Turpen, Michael C.

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University of Tulsa College of Law

Tulsa Law Review Volume 17 Issue 2 Winter 1981 The Criminal Injustice System: An Overview of the Oklahoma Victims' Bill of Rights Michael C. Turpen Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Michael C. Turpen, The Criminal Injustice System: An Overview of the Oklahoma Victims' Bill of Rights, 17 Tulsa L. J. 253 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol17/iss2/3 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. FORUMTHE CRIMINAL INJUSTICE SYSTEM: ANOVERVIEW OF THE OKLAHOMA VICTIMS'BILL OF RIGHTSMichael C. Turpen*During the early morning hours of July 8, 1978, a Muskogee wo-man was awakened by mysterious sounds in her home. Arising to in-vestigate, she was confronted by three men, one of which pointed apistol at her head and ordered her back into her bedroom. She wasthen bound, gagged, and repeatedly raped while one of the intruderssexually assaulted her eleven year old son who had been sleeping in anadjoining bedroom.Concluding their criminal exploits, the three escaped with the vic-tim's car and other property stolen from the house. Later that night ina separate incident, one of the three offenders shot and killed his com-mon-law wife and was shortly thereafter fatally shot by her father. Theother two offenders were apprehended, tried, and convicted, receivingsentences of 60 and 99 years in separate jury trials.1 Both had beenreleased just months before from the Oklahoma State Prison system,one on Christmas commutation without having served even half of thesentence for his fifth felony conviction.After eventually freeing herself to call the police, the woman wastaken to Muskogee General Hospital for a rape examination for which; Muskogee County District Attorney. B.S., University of Tulsa; J.D., University of Tulsa.President of the Oklahoma District Attorneys Association, 1980-1981. Recipient of the 1981 Don-ald E. Santarelli Award given by the National Organization for Victim Assistance. The Award isgiven to individuals who have made major efforts to bring victim issues to the attention oflawmakers and the public.1. State v. Horton, No. CRF-78-245 (Muskogee County D. Ct. Dec. 12, 1978); State v.Miller, No. CRF-78-245 (Muskogee County D. Ct. Feb. 14, 1979).1Turpen: The Criminal Injustice System: An Overview of the Oklahoma VictimPublished by TU Law Digital Commons, 1981TULSA LAW JOUNALshe was later billed $80. This expense marked only the beginning ofher ordeal with the "criminal injustice system."2 Recovering her carseveral days later, she was required to pay a towing and storage fee, aswell as the cost of making new keys. Her problems were further com-pounded when her son attempted suicide two weeks after the crimeoccurred. Both victims have accrued more than $3,000 in necessarycounseling and rehabilitative services. Until the 1981 session of theOklahoma Legislature, no compensatory relief existed for victims ofthis and similar incidents.I. BACKGROUND FOR THE OKLAHOMA VICTIMS'RIGHTS MOVEMENTOne who spends significant time in the criminal justice system isconstantly reminded of the distinct imbalance between the rights af-forded the suspect and those of the victim. As Police Legal Advisor inMuskogee, Oklahoma, in 1974, I was particularly troubled by the ar-resting officer's ritualistic reading of the Miranda warning to the ac-cused. It always seemed anomalous that the woman who had just beenraped, the man who had just been mugged, or the couple who had justhad their home burglarized, were not informed of their rights. The rea-son is painfully clear--there existed no court-mandated or statutorilyguaranteed rights for victims of crime.During my years in the "criminal injustice system," it has becomeobvious that we have stepped over the body of the victim to preoccupyourselves with the rights of the suspect. The purpose of the OklahomaDistrict Attorneys Association3 in sponsoring the "Victims' Bill ofRights" legislation was to redress this imbalance while not infringingon the constitutional rights of the accused. Generally, the group soughtto increase victim and witness participation in all phases of the criminaljustice process, establish witness assistance services, protect witnessesfrom harassment, and compensate victims for expenses incurred fromcriminal attacks.2. "Injustice" often reflects the victim's view of the current justice system. For instance,former Tulsa County District Attorney S.M. "Buddy" Fallis encountered a case with an eighty-two year old rape victim who faced the possibility of becoming a defendant in a small claims casebecause of her inability to pay for a rape examination at a Tulsa hospital.3. Special thanks to Duchess Bartmess, Special Counsel to the Oklahoma Senate LegislativeCouncil, and Robert McDonald, Executive Director of the District Attorney Training Coordina-tion Council, for their assistance to the district attorneys in the preparation of all of the billsincluded in the "Victims' Bill of Rights" package.