GENERAL ASSEMBLY OF NORTH CAROLINA

EXTRA SESSION 1994

S	1 

SENATE BILL 54

Short Title:  Rights of Victims Amendment.	(Public)
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Sponsors: Senators Forrester; Hartsell, Blackmon, Carpenter, Shaw, Cochrane, Hoyle, Codington, Warren, and Gunter.
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Referred to:  Courts.
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February 10, 1994

A BILL TO BE ENTITLED
AN ACT TO AMEND THE CONSTITUTION OF NORTH CAROLINA TO ESTABLISH RIGHTS FOR VICTIMS OF CRIME AND TO PROVIDE FOR THE IMPOSITION OF A LIEN ON A DEFENDANT'S PROPERTY TO SECURE PAYMENT OF THE RESTITUTION AWARDED.
The General Assembly of North Carolina enacts:
Section 1.  Article I of the Constitution of North Carolina is amended by adding a new section to read:
"Sec. 37.  Rights of victims of crime.
(1)	Crime victims or their lawful representatives, including the next of kin in the case of homicide, shall have the following rights:
(a)	The right to be treated with fairness, respect, and dignity throughout the criminal justice process.
(b)	The right to be reasonably protected from the accused or any persons acting on the accused's behalf throughout the criminal justice process.
(c)	The right to be given information about the crime, how the criminal justice system works, the rights of victims, and the availability of services for victims.
(d)	The right to reasonable notification of court proceedings and notice of pretrial release of the accused.
(e)	The right to attend trial and all other court proceedings that the accused has a right to attend, unless there is a judicial determination to restrict crime victims' attendance.
(f)	The right to make a sworn statement to the court, either orally or in writing, in person or through counsel, at the time of sentencing prior to the adjudication of the sentence.
(g)	The right to receive restitution, in such manner as established by law.
(h)	The right to information about the conviction or final disposition and sentence of the accused.
(i)	The right to notification of escape, release, proposed parole, or pardon of the accused or to notice of a reprieve or commutation of the accused's sentence.
(j)	The right to present their views and concerns to the Governor or agency considering any action that could result in the release of the accused, prior to such action becoming effective, in a manner established by law.
(k)	The right to confer with a representative of the prosecution.
(2)	The General Assembly may provide by law for the enforcement of the rights recognized in this section.  The General Assembly may also provide that a portion of the court costs assessed against convicted defendants shall be used to provide compensation for the victims of crime.
Nothing in this section shall be construed to create a further cause of action against the State of North Carolina, local governments, public officials, or their agents and employees, or a right to contest the disposition of any charge, or a right to court-appointed counsel to enforce any of these rights.
(3)	The failure or inability of any person to provide a right or service provided under this section shall not be used by a defendant in a criminal case, an inmate, or any other accused as a ground for relief in any trial, appeal, postconviction litigation, habeas corpus, civil action, or any similar criminal or civil proceeding."
Sec. 2.  The amendment set out in Section 1 of this act shall be submitted to the qualified voters of the State at an election to be held on November 8, 1994, which election shall be conducted under the laws then governing elections in the State.  Ballots, voting systems, or both may be used in accordance with Chapter 163 of the General Statutes.  The question to be used in the voting systems and ballots shall be:
"[ ] FOR    [ ] AGAINST
Constitutional amendment adding a Victims' Rights Amendment."
Those qualified voters favoring the amendment set out in Section 1 of this act shall vote by making an X or a check mark in the square beside the statement beginning "FOR", and those qualified voters opposed to that amendment shall vote by making an X or a check mark in the square beside that statement beginning "AGAINST".
Sec. 3.  If a majority of the votes cast on the question are in favor of the amendment set out in Section 1 of this act, the State Board of Elections shall certify the amendment to the Secretary of State.  The amendment becomes effective upon this certification.  The Secretary of State shall enroll the amendment so certified among the permanent records of that office.
Sec. 4.  G.S. 15A-1343(d) reads as rewritten:
"(d)	Restitution as a Condition of Probation. – As a condition of probation, a defendant shall be required to make restitution or reparation to an aggrieved party or parties who shall be named by the court for the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant.  The court shall take into consideration the resources of the defendant, including all real and personal property owned by the defendant and the income derived from such property, his ability to earn, his obligation to support dependents, and such other matters as shall pertain to his ability to make restitution or reparation, but the court is not required to make findings of fact or conclusions of law on these matters when the sentence is imposed.  The amount must be limited to that supported by the record, and the court may order partial restitution or reparation when it appears that the damage or loss caused by the offense or offenses is greater than that which the defendant is able to pay.  An order providing for restitution becomes a lien on the real estate of the defendant in the same manner as do judgments in civil actions.   