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Victims’ Rights in California: On Paper, in Practice

Diane Lefer: The restorative justice model is able to keep the compassionate focus on those who have suffered most from violent crime--the victims, while still addressing the factors that drive crime and recidivism and without denying the humanity of the imprisoned.
Jeanette Chavez

Jeanette Chavez

When Jeanette Chavez heard her daughter had been shot and taken to the hospital emergency room, she rushed to the hospital in Arcadia and was met with the news that Samantha had passed away. Chavez burst into tears and was promptly approached by a sheriff's deputy who said nothing about rights but warned the bereaved mother she would be escorted out of the hospital if she didn't stop crying.

The morning after Tracy Ponce reported her 22-year-old daughter missing in 2008, the police phoned to say they'd found the young woman's van. There was no sign of foul play, they said, but told her to come move the van right away as it was parked behind the police station, taking up a space reserved for detectives. Still worried, Ponce showed up with her son and saw immediately through the open window of the van that her daughter's possessions, including the baby's car seat, had been tossed about. Then she saw a leg--the leg of her murdered daughter.

No one offered condolences or apologies. Instead, the traumatized family members were taken to an interview room and left there for hours, told not to speak to one another. No food, no water, no aspirin, no contact. "We didn't know we could leave," says Ponce. When she tried to console her son, an officer warned her to move away from him.

The killer was eventually apprehended and convicted, then sentenced in June 2010. Her daughter's van and possessions had been held as evidence. When Ponce asked for their return as guaranteed by law, what she got was an email advising her that everything had been sold.

I was shaken by these stories on Friday, November 5th at Loyola Law School downtown, at the conference on "Protecting Victims' Rights in California: How Should it be Working?" and I was there because Rita Chairez told me I needed to be. Chairez coordinates the Victims of Violent Crime Ministry of the LA Archdiocese's Office of Restorative Justice (or the ORJ, co-sponsor of the conference) where she facilitates support groups and accompanies the bereaved who are, in her words, "walking the path I've been walking for ten years now," ever since the murders of her brothers.

Rita Chairez

Rita Chairez

She knew I'd worked with and on behalf of prisoners and youthful offenders and parolees and that I wanted to educate myself as to the other side of the story of violence. She knew I had the belief that victims' rights groups are politically powerful, that they block criminal justice reform, such as amending Three Strikes, convinced that all suspects, prisoners and parolees are monsters.

In my own work, it's not that I favored perpetrators over victims, but I believed the horror of losing a loved one to violence was so clear and obvious, it hardly seemed necessary to tell those stories. I blithely assumed victims were being cared for and cared for well. Chairez gently suggested that I take a look at how victims are actually treated by a system that often stokes anger and frustration and pain instead of promoting healing.

Victims' rights were added to the California Constitution with the passage of Marsy's Law in 1982 which defines "victim" not just as the person killed or injured in a violent criminal act, but the family members also impacted. Marsy's Law sets out protections that must be offered to victims and survivors of crime, and police are now required to advise victims of these rights. This is usually done, however, by merely handing a printed card or pamphlet to people at a time of overwhelming confusion and grief. Some family members don't even get that. As a young woman named Veronica explained, when her brother was killed the only notification of rights went to his estranged (but not yet legally divorced ) wife "who couldn't have cared less." No other family member was contacted.

Victims and their families have a right to meet with the prosecutor in their case. That doesn't mean the family makes the decisions. As prosecutor Kathleen Cady explained, in cases of domestic violence, for example, the victim often asks that the defendant be sent to anger management rather than prison, but the D.A. may determine the danger is too great and the case too serious for that. Family members may be upset by a plea agreement or a decision that the death penalty is not appropriate. As Cady sees it, what she owes the family is to listen, to let them know they are being heard, and family members who spoke on Friday seemed clearly to appreciate respectful listening.

Moderator Suzanne Neuhaus, a victim services specialist with the California Department of Rehabilitation & Corrections (CDCR), pointed out that no matter how good a job the D.A. does, "there may come a time for those working in the system when a given case is closed," but there's no closure for victims. "It's impossible to return to life as it was before."

