[Senate Hearing 106-269]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 106-269


 
      A PROPOSED CONSTITUTIONAL AMENDMENT TO PROTECT CRIME VICTIMS

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

                              S.J. Res. 3

A BILL PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 
                 TO PROTECT THE RIGHTS OF CRIME VICTIMS

                               __________

                             MARCH 24, 1999

                               __________

                          Serial No. J-106-10

                               __________

         Printed for the use of the Committee on the Judiciary


                                


                      U.S. GOVERNMENT PRINTING OFFICE
 61-438 CC                   WASHINGTON : 2000
------------------------------------------------------------------------------
                   For sale by the U.S. Government Printing Office
 Superintendent of Documents, Congressional Sales Office, Washington, DC 20402



                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director
                 Bruce A. Cohen, Minority Chief Counsel

                                  (ii)


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........  1, 2
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...57, 59
Ashcroft, Hon. John, U.S. Senator from the State of Missouri.....    71
Feingold, Hon. Russell D., U.S. Senator from the State of 
  Wisconsin......................................................74, 76
Feinstein, Hon. Dianne, U.S. Senator from the State of California    77
Kyl, Hon. Jon, U.S. Senator from the State of Arizona............    84

                    CHRONOLOGICAL LIST OF WITNESSES

Panel consisting of Steven J. Twist, assistant general counsel, 
  Viad Corp., Phoenix, AZ; Beth A. Wilkinson, Latham and Watkins, 
  Washington, DC; and Paul G. Cassell, professor of law, 
  University of Utah College of Law, Salt Lake City, UT..........     8

               ALPHABETICAL LIST AND MATERIALS SUBMITTED

Cassell, Paul G.:
    Testimony....................................................    22
    Prepared statement...........................................    25
Feinstein, Hon. Dianne:
    Submitted Court Order, (cited as: 958 F.Supp. 512)...........    81
Twist, Stephen J.:
    Testimony....................................................     8
    Prepared statement...........................................    11
Wilkinson, Beth A:
    Testimony....................................................    18
    Prepared statement...........................................    20

                                APPENDIX
                          Proposed Legislation

S.J. Res. 3, a bill proposing an amendment to the Constitution of 
  the United States to protect the rights of crime victims.......    89

                         Questions and Answers

Responses of Steven J. Twist to questions from Senators:
    Hatch........................................................    93
    Leahy........................................................    93
Responses of Beth Wilkinson to questions from Senators:
    Hatch........................................................    96
    Leahy........................................................    96
    Kyl..........................................................    98
Responses of Paul Cassell to questions from Senator:
    Leahy........................................................    99

                 Additional Submissions for the Record

Article: U.S. Department of Justice, ``New Directions from the 
  Field: Victims' Rights and Services for the 21st Century''.....   108
Article: U.S. Department of Justice, ``The Rights of Crime 
  Victims--Does Legal Protection Make a Difference?,'' dated 
  December 1998..................................................   151
Prepared statements of:
    Douglas Beloof and Dean James Huffman on behalf of 
      Northwestern School of Law of Lewis and Clark College......   162
    James E. Doyle...............................................   163
    Marsha A. Kight..............................................   164
    Marsha A. Kight in response to the testimony of Beth A. 
      Wilkinson..................................................   167
    Anne McCloskey...............................................   169
    Karolyn V. Nunnallee.........................................   169
    William T. Pizzi.............................................   171
        Article prepared by William T. Pizzi and Walter Perron...   181
    Roberta Roper on behalf of the National Victim's 
      Constitutional Amendment Network...........................   199
    Joe Sikes on behalf of the Mothers Against Drunk Driving.....   201
    Virginia E. Sloan on behalf of the Citizens for the 
      Constitution...............................................   202
    Debra A. Tall on behalf of the Anne Arundel County, Maryland 
      Police Department..........................................   215
    Laurence H. Tribe, Tyler Professor of Constitutional Law, 
      Harvard University Law School..............................   216
    David L. Voth on behalf of the Crime Victim Services.........   218
    Jan Withers on behalf of the Stephanie Roper Foundation and 
      Mothers Against Drunk Driving..............................   219
    Marlene A. Young on behalf of the National Organization for 
      Victim Assistance..........................................   220
    Bruce Fein on behalf of the Citizens for the Fair Treatment 
      of Victims.................................................   224
Letters to:
    Senate Judiciary Committee from Helene Cantrell, Talisheek, 
      LA, dated Mar. 10, 1999....................................   225
    Senator Barbara Mikulski, from Kay Cummins, co-chair, Victim 
      Services Advisory Board, Montgomery County, MD, dated Mar. 
      10, 1999...................................................   225
    Representative Paul Ryan, from Senator Joanne Huelsman, and 
      Eileen Connolly-Keesler, co-chairs, Governor's Council on 
      Domestic Abuse, Madison, WI, dated Mar. 11, 1999...........   226
    Senator Kyl, from John Lyon, victim assistant, Department of 
      Health and Human Services, Montgomery County, MD, dated 
      Mar. 8, 1999...............................................   226
    Senators Hatch and Leahy, from Sue Osthoff, director, 
      National Clearinghouse for the Defense of Battered Women, 
      Philadelphia, PA, dated Mar. 22, 1999......................   227
        Position Paper On Proposed Victim's Rights Amendment.....   227
    Senators Hatch and Leahy, from Gordon J. Campbell, executive 
      director, Victim Services, New York, NY, dated Mar. 23, 
      1999.......................................................   231
    Senator Hatch, from Donna F. Edwards, executive director, 
      National Network to End Domestic Violence, Washington DC, 
      dated Mar. 23, 1999........................................   232
    Senator Leahy, from Robert P. Mosteller, professor of law, 
      Duke University School of Law, Durham, NC, dated Mar. 23, 
      1999.......................................................   233
        Article: The Unnecessary Victims' Rights Amendment, 
          Professor Robert P. Mosteller..........................   234
    Senator Leahy, from Lynne Henderson, professor of law, Diana 
      Universty, School of Law Bloomington, Bloomington, IN, 
      dated Mar. 23, 1999........................................   247
        Summary of Arguments Contained in ``Revisiting Victims' 
          Rights'' by Lynne Henderson Forthcoming, 1999 Utah Law 
          Review.................................................   247
    Senator John Ashcroft, from Joseph R. Weisberger, chief 
      justice, Supreme Court of Rhode Island Chairperson, CCJ 
      Task Force on Victim Rights, Conference of Chief Justices, 
      Office of Government Relations, Arlington, VA, dated Mar. 
      19, 1999...................................................   251


   S.J. RES. 3--A PROPOSED CONSTITUTIONAL AMENDMENT TO PROTECT CRIME 
                                VICTIMS

                              ----------                              


                       WEDNESDAY, MARCH 24, 1999

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch (chairman of the committee) presiding.
    Also present: Senators Kyl, Ashcroft, Leahy, Kennedy, 
Feinstein, and Feingold.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    The Chairman. We will begin our hearing this morning. 
Today's hearing addresses the very important and complicated 
issue of amending the Constitution to protect victims' rights. 
I have long been an active supporter of efforts to provide 
victims of crime with meaningful participation in the judicial 
system. For example, as the principal author of the Federal 
Mandatory Victim Restitution Act, I have worked hard to make 
criminals pay for the damage their behavior causes.
    For years, I fought for comprehensive habeas corpus reform 
to provide finality of criminal convictions, an effort which 
was finally successful in 1996 with the passage of the 
Antiterrorism and Effective Death Penalty Act. And just last 
week, I joined the Republicans on this committee in unveiling 
the 21st Century Justice Act of 1999. This initiative supports 
statutory changes to improve victim participation in Federal 
criminal proceedings and to improve procedures for collecting 
victim restitution awards.
    In addition, the initiative recommends that Congress send a 
victims' rights constitutional amendment to the States for 
ratification. I intend to support a constitutional amendment to 
protect victims' rights. I believe it is the right thing to do. 
The question is what form should the amendment take.
    Senators Kyl and Feinstein have introduced Senate Joint 
Resolution 3, which provides the context for our discussions. 
The text of S.J. Res. 3 happens to be identical to S.J. Res. 
44, which the committee considered last year. Senators Kyl and 
Feinstein, in my opinion, deserve continued credit for tackling 
this landmark and very difficult set of issues. I also commend 
Senator Biden for his work to date on this issue. He deserves 
recognition for being willing to engage in this difficult 
debate.
    This is the fourth hearing that this committee has had on a 
proposed victims' rights amendment. As I explained in my 
additional views accompanying last year's committee report on 
S.J. Res. 44, there are still issues that we need to examine. I 
will not go into those issues here, but I ask that my 
additional views be made part of the record and, without 
objection, I will do that.
    [The information referred to follows:]

