PROTECTING CRIME VICTIMS IN STATE CONSTITUTIONS: THE EXAMPLE OF THE NEW MARSY'S LAW FOR FLORIDA.

• Author: Cassell, Paul G.

INTRODUCTION I. A BRIEF HISTORY OF THE CRIME VICTIMS' RIGHTS MOVEMENT A. Recognizing Crime Victims' Rights in State Constitutions B. Florida's State Constitutional Protection of Crime Victims' Rights II. SPECIFIC RIGHTS IN FLORIDA'S NEW VICTIMS' RIGHTS AMENDMENT A. The Right to Notice of Case Proceedings B. The Right to Attend Court Hearings C. The Right to Be Heard at Relevant Proceedings D. The Right to Proceedings Free from Unreasonable Delay E. The Right to Reasonable Protection and Other Safety-Related Provisions F. The Right to Protection of Privacy and Dignity G. The Right to Restitution H. The "Victim" Definition Provision I. Implementation and Enforcement Provisions III. LESSONS FROM FLORIDA'S NEW CONSTITUTIONAL PROTECTIONS FOR VICTIMS INTRODUCTION

Most states now recognize that crime victims have compelling interests at stake in criminal justice proceedings--interests so significant that they are protected in state constitutional amendments. But many of those state victims' rights amendments were adopted more than three decades ago and, in some respects, are beginning to show their age. (1) Many of these amendments contain only a short list of victims' rights and lack effective enforcement mechanisms. (2) As a result of these defects, most amendments fall short of their goal of ensuring that victims' interests are adequately protected throughout the criminal justice system.

To address these concerns, a new wave of victims' rights amendments has been enacted over roughly the last decade, expanding the rights promised to victims and ensuring that those rights can be enforced, even by the victims. These new amendments draw on lessons learned over the last several decades regarding the scope, structure, and articulation of rights necessary to make crime victims' rights meaningful. Oregon modified its constitution in 2008 to remove express hurdles to rights enforcement. (3) That same year, California adopted the first Marsy's Law. Since then, similar Marsy's Law amendments were added to the state constitutions of Illinois in 2014, (4) North Dakota and South Dakota in 2016, (5) Ohio in 2017, (6) and Florida, Georgia, Nevada, North Carolina, and Oklahoma in November 2018. (7)

While these amendments have significant import for criminal cases, they have largely escaped serious scholarly attention. In this Article, we attempt to shed light on how these new amendments operate, focusing specifically on the recently adopted amendment in our nation's third most populous state, Florida. Florida approved one of the nation's first victims' rights amendments in 1988. (8) Drawing on what has been learned in the three decades since then, new provisions--known as "Marsy's Law for Florida"--were drafted by Florida's Constitutional Revision Commission (CRC) in early 2018 and approved by Florida's voters in November 2018. (9)

This Article provides one of the first academic assessments of a Marsy's Law amendment, using Marsy's Law for Florida as the springboard for discussion. Our analysis proceeds in several steps. Part I describes the history of crime victims' rights, tracing victims' involvement in the criminal justice process from the earliest days of the nation through today. Of particular importance are recent steps over the last several decades to add victim participatory rights into state constitutions. Florida has been in the vanguard of that effort, with both its original amendment and recent revisions.

Part II then turns to specific rights found in the new Florida provisions. Florida now has constitutional protections not only for victims' rights to notice of court hearings, to be present at those hearings, and to be heard, but also to a range of other protections such as preventing unreasonable delay in the process and providing reasonable protection from defendants, as well protection of victims' privacy and dignity and a right to due process. Florida also added important new enforcement mechanisms for its victims' rights amendment and language to make it entirely self-executing. These additions draw upon a core set of values that have emerged around the country.