Suzanne Neuhaus and Phillip Argento

Moderator Suzanne Neuhaus and Phillip Argento

Agnes Gibboney, the mother of a child murdered in 2002, said for the first year after her son's death, she was in a daze and in such denial that she tried to convince herself the body in the coffin was a wax replica. "The second year is when my grief struck. That's when I realized my son was gone for good." She is still grieving: "Nobody and no prescription can take that pain away."

The task of guiding dazed survivors through the system falls to victim advocates like Victor Vega who are employed by the City Attorney's office. While some advocates get referrals from the D.A.'s office, Vega works at the Newton Division police station and gets cases directly from the detectives. Some families--as can be imagined--never respond to outreach. When they do, Vega can help them file for assistance from California's Victim Compensation Fund which, with payment caps, can provide them, if eligible, with funds for funeral expenses, medical and mental health care, loss of income, rehabilitation costs, home modification, relocation or security services, and other specified services needed because of the violent crime. The defendant, if convicted, is required to pay restitution for other losses, such as property loss. Vega helps victims file this paperwork as well.

Many judges, however, fail to order restitution, many convicted defendants will never earn enough to make the required payments, and we heard that the State now holds $11 million that has been collected and not distributed. While victims are by law first in line to receive restitution payments, the department of probation often receives and keeps the money to reimburse its own expenses. "You have to educate defense attorneys and even prosecutors," said attorney Antonio (Tony) Sarabia who represents victims who find they must go to court to enforce their rights to restitution.

"Most don't know they have rights," said Neuhaus. "Those most impacted have little voice in the system. When their rights are not enforced, they have no recourse." Cady added that Marsy's Law does not permit victims to sue--other than to enforce restitution orders--when their rights are ignored.

"When you change the legal culture, it doesn't happen instantly," said retired judge Phillip Argento. "The system is still [since 1982!] working on implementation."

When it does work, Vega, like other advocates, accompanies victims to court and helps them prepare the "impact statement" by which they let the court and the defendant know how the crime has affected their lives. An important part of his job? "I try to prepare victims for what the criminal justice system really is as opposed to what they think it will be from television." Victims, like defendants, have the right to a speedy trial, but unlike in a television drama, cases move slowly and Vega lets victims know not to take time off work for many court dates taken up with procedural motions.

What Does Happen in Court?
Chavez recalled her pain during the court proceedings being "surrounded by the defendant's family. They would blow kisses to the defendant." She watched him receive Father's Day cards, birthday cards, Christmas cards while her daughter "was six feet underground. She was shot with an Uzi. She had just turned sixteen."

I suppose the law can't mandate humanity and sensitivity, but it does mandate that victims and their families and witnesses have the right:

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  • To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.
  • To be reasonably protected from the defendant and persons acting on behalf of the defendant.
Father George Horan

Father George Horan

In court, Chavez saw a tee-shirt reading "Snitches Get Stitches." She saw supporters of the defendant texting whenever a witness came in. Friends of the defendant threw gang signs. When one gang member wouldn't stop, the judge--rather than having him removed from the courtroom--had him handcuffed so he could no longer throw signs but could still fix his gaze on the witnesses and grieving family.

What about after conviction? Under the law, victims have the right:

  • To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.

That "upon request" trips some people up. Not everyone knows this right must be requested--in writing--to VINE, the Victim Information and Notification Everyday system that is supposed to send out automated updates and alerts. Agnes Gibboney knew to make the appropriate request but when she happened to hear--without having been notified--that her son's killer was no longer imprisoned at Susanville, she got no satisfaction as she tried to learn his whereabouts.

She was on the phone from morning to evening, day after day. The CDCR told her the man wasn't in their custody and they didn't know where he was. If the killer was on the loose, this was obviously cause for concern. Her son had not been the intended target of the shooting and the true target became her hero when he stepped up to testify against the shooter in spite of death threats made against him and his entire family.

Gibboney kept phoning and was told at last that the prisoner had been transferred to a prison in Florence, Arizona. After being given the runaround for days, the Arizona prison told her there was no record of him being in their custody either. Gibboney left messages that were never returned. She was put on hold. She was asked why she wanted to know the prisoner's whereabouts and was told she had no right to the information. She was told she couldn't speak to the warden. She was told again and again, "We don't know where he is. He's not in the system."