[Vol. 17:2532Tulsa Law Review, Vol. 17 [1981], Iss. 2, Art. 3https://digitalcommons.law.utulsa.edu/tlr/vol17/iss2/3VICTIMS' RIGHTSII. LEGISLATIVE DRAFTING AND LOBBYINGAvoiding the tendency to reinvent the wheel, the Victims' Bill ofRights was the result of thorough research of existing victim reformstatutes across the country. Combining the best from other state stat-utes with what were perceived to be the unique needs of Oklahoma, theOklahoma District Attorneys Association composed, prepared, andsubmitted a package of seven different bills to the state legislature. Thebills were sponsored by Muskogee State Representative Jim Barker andMuskogee State Senator John Luton. An effective statewide coalitionof district attorneys, law enforcement officers, and citizens circulatedpetitions in support of the legislation. The petitions were forwarded tothe Governor and all members of the Oklahoma Legislature. Gover-nor George Nigh endorsed the victims' rights legislation in his 1981State of the State Address. As the legislature convened in January of1981, each of the bills was double-assigned to committees on the Houseside, and thereafter the legislative process began-amend, compromise,delete, compromise, modify, compromise, etc. When the dust settled inthe legislative process, five of the seven bills were sent to the Governorfor his signature.4 The experience was convincing proof that electedofficials appreciated the overwhelming need to put some justice backinto Oklahoma's "criminal injustice system."III. PROVISIONS OF THE OKLAHOMA VICTIMS' BILL OF RIGHTSVictim Compensation Statute. One of the more significant seg-ments of the legislation is a comprehensive victim compensation Stat-ute.5 The Bill creates a fund6 to provide reimbursement to the innocent4. A bill guaranteeing a victim's right to a speedy trial passed the House by a 97-0 vote, butwas defeated in the Senate by a margin of 23 to 17. A bill expanding the Oklahoma Court ofCriminal Appeals from three judges to nine was not voted out of committee. The legislature did,however, increase the number of support personnel for the court of criminal appeals. It is theauthor's opinion that this type of legislation must be pursued in the future.5. Oklahoma Crime Victim Compensation Act, OKLA. STAT. ANN. tit. 21, §§ 142.1-.18(West Supp. 1981-1982). For a complete analysis of this Legislation, see Comment, The 1981Oklahoma Crime Victim Compensation Act, 17 TULSA L.J. 260 (1981).6. OKLA. STAT. ANN. tit. 21, § 142.3(1), (11), (12) (West Supp. 1981-1982). For a full expla-nation of the losses for which compensation is available under this section, see Comment, supranote 5, at notes 151-59 and accompanying text. Oklahoma is the fourth state to create a victimcompensation fund without using any taxpayer dollars. Although the success of this effort is un-proven, the program is currently solvent. The greatest opposition to a good plan, however, is theunrealistic hope of a perfect one. Pursuant to the Statute, a Victim Compensation Administratorhas been retained by the District Attorney Training Coordination Council and a Victims Com-pensation Board has been appointed by the Governor. The administrator is Charles W. Woodand the recently appointed Board includes one of the most active lobbyists, Richard Gus6, the1981]3Turpen: The Criminal Injustice System: An Overview of the Oklahoma VictimPublished by TU Law Digital Commons, 1981TULSA L4WJOURN4Lvictims of violent crime for expenses incurred as a result of criminalattacks. It addresses four major areas of victims' needs: Loss of sup-port, loss of wages, medical and rehabilitative services, and funeral andburial expenses. The Statute precludes recovery for pain and suffering7and a collateral source provision prohibits recovery for any