Victims deserve equal protection, voice in our justice system

Victims’ rights will be at the forefront this week (April 19-25) as the nation recognizes National Crime Victims’ Rights Week. Kauai Mayor Bernard Carvalho also issued a proclamation to honor Crime Victims’ Rights Week and the Kauai County Council joined with a recognition as well.

Hawaii is one of 18 states in which the rights of victims are not currently protected under the state Constitution. We believe the time is right to enshrine in our state’s founding document the notion that victims of crime are entitled to rights that are central to the concept of justice. These rights would give victims a voice in the criminal justice process they have been denied for too long.

Although some statutory rights for victims were enacted in 1987, those rights do not carry the weight and force of the Constitution. Consequently, these statutes are often ignored and victims of crimes are victimized again by the system that is supposed to provide them justice.

When a crime victim or their surviving family is not allowed to participate in court proceedings — or in some cases not even notified when the perpetrator of the crime is being tried — stronger protections are needed.

When a perpetrator is sentenced to pay restitution for personal injuries or for the funeral of someone they’ve killed, but fails do so and suffers no consequences, our system needs to be fixed.

This year, the Hawaii State Legislature considered a bill to put constitutional protections for victims before voters. While action on this legislation has been deferred to next year’s session, it will be heard in time to be placed before the voters in November of 2016.

This will give Hawaii voters the ability to amend the Constitution to include guarantees of victims’ rights modeled after the rights passed in California and Illinois known as Marsy’s Law.

The law is named after Marsalee “Marsy” Nicholas, who was stalked and killed by her ex-boyfriend in 1983. Only a week after she was murdered, her mother and brother, Henry Nicholas, walked into a grocery store after visiting Marsy’s grave where they were confronted by the accused murderer. The family had no idea he had been released on bail. He remained free on bail until his conviction.

Dr. Henry T. Nicholas has made it his mission in life to give victims and their families across the country constitutional rights. The rights proposed are simple. If adopted, would guarantee the following:

w The right to be treated with courtesy, fairness, with respect for their dignity and privacy throughout the criminal justice proceedings;

w The right to receive information about their rights and services available to crime victims;

w The right to receive timely notification of proceedings and major developments in their criminal case;

w The right to receive timely notification of changes to the offender’s custodial status;

w The right to be present at court proceedings;

w The right to provide input to the prosecutor before a plea agreement is finalized;

w The right to be heard at plea or sentencing proceedings or any process that may result in the offender’s release;

w The right to restitution.

These rights should not be subject to dispute. Victim rights should occupy the same plateau in our justice system as the rights of the accused. Those rights should not and cannot diminish the rights of the accused, and they should not curtail the power of the prosecution to seek justice free from extrinsic concerns, but they should be, and indeed must be, more than an afterthought.

Although concerns have been raised that a constitutional amendment could allow crime victims to interfere with prosecution, diminish the rights of the accused, or create new rights to sue the state or a prosecutor if the verdict did not please the victim, the proposed constitutional amendment addresses those concerns effectively.

Crime victims in Hawaii have as much at stake as the accused and deserve to be treated appropriately in our criminal justice system. That doesn’t seem like an unreasonable request.

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Justin F. Kollar is the prosecuting attorney for the County of Kauai.

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