                   Additional Views of Senator Hatch

    I support consideration of a constitutional amendment to establish 
a guarantee of rights for victims of crime. In considering the text of 
S.J. Res. 44 last year, I provided these additional views to supplement 
the Committee's Report in order to clarify several concerns I had with 
the text of the proposed constitutional amendment to protect crime 
victims. This year, S.J. Res. 3 contains the identical text of S.J. 
Res. 44. Thus, I again submit my additional views for the record.
    As an initial matter, I note that I have long been an active 
supporter of efforts to provide victims of crime with meaningful 
participation in the judicial system. For example, as the principal 
author of the federal Mandatory Victims Restitution Act, I have worked 
hard to make criminals pay for the damage their behavior causes. For 
years, I fought for comprehensive habeas corpus reform to provide 
finality of criminal convictions, an effort which was finally 
successful in 1996 with the passage of the Antiterrorism and Effective 
Death Penalty Act of 1996.
    The Antiterrorism and Effective Death Penalty Act also included 
provisions I sponsored to provide the victims of mass crimes like the 
Oklahoma City bombing the opportunity to observe criminal trials 
through closed circuit television. That law also included a provision 
ensuring that the American victims of foreign terrorists could sue the 
state sponsors of terrorist acts. I take the issue of victims' rights 
seriously, as does all of Congress. This is evidenced by the speed at 
which correcting legislation was enacted in the 105th Congress, when 
two of the 1996 enactments proved inadequate to safeguard victim's 
participation.\1\
---------------------------------------------------------------------------
    \1\ H.R. 924, the Victim Rights Clarification Act of 1997 (Pub. L. 
105-6, codified at 18 U.S.C. Sec. Sec. 3510, 3481, 3593) was introduced 
on March 5, 1997 and was signed by the President on March 19, 1997; 
H.R. 1225, a bill to make a technical correction to title 28, United 
States Code, relating to jurisdiction for lawsuits against terrorist 
states, (Pub. L. 105-11) was introduced on April 8, 1997, and was 
signed by the President on April 25, 1997.
---------------------------------------------------------------------------
    This year, I joined the Republicans on this Committee in unveiling 
the ``21st Century Justice Act of 1999.'' This initiative supports 
statutory changes to improve victim participation in federal criminal 
proceedings and to improve procedures for collecting victim restitution 
awards. In addition, the initiative recommends that Congress send a 
victims' rights constitutional amendment to the States for 
ratification.
    However, there are few tasks undertaken by Congress more serious 
than the consideration of resolutions proposing amendments to our 
national charter. With a constitutional amendment, every word and 
phrase must be scrutinized carefully. A poor choice of words or of 
drafting could significantly alter the meaning of the amendment, lead 
to years of unnecessary litigation, or even cause the amendment to fail 
in its intended purpose. We must remember that, unlike a statute which 
Congress can amend fairly easily, there is no such easy remedy to 
correct a mistake in drafting a constitutional amendment. It is with 
these thoughts in mind that I provide these additional comments on 
specific concerns I continue to have with the text of S.J. Res. 3.
    Scope of the Amendment: S.J. Res. 3 includes in its text an 
important distinction--not reflected in the amendment's title--from 
earlier drafts of the proposed amendment. Previous versions of the 
amendment covered all victims of crime, but under S.J. Res. 3, only 
victims of violent crimes, as defined by law, would receive 
constitutional protection. This distinction, according to advocacy 
groups, might remove as many as 30 million victims of non-violent 
crimes from the amendment's safeguards.
    I believe we must tread carefully when assigning constitutional 
rights on the arbitrary basis of whether the legislature has classified 
a particular crime as ``violent'' or ``non-violent.'' Consider, for 
example, the relative losses of two victims. First, consider the plight 
of an elderly woman who is victimized by a fraudulent investment scheme 
and loses her life's savings. Second, think of a college student who 
happens to take a punch during a bar fight which leaves him with a 
black eye for a couple days. I do not believe it to be clear that one 
of these victims is more deserving of constitutional protection than 
the other. While such distinctions are commonly made in criminal 
statutes, the implications for placing such a disparity into the text 
of the Constitution are far greater.
    I would hope, for example, that courts would not use Congress' 
decision to exclude victims of non-violent crimes from the amendment as 
evidence that such victims deserve less protection under state 
amendments or statutes. The decision by the amendment's sponsors to 
exclude victims such as the elderly woman in my example has led 
important segments of the victims' rights community to oppose the 
current version of this proposed amendment.
    On the other hand, in one important respect, the scope of the 
proposed amendment may be too broad, as well. It is important to note 
that the proposed amendment does not specify at what point the rights 
attach, or in other words, at what point a person becomes a ``victim,'' 
particularly in the absence of legislation. Is one a victim at the time 
of the crime, at the time an arrest is made, when charges are filed 
against a suspect, when an indictment or information is issued, or at 
some later point in the process? This is particularly important to the 
issue of dropped or uncharged counts against a defendant who has 
committed multiple wrongs.
    Frequently, criminal defendants are suspected to have committed 
crimes for which they are never charged or for which charges are later 
dropped, even though significant evidence may exist that the defendant 
did indeed commit the crime. Do the victims of these crimes have rights 
under the proposed amendment? If so, are they the same as the rights of 
the victims of charged counts, and how will their exercise affect the 
rights of victims of charged counts or of the defendant? Such victims, 
of course, would have the same rights of notice and allocution relating 
to conditional release, the acceptance of negotiated pleas (perhaps 
substantially complicating plea bargains), and sentencing. While the 
exercise of these rights is unlikely to collide with any defendant's 
rights,\2\ the exercise of the right to an order of restitution for the 
victim of an uncharged count may indeed collide with the rights of the 
defendant.\3\ At a minimum, I believe that deeper consideration ought 
to be given these matters before this amendment is sent to the States 
for ratification.
---------------------------------------------------------------------------
    \2\ For instance, evidence admissible at a sentencing hearing or 
conditional release hearing is not limited in the same manner as 
evidence admissible at the guilt phase, and evidence of uncharged 
counts or acquitted conduct may be used. The Supreme Court has made 
clear for more than four decades that, as a matter of federal 
constitutional law, a sentencing court is, and should be, free to 
consider all relevant and reliable evidence. See, e.g., Witte v. United 
States, 115 S. Ct. 2199, 2205 (1995); United States v. Tucker, 404 U.S. 
443, 446 (1972); Williams v. New York, 337 U.S. 241, 247 (1949). 
Evidence that a defendant has committed other crimes, even if they have 
not been proved beyond a reasonable doubt, surely is relevant and is 
not inherently unreliable. Unconvicted and even uncharged conduct may 
also be admitted at sentencing. The Supreme Court long has approved use 
of such evidence at sentencing. To identify just one area, the Supreme 
Court twice has held--most recently, in a unanimous opinion--that a 
district court may enhance a defendant's sentence if the court finds 
that the defendant committed perjury on the stand when the defendant 
testified. United States v. Dunnigan, 507 U.S. 87, 92-94 (1993); United 
States v. Grgyson, 438 U.S. 41 at 50-51 (1978). Moreover, 18 U.S.C. 
Sec. 3661 provides that ``No limitation shall be placed on the 
information concerning the background, character, and conduct of a 
person convicted of an offense which a court of the United States may 
receive and consider for the purpose of imposing an appropriate 
sentence.''
    \3\ The Committee wrestled with this very issue during 
consideration of the Mandatory Victims Restitution Act of 1996 (MVRA). 
In the Committee Report describing what would become Section 209 of the 
MVRA (Pub. L. 104-132, 110 Stat. 1240, 18 U.S.C. 3551 note), directing 
the Attorney General to formulate guidelines to obtain restitution 
agreements for uncharged counts in plea agreements, the Committee 
noted:

    This provision requires the Attorney General promulgate guidelines 
for U.S. Attorneys to ensure that, in plea agreements negotiated by the 
United States, consideration is given to requesting the defendant to 
provide full restitution to all victims of all charges contained in the 
indictment or information.
    H.R. 665 * * * includes a provision authorizing the courts to order 
restitution to parties other than the direct victim of the offense. The 
House provision is intended to provide restitution to victims of so-
called dropped or uncharged counts. For example, if a defendant is 
known to have committed three assaults, but is charged with, or pleads 
to, only two of these offenses, the House bill would permit the court 
to order the defendant to pay restitution to the victims of the 
remaining offense as well.
    The Committee had grave concerns about the constitutionality of the 
House provision. It is the Committee's view that permitting the court 
to order restitution for offenses for which the defendant has neither 
been convicted nor pleaded guilty may violate the Due Process Clause of 
the Fifth Amendment.
    However, the Committee shares the concern underlying the House 
provision that all an offender's victims receive restitution for their 
losses. * * * The Committee believes the victim's losses deserve 
recognition and compensation.
    This provision is intended to address this problem by providing 
guidance to U.S. Attorneys to guarantee that the concerns of these 
victims are considered. The Committee is sensitive to the discretion 
inherent in the prosecutorial function. * * * However, it is the 
Committee's intent that this provision be implemented in a manner that 
ensures the greatest practicable restitution to crime victims. S. Rept. 
104-179, at 23.
---------------------------------------------------------------------------
    Requirement of Reasonable Notice of the Rights: I have significant 
concerns about the necessity and wisdom of the last clause of Section I 
of the amendment proposed by S.J. Res. 3, providing that covered 
victims shall have the right ``to reasonable notice of the rights 
established'' by the amendment. No other constitutional provision 
mandates that citizens be provided notice of the rights vested by the 
Constitution--not even the court-created Miranda warnings are 
constitutionally required. In an analogous context, Justice O'Connor 
noted that ``the Free Exercise Clause is written in terms of what the 
government cannot do to the individual, not in terms of what the 
individual can exact from the government.'' \4\ This clause in the 
proposed victims' rights amendment would create an affirmative duty on 
the government to provide notice of what rights the Constitution 
provides, turning this formulation on its head.
---------------------------------------------------------------------------
    \4\ Lyng v. Northwest Indian Cemetary Protective Association, 485 
U.S. 439 (1988), at 451 (quoting Sherbert v. Verner, 374 U.S. 398 
(1963) at 412 (Douglas, J., concurring).
---------------------------------------------------------------------------
    Moreover, I do not believe that sufficient consideration has been 
given to the practical aspects of this requirement. Which governmental 
entity would be required to provide the notice? Would it be the police, 
when taking a crime report? The prosecutor, prior to seeking an 
indictment or filing an information? Or perhaps the court, at some 
other stage in the process? At what point would the right attach--when 
the crime is committed? When an arrest is made? And, what is 
``reasonable'' notice? Does the term presume that the governmental 
entity providing notice must have assimilated the Supreme Court's 
latest jurisprudence interpreting victims' rights when giving notice? I 
fear that this provision might generate a body of law which will make 
Fourth Amendment jurisprudence simple by comparison.
    Finally, Congress will be empowered by Section 3 of the proposed 
amendment to enforce its provisions, presumably including the question 
of how governmental entities must provide victims notice. Will this 
permit Congress to micro manage the policies and procedures of our 
State and local law enforcement agencies, prosecutors, and courts? I 
believe greater consideration must be given to these questions before a 
right to notice of the rights guaranteed by the amendment is included 
in the Constitution.
    Right to Reopen Certain Proceedings and Invalidate Certain 
Proceedings: The language of Section 2, which grants victims grounds to 
move to reopen proceedings or invalidate rulings related to, inter 
alia, the conditional release of defendants or convicts, ought to be 
given serious scrutiny. This provision in particular has perhaps the 
greatest potential to collide with the legitimate rights of defendants. 
All defendants and convicts have a constitutionally protected liberty 
interest in conditional release, once such release is granted. 
Permitting victims to move to reopen such proceedings or invalidate 
such rulings, would, of course, necessitate the re-arrest and detention 
of released defendants or convicts, likely implicating their liberty 
interest. This is not to say, of course, that the safety and views of 
victims ought not be considered in determining conditional releases, as 
provided for in the proposed amendment. However, serious 
reconsideration should be given to whether it is wise to include in the 
amendment the right of victims to unilaterally seek to overturn release 
decisions after the fact.
    Enforcement Powers: Unlike previous versions of the proposed 
amendment, which permitted States to enforce the amendment in their 
jurisdictions, S.J. Res. 3 gives Congress exclusive power to ``enforce 
this article by appropriate legislation.'' I believe that granting 
Congress sole power to enforce the provisions of the victims' rights 
amendment, and thus, inter alia, to define terms such as ``victim'' and 
``violent crime'' and to enforce the guarantees of ``reasonable 
notice'' of public proceedings and of the rights established by the 
amendment, will be a significant and troubling step toward 
federalization of crime and the nationalization of our criminal justice 
system.
    Most criminal justice questions are rightly left by the Tenth 
Amendment to be decided by the States and the People through their 
local governments. The Founders rightly determined that such questions 
are best left to those levels of government closest to the people. Even 
the bedrock defendants' rights included in the Constitution and 
incorporated in the Fourteenth Amendment permit flexible application 
adaptable to unique local circumstances. It is possible that the 
Victims' Rights Constitutional Amendment will lack this flexibility 
that is the hallmark of our federal system, and perhaps in the process 
invalidate many State victims rights provisions. Such a prospect should 
give us pause.
    Establishment of a ``Compelling Interest'' Standard to Enact 
Exceptions: I am also concerned that the proposed amendment 
inappropriately establishes a particular standard of review to enact 
inevitable exceptions to the amendment. First, I share the view of 
others on the Committee, and that of the Department of Justice, that 
the standard of a ``compelling'' interest for any exceptions to rights 
enumerated by the proposed article may be too high a burden.
    The compelling interest test is itself derived from existing 
constitutional jurisprudence, and is the highest level of scrutiny 
given to a government act alleged to infringe on a constitutional 
right. The compelling interest test and its twin, strict scrutiny, are 
sometimes described as ``strict in theory but fatal in fact.'' \5\ I 
truly question whether it is wise to command through constitutional 
text the application of such a high standard to all future facts and 
circumstances.
---------------------------------------------------------------------------
    \5\ See, e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980).
---------------------------------------------------------------------------
    I do not believe that suggestions of utilizing another standard in 
place of the compelling interest'' test offer a solution, however, for 
such suggestions would replace one inflexible standard with another. 
Moreover, the ``significant interest'' test that some have proposed is 
uncharted waters. By adopting such a standard, we would be imbedding 
into the Constitution a new and untried term, ensuring years of 
litigation to resolve its meaning.
    My view is that it is far better to leave the article silent on the 
standard of review, rather than enshrine any particular level of 
scrutiny in the text of the Constitution. Moreover, I believe it may 
not be necessary to provide a clause permitting the enactment of 
exceptions at all. It is axiomatic that no right is absolute, even 
though no other right guaranteed by the Constitution explicitly permits 
the enactment of exceptions. By way of example, the First Amendment 
Free Speech guarantee has been interpreted to allow reasonable time, 
place and manner restrictions.\6\ The courts have generally utilized a 
pragmatic review in establishing whether a particular government act 
was a valid exception to a guaranteed right, establishing standards of 
review appropriate to the right and the circumstances. It may be best 
to follow this course again, leaving exceptions to be developed in the 
natural evolution of the law, rather than to attempt with one hand to 
empower Congress (and only Congress) to provide exceptions, and with 
the other hand constrain that power with a too-rigid standard.
---------------------------------------------------------------------------
    \6\ See, e.g., Clark v. Communi1y for Creative Non-Violence, 468 
U.S. 288 (1984). See also Walz v. Tax Commissioner of New York, 397 
U.S. 664, 668-9 (1970) (``The Court has struggled to find a neutral 
course between the two Religion Clauses, both of which are cast in 
absolute terms, and either of which, if expanded to a logical extreme, 
would tend to clash with the other.'')
---------------------------------------------------------------------------
    Reference to ``Immunities'': Section 5 of the proposed amendment 
provides for the cases in which the ``rights and immunities'' 
established by the amendment will apply. In my view, a significant 
problem with this section is the use of the term ``immunities,'' which 
is new to this version of the amendment and does not refer to any 
specific ``immunity'' named in the article. Indeed, the rest of the 
article refers only to ``rights,'' and refers nowhere to 
``immunities''. It is unclear to what this term is intended to refer. 
Considering the problems courts have had in defining and applying this 
term elsewhere in the Constitution, its use here is problematic, and 
deserves further consideration.
    In conclusion, I am strongly in favor of victims' rights, and 
believe a federal constitutional amendment to be an appropriate 
national response. ``Appropriate,'' however, does not, in my view, mean 
``necessary.'' I believe that many of the objectives of the proposed 
amendment could in fact be accomplished through a federal statute, 
state statutes, or state constitutional amendments. Indeed, our 
experience with state constitutional amendments is comparatively young. 
It may well be better to allow the jurisprudence to develop on these 
before we take the momentous step of amending the federal Constitution.
    Finally, I note that a statutory approach would carry less peril of 
upsetting established State constitutional amendments now taking root 
to guarantee the rights of crime victims. A statute would also be more 
readily amendable should experience dictate that changes are needed, 
and, of course, would not preclude the later adoption of a 
constitutional amendment if the statute indeed proved insufficient or 
unable to protect the rights of victims. Indeed, this is the same 
course we have taken with the protection of the flag from desecration--
we first enacted a federal statute, and, when the Supreme Court held it 
unconstitutional, and thus clearly inadequate to the purpose, have 
proposed amending the Constitution.
    However, if an amendment is to be considered, we must be sure that 
its wording is clear, exact, and unambiguous. The concerns I have 
outlined here are but the most serious concerns I have with specific 
provisions of S.J. Res. 3. They are, however, emblematic of the textual 
problems I feel must be addressed before this amendment is approved by 
Congress and submitted to the States for ratification.