expensesrecovered from other sources."The unique feature of the Oklahoma Bill is that it provides for theexistence of a self-sustaining fund comprised of victim compensationassessments levied against convicted misdemeanants and felons.9 Al-though some states have included a minimum loss requirement and afinancial need test in their legislation, the authors felt that eliminatingthese provisions in the Oklahoma Statute would provide more assist-ance to greater numbers of victimized persons.'0 The draftsmen at-tempted to incorporate the positive components of the twenty-sevenexisting victim compensation programs, and to eliminate or modify theprovisions of those statutes which had proved most impractical orunnecessary.Victim- Witness Coordinator Statute. The Victim-Witness Coordi-nator Statute" places Oklahoma in the forefront of victim reform. TheBill makes Oklahoma only the third state to statutorily enumeraterights for victims and witnesses of crime. These include the followingrights: To be notified that a court proceeding to which they have beensubpoenaed will not take place as scheduled, saving the person an un-necessary trip to court; to receive protection from harm and threatsarising out of their cooperation with law enforcement and prosecutionefforts; to be informed of financial assistance and other social servicesavailable for witnesses or victims of crime, and how to apply for theseprograms; to be informed of the procedure to be followed to apply forand receive any witness fee to which they are entitled; to be provided,whenever possible, a waiting area during court proceedings not in closefather of one victim of the Camp Scott Girl Scout murder. The other Board members areOklahoma City attorney Doyle Argo and Ela A. Hill7. OKLA. STAT. ANN. tit. 21, § 142.3 (9), (10) (West Supp. 1981-1982); see Comment supranote 5, at notes 160-67 and accompanying text. The Oklahoma Act also does not allow compensa-tion for property losses. Id. notes 168-75 and accompanying text.8. OKLA. STAT. ANN. tit. 21, § 142.10(B)(1) (West Supp. 1981-1982); see Comment, supranote 5, at notes 183-94 and accompanying text.9. OKLA. STAT. ANN. tit. 21, § 142.18 (West Supp. 1981-1982).10. For a discussion of the justifications offered for minimum loss provisions, see Comment,supra note 5, at notes 121-25 and accompanying text.11. OKLA. STAT. Am. tit. 19, § 215.15 (West Supp. 1981-1982).[Vol. 17:2534Tulsa Law Review, Vol. 17 [1981], Iss. 2, Art. 3https://digitalcommons.law.utulsa.edu/tlr/vol17/iss2/3VICTIMS' RIGHTSproximity to defendants or families and friends of the defendants; tohave any stolen or other personal property expeditiously returned bylaw enforcement agencies when no longer needed as evidence; to beafforded appropriate services to ensure that employers of victims andwitnesses will cooperate with the criminal justice process in order tominimize an employee's loss of pay and other benefits resulting fromcourt appearances; and to provide the family members of all homicidevictims with all of the above-mentioned services, whether or not theyare witnesses in any criminal proceedings. 12Before the passage of this legislation, the plight of a victim or wit-ness often was one of humiliation and degradation when they arrivedat county courthouses across the state. They would find themselves"fish out of water' as they attempted to locate the courtroom wherethey were to appear. In many cases they would assume a seat in thehallway, only to be joined by the defendant who was inevitably out onbond. Because of the close proximity to the defendant or his relativesand friends, the victim was often overtly or covertly intimidated andhumiliated. To add insult to injury, the victim is usually forced to misswork and may possibly even receive a parking ticket on his hastily-parked car.Essentially, the function of the victim-witness coordinator is to actas an intermediary between the victim or witness and the criminal jus-tice system: To provide a kind word, a cup of coffee, and, as much aspossible, a nodding acquaintance with what a witness can expect dur-ing the sometimes traumatic courtroom experience. In general, the co-ordinator's responsibility is to make the victim or witness' contact withthe system as bearable as possible. The Bill is an exciting, innovativepiece of legislation that has created a network of victim-witness servicesacross the state."Son of Sam" Statute. Oklahoma is now