Federal Appeals Court Allows Arizona to Limit Victim Contact

On January 23, 2025, the 9^th Circuit Court of Appeals lift­ed an injunc­tion enjoin­ing the enforce­ment of an Arizona statute, Victim Contact Limits, which pro­hibits crim­i­nal defense teams from con­tact­ing crime vic­tims and their fam­i­ly mem­bers direct­ly. The restric­tions are found in Arizona’s Victim Rights Implementation Act (Rev. Stat. Ann. § 13- 4433(B)) and also apply to death penal­ty cas­es. The deci­sion means that pris­on­ers and their lawyers may no longer engage direct­ly with vic­tims and their fam­i­lies for an exchange of infor­ma­tion or dis­cus­sion about the appro­pri­ate­ness of a sentence. 

The ACLU, on behalf of Arizona Attorneys for Criminal Justice, filed a fed­er­al chal­lenge to the statute in 2017, argu­ing the law vio­lat­ed First Amendment free speech. After an ini­tial defeat in fed­er­al dis­trict court (sub­se­quent­ly over­ruled by a 9^th Circuit pan­el in 2021) the suit suc­ceed­ed in 2022 in secur­ing an injunc­tion against the law’s enforce­ment. Arizona appealed the rul­ing, and last week anoth­er 9^th Circuit pan­el unan­i­mous­ly reversed the dis­trict court’s rul­ing. Jared Keenan, an attor­ney for the ACLU who rep­re­sents the defense lawyers, told the Arizona Daily Star that a new law­suit is being contemplated. 

At the 2022 hear­ing chal­leng­ing the statute, cap­i­tal defense attor­neys explained that their con­tact with vic­tim fam­i­lies often involves ​“shar­ing infor­ma­tion about the crim­i­nal legal sys­tem, for instance explain­ing to vic­tims that the death penal­ty process takes years and involves con­tin­ued con­tact with the legal sys­tem that can be retrau­ma­tiz­ing.” Other defense attor­neys share their beliefs about jus­tice and pun­ish­ment with vic­tims, inves­ti­gate offens­es, gath­er mit­i­ga­tion evi­dence in death penal­ty cas­es, and answer vic­tims’ ques­tions about the defen­dant, the case, and the legal system. 

Victim’s fam­i­lies do not uni­form­ly sup­port cap­i­tal pun­ish­ment for those found respon­si­ble for the death of their loved ones. When they do not, this fact can be a pow­er­ful argu­ment in favor of clemen­cy. When for­mer President Biden com­mut­ed the sen­tences of 37 of the 40 inmates on fed­er­al death row, he was crit­i­cized by Rev. Sharon Risher for leav­ing Dylan Roof out of the com­mu­ta­tion. Rev. Risher’s moth­er, Ethel Lee Lance, and two cousins were killed by Mr. Roof, who opened fire on Black parish­ioners at a Charleston, S.C. church in 2015. Rev. Risher called Biden’s deci­sion to exclude Mr. Roof ​“unfair” to vic­tims’ fam­i­lies, con­tin­u­ing, ​“I need you to under­stand that when you put a killer on death row, the fam­i­lies are left to be hostages for the years and years of appeals that will con­tin­ue to come.” 

Arizona is not the only state to restrict vic­tim con­tact. Last year, Louisiana enact­ed HB 734, which pro­hibits death-sen­tenced pris­on­ers and their fam­i­ly, friends, and legal rep­re­sen­ta­tives, or any­one pur­port­ing to rep­re­sent the ​“inter­ests” of the pris­on­er, from direct­ly con­tact­ing any victim’s fam­i­ly mem­ber in con­nec­tion with clemen­cy pro­ceed­ings. All con­tact now must be arranged through a victim’s ser­vice coor­di­na­tor appoint­ed by the state, and any­one who vio­lates this pro­vi­sion may be ​“fined not more than five thou­sand dol­lars, [and] impris­oned for not more than three years, with or with­out hard labor, or both.” This leg­is­la­tion appears to be a response to the coor­di­nat­ed mass clemen­cy cam­paign that Governor Landry bit­ter­ly opposed dur­ing 2023 when he was still Louisiana’s Attorney General.