    The Chairman. Further, we should carefully consider the 
numerous Federal and State statutes and the many State 
constitutional provisions that currently grant rights to 
victims. How the Federal courts have interpreted these 
provisions in light of the Federal Constitution will illuminate 
our inquiry into these issues, and I look forward to working 
with my colleagues to address these issues in a meaningful way.
    To help us achieve a consensus on the text of the 
amendment, we have three experts in the field of criminal 
rights who will testify today. We will hear from Professor Paul 
Cassell, a legal scholar from my own home State of Utah who has 
worked tirelessly for victims' rights. Professor Cassell has 
also worked extensively with this committee on this amendment. 
He is a person whom I have a great deal of confidence in and a 
great deal of appreciation for, and teaches law in our 
University of Utah.
    We will also hear from Steve Twist, the former chief 
assistant attorney general of Arizona and a longtime advocate 
of victims' rights. In addition, Beth Wilkinson will testify. 
Ms. Wilkinson is a former Federal prosecutor in the Oklahoma 
City bombing case, and has also served in the Department of 
Justice.
    These experts will shed light on the issues inherent in 
victims' rights, and I am sure that they share my view that 
victims' rights are too important not to be addressed, and the 
Constitution is too important not to be addressed carefully. I 
look forward to today's hearing as a careful and considered 
step toward a meaningful provision of victims' rights.
    Now, shall we turn to Senator Feingold for the minority?
    Senator Feingold. Mr. Chairman, I actually want to make a 
statement in a few moments in proper order.
    The Chairman. We are only going to have----
    Senator Feingold. But I do want to make one comment about 
the process and how this hearing came about. You and I have a 
very good working relationship and I know that will continue, 
but I do want to comment that this hearing was originally 
noticed at 5:57 p.m., March 17th, just barely complying with 
the Senate rule that hearings be noticed one week in advance. 
It was noticed as a hearing of the Subcommittee on the 
Constitution, on which I am the ranking member. Then a few days 
later, we learned that the hearing would be in full committee.
    I would like to make two brief points, Mr. Chairman. The 
first and most important is that I do not believe we should be 
bypassing the relevant subcommittee as we consider legislation 
in this committee, and that is especially true when we are 
considering a constitutional amendment. We should use the 
committee process to deliberate and study the proposed 
amendment and consider all the arguments. We presumably have 
the subcommittee for a reason, and I don't understand why we 
aren't using it in this case, or in any case actually where 
amendments to the Constitution are going through the committee.
    Second, I do think that there should be a little more 
consultation and discussion in the scheduling of hearings. When 
deadlines are flirted with as in this case, the usefulness of 
the committee process is undermined. I think the 7-day process 
is intended as a safeguard. It should not become the norm.
    Even if formal notice does not go out until the last 
minute, there is no great reason in my mind that members of the 
appropriate subcommittees can't be given at least tentative 
notice well in advance And especially in light of the length of 
some of the materials that were submitted near the end, it is 
very difficult to respond and prepare.
    But, Mr. Chairman, obviously overall I think you 
demonstrate enormous fairness on this committee, so all I can 
do is make the plea that I think the subcommittee is the place 
where this process should begin on any legislation, but in 
particular when we are doing something as potentially profound 
as talking about amending the U.S. Constitution.
    Thank you, Mr. Chairman.
    The Chairman. Well, I appreciate the Senator's comments, 
and we will certainly do a better job in the future. I have to 
say that I think we have done this three times at full 
committee.
    Senator Feinstein. Four times.
    The Chairman. Is it four times? Both Senators Kyl and 
Feinstein have reminded me of that, and so I decided to do that 
this time, which I think is not out of line under the 
circumstances. But the Senator raises some interesting points. 
This is a very important issue and that is one reason why we 
are holding it at the full committee. We will work on the 
Senator's suggestions.
    Well, with that, I think what we will do is when Senator 
Leahy arrives, we will be happy to have any statement that he 
cares to make put in the record. But at this point, let me call 
on those who are going to testify here today.
    Senator Kyl. Mr. Chairman, might I just make a unanimous 
consent request to insert some additional statements and 
letters into the record at this point?
    The Chairman. We will put all statements in the record.
    Senator Kyl. Thank you. This includes the statement of 
Professor Laurence Tribe.
    The Chairman. That will be fine. We will put them all in 
the record, then.
    [The statements and letters referred to are located in the 
appendix.]
    The Chairman. So our panel will be Professor Paul Cassell, 
of the University of Utah College of Law. Steve Twist, 
Assistant General Counsel of VIAD Corporation; he is former 
chief assistant attorney general of Arizona and is on the 
Executive Committee of the National Victims' Constitutional 
Amendment Network. Beth Wilkinson is a partner in Latham and 
Watkins and a former Federal prosecutor and Department of 
Justice official, from Washington DC.
    We will proceed in that order, then, if we can.
    Senator Feinstein. Mr. Chairman, if I may, the authors of 
this are not going to have an opportunity to make a statement?
    The Chairman. Well, you can in the question period, yes. To 
save time, we need to keep it generally, to the chairman and 
the ranking member. But we will give you added leeway--how is 
that--when the time comes up? In fact, it may be that I will 
have to ask Senator Kyl to chair this in a few short minutes, 
and I think he will be glad to give extra leeway--is that OK--
to the Senator from California?
    Keep Kennedy right on the time limit.
    Senator Kyl. In the spirit of Senator Kennedy, we will be 
exceedingly liberal with our----
    [Laughter.]
    Senator Kennedy. I was going to say something nice about 
your performance last Sunday morning. [Laughter.]
    Senator Kyl. Well, isn't ``liberal'' a compliment, Senator 
Kennedy? [Laughter.]
    Senator Kennedy. We will work it out.
    The Chairman. He was trying to be so nice to you.
    Then if we will, we will begin with you, Mr. Twist, and 
then Ms. Wilkinson, and then we will wind up with Paul Cassell.
    I wanted you to go first so I could stay and hear you, but 
if I don't, I will read what you have to say.
    Go ahead.

