GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 665

Short Title:  Crime Victims' Rights Act.	(Public)

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Sponsors: Representatives Eddins; Aldridge, Arnold, Baddour, Baker, Barbee, Berry, Braswell, Brawley, Buchanan, Cansler, Capps, Clary, Creech, Culp, Davis, Decker, Dockham, Earle, Ellis, Esposito, Gardner, Goodwin, Grady, Gulley, Hall, Hardy, Hiatt, Hightower, Hill, Holmes, Howard, R. Hunter, Ives, Jeffus, Justus, Kiser, McMahan, Miner, Moore, Morgan, Morris, Mosley, Neely, Nichols, Oldham, Rayfield, Redwine, Reynolds, Russell, Saunders, Sexton, Shubert, Sutton, Warwick, Watson, Weatherly, C. Wilson, G. Wilson, Wood, and Yongue.

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Referred to:  Judiciary I.

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March 27, 1997

A BILL TO BE ENTITLED
AN ACT TO CREATE THE CRIME VICTIMS' RIGHTS ACT.
The General Assembly of North Carolina enacts:
Section 1. Chapter 15A of the General Statutes is amended by adding a new Subchapter to read:
“SUBCHAPTER XVI. CRIME VICTIMS' RIGHTS.
"ARTICLE 101.
"Crime Victims' Rights Act.
"§ 15A-2010. Definitions.
The following definitions apply in this Article:
(1)	Accused. – A person who has been arrested and charged with committing a crime covered by this Article.
(2)	Law enforcement agency. – The police or sheriff department responsible for investigating a crime covered by this Article.
(3)	Next of kin. – The victim's spouse, children, parents, or siblings.  The term does not include such a person, however, if the person caused the victim's injuries or death.
(4)	Victim. – A person against whom there is probable cause to believe one of the following crimes was committed:
a.	A Class A, B, C, D, or E felony.
b.	A Class F felony if it is a violation of one of the following:  G.S. 14-16.6(b); 14-16.6(c); 14-18; 14-32.1(e); 14-32.2(b)(3); 14-32.3(b); 14-34.2; 14-34.5; 14-41; 14-43.2; 14-43.3; 14-190.17; 14-190.19; 14-202.1; or 14-288.9.
c.	A Class G felony if it is  a violation of one of the following: G.S. 14-32.3(b); 14-51; 14-58; 14-87.1; 20-138.5(b); or 20-141.4.
d.	A Class H felony if it is a violation of one of the following: G.S. 14-32.3(a); 14-32.3(c); or 14-33.2.
e.	A Class I felony if it is a violation of one of the following: G.S. 14-277.3; 14-32.3(b); 14-34.6(b); or 14-190.17A.
		A person is also a victim if the perpetrator of one of the crimes listed above is a juvenile, and the case was referred to superior court for adjudication or the perpetrator was found not guilty by reason of insanity.
"§ 15A-2011. Responsibilities of law enforcement agency.
(a)	Within 24 hours after identifying a victim covered by this Article, the law enforcement agency shall provide the victim with the following information:
(1)	The availability of medical services, if needed.
(2)	The availability of crime victims' compensation funds under Chapter 15B of the General Statutes and the address and phone number of the agency responsible for dispensing the funds.
(3)	The address and phone number of the district attorney's office that will be responsible for prosecuting the victim's case.
(4)	The name and phone number of a law enforcement agency employee whom the victim may contact if the victim has not been notified of an arrest in the victim's case within six months after the crime was reported to the law enforcement agency.
(b)	Within 24 hours after the arrest of a person believed to have committed a crime covered by this Article, the law enforcement agency shall:
(1)	Inform the victim of the accused's opportunity for pretrial release.
(2)	Provide the victim with the name and phone number of a law enforcement agency employee whom the victim may contact to find out whether the accused has been released from custody.
(c)	Within 24 hours after an accused has been detained and no later than five days after the accused has been arrested if the accused is not detained, the law enforcement agency shall forward to the district attorney's office that will be responsible for prosecuting the case the victim's name, address, date of birth, social security number, race, sex, and phone number.
