Status of the Law

When victims have been permitted to provide input into plea agreements, the right has typically been granted at two stages of the criminal justice process: (1) when conferring with the prosecutor during plea bargaining and (2) when addressing the court, either orally or in writing, before the entry of the plea. Depending on the law of a particular state, a victim may be given the opportunity to comment on the proposed plea at either or both of these stages.

Right To Confer With Prosecutor

Most states provide victims with some level of prosecutorial consultation about a negotiated plea agreement; however, the extent of their participation varies widely from state to state. In no state is the right to confer interpreted as the right to direct the prosecution of the case or to veto decisions of the prosecutor. As the applicable law in Wisconsin specifically states, “The duty to confer . . . does not limit the obligation of the district attorney to exercise his or her discretion concerning the handling of any criminal charge against the defendant.”²

In several states, victims are afforded a general right to confer with the prosecutor. The laws of those states require prosecutors to consult or confer with victims concerning plea bargaining or negotiated plea agreements but fail to state what “consult” and “confer” mean in this context.³

In other states, the obligation to confer appears to be limited to notifying, informing, or advising victims of a plea bargain or agreement that has already been reached before presenting the proposed plea to the court.⁴ Prosecutors in Vermont must both inform and consult with victims throughout the plea agreement negotiation process.⁵ Generally, few procedural guidelines regarding the prosecutor’s responsibilities to confer are included in these types of laws, however, leaving their implementation largely at the discretion of the prosecutor.

Obtaining Views of Victim

In at least 22 states, the victim’s right to confer with the prosecutor requires a prosecutor to obtain the victim’s views concerning the proposed plea.⁶ Whereas the laws in some of these states do not address how victims will make their concerns known, others specifically provide for written input. In Georgia, a victim’s impact statement “shall be attached to the case file and may be used by the prosecuting attorney . . . during any stage of the proceedings against the defendant involving . . . plea bargaining.”⁷ State’s attorneys in Illinois are required, where practical, to both consult with the victim and consider a written impact statement, if one has been prepared, before entering into a plea agreement.⁸ South Dakota victims also are permitted to provide their views both orally and in writing.⁹ Not only do victims have the right to offer written input into whether a plea bargaining agreement is proper, but also prosecutors must make a reasonable effort to provide them the opportunity to comment on the agreement terms. In New Jersey, victims have the right to assistance with preparing and submitting to the prosecutor a written statement outlining the impact of the crime and any sentencing recommendations they feel are appropriate.¹⁰

Under this type of consultation law, crime victims are at least given an opportunity to fully inform the prosecutor’s decision, although the terms and sentencing recommendations agreed to under a negotiated plea are still ultimately the decision of the prosecutor. Because most states provide no consequences for noncompliance with such laws, however, crime victims are still frequently left out of the plea agreement process.

Victim Impact Testimony at Plea Entry

The impact of the offense is also an important consideration in determining the appropriateness of a plea agreement, and the victim can offer the court a unique perspective on the impact of the crime. A third of the states permit the victim to be heard, either orally or in writing, at plea entry proceedings.¹¹ In Missouri, for example, “[p]rior to the acceptance of a plea bargain by the court, . . . the court shall allow the victim of such offense to submit a written statement or appear before the court personally or by counsel for the purpose of making a statement.”¹² Although Kansas only requires prosecutors to inform victims of the nature of a plea agreement, victims have the right to have their views and concerns heard throughout the criminal justice process and to have those views and concerns brought to the court’s attention when personal interests of the victim are affected.¹³

In a few states, a written impact statement may be submitted early in the criminal justice process and used by the court when the plea agreement is presented. Rhode Island victims have the right to prepare a written impact statement for insertion in the prosecutor’s case files.¹⁴ The statement is submitted for court review, or the victim is given a chance to address the court before the plea is accepted.¹⁵ Similarly, the same victim impact statement attached for use by Georgia prosecutors may be used by the judge when considering a plea agreement.¹⁶ In Texas, “[b]efore accepting a plea of guilty, . . . the court shall inquire as to whether a victim impact statement has been returned to the attorney representing the state and ask for a copy of the statement if one has been returned.”¹⁷

Prosecutor To Inform the Court of Victim’s Views

As an alternative to—and, in some states, in addition to—permitting the victim to address the court or submit a victim impact statement, the prosecutor must inform the court of the victim’s position on the plea agreement. For example, in Minnesota, if a victim is not present to express his or her opinion of the plea agreement, the prosecutor must bring to the attention of the court any known objections expressed by the victim.¹⁸ Similarly, prosecutors in Arizona and Maine are required to inform the court of the victim’s position on the plea, even when the victim is present and addresses the court at the time the plea is entered.¹⁹ In Washington, “the prosecutor shall make reasonable efforts to inform the victim . . . of the nature of and reasons for the plea agreement, . . . and ascertain any objections or comments the victim has to the plea agreement.”²⁰ The court must be informed on the record whether any victim has objected or commented on the proposal.²¹ South Dakota prosecutors also are required to disclose victims’ comments on the record.²² In Oregon cases in which the victim has requested notification and consultation regarding plea discussions, judges must ask the prosecuting attorney whether the victim is in agreement or disagreement with the plea.²³ In this way, the objections and concerns of victims who are unable to address the court themselves will be available to judges who can make informed decisions on a proposed plea agreement.

Certification of Compliance With the Court

Although many state legislatures give crime victims the right to consult with prosecutors concerning plea bargains, few include enforcement provisions in the laws to ensure compliance.

A few states have attempted to hold prosecutors accountable for compliance with such laws by requiring certification of prosecutors’ efforts to confer with the victim. For example, in Arizona,

The court shall not accept a plea agreement unless—

1. The prosecuting attorney advises the court that before requesting the negotiated plea[,] reasonable efforts were made to confer with the victim.

2. Reasonable efforts are made to give the victim notice of the plea proceeding . . . and to inform the victim that the victim has the right to be present and, if present, to be heard.

3. The prosecuting attorney advises the court that to the best of the prosecutor’s knowledge[,] notice requirements . . . have been complied with and the prosecutor informs the court of the victims’ position, if known, regarding the negotiated plea.²⁴

Both Alabama and Indiana have similar laws in effect.²⁵ In Maine, the attorney for the state must disclose to the court any and all attempts to notify the victim of the plea agreement and any victim objections to the plea proposal.²⁶ Prosecutors in Delaware must state on the record that the victim has been notified of a plea agreement to a reduced charge and given the opportunity to discuss the plea before entry. If notice is not made or practically possible, the prosecutor must state what steps were taken to inform the victim.²⁷ In Oregon, the judge is responsible for determining whether the victim has asked to be notified and consulted regarding plea discussions.²⁸

Prosecutors’ efforts must be recorded even in some of the states that grant victims only a general right to confer and do not explicitly require prosecutors to ascertain the views of the victim(s) concerning the agreement. Mississippi courts are prohibited from accepting a plea agreement unless the prosecuting attorney advises that reasonable efforts were made to confer with the victim and to provide him or her with notice of the plea proceeding.²⁹ At the time a plea is entered in Utah, the prosecutor must provide written assurance to the court that the victim has been contacted and the agreement explained.³⁰ Nebraska requires the county attorney to make a good faith effort to consult the victim regarding the contents and reasons for the plea and to record consultation efforts in his or her file.³¹ In Ohio, the court is to note on the record any failure by the prosecutor to confer with the victim and the reasons for such failure.³²

Court certification of compliance efforts provides a system of checks and balances that can help preserve victims’ consultation rights without placing undue burden on the criminal justice process.