PANEL CONSISTING OF STEVEN J. TWIST, ASSISTANT GENERAL COUNSEL, 
VIAD CORP., PHOENIX, AZ; BETH A. WILKINSON, LATHAM AND WATKINS, 
    WASHINGTON, DC; AND PAUL G. CASSELL, PROFESSOR OF LAW, 
     UNIVERSITY OF UTAH COLLEGE OF LAW, SALT LAKE CITY, UT

                  STATEMENT OF STEVEN J. TWIST

    Mr. Twist. Mr. Chairman, distinguished Senators, thank you 
very much for the opportunity to speak again with the 
committee. My name is Steve Twist. I am an assistant general 
counsel at VIAD Corp., in Phoenix, formerly chief assistant 
attorney general in Arizona, and a member of the board of 
directors of the National Organization for Victim Assistance, 
and on the Executive Committee of the National Victims' 
Constitutional Amendment Network.
    I was honored to be the principal author of the Arizona 
constitutional amendment for victims' rights which the voters 
adopted in my State in 1990. And as, Mr. Chairman, you noted, I 
have been involved in the victims' rights movement for quite 
some time.
    It is especially fitting that today we remember the victims 
of the Jonesboro, AR, school ground murders. One year ago 
today, that crime once again seared he conscience of the Nation 
with the ever-present reminder of the brutality of violent 
crime. And it is fitting also that particularly today we focus 
our attention on how victims of those brutal crimes suffer in 
the aftermath at the hands of an all too often indifferent 
justice system.
    Since our last meeting, since your committee's last 
hearing, citizens of three States in our country have had the 
chance to speak at the polls on the question of whether or not 
constitutional rights should be established in State 
constitutions for crime victims.
    In Montana last November, the voters spoke loudly, passing 
an amendment to their constitution which referred to the rights 
of victims for restitution by 71 percent of the vote. In 
Tennessee, the voters adopted an amendment that again I am 
proud to say is patterned largely after the Arizona State 
constitutional amendment, and it was adopted by the voters in 
Tennessee last November by 89 percent of the vote. And in 
Mississippi, the voters went to the polls since our last 
hearing, since your committee's last hearing, and adopted a 
constitutional amendment for rights for crime victims by 93 
percent of the vote.
    Those States now join others to make 32 where voters have 
had an opportunity to be heard not in a poll, but in a polling 
booth, on the question of whether there ought to be 
constitutional rights for crime victims. And overwhelming, in 
State after State, voters have endorsed the principle of 
constitutional rights for crime victims.
    Some will review this developing State constitutional law 
as a reason not to support a Federal constitutional amendment 
for crime victims' rights. Indeed, James Madison was confronted 
with the same argument by some that a Federal bill of rights 
was unnecessary because the States had State versions of bills 
of rights. And when confronted with this argument, Madison 
replied succinctly, ``Not all States have them, and some are 
inadequate.''
    We relive this history here today. Not all States have 
constitutional rights for crime victims, and some are not 
adequate. Victims in Federal cases have none at all. If you 
look at the record before the committee, you will see in 
Professor Tribe's testimony, in earlier testimony from Attorney 
General Reno and other representatives of the Justice 
Department, time and again they repeat the admonition that 
statutes are inadequate to the job of securing rights for crime 
victims.
    So what is to be done? This is now, as, Mr. Chairman, you 
have pointed out, our fourth full committee hearing. We have 
been involved with lawyers from the White House, lawyers from 
the Justice Department, lawyers from U.S. attorneys' offices 
around the country, prosecutors, local prosecutors, victims' 
rights advocates, in extensive negotiations.
    We are now on, I think, the 63rd draft of the amendment, in 
each case responding to issues that have been raised. In every 
case, we have modified or proposed language to meet every 
objection. It is clear that the American people in staggering 
numbers have demonstrated again and again at the polls that 
they support the principle of constitutional rights for crime 
victims. The President supports constitutional rights for crime 
victims. The Attorney General supports them; scholars of high 
renown and regard, practitioners in the field. In my State, 
every single county attorney supported our State constitutional 
amendment for crime victims' rights, and supports a Federal 
constitutional right.
    So we are at a crossroads again. I believe it is a call for 
leadership. Leadership here requires crafting an amendment that 
is worthy of the American people and worthy of our 
Constitution. Mr. Chairman, I completely agree with you that we 
have to be prudent and cautious whenever the subject of 
amending our Constitution is raised. I think our efforts have 
been prudent and cautious and deliberate. And I think, as a 
consequence, we have a text now, S.J. Res. 3, that meets the 
high standard that is required for constitutional amendments.
    So we turn inevitably to the language. In section 1, the 
amendment establishes meaningful rights for victims of violent 
crime--rights to notice, to no exclusion from public 
proceedings; the right to be heard at three critical stages, 
whenever a release decision is going to be made, whenever there 
is a proceeding regarding a plea agreement, and whenever there 
is a proceeding involving sentencing; the right to notice of 
escape or release; and, importantly, the right to simply have 
the interests of the victim considered in a final conclusion 
free from unreasonable delay, in restitution, and in their 
rights to safety and to notice of their rights.
    These are hardly radical. In fact, in reply to those who 
say that the enactment of these constitutional rights would 
have the effect of undermining our ability to do justice in the 
criminal justice system, I ask them to look to the States, look 
to States like Arizona and Utah and Michigan, where States have 
had constitutional rights, where the right to be heard at a 
plea agreement, where the right to be heard at sentencing, the 
right to consultation with prosecutors, the right to notice of 
proceedings, and the right to be present at those proceedings, 
are all being respected. It has not undermined the 
effectiveness of law enforcement or prosecution. Indeed, I 
think the case is profoundly made that it has enhanced the 
ability of the government to discharge its duty to be fair and 
to do justice, justice to both the accused and to the victim. 
As I say, the rights are hardly radical.
    In section 2 and section 3, these meaningful rights are 
made enforceable. With limited exceptions, Section 2 
establishes a clear grant of standing for crime victims to 
assert their rights, an unequivocal grant of standing. It also 
establishes the unequivocal and unambiguous right of a victim 
to go into court at the early stages of the case and seek 
prospective orders that secure the victims' rights that are 
granted in section 1.
    This enforcement authority on the part of the victim is 
buttressed by the section 3 language which grants to Congress 
the power to enforce the amendment by appropriate legislation. 
The exceptions to this enforcement power in section 2 are 
important, but in the long run not meaningfully distractive of 
the power of the victim to enforce the rights granted in 
section 1. I know this is an issue about which there is still 
some debate, but I think the language that we have worked out 
on this point is the best possible compromise.
    And so, Mr. Chairman and Senators, the question is now 
where do we go? We are happy as a movement to entertain any 
specific suggestions, and we are eager to work with the Chair 
and members of the committee on any particular issues that 
might be raised. And we think we have done that in good-faith. 
I think there is now an obligation for us to turn to action on 
the amendment, and we look forward to that in the near future, 
Mr. Chairman.
    Thank you.
    The Chairman. Thank you, Mr. Twist. I think you have worked 
very closely with the committee and we appreciate it.
    [The prepared statement of Mr. Twist follows:]

  The Crime Victims' Rights Amendment and Two Good and Perfect Things

                           by Steven J. Twist

             Every good and perfect thing carries within it

              the seeds of its own destruction through an

                      excess of its virtue. Seneca

    At the soul of America's justice system lie two ``good and 
perfect'' things: the principle that procedural and substantive rights 
of the accused must be preserved and protected as a proper restraint on 
the power of the state to infringe individual rights to life and 
liberty; and the practice of public prosecution, based on the sense 
that when a crime occurs, while it surely involves harm to a victim, it 
also represents an offense against the state, the body politic, that 
tears at the fabric of our peace and community and hence creates a harm 
that is greater than simply the harm to the victim involved.
    These two ``good and perfect things'' have served America well. The 
first respects each individual as an end, as ``created equal, [and] 
endowed by their Creator with certain unalienable Rights [to] Life, 
Liberty and the pursuit of Happiness.'' \1\ Rights of habeas corpus 
\2\, a speedy and public \3\ jury \4\ trial, to know the nature and 
cause of the accusation \5\, to confront adverse witnesses \6\ and have 
compulsory process \7\, to counsel \8\, due process \9\ and equal 
protection \10\, and rights against unreasonable searches and seizures 
\11\, double jeopardy \12\, self incrimination,\13\ excessive bail or 
fines \14\, cruel and unusual punishments \15\, bills of attainder \16\ 
and ex post facto laws \17\, these rights form a zone of protection 
around the law abiding, as well as the lawless, and serve to deter the 
abuses of government power with which the history of the world is all 
too familiar.
---------------------------------------------------------------------------
    \1\ The Declaration of Independence para. 2 (U.S. 1776).
    \2\ U.S. Const. art. 1, Sec. 9, cl. 2.
    \3\ U.S. Const. amend. VI.
    \4\ U.S. Const. art. III, Sec. 2, cl. 6.
    \5\ U.S. Const. amend. VI.
    \6\ U.S. Const. amend. VI.
    \7\ U.S. Const. amend. VI.
    \8\ U.S. Const. amend. VI.
    \9\ U.S. Const. amend. V; XIV.
    \10\ U.S. Const. amend. XIV.
    \11\ U.S. Const. amend. IV.
    \12\ U.S. Const. amend. V.
    \13\ U.S. Const. amend. V.
    \14\ U.S. Const. amend. VIII.
    \15\ U.S. Const. amend. VIII.
    \16\ U.S. Const. art. I, Sec. 9, cl. 3.
    \17\ U.S. Const. art. I, Sec. 9, cl. 3.
---------------------------------------------------------------------------
    These fundamental rights \18\ formed the core of the essential 
fairness shown to accused and convicted criminals that became, and 
rightly so, a hallmark of our civilization. And through the course of 
history, while certainly not always faithful to them, we have seen 
their inexorable expansion even as we have seen repeated sacrifices at 
their altar. And so Justice Cardozo could write in 1934:
---------------------------------------------------------------------------
    \18\ Because of their fundamental nature, these rights have been 
applied to the states via Fourteenth Amendment incorporation doctrine. 
See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968).

          The law, as we have seen, is sedulous in maintaining for a 
        defendant charged with crime whatever forms of procedure are of 
        the essence of an opportunity to defend. Privileges so 
        fundamental as to be inherent in every concept of a fair trial 
        that could be acceptable to the thought of reasonable men will 
        be kept inviolate and inviolable, however crushing may be the 
        pressure of incriminating proof.\19\
---------------------------------------------------------------------------
    \19\ Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 121 
(1934).