She called Sacramento. She called California Out-of-State Corrections Facilities. She called the Arizona chapter of Parents of Murdered Children. Finally, someone at CDCR told her the man had been assigned a parole officer. Parole?
The parole officer "was the first person who said let me tell you how sorry I am for your loss." He told her the prisoner was due for release in 2020, but would then go into ICE custody for deportation.

She filed to be sure she'd be notified of this transfer and his immigration hearing and his deportation or release and was told again she had no right to such information.

"Anger was taking all my energy," she says. Today Gibboney heads the Inland Empire chapter of Parents of Murdered Children and she fights to secure the rights of other victims in order "to channel my pain into something positive." It's obvious to me now why victims' rights advocates need to be vocal. And unlike the people who work (or fail to) in the system, Gibboney isn't paid. She's volunteered for a mission no one would ever have wanted.

Veronica is one of those who have been assisted by Gibboney. Once she finally got the system to include her in notifications, she was told, incorrectly, that because a plea agreement had been reached in her brother's case she had no right to make an impact statement in court. She insisted and prevailed and, strangely enough, of all the people in the courtroom, it sounds as though Veronica remains most appreciative of the defense attorney. Why? Because unlike the courtroom spectators who threw gang signs in the face of Jeanette Chavez's grief, her brother's killer listened quietly and respectfully to her words. She believes "the public defender kind of gave him some advice on how to compose himself" and she expressed the wish that other defense lawyers would do the same. She said that even if the man was not sincere and wasn't really sorry for what he did, it meant a lot to her to be able to speak to him and feel he was listening to her and taking her words seriously.

Victims, said Judge Argento, have a right to be "treated with respect and dignity."

That may be the catch, as a member of the audience pointed out. Many professionals are simply uncomfortable dealing with grief. The police department trains officers in the proper use of force, he said. Maybe, he suggested, there should also be training in compassion, how to speak to and treat a victim. (A further note on the audience: Just a quick eyeball survey, but this conference on behalf of victims didn't seem as well attended as the events I've covered about prison and probation. What does that tell you?)

Law enforcement could evolve. Detective Alex Vargas explained that when he was in the police academy, recruits were taught to protect the rights of the suspect in order to ensure a successful prosecution but no one talked about victims' rights. That subject is now part of training. And as Victor Gold, dean of Loyola Law School, pointed out in introductory remarks, the meaning of "justice" itself has changed over time. Even the ancient notion of "an eye for an eye" quickly evolved to mean monetary damages rather than the forfeit of a literal eye. Today, is it possible we are evolving to a new model of justice--the restorative justice model--that says where there's hurt, what we need is healing rather than more hurt, where you don't seek justice by choosing sides, but by addressing the situation and everyone in it as inextricably bound up in a whole?

Loyola has added a restorative justice program to the law school. Father George Horan, co-director of the ORJ, explained what this approach means: the victim is at the center; offenders have to take responsibility for what they've done and provide restitution--not simply as punishment, but as part of their own healing process. The ORJ works not only with victims but with families suffering because of the incarceration of a member. Staff and volunteers mentor prisoners and parolees to reduce recidivism and assist them in recovering wholeness and transitioning back to society.

The ORJ offers a twelve-step recovery program to those seeking to leave gang life and criminal activity.
Restorative justice programs have also brought victims and offenders together for face-to-face meetings and conversations in California prisons. Think how strong and brave a grieving person must be to go into a prison and comprehend what it means to be caged and at the same time let a prisoner comprehend what it really means to take a life. Think about the prisoner who agrees, yes, I want to face this. Neuhaus said there's as much interest in these programs as ever on the part of both prisoners and victims but they happen much less frequently these days--one more casualty of budget cuts.

Dialogue doesn't have to lead to forgiveness. "We don't encourage forgiveness," Chairez has told me. "We encourage healing."

diane lefer

The restorative justice model is able to keep the compassionate focus on those who have suffered most from violent crime--the victims, while still addressing the factors that drive crime and recidivism and without denying the humanity of the imprisoned. As Father George explained, "Restorative justice looks at how we can heal our communities to stop crime in the future so there will be no victims."

Diane Lefer

Diane Lefer’s new book, The Blessing Next to the Wound, has just been published. Co-authored with Hector Aristizábal, it is a true story of surviving torture and civil war and seeking change (including change in how we treat our youth) through action.