one of five states to statu-torily prohibit a convicted offender from profiting from his criminalactivity by authorizing a book, movie, or article about a crime forwhich he has been convicted.13 David Berkowitz, the infamous "Son ofSam' murderer, was reportedly advanced $500,000 to author a bookabout the several murders he admittedly committed. The New YorkLegislature responded by passing the first statute of its kind, one that12. Id. § 215.15a.13. OKLA. STAT. ANN. tit. 22, § 17 (West Supp. 1981-1982).1981]5Turpen: The Criminal Injustice System: An Overview of the Oklahoma VictimPublished by TU Law Digital Commons, 1981TULSA LAW JOURNALprovides for profits from such contracts to be placed in an escrow ac-count for civil recovery by the victim or the victim's family. 14 Constitu-tional challenges to the statute have been rejected by two appellatecourts in New York."5Victim- Witness Protection. The criminal justice system cannot ex-ist without witnesses who are willing to appear and testify about whatthey saw or experienced. Recognizing .this, Oklahoma legislatorsamended the statute concerning threatening and intimidating wit-nesses, providing imprisonment for not less than one nor more than tenyears upon conviction. 6 In enacting this portion of the victims' rightslegislation, the legislature indicated its desire to protect the most im-portant figure in the criminal justice process.Victims' Right to be Informed. Before the enactment of the Vic-tims' Bill of Rights, a victim or district attorney received no advancewarning that a particular inmate was to be released from the custody ofthe Oklahoma State Prison system. Under the new law, the Depart-ment of Corrections must provide all district attorneys with advancenotice of which convicted criminals are being paroled and when.17This will enable district attorneys to inform a victim of what is happen-ing in their case, for example: "The man that raped you is being re-leased next Monday. We know he has only served four years of histwenty-year sentence, but we at least wanted to give you the courtesy ofknowing you may see him across the aisle in your local store."4IV. FuTURE OF VICTIMS' RIGHTSThe progress exemplified by the enactment of the Victims' Bill ofRights legislation is significant, but represents only a step towardmeaningful criminal justice reform. Although the Oklahoma crime14. N.Y. ExEc. LAW § 632-a (McKinney Supp. 1981-1982).15. Barnett v. Wojtowicz, 66 A.D.2d 604, 414 N.Y.S.2d 350 (1979); Matter of Johnsen, 103Misc. 2d 823, 430 N.Y.S.2d 904 (1979). For an excellent study of the issues raised by "Son ofSam" statutes, see Comment, Compensating the Victimfrom Proceeds af the Criminal's Story-TheConstitutionality of the New York Approach, 14 COLUM. J.L. & Soc. PROB. 93 (1978); Comment,Criminals-Turned-Authors: Victins .Rights v. Freedom of Speech, 54 IND. L.J. 443 (1979); Com-ment, In Cold 2)pe: Statutory Approaches to the Problem of the Offender asAuthor, 71 . CRiM. L.& CRIMINOLOGY 255 (1980).16. OKLA. STAT. ANN. tit. 21, § 455 (West Supp. 1981-1982). Before it was amended thestatute provided a penalty of not less than one nor more than three years in prison for preventingor dissuading a witness from testifying. OKLA. STAT. tit. 21, § 455 (Supp. 1980) (amended 1981).17. OKLA. STAT. ANN. tit. 57, § 332.2 (West Supp. 1981-1982).[Vol. 17:2536Tulsa Law Review, Vol. 17 [1981], Iss. 2, Art. 3https://digitalcommons.law.utulsa.edu/tlr/vol17/iss2/31981] VICTIMS' RIGHTS 259victim is no longer a lightweight on the scales of justice, we still have asystem that many law abiding citizens do not respect and mostcriminals do not fear. There is too little certainty and finality in today'scriminal justice "revolving door" process. Legislation is needed to en-sure speedier trials and more efficient appellate review. Justice delayedis justice denied, for the victim as well as the defendant. After all,"[t]he people's safety is the highest law.""818. J. BARTLET'r, FAmLL ,R QUOTATIONS 134 (15th ed. 1980) (anonymous source).7Turpen: The Criminal Injustice System: An Overview of the Oklahoma VictimPublished by TU Law Digital Commons, 1981

The Criminal Injustice System: An Overview of the Oklahoma Victims\u27 Bill of Rights

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The Criminal Injustice System: An Overview of the Oklahoma Victims\u27 Bill of Rights

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