    And indeed there have been many times in the history of our country 
when the ``pressure of incriminating proof has been ``crushing,'' yet 
the criminal has been freed so that the ``fundamental privileges'' of 
the law-abiding could be preserved.\20\
---------------------------------------------------------------------------
    \20\ Arizona v. Hicks, 480 U.S. 321, 329 (1987) (``but there is 
nothing new in the realization that the Constitution sometimes 
insulates the criminality of a few in order to protect the privacy of 
us all'').
---------------------------------------------------------------------------
    The second ``good and perfect thing'' springs not from the rights 
of the individual so much as from the rights of the community. Private 
prosecutions, whereby the victim or the victim's relatives or friends, 
brought and prosecuted criminal charges against the accused wrongdoer, 
were the norm in the American justice system at the time of the 
colonial revolution and the drafting of the Constitution.\21\ The 
origin of private prosecution has been traced to early English common 
law, but even today the civilized British retain the right privately to 
bring criminal charges.\22\
---------------------------------------------------------------------------
    \21\ John D. Bessler, The Public Interest and The 
Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 515-21 
(1994).
    \22\ Id. at 515.
---------------------------------------------------------------------------
    In America, however, while some vestiges of private prosecutions 
continue to this day \23\ there was a ``meteoric rise of public 
prosecutions'' \24\ and the office of public prosecutor grew in 
stature. The origin of the office remains an ``historical enigma,'' 
\25\ but it certainly is consistent with the views that we often 
express about the nature of crime and its assault on the social 
compact. Former Chief Justice Weintraub, of the New Jersey Supreme 
Court, expressed a classic formulation of these views in 1971:
---------------------------------------------------------------------------
    \23\ Id. at 518.
    \24\ Id. at 516.
    \25\ Id. at 517.

          The first right of the individual is to be protected from 
        attack. That is why we have government, as the preamble to the 
        Federal Constitution plainly says. In the words of Chicago v. 
        Sturgess, 222 U.S. 313, 322, 32 S. Ct. 92, 93, 56 L. Ed. 215, 
---------------------------------------------------------------------------
        220 (1911):

          Primarily, governments exist for the maintenance of social 
        order. Hence it is that the obligation of the government to 
        protect life, liberty, and property against the conduct of the 
        indifferent, the careless, and the evil-minded, may be regarded 
        as lying at the very foundation of the social compact.\26\
---------------------------------------------------------------------------
    \26\ State v. Bisaccia, 279 A.2d 675, 677 (1971).

    To protect the social compact, government assumed the burden of 
maintaining the social order and marshaled for itself the powers of 
state to achieve its end. A virtuous goal. A ``good and perfect 
thing.''
    But are there in these two good and perfect things ``seeds of 
destruction''? I suspect so, and to preserve the essential goodness of 
them, I believe we must seek ways to temper the excesses of that 
virtue.
    In combination, these two ideas, the centrality of both defendants' 
rights and state power, have been responsible for diminishing the role 
of the victim to that of just another witness for the state; just 
another piece of the evidence. In focusing on the centrality of the 
rights of the accused we have forgotten about the rights of the 
accuser. In stressing the centrality of the state, we have neglected 
the pain of the injured. We do these things at our own peril. For a 
justice system that abandons the innocent loses moral authority and 
will soon lose the confidence of those it is meant to serve.
    Chief Justice Weintraub's opinion in Bisaccia was highly critical 
of Mapp's exclusionary rule,\27\ but in expressing his criticism, he 
had an insight that stretched beyond merely the Fourth Amendment to the 
core of the principle of state centrality when, after noting the 
passage from the U.S. Supreme Court about the primary function of 
government, he wrote, ``When the truth is suppressed and the criminal 
set free, the pain of suppression is felt, not by the inanimate state 
or by some penitent policeman, but by the offender's next victims for 
whose protection we hold office.'' \28\ Here, in a few short words, is 
the sum of the ``excess virtue'' of the principle of state centrality. 
It goes too far when it ignores the pain of its victims.
---------------------------------------------------------------------------
    \27\ Mapp v. Ohio, 367 U.S. 643 (1961).
    \28\ Mapp, 367 U.S. at 589-90.
---------------------------------------------------------------------------
    Justice Cardozo, saw the dark horizon of the principle of the 
centrality of defendants' rights almost 65 years ago when he continued 
after the passage just quoted above: ``But justice, though due to the 
accused, is due to the accuser also. The concept of fairness must not 
be strained till it is narrowed to a filament. We are to keep a true 
balance.'' \29\
---------------------------------------------------------------------------
    \29\ Snyder, 291 U.S. at 122; also reaffirmed in Payne v. 
Tennessee, 501 U.S. 808, 827 (1991).
---------------------------------------------------------------------------
    Here also, stated succinctly, is the sum of the ``excess virtue'' 
of the principle of the centrality of defendants' rights. A justice 
system which affords its only rights to accused and convicted 
offenders, but preserves and protects none for its crime victims, has 
lost its essential balance. It is a system which continues to lose the 
confidence of the public and its claim to respect.
    The idea of a federal Constitutional Amendment for Victims' Rights 
has a pedigree born of these same considerations. In 1982, the 
President's Task Force on Victims of Crime identified the need for a 
constitutional amendment in similar terms:

          In applying and interpreting the vital guarantees that 
        protect all citizens, the criminal justice system has lost an 
        essential balance. It should be clearly understood that this 
        Task Force wishes in no way to vitiate the safeguards that 
        shelter anyone accused of crime; but it must be urged with 
        equal vigor that the system has deprived the innocent, the 
        honest, and the helpless of its protection.
          The guiding principles that provide the focus for 
        constitutional liberties is that government must be restrained 
        from trampling the rights of the individual citizen. The 
        victims of crime have been transformed into a group 
        oppressively burdened by a system designed to protect them. 
        This oppression must be redressed. To that end it is the 
        recommendation of this Task Force that the Sixth Amendment to 
        the Constitution be augmented.\30\
---------------------------------------------------------------------------
    \30\ President's Task Force on Victims of Crime, Final Report 114 
(1982). [hereinafter President's Task Force].

    The Crime Victims' Rights Amendment, as passed by the Senate 
Judiciary Committee,\31\ is a modest proposal that embodies these goals 
and will preserve for victims a reasonable, but not intrusive, role in 
the matter of their case, and protect minimal rights to fair treatment. 
The rights it proposes may be grouped into two general categories: 
procedural and substantive.
---------------------------------------------------------------------------
    \31\ S.J. Res. 44, 105th Cong. (1998).
---------------------------------------------------------------------------
    In the procedural category, the Amendment includes the rights:

          1. to reasonable notice of any public proceedings relating to 
        the crime;
          2. to not be excluded from any public proceedings relating to 
        the crime;
          3. to be heard, if present, at all public proceedings to 
        determine a conditional release from custody;
          4. to submit a statement at all public proceedings to 
        determine a release from custody;
          5. to be heard, if present, at all public proceedings to 
        determine an acceptance of a negotiated plea;
          6. to submit a statement at all public proceedings to 
        determine an acceptance of a negotiated plea;
          7. to be heard, if present at all public proceedings to 
        determine a sentence;
          8. to submit a statement at all public proceedings to 
        determine a sentence;
          9. to reasonable notice of a parole proceeding that is not 
        public, to the extent those rights are afforded to the 
        convicted offender;
          10. to not be excluded from a parole proceeding that is not 
        public, to the extent those rights are afforded to the 
        convicted offender;
          11. to be heard, if present at a parole proceeding that is 
        not public, to the extent those rights are afforded to the 
        convicted offender;
          12. to submit a statement at a parole proceeding that is not 
        public, to the extent those rights are afforded to the 
        convicted offender;
          13. to reasonable notice of a release from custody relating 
        to the crime;
          14. to reasonable notice of escape from custody relating to 
        the crime;
          15. to reasonable notice of the rights established by this 
        article; and
          16. to standing to assert the rights established by this 
        article.

    In the substantive category, the Amendment includes the rights:

          17. to consideration for the interest of the victim in a 
        trial free from unreasonable delay;
          18. to an order of restitution from the convicted offender; 
        and
          19. to consideration for the safety of the victim in 
        determining any release from custody.

    These rights are hardly radical, and are reflected in state laws 
around the country.\32\ Yet it is important to underscore why these 
rights are vital to victims. The right to be ``informed'' of 
proceedings is fundamental to the notions of fairness and due process 
that ought to be at the center of any criminal justice process. Victims 
have a legitimate interest in knowing what is happening to ``their'' 
case, and such information can sometimes allay a victim's fears about 
the whereabouts of a suspect or defendant.\33\ On the other hand, 
holding criminal justice hearings without notifying victims can have 
devastating effects. For example, the Director of Parents Against 
Murdered Children recently testified at a Senate Hearing that many of 
the concerns of the family members she works with ``arise from not 
being informed about the progress of the case. * * * [V]ictims are not 
informed about when a case is going to court or whether the defendant 
will receive a plea bargain.'' \34\ What is most striking about this 
testimony is that it comes on the heels of a concerted effort by the 
victims' movement to obtain notice of hearings. In 1982, the 
President's Task Force on Victims of Crime recommended that victims be 
kept appraised of criminal justice proceedings.\35\ Since then many 
state provisions have been passed requiring that victims be notified of 
court hearings.\36\ But those efforts have not been fully successful. 
As the Department of Justice recently reported:
---------------------------------------------------------------------------
    \32\ See Douglas Evan Beloof, The Third Model of Criminal Process: 
The Victim Participation Model, Utah L. Rev. (forthcoming 1999).
    \33\ See Paul G. Cassell, Balancing the Scales of Justice: The Case 
for and Effects of Utah's Victims Rights Amendment, 1994 Utah L. Rev. 
1373, 1389.
    \34\ A Bill Proposing an Amendment to the Constitution of the 
United States to Protect the Rights of Crime Victims: 1996: Hearings on 
S.J Res. 52 Before the Senate Comm. on the Judiciary, 104th Cong. 35-36 
(1996) [hereinafter Hearings]. (statement of Rita Goldsmith).
    \35\ President's Task Force, supra note 31 at 83.
    \36\ U.S. Dept. of Justice, Office for Victims of Crime, New 
Directions from the Field: Victims' Rights and Services in the 21st 
Century 13 (1998). See, e.g., Ariz. Const. Art. II, Sec. 2.1.(A)(3); 
Utah Code Ann. Sec. Sec. 77-38-3 to -4.

          While the majority of states mandate advance notice to crime 
        victims of criminal proceedings and pretrial release, many have 
        not implemented mechanisms to make such notice a reality. * * * 
        Victims also complain that prosecutors do not inform them of 
        plea agreements, the method used for disposition in the 
        overwhelming majority of cases in the United States criminal 
        justice system.'' \37\
---------------------------------------------------------------------------
    \37\ U.S. Dept. of Justice, supra note 37, at 13.