"§ 15A-2012.  Responsibilities of the district attorney's office.
(a)	Within 21 days after the arrest of the accused, but not less than 24 hours before the accused's first scheduled probable cause hearing, the district attorney's office shall provide to the victim a pamphlet or other written material that explains in a clear and concise manner the following:
(1)	The victim's rights under this Article, including the right to confer with the attorney prosecuting the case about the disposition of the case.
(2)	The responsibilities of the law enforcement agency and the district attorney's office under this Article.
(3)	The victim's eligibility for compensation  under the Crime Victims' Compensation Act and the date by which the victim must file a claim for compensation.
(4)	The steps generally taken by the district attorney's office when prosecuting a felony case.
(5)	Suggestions on what the victim should do if threatened or intimidated by the accused or someone acting on the accused's behalf.
(6)	The name and phone number of a victim and witness assistant in the district attorney's office whom the victim may contact for further information.
(b)	Upon receiving the information in subsection (a) of this section, the victim shall, on a form provided by the district attorney's office, indicate whether the victim wishes to receive any further notices of trial proceedings involving the accused.  If the victim elects to receive further notices, the victim shall be responsible for notifying the district attorney's office or any other department or agency that has a responsibility under this Article of any changes in the  victim's address and phone number.
(c)	A victim has the right to be present at every court proceeding at which the accused has the right to be present.  The district attorney's office shall notify a victim of the date, time, and place of these proceedings.  All notices required to be given by the district attorney's office shall be given in a manner that is reasonably calculated to be received by the victim prior to the date of the court proceeding.
(d)	Whenever practical, the district attorney's office shall provide a secure waiting area during court proceedings that does not place the victim in close proximity to the defendant or the defendant's family.
(e)	When the victim is to be called as a witness in a court proceeding, the court shall make every effort to permit the fullest attendance possible by the victim in the proceedings.
(f)	Prior to the disposition of the case, the district attorney's office  shall offer the victim of crime the opportunity to consult with the prosecuting attorney to obtain the views of the victim about the disposition of a crime, including the victim's views about dismissal, plea or negotiations, sentencing, and any pretrial diversion programs.
"§ 15A-2013. Victim impact statement.
(a)	The district attorney's office shall notify the victim that the victim has the right to make an oral or written victim impact statement, which shall be considered by the court or jury, as the case may be, in sentencing the defendant.  The notice shall explain that the victim may include in the statement the following:
(1)	A description of the nature and extent of any physical, psychological, or emotional injury suffered by the victim as a result of the offense committed by the defendant.
(2)	An explanation of any economic or property loss suffered by the victim as a result of the offense committed by the defendant.
(3)	An opinion of whether there is a need for restitution and whether the victim has applied for or received compensation under the Crime Victims' Compensation Act.
(4)	The victim's recommendation of an appropriate sentence for the defendant.
(b)	No victim shall be required to make a victim's impact statement.  The court shall not draw any inference or conclusion from a victim's decision not to make a victim's impact statement.
"§ 15A-2014.  Restitution.
(a)	A court shall, in addition to or instead of any penalty authorized by law, require that the defendant make restitution to a victim or the victim's estate for any injuries or damages arising out of the offense committed by the defendant.
(b)	The amount the defendant is ordered to pay in restitution may include, if they are a result of the offense committed by the defendant:
(1)	The cost of any medical or other professional services and devices or equipment required by the victim.
(2)	The cost of physical therapy, occupational therapy, and rehabilitation required by the victim.
(3)	Any income loss, after taxes, suffered by the victim.
(4)	The cost of any psychological or medical treatment for the victim's next of kin.
(5)	The cost of the victim's funeral and any related services.
The court may require that the victim or the victim's estate provide evidence that documents the costs claimed by the victim or the victim's estate under this section.  Any such documentation shall be shared with the defendant before the sentencing hearing.
