S. 808 (1991). The Booth Court relied on the Eight Amendment of the United States Constitution, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

U.S. CONST. amend. VIII.

11. Booth, 482 U.S. at 505–06.

1. Id. at 505.

2. South Carolina v. Gathers, 490 U.S. 805, 811–12 (1989), overruled by Payne v. Tennessee, 501

   U.S. 808 (1991). Moreover, the Court held that it was also misconduct to infer positive qualities based on the voter registration card that the victim had in his papers at the time of his murder. Id.

3. Payne v. Tennessee, 501 U.S. 808 (1991).

4. Id. at 827. Justice O’Connor’s concurring opinion was joined by two other Justices and stated that Booth both “significantly harms our criminal justice system and is egregiously wrong” and had “plainly inadequate rational support.” Id. at 834 (O’Connor, J., concurring).

   
   

   2010] LEGISLATIVE REVIEW 33

   
   

   his good character while denying victims or their survivors a chance to express the impact or loss caused by the defendant’s actions.16 The Court expressed the need to right the unfairness caused by Booth by quoting Justice Cardozo: “[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to...