An order providing for restitution or reparation shall in no way abridge the right of any aggrieved party to bring a civil action against the defendant for money damages arising out of the offense or offenses committed by the defendant, but any amount paid by the defendant under the terms of an order as provided herein shall be credited against any judgment rendered against the defendant in such civil action.  As used herein, 'restitution' shall mean (i) compensation for damage or loss as could ordinarily be recovered by an aggrieved party in a civil action, and (ii) reimbursement to the State for the total amount of a judgment authorized by G.S. 7A-455(b).  As used herein, 'reparation' shall include but not be limited to the performing of community services, volunteer work, or doing such other acts or things as shall aid the defendant in his rehabilitation.  As used herein 'aggrieved party' includes individuals, firms, corporations, associations, other organizations, and government agencies, whether federal, State or local, including the Crime Victims Compensation Fund established by G.S. 15B-23.  Provided, that no government agency shall benefit by way of restitution except for particular damage or loss to it over and above its normal operating costs and except that the State may receive restitution for the total amount of a judgment authorized by G.S. 7A-455(b).  A government agency may benefit by way of reparation even though the agency was not a party to the crime provided that when reparation is ordered, community service work shall be rendered only after approval has been granted by the owner or person in charge of the property or premises where the work will be done.  Provided further, that no third party shall benefit by way of restitution or reparation as a result of the liability of that third party to pay indemnity to an aggrieved party for the damage or loss caused by the defendant, but the liability of a third party to pay indemnity to an aggrieved party or any payment of indemnity actually made by a third party to an aggrieved party does not prohibit or limit in any way the power of the court to require the defendant to make complete and full restitution or reparation to the aggrieved party for the total amount of the damage or loss caused by the defendant.  Restitution or reparation measures are ancillary remedies to promote rehabilitation of criminal offenders, to provide for compensation to victims of crime, and to reimburse the Crime Victims Compensation Fund established by G.S. 15B-23, and shall not be construed to be a fine or other punishment as provided for in the Constitution and laws of this State."
Sec. 5.  G.S. 15A-1021(d) reads as rewritten:
"(d)	When restitution or reparation by the defendant is a part of the plea arrangement agreement, if the judge concurs in the proposed disposition he shall order that restitution or reparation be made as a condition of special probation pursuant to the provisions of G.S. 15A-1351, or probation pursuant to the provisions of G.S. 15A-1343(d). If an active sentence is imposed the court shall recommend that the defendant make restitution or reparation out of any earnings gained by the defendant if he is granted work release privileges under the provisions of G.S. 148-33.1, or that restitution or reparation be imposed as a condition of parole in accordance with the provisions of G.S. 148-57.1. The order or recommendation providing for restitution or reparation shall be in accordance with the applicable provisions of G.S. 15A-1343(d).  An order providing for restitution becomes a lien on the real estate of the defendant in the same manner as do judgments in civil actions.
If the offense is one in which there is evidence of physical, mental or sexual abuse of a minor, the court should encourage the minor and the minor's parents or custodians to participate in rehabilitative treatment and the plea agreement shall include a provision that the defendant will be ordered to pay for such treatment.
The sentencing court shall enter as a part of the commitment that restitution or reparation is to be part of the plea arrangement. The Administrative Office of the Courts shall prepare and distribute forms which provide for ample space to make restitution or reparation recommendations incident to commitments."
Sec. 6.  G.S. 148-57.1 reads as rewritten:
"§ 148-57.1. Restitution as a condition of parole.
(a)	Repealed by Session Laws 1985, c. 474, s. 5.
(b)	As a rehabilitative measure, the Parole Commission shall require a prisoner to whom parole is granted to make restitution or reparation to an aggrieved party as a condition of parole when the sentencing court recommends that restitution or reparation to an aggrieved party be made a condition of any parole granted the defendant. When setting up a payment schedule for the restitution, the Parole Commission shall take into consideration the resources of the defendant, including all real and personal property owned by the defendant and the income derived from such property, his ability to earn, and his obligation to support dependents. 
(c)	When an active sentence is imposed, the court shall, as a rehabilitative measure, recommend to the Parole Commission that restitution or reparation by the defendant be made a condition of any parole granted the defendant. The court shall make its recommendation a part of the order committing the defendant to custody. The recommendation shall be in accordance with the applicable provisions of G.S. 15A-1343(d). An order providing for restitution becomes a lien on the real estate of the defendant in the same manner as do judgments in civil actions.  The Administrative Office of the Courts shall prepare and distribute forms which provide ample space to make restitution or reparation recommendations incident to commitments, which forms shall be conveniently structured to enable the sentencing court to make its recommendation.
If the offense is one in which there is evidence of physical, mental or sexual abuse of a minor, the court shall order, as a condition of parole, that the defendant pay the cost of any rehabilitative treatment for the minor.