(c)	In deciding whether to require that restitution be made, 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 the property, the defendant's ability to earn, the defendant's obligation to support dependents, and any other matters that pertain to the defendant's ability to make restitution, 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 of restitution must be limited to that supported by the record, and the court may order partial restitution when it appears that the damage or loss caused by the offense is greater than that which the defendant is able to pay.
(d)	An order providing for restitution does not abridge the right of a victim or the victim's estate to bring a civil action against the defendant for damages arising out of the offense committed by the defendant, but any amount paid by the defendant under the terms of an order under this section shall be credited against any judgment rendered against the defendant in a civil action.  Any amount paid by the defendant shall also be subtracted from any compensation paid by the Crime Victims' Compensation Fund if the compensation is paid after restitution has been made.
(e)	The court may order the defendant to make restitution to a person other than the victim, or to any organization, corporation, or association, including the Crime Victims' Compensation Fund that provided assistance to the victim following the commission of the offense by the defendant.  Restitution shall be made to the victim or the victim's estate before it is made to any other person, organization, corporation, or association.
(f)	The court may require the defendant to make full restitution no later than a certain date or, if the circumstances warrant, may allow the defendant to make restitution in installments over a specified time period.
(g)	If the defendant is placed on probation or post-release supervision, or is paroled, any restitution ordered under this Article shall be a condition of probation, supervision, or parole.
(h)	If the court does not order restitution, or orders partial restitution, the court shall state on the record the reasons for such a finding.
"§ 15A-2015.  Docketing of order of restitution.
An order of restitution shall be docketed with the clerk of superior court and may be collected in the same manner as a civil judgment.
"§ 15A-2016.  Posttrial responsibilities.
(a)	Within 30 days after the final proceeding in a case, the district attorney's office shall notify the victim, in writing, of:
(1)	The final disposition of the case.
(2)	The crimes of which the defendant was convicted.
(3)	The defendant's right to appeal, if any.
(b)	Upon a defendant's giving notice of appeal to the Court of Appeals or the Supreme Court, the district attorney's office shall forward to the Attorney General's Office the victim's name, address, and phone number. Upon receipt of this information, the Attorney General's Office shall provide the victim with the following:
(1)	A clear and concise explanation of how the appellate process works, including information about possible actions that may be taken by the appellate court.
(2)	Notice of the date, time, and place of any appellate proceedings involving the defendant.  Notice shall be given in a manner that is reasonably calculated to be received by the victim prior to the date of the proceedings.
(3)	The final disposition of an appeal.
(c)	If the defendant has been released on bail pending the outcome of the appeal, the agency that has custody of the defendant shall notify the victim that the defendant has been released.
(d)	If the defendant's conviction is overturned and the district attorney's office decides to retry the case or the case is remanded to superior court for a new trial, the victim shall be entitled to the same rights under this Article as if the first trial did not take place.
"§ 15A-2017.  Responsibilities of agency with custody of defendant.
The law enforcement agency that has custody of the defendant or the Department of Correction, if it has custody of the defendant, shall notify the victim of:
(1)	The earliest date by which the defendant can be released from custody.  The calculation of the release date shall be as exact as possible, including earned time and disciplinary credits if the sentence of imprisonment exceeds 90 days.  The law enforcement agency or Department of Correction shall be required to provide notice of the defendant's earliest release date only once during the defendant's incarceration.
(2)	The defendant's transfer to a minimum security facility and the address of the facility.
(3)	The defendant's release or pending release into a community residential program or under extended furlough, or the transfer of the defendant to community status.
(4)	Any reduction of the defendant's minimum sentence.
(5)	The defendant's escape from custody.
(6)	The date of any hearings held by the Parole Commission to consider whether the defendant should be released from custody.  Notice should be given not later than 90 days before a hearing is held.
(7)	The victim's right to submit a written or oral statement to the Parole Commission before the defendant is released.
(8)	The Parole Commission's decision about whether to release or continue the incarceration of a defendant.
(9)	The date the defendant is scheduled to be released from the facility.  Whenever practical, notice shall be given 60 days before release.