    The Victims Rights Amendment will also guarantee that victims have 
the right to attend court proceedings. This also builds on the 
recommendations for the President's Task on Victims of Crime, which 
concluded that victims ``no less than the defendant, have a legitimate 
interest in the fair adjudication of the case, and should therefore, as 
an exception to the general rule provided for the exclusion of 
witnesses, be permitted to be present for the entire trial'' \38\ 
Allowing victims to attend trials has a variety of benefits for 
Victims.\39\ The victim's presence may help to heal the psychological 
wounds from the crime.\40\ Giving victims the right to be present also 
helps them to reassert control over their own lives, a dignity that 
criminals have often impaired by the criminal act.\41\ Victims can even 
further the truth-finding process ``by alerting prosecutors to 
misrepresentations in the testimony of other witnesses.'' \42\ While 
some have argued that a victim's exclusion is needed to avoid the 
possibility of tailored testimony,\43\ this concern can be addressed in 
other ways such as having the victim testify first or relying on pre-
trial statements to police officers or the grand jury. After several 
hearings on the Victims Rights Amendment, the Senate Judiciary 
Committee recently concluded that there is ``no convincing evidence 
that a general policy [of] excluding victims from courtrooms is 
necessary to ensure a fair trial.'' \44\
---------------------------------------------------------------------------
    \38\ President's Task Force, supra note 31, at 80.
    \39\ See generally Paul G. Cassell, The Victim's Right to Attend 
Trials: The Emerging National Consensus (unpublished manuscript on file 
with Utah Law Review).
    \40\ Ken Eikenberry, The Elevation of Victims' Rights in Washington 
State: Constitutional Status, 17 Pepp. L. Rev. 19, 41, (1989).
    \41\ See Lee Madigan and Nancy C. Gamble, The Second Rape: 
Society's Continued Betrayal of the Victim 97 (1989).
    \42\ U.S. Dept. of Justice, supra note 37, at 15.
    \43\ See, e.g., Robert Mosteller, The Unnecessary Amendment, Utah 
L. Rev. (forthcoming 1999).
    \44\ S. Rep. No. 105-409 at 14 (1998).
---------------------------------------------------------------------------
    Victims also should be given the right to be heard at appropriate 
points in the criminal justice process. The Victims Rights Amendment 
does not propose to make victims ``co-equal parties in the criminal 
justice process'' \45\ free to speak whenever they wish. Instead, the 
proposed Amendment extends victims the right to be heard where they 
have useful information to provide. One such point is a hearing to 
determine whether to accept plea bargains. As Professor Beloof has 
explained in his excellent casebook on victims' rights:
---------------------------------------------------------------------------
    \45\ Cf. Lynne Henderson, Victim's Rights in Theory and Practice, 
Utah L. Rev. (forthcoming 1999). (critiquing this possibility).

          The victim's interest in participating in the plea bargaining 
        process are many. The fact that they are consulted and listened 
        to provides them with respect and an acknowledgment that they 
        are the harmed individual. This in turn may contribute to the 
        psychological healing of the victim. The victim may have 
        financial interests in the form of restitution or compensatory 
        fine which need to be discussed with the prosecutor. * * * The 
        victim may have a particular view of what * * * sentence [is] 
        appropriate under the circumstances. * * * Similarly, because 
        judges act in the public interest when they decide to accept or 
        reject a plea bargain, the victim is an additional source of 
        information for the court.\46\
---------------------------------------------------------------------------
    \46\ Douglas E. Beloof, Victims in Criminal Procedure 464 (1999).

Victims also deserve to be heard at bail hearings. By informing courts 
of the risks posed by criminal defendant, victims allow judges to reach 
appropriate decisions on pretrial release. This is not to say that 
victims should be able to dictate to judges whether and on what terms a 
defendant should be released. But it is to say that victims should 
have, while not a veto, at least a voice in the process. The failure of 
the system to hear from victims of crime at this stage has sometimes 
lead to tragic consequences from release decisions, consequences that 
might well have been averted if the judge had heard from the affected 
victims.\47\ Finally, victims should be heard before a judge imposes 
sentence. This furthers fundamental due process, for ``[w]hen the court 
hears, as it may, from the defendant, his lawyer, his family and 
friends, his minister, and others, simple fairness dictates that the 
person who has borne the brunt of the defendant's crime be allowed to 
speak.'' \48\ While all states now recognize some form of a victim's 
right to be heard at sentencing, shortfalls remain.\49\ A federal 
constitutional amendment would clearly vindicate a victim's right to be 
heard in all these areas.
---------------------------------------------------------------------------
    \47\ See Hearings, supra note 35, at 25-26 (statement of Katherine 
Prescott).
    \48\ President's Task Force, supra note 31, at 77; see also Paul 
Cassell, Barbarians at the Gates, Utah L. Rev. (forthcoming 1999).
    \49\ See U.S. Dept. of Justice, supra note 37, at 17.
---------------------------------------------------------------------------
    Victims also should be given the right to be notified whenever a 
defendant or a convicted offender is released or escapes. Without such 
notice, victims are placed at grave risk of harm. As the Department of 
Justice recently explained, ``Around the country, there are a large 
number of documented cases of women and children being killed by 
defendants and convicted offenders recently released from jail or 
prison. In many cases, the victims were unable to take precautions to 
save their lives because they had not been notified of the 
release.''\50\ The risk of attack is particularly serious in cases 
involving domestic violence.\51\ By providing victims with a right to 
``reasonable notice,'' the constitutional amendment would help alert 
such victims to potential dangers.
---------------------------------------------------------------------------
    \50\ See id. at 14.
    \51\ See Jeffrey A. Cross, Note, The Repeated Sufferings of 
Domestic Violence Victims Not Notified of Their Assailant's Pre-Trial 
Release from Custody: A Call for Mandatory Domestic Violence Victim 
Notification Legislation, 34 J. Family L. 915 (1996).
---------------------------------------------------------------------------
    Victims should also be given a right to a trial ``free from 
unreasonable delay.'' In today's criminal justice system, defendants 
are often able to prolong the start of trials for no good reason. Let 
me make plain that I am not speaking here of delays for legitimate 
reasons. But there can be no doubt that in a number of cases defendants 
have sought--and obtained--delay for delay's sake. The Senate Judiciary 
Committee recently concluded that ``efforts by defendants to 
unreasonably delay proceedings are frequently granted, even in the face 
of State constitutional amendments and statutes requiring otherwise.'' 
\52\ Such practices should be eliminated by plainly recognizing a 
victim's interest in a trial brought to a conclusion without 
``unreasonable delay.'' This right does not conflict with defendants' 
rights; defendants have, of course, long enjoyed their own right to a 
``speedy trial.'' \53\
---------------------------------------------------------------------------
    \52\ S. Rep., supra note 45, at 19.
    \53\ U.S. Const. amend. VI. Professor Mosteller suggests that this 
argument refutes a ``straw man'' because a conflict potentially exists 
not with the defendant's right to a speedy trial, but with his right to 
a fair trial which might require delay. See Mosteller, supra note 44, 
at 23. But, in my view, Professor Mosteller never explains how a 
victims' right to a trial free from ``unreasonable'' delay could 
conflict with a defendant's interest in having a reasonable time to 
prepare.
---------------------------------------------------------------------------
    Similar arguments could be offered in support of all of the other 
provisions of the Amendment, but I will not tarry any longer on the 
subject here. Indeed, it is interesting to observe that even the 
Amendment's most ardent critics usually say they support most of the 
rights in principle. If there is one thing certain in the victims' 
rights debate, it is that these words, ``I'm all for victims' rights 
but * * *,'' are heard repeatedly.\54\ But while supporting the rights 
``in principle,'' opponents in practice end up supporting, if anything, 
mere statutory fixes that have proven inadequate to the task of 
vindicating the interests of victims. As Attorney General Reno 
testified before the House Committee on the Judiciary, ``* * * efforts 
to secure victims' rights through means other than a constitutional 
amendment have proved less than fully adequate.'' \55\ The best federal 
statutes have proven inadequate to the needs of even highly publicized 
victim injustices, as Professor Cassell's writing about the plight of 
the Oklahoma City bombing victims has ably demonstrated.\56\ In my 
state, the statutes were inadequate to change the justice system. And 
now, despite its successes, we realize that our state constitutional 
amendment will also prove inadequate to fully implement victims' 
rights. While the amendment has improved the treatment of victims, it 
does not provide the unequivocal command that is needed to completely 
change old ways. In our state, as in others, the existing rights too 
often ``fail to provide meaningful protection whenever they come into 
conflict with bureaucratic habit, traditional indifference, sheer 
inertia or the mere mention of an accused's rights--even when those 
rights are not genuinely threatened.'' \57\ The experience in my state 
is, sadly, hardly unique. A recent study by the National Institute of 
Justice found that ``even in States where victims' rights were 
protected strongly by law, many victims were not notified about key 
hearings and proceedings, many were not given the opportunity to be 
heard, and few received restitution.'' \58\ The victims most likely to 
be affected by the current haphazard implementation are, perhaps not 
surprisingly, racial minorities.\59\
---------------------------------------------------------------------------
    \54\ See, e.g., A Bill Proposing an Amendment to the Constitution 
of the United States to Protect the Rights of Crime Victims: Hearings 
on S.J Res 6 Before the Senate Comm. On the Judiciary, 105th Cong. 45 
(1997) [hereinafter Hearings] (statement of Roger Pilon): ``Although I 
am opposed to amending the Constitution for the purpose of protecting 
the rights of crime victims, I want to make it very clear at the outset 
that I fully support the basic aims of this proposal'' (Emphasis 
added.); Hearings, at 140-41 (reprinted letters from law Professors): 
``Although we commend and share the desire to help crime victims, 
amending the Constitution to do so is both unnecessary and dangerous.'' 
(Emphasis added.); Letter from The Conference of Chief Justices, (May 
16, 1997) (on file with the author): ``The Conference is in favor of 
according the victims of crimes all rights that are consistent with * * 
* public safety * * * [w]e believe * * * state efforts provide a 
significantly more prudent and flexible approach for testing and 
refining novel legal concepts.'' (Emphasis added.) (Parenthetically, 
that the Conference can believe that crime victims' rights to be 
informed, present, and heard, or the other rights that were enumerated 
in S.J. Res. 6, are ``novel legal concepts'' is evidence of how much 
crime victims lack in our criminal justice system and how far we have 
yet to go to achieve basic justice for them.); Letter from the National 
Legal Aid and Defender Association to Congressman Hyde, (August 19, 
1996) (on file with the author): ``Like so many other groups, NLADA 
strongly supports the proposed constitutional amendment's goals of 
protecting victim's rights.'' (Emphasis added.); Hearings, supra note 
8, at 100 (prepared statement of Bruce Fein): ``I concur with the 
sentiments that animate the proposal. But I believe a constitutional 
amendment would detract from the sacredness of the covenant. * * *'' 
(Emphasis added.); Hearings, Supra note 8, at 96 (prepared statement of 
James B. Raskin): ``I am intrigued by Senator Kyl's proposed 
constitutional amendment because it shows us the way that the best 
intentions often go astray when we try to constitutionalize at the 
national level public policies that can be much more easily and 
straightforwardly implemented by the states or by statute. (Emphasis 
added.)
    \55\ Proposals to Provide Rights to Victims of Crime: Hearing on 
H.J Res 71 and H.R. 1322 Before the House Comm. On the Judiciary, 105th 
Cong. 27 (1997) (statement of Janet Reno, Attorney General).
    \56\ See Paul G. Cassell, Barbarians at the Gates, supra note 49; 
see also Hearings, supra note 55, at 103 (testimony of Paul Cassel).
    \57\ Laurence H. Tribe and Paul G. Cassell, Embed the Rights of 
Victims in the Constitution, L.A. Times, July 6, 1998, at B5.
    \58\ U.S. Dept. of Justice, National Institution of Justice, The 
Rights of Crime Victims--Does Legal Protection Make a Difference? 10 
(Dec. 1998).
    \59\ National Victim Center, Statutory and Constitutional 
Protection of Victims' Rights: Implementation and Impact on Crime 
Victims: Sub-Report on Comparison of White and Non-White Crime Victim 
Responses Regarding Victims' Rights 5 (1997).
---------------------------------------------------------------------------
    The precise reasons that victims fail to be afforded all their 
rights today are complex. Some of the other participants in this 
symposium have ventured their attempts at explanations,\60\ and others 
have offered their ideas elsewhere.\61\ There is much wisdom in the 
problems they have identified, and I only want to add that part of the 
problem is due to perceived conflicts between victims' rights and 
defendant's rights. Our courts have already stated the obvious, that 
``the Supremacy Clause requires that the Due Process Clause of the U.S. 
Constitution prevail over state constitutional provisions.'' \62\ Of 
course victims' rights advocates do not seek to diminish the 
constitutional rights of those accused of offenses, and nothing in the 
proposed Victims' Rights Amendment would do so. Even a cursory review 
of the rights proposed must lead one to the conclusion, as Professor 
Tribe has concluded, that ``no actual constitutional rights of the 
accused or of anyone else would be violated by respecting the rights of 
victims in the manner requested.'' \63\ But without parity in the 
Constitution, crime victims will always be second-class citizens and 
their rights will never be accorded the respect and protection they 
would and should otherwise receive. They will simply be left out of our 
``adversary'' system.\64\ Thus, it is the consensus view of victims' 
advocates recently assembled by the Department of Justice that ``[a] 
victims' rights constitutional amendment is the only legal measure 
strong enough to rectify the current inconsistencies in victims' rights 
law that vary significantly from jurisdiction to jurisdiction on the 
state and federal levels. Such an amendment would ensure that rights 
for victims are on the same level as the fundamental right of accused 
and convicted offenders. Most supporters believe that it is the only 
legal measure strong enough to ensure that the rights of victims are 
fully enforced across the country.'' \65\
---------------------------------------------------------------------------
    \60\ See Susan Bandes, Victim Standing, Utah L. Rev. (forthcoming 
1999) (noting standing barriers to victim participation); Cassell, 
supra, note 57; (discussing multiple reasons for failure to respect 
victims rights); William T. Pizzi, Victims Rights: Rethinking our 
``Adversary System'', Utah L. Rev. (forthcoming 1999) (discussing how 
victims are frozen out of the adversary system); Beloof, supra note 33; 
(noting how existing two-party paradigms are blind to victims).
    \61\ See Edna Erez, Victim Impact Statements and Sentencing, 
British J of Criminology (forthcoming 1999) (reviewing socialization of 
lawyers to discount victim participation); Andrew J. Karmen, Who's 
Against Victims Rights? The Nature of the Opposition to Pro-Victim 
Initiatives in Criminal Justice, 8 St. John's J. of Legal Comment 157 
(1992). (noting that victims' rights conflict with existing 
bureaucratic ``turf'' in the system).
    \62\ State v. Riggs, 942 P.2d 1159, 1162 (Ariz. 1997).
    \63\ Letter from Laurence H. Tribe, Professor of Law, Harvard 
University, to Senators Hatch and Biden and Representatives Hyde and 
Conyers, (September 11, 1996) (on file with author).
    \64\ For an excellent elaboration of this point, see Pizzi, supra 
note 61.
    \65\ U.S. Dept. of Justice, Office for Victims of Crime, New 
Directions from the Field: Victims' Rights and Services for the 21st 
Century 10 (1998).
---------------------------------------------------------------------------
    The criminal justice system we have evolved since our founding is 
now simply inadequate to meet the needs of the whole people. It has 
come to be respectful, perhaps more than ever, of the rights of those 
accused or convicted of crimes. It serves the interests of the 
professionals in the system fairly well: the judges, lawyers, and 
police, probation, and jail officers. But it does not serve the whole 
of the people well because it forgets the victim.
    When James Madison took to the floor and proposed the Bill of 
Rights during the first session of the First Congress, on June 8, 1789, 
``his primary objective was to keep the Constitution intact, to save it 
from the radical amendments others had proposed. * * *'' \66\ In doing 
so he acknowledged that many Americans did not yet support the 
Constitution.
---------------------------------------------------------------------------
    \66\ Robert A. Goldwin, From Parchment To Power: How James Madison 
Used the Bill of Rights to Save the Constitution, p. 73 (AEI Press 
1997).

