Reconciling the Inmate-Victim Dichotomy in Arizona

By Kristen Autumn Shortley

In 2017, 2,273 inmates were assaulted in Arizona Department of Corrections facilities.[1] As of June 2017, five Arizona inmates were murdered.[2] In 2016, Arizona inmates reported 289 sexual assaults.[3] However, none of those 2,567 inmates are victims under Arizona law. Arizona has one of the most restrictive definitions of ‘victim’ in the nation. It should expand that definition to include inmates.

 

In 1982, President Ronald Regan created the President’s Task Force on Victims of Crime. The Task Force, after extensive research and investigation, proposed that the Sixth Amendment be modified so that “the victim in every criminal prosecution shall have the right to be present and to be heard at all critical stages of judicial proceedings” (emphasis added).[4] While the Task Force’s suggestions were ultimately not incorporated into the United States Constitution, many states took the initiative to amend their respective ones, including Arizona.[5]

 

The Arizona Constitution includes a Victims’ Bill of Rights. It defines ‘victim’ as “a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person’s spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused” (emphasis added).[6] Accordingly, if someone has a crime committed against him while incarcerated in Arizona, he does not have the rights ordinarily afforded to victims.[7] Arizona courts consistently uphold the plain language.[8]

 

Those opposed to extending victim status to inmates likely pose two kinds of objections: (1) objections founded on morality and (2) objections based on logistics.

 

When someone is found guilty of a crime and sentenced to incarceration, he loses certain liberties. Proponents of Arizona’s status quo would argue that victim status is another one of those lost liberties. Incarceration naturally lends to the partial loss of fairness and respect, two rights reserved to victims. Proponents would further point out that individuals are incarcerated because they previously reduced someone to a victim. Affording the victimizer victim status would be a miscalculation of justice, and disrespectful to deserving, law-abiding victims.

 

Extending certain victim rights to inmates might be difficult because of their physical confinement. It might be more inconvenient to give victim-inmates notice, because inmate communications are limited and delayed due to security constraints. Additionally, it would be difficult to let victim-inmates attend every judicial proceeding normally allowed of non-incarcerated victims. Further, transporting victim-inmates to proceedings would require additional state expenditures.

 

However, both objections fail. The Supreme Court of the United States identified four factors to consider when extending a right to inmates: (1) whether there is a “valid, rational connection” between the practice and the government’s interests advanced by that practice, (2) whether there are alternative means for the inmate to exercise the right, (3) whether accommodation of the right will adversely affect the prison system, and (4) whether there is an alternative to accommodate the right, but at a lesser cost to the prison system.[9] There is no “valid, rational connection” between excluding inmates as victims and the Arizona government’s interest, because it has not identified what that interest is.[10] The possible moral objections, while logical, cannot overcome inmates’ constitutional rights to be treated fairly and have access to justice. There are no alternative means for inmates to afford themselves victim status; it is something that only the Arizona government can change via an amendment. Finally, affording victim status to inmates will not adversely affect the prison system. It would not be difficult to transport inmate-victims to judicial proceedings. Inmates are normally bussed en masse to court at least once per day; one more inmate on the transportation itinerary would not pose a burden on the state. In response to objections about the defendant and victim-inmate bring bussed together, correctional officers are present to ensure separation and safety.

 

The proposed modification to the Sixth Amendment included “the victim in every criminal prosecution” (emphasis added). Most states adopted similar all-inclusive language when they defined what a victim is.[11] Arizona should strike the language “if the person is in custody for an offense,” and extend most, if not all, victims’ rights to inmates.

[1] Ariz. DOC, Inmate Assault, Self-Harm, & Mortality Data, at 2 (2017), https://corrections.az.gov/sites/default/files/REPORTS/Assualt/assaultmortality-sep17.pdf.

[2] Id.

[3] Ariz. DOC, Prison Rape Elimination Act (PREA) Annual Report, at 2 (2017), https://corrections.az.gov/sites/default/files/REPORTS/PREA/adc-annual-prea-report_fy2016v2.pdf.

[4] President’s Task Force on Victims of Crime, Final Report, 114 (1982).

[5] Thirty-seven state presently have constitutional amendments that address victims’ rights. See State Victims’ Rights Amendments, Nat’l Victims’ Const. Amendment Passage, http://www.nvcap.org/states/stvras.html (last visited Sept. 12, 2017).

[6] Ariz. Const. art. II, § 2.1(C).

[7] Rights afforded to Arizona victims include being treated with fairness and respect and to be protected, heard, informed of the proceedings of the case, confer with prosecution, among others. Ariz. Const. art. II, § 2.1.

[8] In the principal case regarding Arizona inmate-victims, Stapleford v. Houghton, 917 P.2d 703 (Ariz.1996), the defendant allegedly assaulted his cellmate. Defendant’s counsel wanted to interview the cellmate, but the state objected because, according to the Arizona Victims’ Bill of Rights, victims cannot be compelled to offer testimony. The Arizona Supreme Court held that the cellmate could be compelled. The Court reasoned that the plain language of the Arizona Constitution expressly excluded from victim status individuals in correctional custody.

[9] Doe v. Arpaio, 150 P.3d 1258, 1262, 1263 (Ariz. Ct. App. 2007).

[10] There was no legislative history available regarding Arizona’s Victims’ Bill of Rights.

[11] See generally Cal. Penal Code § 679.01(b) (West 2017); Nev. Rev. Stat. Ann. § 176.015(d) (West 2017); 18 Pa. Stat. Ann. § 11.103 (West 2017); N.C. Gen. Stat. Ann. § 15A-830(a)(7) (West 2017), amended by 2017 N.C. Sess. Laws 186 (consolidating the adult and juvenile divisions into one).

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