(10)	The defendant's death.
"§ 15A-2018.  Responsibilities of Department of Adult Probation and Parole.
The Department of Adult Probation and Parole shall notify the victim of:
(1)	The date of a hearing to determine whether the defendant's probation should be revoked or extended.
(2)	The final disposition of any hearing held in subdivision (1) of this section.
(3)	The defendant's leaving the jurisdiction of the court that sentenced the defendant without the permission of the court or the defendant's probation officer.
(4)	The capture of a defendant described in subdivision (3) of this section.
(5)	The date when the defendant is discharged from probation.
"§ 15A-2019.  Notice of commuted sentence or pardon.
	The Governor shall notify a victim that the Governor is considering commuting the defendant's sentence or pardoning the defendant.  The Governor shall also give notice that the victim has the right to present a written statement to be considered by the Governor before the defendant's sentence is commuted or the defendant is pardoned.
"§ 15A-2020.  No money damages.
This Article does not create a claim for damages against the State, a county, or a municipality, or any of its agencies, instrumentalities, or employees.
"§ 15A-2021.  No ground for relief.
The failure or inability of any person to provide a right or service under this Article may not be used by a defendant in a criminal case, by an inmate, or by any other accused as a ground for relief in any criminal or civil proceeding.
"§ 15A-2022.  Appointment of guardian.
When a victim is rendered mentally or physically incompetent, the court shall appoint a guardian to exercise the victim's rights under this Article.  The court shall not appoint as guardian a person who was responsible for causing the victim's injuries.
"ARTICLE 102.
"Crime Victims' Rights Fund.
"§ 15A-2025.  Crime Victims' Rights Fund established.
There is hereby established within the State treasury a special revenue fund to be known as the Crime Victims' Rights Fund (hereinafter Fund).  The Fund shall be administered by the Department of Crime Control and Public Safety and shall be used to supplement the budgets of law enforcement agencies and district attorneys' offices that provide services to crime victims as required by the General Statutes.  Revenue in the Fund at the end of each fiscal year shall not revert, and interest and other investment income earned by the Fund must be credited to the Fund.
"§ 15A-2026.  Assessments.
(a)	In every criminal case where the defendant is convicted of or enters a plea of guilty or nolo contendere to a felony, a Class 1 or 1A misdemeanor, or to an offense of impaired driving under Chapter 20 of the General Statutes, the court shall order the defendant to pay a sum of thirty dollars ($30.00) to be used to supplement the budgets of law enforcement agencies and district attorneys' offices who provide services to crime victims as required by the General Statutes.
(b)	If the court authorizes the payment of fines, costs, restitution, probation oversight fees, or any other obligations of the defendant to be paid in installments, the assessment imposed under this section shall be collected from the first monies paid by the defendant. The clerk of superior court shall transmit daily all monies collected to the Department of Crime Control and Public Safety for deposit in the Fund.
"§ 15A-2027.  Application for supplemental funds.
(a)	A law enforcement agency or district attorney's office that has  a responsibility to provide services to crime victims as required by the General Statutes may apply annually to the Department of Crime Control and Public Safety for supplemental funds.  Supplemental funds may not be used to supplant local, State, or federal funds that are available to  agencies and district attorneys' offices to provide services to crime victims.
(b)	The Department of Crime Control and Public Safety shall establish procedures for screening, recording, and processing applications for supplemental funds.  The Department shall prepare and transmit annually to the General Assembly a report of the Department's activities."
Section 2.  G.S. 7A-304 is amended by adding a new subdivision to read:
"(7)	For the Crime Victims' Rights Fund, the sum of thirty dollars ($30.00) to be remitted to the Department of Crime Control and Public Safety to be administered under the provisions of Article 102 of Chapter 15A of the General Statutes."
Section 3.  G.S. 15A-824 through G.S. 15A-827 are repealed.
Section 4. Article 102 as enacted in Section 1 of this act becomes effective January 1, 1998.  The remainder of this act is effective when it becomes law.