          Prudence dictates that advocates of the Constitution take 
        steps now to make it as acceptable to the whole people of the 
        United States, as it has been found acceptable to a majority of 
        them.''
          The fact is, Madison said, there is still ``a great number'' 
        of the American people who are dissatisfied and insecure under 
        the new Constitution. So, ``if there are amendments desired of 
        such a nature as will not injure the constitution, and they can 
        be ingrafted so as to give satisfaction to the doubting part of 
        our fellow-citizens,'' why not, in the spirit of ``deference 
        and concession,'' adopt such amendments? \67\
---------------------------------------------------------------------------
    \67\ Goldwin, supra note 67 at 79.

    Madison adopted this tone of ``deference and concession'' because 
he realized that the Constitution must be the ``will of all of us, not 
just a majority of us.'' \68\ By adopting a bill of rights, Madison 
thought, the Constitution would live up to this purpose. He also 
recognized how the Constitution was the only document which could 
likely command this kind of influence over the culture of the country. 
Our goals are perfectly consistent with the goals that animated James 
Madison. There is a view in the land that the Constitution today does 
not serve the interests of the whole people in matters relating to 
criminal justice. And the way to restore balance to the system, in ways 
that become part of our culture, is to amend our fundamental law.
---------------------------------------------------------------------------
    \68\ Goldwin, supra note 67 at. 100.

          [The Bill of Rights will] have a tendency to impress some 
        degree of respect for them, to establish the public opinion in 
        their favor, and rouse the attention of the whole community * * 
        * [they] acquire, by degrees, the character of fundamental 
        maxims * * * as they become incorporated with the national 
        sentiment. * * * \69\
---------------------------------------------------------------------------
    \69\ James Madison, The Papers of James Madison 1, 198 (1979).

    Critics of Madison's proposed amendments claimed they were 
unnecessary, especially so in the United States, because states had 
bills of rights. Madison responded with the observation that ``not all 
states have bills of rights, and some of those that do have inadequate 
and even `absolutely improper' ones.'' \70\ Our experience in the 
victims' rights movement is no different.
---------------------------------------------------------------------------
    \70\ Madison, supra note 69 at 106.
---------------------------------------------------------------------------
    Professor Tribe has observed this failure: ``* * * there appears to 
be a considerable body of evidence showing that, even where statutory 
or regulatory or judge-made rules exist to protect the participatory 
rights of victims, such rights often tend to be honored in the breach. 
* * *'' \71\ As a consequence he has concluded that crime victims' 
rights ``are the very kinds of rights with which our Constitution is 
typically concerned.'' \72\
---------------------------------------------------------------------------
    \71\ Laurence H. Tribe, Victims' Rights, Unpublished paper June 27, 
1996, p. 1.
    \72\ Tribe, supra note 72 at 1.
---------------------------------------------------------------------------
    After years of struggle, we now know that the only way to make 
respect for the rights of crime victims ``incorporated with the 
national sentiment,'' is to make them a part of ``the sovereign 
instrument of the whole people,'' the Constitution. The moment for 
constitutional rights for crime victims, properly understood, is 
neither an attack on the rights of defendants, nor on the power of 
public prosecutors, but rather is a movement to save these two good and 
perfect things in the American justice system by tempering their 
excessive virtue with true balance. Indeed the amendment just might 
save the very things its critics fear it will destroy.

    The Chairman. Ms. Wilkinson.

