The U.S. Court of Appeals for the Ninth Circuit recently overturned a murder conviction – solely because the victim’s brother sat in the courtroom wearing a small pin with a photo of the victim on it.
Fortunately, a December decision by the U.S. Supreme Court reversed this miscarriage of justice and reinstated the conviction. But this case, Carey v. Musladin, demonstrates how victims have been marginalized from not only the courtroom, but the entire criminal justice system.
The 80th Texas Legislature should act to restore the primacy of victims.
First, restitution must be more than an empty promise. Only one-third of restitution owed to crime victims is actually collected. House Corrections Committee Chairman Jerry Madden (R-Plano) is filing a constitutional amendment to allow Texas judges to order the garnishment of an offender’s wages to pay restitution. Currently, the Texas Constitution only permits garnishment for child support, but restitution to crime victims is equally important.
Texas can also strengthen restitution for crime victims by linking the funding of probation departments to their restitution collections. Not all departments report their collections to the state.
The Texas Public Policy Foundation, based on our research, has recommended to the Corrections Committee that 5 percent of basic adult probation funding be tied to restitution collections so that departments receive 9.4 cents for every dollar in restitution they collect. Such performance-based funding will encourage departments to maximize their efforts in collecting restitution, which should include assisting offenders with finding work and effectively managing their finances.
However, victims cannot drink from a well that is dry, and inmates earn no money to pay restitution. The Legislature should promote the availability of victim-offender mediation as a voluntary alternative to traditional prosecution and incarceration in cases involving minor property offenses by first-time offenders.
Such mediations result in a written agreement that typically requires restitution, community service, and counseling, which is then ratified by the prosecutor or judge. Failure to comply subjects the offender to traditional prosecution and, if necessary, incarceration.
Victim-offender mediation results in improved restitution collection, better offender outcomes, and reduced costs. There are more than 300 such programs in North America and their success is well documented. Some 95 percent of cases mediated result in a written agreement, and 90 percent of these restitution agreements are completed within one year, giving victims a sense of closure.
This indicates that coming face-to-face with a victim instills a moral obligation in many offenders. And because completion of the agreement avoids a conviction, offenders are more likely to hold a job that enables them to pay restitution. Victim-offender mediation has also been found to reduce recidivism by 32 percent.
Furthermore, mediations cost $250 per case, a fraction of the cost of court proceedings, let alone incarceration. The state could impose an offender fee paid by property offenders upon conviction or a participant fee for offenders who choose victim-offender mediation that would cover the upfront cost of grants to local district attorney’s offices for such programs.Victim-offender mediation is not for everyone, but many victims of minor property offenses primarily want answers, an apology, and restitution – all of which only the defendant can provide. Victims deserve this option in such cases and studies suggest 60 to 70 percent would choose it.
Finally, Texas must ensure that restitution and other priorities of victims are fully incorporated in sentencing. Plea bargaining accounts for 90 percent of sentences, but Texas is not among the 22 states that require prosecutors to obtain the victim’s opinion concerning a proposed plea.
Arizona requires prosecutors to consult with victims, guarantees victims the right to be present and heard during any settlement discussions, and requires that judges consider the victim’s viewpoint in deciding whether to accept the plea. Texas law only says the judge must “inquire as to whether a victim impact statement has been returned.”
We must not view crime as simply an offense against the state, and instead ensure that crime victims have a place in the courtroom and a seat at the table. The marginalization of victims is not only unjust, but deprives us of the public safety benefits that are only realized when an offender’s conscience is awakened upon realizing the harm caused to another human being.
Marc A. Levin, Esq. is Director of the Center for Effective Justice at the Texas Public Policy Foundation (www.texaspolicy.com). He can be reached at [email protected].