Category: Victims’ Rights

Victim Restitution and the Ex Post Facto Clause

by · Apr 7, 2025 8:28 am

“Moving the goalposts” is widely recognized as an unfair thing to do. In criminal law, the issue rises to a constitutional one. From the beginning, the Constitution has forbidden both Congress and state legislatures from passing “ex post facto laws.”* The primary, and simple, effect of this prohibition is that a legislature cannot make an act criminal or increase the punishment for it after it has been committed, i.e., “after the fact,” in Latin.

Does a law that increases the length of time in which a restitution award may be collected constitute an ex post facto law? The U.S. Supreme Court today took up a case to decide that question, Ellingburg v. United States, No. 24-482.

There are two good arguments why the answer is no. Continue reading . . .

Kathy Cady

by · Jan 11, 2025 2:00 pm

The Metropolitan News-Enterprise has this profile of Kathleen Cady by Sherri Okamoto. Kathy is a tireless advocate for victims of crime. See prior posts here and here. Until recently she has been co-counsel with us in Jessica M. v. CDCR, a case mentioned in the article.

Newly elected Los Angeles District Attorney Nathan Hochman has brought her back to the DA’s office as Director of the Victim Witness Division, an excellent choice. We wish her well in her new position.

Person of the Year

by · Oct 16, 2024 11:04 am

The Metropolitan News-Enterprise, a law-oriented newspaper in LA, has designated six Persons of the Year. Among them is our friend and sometimes co-counsel Kathleen Cady.

Cady, [MetNews Co-Publisher Jo-Ann] Grace remarked, has “selflessly devoted untold hours to her attempts, on a pro bono basis, to vindicate victims’ rights.” A Los Angeles County deputy district attorney for 31 years, she is now in private practice with the Dordulian Law Group in Glendale.

Congratulations to Kathy for a well-deserved recognition.

A Mixed Bag in the Stalking/Threats Case

by · Jun 27, 2023 4:05 pm

This morning the U.S. Supreme Court decided the stalking/threats case of Counterman v. Colorado, No. 22-138. The decision is a mixed bag for the ability of government to protect people from threats and for its ability to protect people from stalking. To punish speech on the basis that it is a threat, the Court held that, at a minimum, “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.”

As to stalking by speech (or other communication) the need to invoke the “true threats” doctrine under the First Amendment at all is unclear. Continue reading . . .

LA DA Fails to Boot Victim’s Advocate Out of Court

by · Jun 12, 2023 11:03 am

Our system of criminal justice is an adversary one, normally pitting the prosecutor against the defense lawyer. In Los Angeles today, however, the office of District Attorney George Gascón is often agreeing with the defendant.

While there are only two parties to a criminal case, victims of crime in California have a right to be heard under Article I § 28 of the state Constitution, as amended in the original Marsy’s Law, Proposition 9 of 2008. Retired Deputy District Attorney Kathleen Cady has been doing great work in LA toward ensuring that victims’ voices are heard. This raises the ire of Mr. Gascón, interfering with his cozy, collusive motions. Continue reading . . .

Plea Bargains and Restitution

by · Oct 26, 2022 11:38 am

Plea bargains often involve an agreement for the defendant to plead guilty to a lesser offense and for the government to dismiss charges of a greater offense. When the bargain also includes an agreement for the defendant to pay restitution to the victim, does it matter that only the greater, dismissed charge carries a restitution requirement, and the lesser charge to which the defendant pleads guilty does not?

No, it does not matter in federal criminal cases, the Ninth Circuit decided yesterday in Jane Doe v. U.S. District Court (Alexander), No. 22-70098. Continue reading . . .

Marsy’s Law Challenged in Kentucky Supreme Court

by · Mar 19, 2022 10:21 am

“The Kentucky Supreme Court on Thursday weighed the fate of a victims’ rights law that opponents say must be struck down because it was not properly put before voters,” reports David Wells for Courthouse News.

And what are the drastic changes that have the opponents so hot and bothered?

After being passed by ballot referendum in November 2020 with 63% of the vote, Kentucky’s version of Marsy’s Law granted crime victims constitutional protections including the right to be present at trials and other proceedings, the right to consult with an attorney, the right to be notified of all hearings and the right to be reasonably protected from the accused.

That is really a quite modest list of rights. It does not give the victim the right to become a party, appeal an adverse ruling, challenge a plea bargain, or defend a sentence. Continue reading . . .

LA Co. Judge Reinstates Sentencing Charges After Victims Object

by · May 28, 2021 2:41 pm

There has been a significant development in the victims’ revolt against LA DA George Gascón’s reckless policies.

Judge Rob Villeza of the East Judicial District of LA Superior Court, in Pomona, initially dismissed special circumstance allegations against Raymond Gonzalez, who is charged with two counts of murder and carjacking. The dismissal was based on a motion by the District Attorney’s Office under the DA’s special directives to never charge special circumstances and to dismiss any pending special circumstance allegations. But then the victims’ families sought reconsideration. Continue reading . . .

Gang Enhancements Not Used in MS-13 Violence

by · Mar 31, 2021 12:47 pm

Another transgender woman was attacked last week in MacArthur Park, making it the fourth attack by a member of MS-13. According to an article written by James Queally of the Los Angele Times, Gabriel Orellana has been arrested and charged, while his accomplice has not been identified. According to Deputy District Attorney Richard Ceballos Orellana and the other suspect, “…Yelled derogatory remarks before knocking the victim to the ground and striking her repeatedly in the head and torso.” Queally explained in the article this is another hate crime in a series of attacks against transgender women in the area by MS-13 gang members. 

Continue reading . . .

“Affordable Bail” Does Not Protect Public and Victim Safety

by · Mar 26, 2021 4:41 pm

If an arrestee can be “admitted to bail,” (meaning pretrial release is not precluded), California law authorizes four different methods of pretrial release, only one of which has a monetary requirement. Those four methods include (1) money bail; (2) release on own recognizance (“OR”); (3) OR under supervision; and (4) pretrial diversion. At an arrestee’s first court appearance, a judge will decide if he or she should be released on OR (with or without supervision) or on money bail.

The California Supreme Court’s Humphrey decision announced yesterday initially acknowledged OR as a type of pretrial release, but then they completely ignored it as they delved right into the unconstitutional disparities of money bail. The court also glossed over the fact that Humphrey requested OR release under supervision twice and was denied twice. The trial court denied his request for OR release due to the seriousness of the crimes committed (first-degree residential robbery, first-degree residential burglary, inflicting non-great bodily injury on an elder or dependent adult, and theft from an elder or dependent adult PLUS three prior strikes), the vulnerability of the victim (a 79-year-old man), and on the recommendation against OR release from pretrial service’s Public Safety Assessment Report. In addition to public safety concerns, the trial court was also concerned that Humphrey was a “flight risk.”

What is OR release? Had the court taken the time to examine it in a bit more detail, the public would better understand that it is a discretionary non-monetary alternative to cash bail contained in Article I, section 12 of the California Constitution. Continue reading . . .