(d)	The Parole Commission shall establish rules and regulations to implement this section, which shall include adequate notice to the prisoner that the payment of restitution or reparation by the prisoner is a condition of any parole granted the prisoner, and opportunity for the prisoner to be heard. Such rules and regulations shall also provide additional methods whereby facts may be obtained to supplement the recommendation of the sentencing court."
Sec. 7.  G.S. 148-57.1, as amended by Chapter 538 of the 1993 Session Laws, reads as rewritten:
"§ 148-57.1.  (Effective January 1, 1995) Restitution as a condition of parole or post-release supervision.
(a)	Repealed by Session Laws 1985, c. 474, s. 5.
(b)	As a rehabilitative measure, the Post-Release Supervision and Parole Commission shall require a prisoner to whom parole or post-release supervision is granted to make restitution or reparation to an aggrieved party as a condition of parole or post-release supervision when the sentencing court recommends that restitution or reparation to an aggrieved party be made a condition of any parole or post-release supervision granted the defendant.  When setting up a payment schedule for the restitution, the Post-Release Supervision and Parole Commission shall take into consideration the resources of the defendant, including all real and personal property owned by the defendant and the income derived from such property, his ability to earn, and his obligation to support dependents.  
(c)	When an active sentence is imposed, the court shall, as a rehabilitative measure, recommend to the Post-Release Supervision and Parole Commission that restitution or reparation by the defendant be made a condition of any parole or post-release supervision granted the defendant.  The court shall make its recommendation a part of the order committing the defendant to custody.  The recommendation shall be in accordance with the applicable provisions of G.S. 15A-1343(d).  An order providing for restitution becomes a lien on the real estate of the defendant in the same manner as do judgments in civil actions.  The Administrative Office of the Courts shall prepare and distribute forms which provide ample space to make restitution or reparation recommendations incident to commitments, which forms shall be conveniently structured to enable the sentencing court to make its recommendation.
If the offense is one in which there is evidence of physical, mental or sexual abuse of a minor, the court shall order, as a condition of parole or post-release supervision, that the defendant pay the cost of any rehabilitative treatment for the minor.
(d)	The Post-Release Supervision and Parole Commission shall establish rules and regulations to implement this section, which shall include adequate notice to the prisoner that the payment of restitution or reparation by the prisoner is a condition of any parole or post-release supervision granted the prisoner, and opportunity for the prisoner to be heard.  Such rules and regulations shall also provide additional methods whereby facts may be obtained to supplement the recommendation of the sentencing court."
Sec. 8.  G.S. 148-33.2 reads as rewritten:
"§ 148-33.2. Restitution by prisoners with work-release privileges.
(a)	Repealed by Session Laws 1985, c. 474, s. 4.
(b)	As a rehabilitative measure, the Secretary of the Department of Correction shall require any prisoner granted work-release  privileges to make restitution or reparation to an aggrieved party from any earnings gained by the defendant while on work release when the sentencing court recommends that restitution or reparation be paid by the defendant out of any earnings gained by the defendant if he is granted work-release privileges and out of other resources of the defendant, including all real and personal property owned by the defendant and the income derived from such property. 
(c)	When an active sentence is imposed, the court shall, as a rehabilitative measure, recommend to the Secretary of Correction that restitution or reparation be made by the defendant out of any earnings gained by the defendant if he is granted work-release privileges and out of other resources of the defendant, including all real and personal property owned by the defendant, and income derived from such property. The court shall make its recommendation a part of the order committing the defendant to custody. The recommendation shall be in accordance with the applicable provisions of G.S. 15A-1343(d).  An order providing for restitution becomes a lien on the real estate of the defendant in the same manner as do judgments in civil actions.  If the offense is one in which there is evidence of physical, mental or sexual abuse of a minor, the court shall order the defendant to pay from work release earnings the cost of rehabilitative treatment for the minor. The Administrative Office of the Courts shall prepare and distribute forms which provide ample space to make restitution or reparation recommendations incident to commitments, which forms shall be conveniently structured to enable the sentencing court to make its recommendation.
(d)	The Secretary of the Department of Correction shall establish rules and regulations to implement this section, which shall include adequate notice to the prisoner that the payment of restitution or reparation from any earnings gained by the prisoner while on work release is a condition of any work-release privileges granted the prisoner, and opportunity for the prisoner to be heard. Such rules and regulations shall also provide additional methods whereby facts may be obtained to supplement the recommendation of the sentencing court."
Sec. 9.  Sections 1 through 3 of this act are effective upon ratification.  The remaining sections of this act become effective January 1, 1995, and apply to all offenses committed on or after that date.