Part III concludes by examining some of the lessons from Florida's new and strengthened state constitutional amendment. Four lessons are evident. First, victims' rights can be constitutionally protected without harming the criminal justice process or violating defendants' rights. Second, a consensus is emerging around the country regarding the kind of rights to which crime victims are entitled. Third, victims should have "standing" to assert and seek enforcement of the rights that they are promised. Finally, Florida's broad protections for such things as a victim's right to "due process" could serve to significantly expand the protections crime victims' interests receive throughout the criminal justice process and, more broadly, to invigorate a constitutional dialogue in this country about protecting crime victims' rights in the federal constitution.

1. A BRIEF HISTORY OF THE CRIME VICTIMS' RIGHTS MOVEMENT

   To understand state crime victims' rights amendments in general--and Florida's new amendment in particular--it is useful to first understand some history about the crime victims' rights movement and state constitutional protections for victims. This section briefly describes how state amendments came to be enacted in many states and then turns specifically to Florida's new amendment.

   1. RECOGNIZING CRIME VICTIMS' RIGHTS IN STATE CONSTITUTIONS

      While a comprehensive history of crime victims' rights in the criminal justice process remains to be written, the broad outlines can be quickly sketched. At our country's founding, crime victims played an important role in criminal prosecutions, often bringing their own "private" prosecutions. (10) Over time, for reasons not fully understood, a system of public prosecution steadily displaced the victims' former role. (11) Public prosecutors gradually assumed full control over prosecution decisions and any separate interest of victims came to lack legal weight. Ultimately, well into the twentieth century, the system evolved to the point where the victim was "the forgotten [person] of the system." (12)

      The Crime Victims' Rights Movement developed in the 1970s in response to this displacement of victims. The victim's absence from criminal processes conflicted with "a public sense of justice keen enough that it [] found voice in a nationwide 'victims' rights' movement." (13) Victims' advocates--who hailed from diverse movements, including those concerned with women's rights, civil rights, and "law and order"--urged the adoption of reforms giving more attention to victims' concerns, including protecting victims' rights to be notified of court hearings, to attend those hearings, and to be heard at appropriate points in the process. (14) Similar developments also occurred internationally. (15)

      The victims' rights movement received considerable impetus in 1982 when the President's Task Force on Victims of Crime reviewed the treatment of victims. (16) In a report issued that year, the task force concluded that the criminal justice system "has lost an essential balance.... [T]he system has deprived the innocent, the honest, and the helpless of its protection.... The victims of crime have been transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed." (17) The Task Force advocated multiple reforms, such as putting the responsibility on prosecutors to keep victims notified of all court proceedings and bringing to the court's attention the victim's view on subjects like bail, plea bargains, sentences and restitution. (18) The Task Force also urged that courts should receive victim-impact evidence at sentencing, order restitution, and allow victims and their families to attend trials even if they would be called as witnesses. (19) In its most sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims' rights "to be present and to be heard at all critical stages of judicial proceedings." (20)

      Realizing the difficulty of achieving the consensus required to amend the United States Constitution, advocates for crime victims' rights turned their efforts to state victims' rights amendments. The enactment of these state constitutional amendments began with California in 1982, (21) followed by Rhode Island's in 1986. (22) Florida's amendment was one of the first in the nation and was approved in the next election cycle in 1988. (23) The Florida provision adopted was extremely brief, simply providing that:

      Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. (24) In the ensuing two decades, victims' rights advocates had considerable success with this "states first" strategy, (25) with about thirty-five states adopting victims' rights amendments to their state constitutions, protecting a wide range of victims' rights. (26) In addition to these state constitutional amendments, all fifty states passed statutory victims' rights. (27)

   2. FLORIDA'S STATE CONSTITUTIONAL PROTECTION OF CRIME VICTIMS' RIGHTS

      How well did the "first wave" of state constitutional enactments succeed in securing the legal protection of victims' interests in criminal justice? While the amendments helped increase recognition of victims in criminal justice processes, their effects fell short of full protection for victims' independent interests. Many of the amendments (such as Florida's) contained only a short list of victims' rights. (28) Many amendments also lacked effective enforcement mechanisms to ensure that victims' rights were fully implemented. (29)

      Victims' rights...