                 STATEMENT OF BETH A. WILKINSON

    Ms. Wilkinson. Thank you, Mr. Chairman. I would like to 
thank all of the members of the Judiciary Committee for taking 
up this important subject and for allowing me to share my 
thoughts on the victims' rights amendment.
    I come before you this morning as someone who understands 
the delicate balancing act between victims' rights and the 
pursuit of justice. I spent 2\1/2\ years as part of the 
Government team that successfully prosecuted Timothy McVeigh 
and Terry Nichols for the Oklahoma City bombing.
    As you know, 168 people, including 19 children, were killed 
on that day, April 19, 1995. And for the survivors and the 
hundreds of relatives of the victims, the emotional struggle 
was enormous. I grew to understand their grief firsthand. 
During the process, it became clear to me that we had to listen 
to the victims, and yet balance their concerns with the need 
for a just trial. This experience transformed my views on the 
rights of victims, making me more sensitive to the issues that 
victims face throughout the judicial system.
    Early in my career when I was a captain in the U.S. Army 
working on the Noriega prosecution and other criminal cases, I 
first encountered issues surrounding victims' rights. As a an 
assistant U.S. attorney in the Eastern District of New York, 
and later as the principal deputy chief of the Terrorism and 
Violent Crimes Section for the Department of Justice, I came to 
know the trauma victims confront when they take the stand and 
testify about the impact of a heinous crime.
    I also know the frustration that they feel when the 
criminal justice system seems to move at a glacial pace toward 
the resolution of a criminal matter. But I also know, and I 
have seen, the relief and satisfaction that they experience 
when a criminal trial ends with a fair and just conviction of 
the guilty.
    It is because of my experiences as a prosecutor in the 
Oklahoma City bombing trials and my involvement with numerous 
other terrorism and violent crime cases that I respectfully 
oppose the proposed victims' rights amendment in its current 
form. And I urge you to consider statutory alternatives to 
protect the rights of victims.
    I firmly believe that the rights of victims must be 
recognized and honored throughout the criminal process. 
However, their most important right, the right to the just 
conviction of the guilty, must remain paramount. I spent many, 
many hours with the mothers and the fathers who lost their 
children in the America's Kids Daycare Center that was located 
in the Alfred P. Murrah Building. I talked to the husbands and 
the wives of law enforcement agents who were killed by McVeigh 
and Nichols. I listened to the people who were injured on April 
19th and heard them describe the horror of being trapped in the 
dark, collapsed and frightening remains of the Murrah building.
    Because of people like Marsha Kight, who attended the trial 
day in and day out and is here with us today, I had the honor 
of witnessing the courage of the survivors and the families as 
the horrific story unfolded before them once again at trial.
    While victims and family members often expected vastly 
different results from the judicial system, they uniformly 
asked me and the other members of the prosecution team to do 
two things on their behalf; first, to prove to them and to the 
jury that the defendants were guilty beyond a reasonable doubt. 
They wanted to make sure that we had charged the right people, 
a concern, I submit, of every crime victim.
    Second, they asked us to prosecute the cases in a fair and 
just manner so that the convictions would be upheld on appeal. 
No victim of a crime, especially those who have suffered 
through such a gut-wrenching trial and penalty phase, want to 
see a conviction overturned and face a retrial of the 
defendants.
    In the Oklahoma City bombing trials, we endeavored to 
achieve these goals, and I am proud to say in the end both 
McVeigh and Nichols' convictions were supported by overwhelming 
evidence and have thus far been upheld on appeal. Achieving 
this result was not easy, and it could have been substantially 
impaired if the current version of the victims' rights 
amendment had been in place.
    For example, just months after the bombing, the prosecution 
team who was responsible for determining the most effective 
strategy for convicting those most culpable determined that it 
was in the best interests of the case to accept a guilty plea 
from Michael Fortier. While not a participant in the conspiracy 
to bomb the building and the people inside of it, Fortier knew 
of McVeigh and Nichols' plans and he failed to prevent the 
bombing.
    If the victims had had a constitutional right to address 
the court at the time of the plea, I have no doubt that many of 
them would have vigorously and emotionally opposed any plea 
bargain between the Government and Fortier. From their 
perspective, their opposition would have been reasonable. Due 
to the secrecy rules of the grand jury, we could not explain to 
the victims why Fortier's plea and cooperation was important to 
the prosecution of McVeigh and Nichols.
    What if the judge had rejected the plea based on the 
victims' opposition, or at least forced the Government to 
detail why Fortier's testimony was essential to the 
Government's case? Timothy McVeigh's trial could have turned 
out differently. Significant prosecutorial resources would have 
been diverted from the investigation and prosecution of McVeigh 
and Nichols to pursue the case against Fortier, and we would 
have risked losing the evidence against McVeigh and Nichols 
that only Fortier could provide. In the end, the victims would 
have been much more disappointed if Timothy McVeigh had been 
acquitted than they were that Michael Fortier was permitted to 
plead guilty.
    In criminal cases, it is not that the victims should not 
have a right to speak out about the case and its impact on 
their lives. They should, and they do. It is the timing of 
their statements and their input that should be carefully 
examined.
    Victims were able to attend Michael Fortier's plea. Their 
testimony regarding the plea and the impact of Fortier's crimes 
on them and their families was appropriately expressed at the 
time of Fortier's sentencing. It was then, after the 
convictions of McVeigh and Nichols, that the court listened to 
the victims express their views on the just sentence for 
Michael Fortier.
    Without compromising the victims' rights to address the 
court and the defendants, the current constitutional framework 
permitted the prosecution team to obtain Fortier's testimony 
and the other defendants' convictions and allow the victims to 
testify during the sentencing hearing of the defendants.
    Some point to the Oklahoma City bombing trials as support 
for this proposed victims' rights amendment, but I believe that 
the trials prove that the interests of victims can be 
vindicated without a constitutional amendment. This Congress 
passed a statute that worked--the Victims' Rights Clarification 
Act of 1997. On its very first application at the McVeigh 
trial, no victim was precluded from testifying during the 
penalty phase who had sat through the Government's case-in-
chief. Just 3 months later, at the Nichols trial, all of the 
survivors and the families were able to view the trial and 
testify during the penalty phase if they so desired, thanks to 
the recent congressional statute.
    There are many things that can and should be done to assure 
that victims are part of the criminal process. Most 
importantly, the justice system needs additional resources to 
fund victim-related programs. We also must educate prosecutors, 
law enforcement agents and judges about the impact of crimes so 
they better understand the importance of addressing victims' 
rights from the outset.
    I learned these important lessons from the victims of the 
Oklahoma City bombing. The survivors and family members of the 
Oklahoma City tragedy waited patiently and with dignity for a 
just result. Their eloquent statements and testimony during the 
trials, the penalty phases and the sentencing hearings, coupled 
with the trial judge's vigilant protection of the defendants' 
rights, resulted in the vindication of the victims' most 
important right, the fair and just conviction of the guilty.
    Thank you very much, Mr. Chairman.
    The Chairman. Well, thank you, Ms. Wilkinson.
    [The prepared statement of Ms. Wilkinson follows:]

                Prepared Statement of Beth A. Wilkinson

    Thank you Mr. Chairman. I would like to thank all of the members of 
the Judiciary Committee for taking up this important subject and 
allowing me to share my thoughts on the proposed Victims' Rights 
Amendment.
    I come before you this morning as someone who understands the 
delicate balancing act between victims rights and the pursuit of 
justice. I spent 2\1/2\ years as part of the government team that 
successfully prosecuted Timothy McVeigh and Terry Nichols for the 
Oklahoma City bombing. As you know, the bombing killed 168 people, 
including 19 children. For the survivors and the hundreds of relatives 
of the victims, the emotional struggle was enormous. I grew to 
understand their grief first hand. Starting with the day I was assigned 
to the case, I met with the victims and their families to discuss the 
losses they had suffered and to prepare them for their testimony. As a 
member of the prosecution team, I spoke to several hundred victims and 
their families at pretrial informational meetings during which we 
fielded questions, pertaining to the key issues in the case. Everyday 
in the courtroom I spoke to the victims, listening to their thoughts 
and opinions about the trial. During the process it became clear to me 
that we had to listen to the victims yet balance their concerns with 
the need for a just trial.
    This experience transformed my views on the rights of victims 
making me more sensitive to the issues that victims face throughout our 
judicial system. Early in my career, when I was a Captain in the Army 
working on the Noriega prosecution and other criminal cases, I first 
encountered the issues surrounding victims rights. As an Assistant 
United States Attorney for the Eastern District of New York , and 
later, as the principal deputy chief of the Terrorism and Violent Crime 
Section of the Criminal Division, I came to know the trauma victims 
confront when they take the stand and testify about the impact of a 
heinous crime. I also know the frustration they feel when the criminal 
justice system seems to move at a glacial pace toward the resolution of 
a criminal case. But I also know the relief and satisfaction they 
experience when a criminal trial ends with the fair and just conviction 
of the guilty.
    It is because of my experience as a prosecutor in the Oklahoma City 
bombing trials and my involvement with numerous other terrorism and 
violent crime cases, that I respectfully oppose the Victim's Rights 
Amendment in its current form and urge you to consider statutory 
alternatives to protect the rights of victims. I firmly believe the 
rights of victims must be recognized and honored throughout the 
criminal process, however, their most important right--the right to the 
just conviction of the guilty--must remain paramount.
    I spent many, many hours with the mothers and fathers who lost 
their children in the America's Kids Daycare Center that was located in 
the Alfred P. Murrah Building. I talked to the husbands and wives of 
law enforcement agents who were killed by Timothy McVeigh and Terry 
Nichols. I listened to the people who were injured that day and heard 
them describe the horror of being trapped in the dark, collapsed and 
frightening remains of the Murrah building.
    While victims and family members often expected vastly different 
results from the judicial system, they uniformly asked me and the rest 
of the prosecution team to do two things on their behalf. First, prove 
to them and the jury that the defendants were guilty beyond a 
reasonable doubt. They wanted to make sure we had charged the right 
people, a concern, I submit, of every crime victim. Second, they asked 
us to prosecute the cases in a fair and just manner so that the 
convictions would be upheld on appeal. No victim of a crime, especially 
those who suffered through such a gut-wrenching trial and penalty 
phase, wants to see a conviction overturned and face a re-trial of a 
defendant.
    In the Oklahoma City bombing trials, we endeavored to achieve these 
goals and, in the end, both the McVeigh and Nichols convictions were 
supported by overwhelming evidence and upheld on appeal. Achieving this 
result was not easy and could have been substantially impaired if the 
Victims Rights Amendment had been in place.
    For example, just months after the bombing, the prosecution team, 
which was responsible for determining the most effective strategy for 
convicting those most culpable, McVeigh and Nichols, determined that it 
would be in the best interest of the case to accept a guilty plea from 
Michael Fortier. While not a participant in the conspiracy to bomb the 
building and the people inside of it, Fortier knew of McVeigh and 
Nichols' plans and he failed to prevent the bombing. If the victims had 
had a constitutional right to address the Court at the time of the 
plea, I have no doubt that many would have vigorously and emotionally 
opposed any plea bargain between the Government and Fortier. From their 
perspective, their opposition would have been reasonable. Due to the 
secrecy rules of the grand jury, we could not explain to the victims 
why Fortier's plea and cooperation was important to the prosecution of 
Timothy McVeigh and Terry Nichols.
    What if the judge had rejected the plea based on the victims' 
opposition or at least forced the government to detail why Fortier's 
testimony was essential to the Government's case? Timothy McVeigh's 
trial could have turned out differently. Significant prosecutorial 
resources would have been diverted from the investigation and 
prosecution of McVeigh and Nichols to pursue the case against Fortier 
and we would have risked losing the evidence against McVeigh and 
Nichols that only Fortier could have provided. In the end, the victims 
would have been much more disappointed if Timothy McVeigh had been 
acquitted than they were when Michael Fortier was permitted to plead 
guilty.
    In criminal cases, it is not that the victims should be not have a 
right to speak out about the case and its impact on their lives: they 
should and they do. It is the timing of their statements and their 
input that should be carefully examined. Victims were able to attend 
Michael Fortier's plea. Their testimony regarding the plea and the 
impact of Fortier's crimes on them and their families was appropriately 
expressed at the time of Fortier's sentencing. It was then, after the 
convictions of Timothy McVeigh and Terry Nichols that the Court 
listened to the victims express their views on the just sentence for 
Michael Fortier. Without compromising the victims' right to address the 
Court and the defendants, the current constitutional framework 
permitted the prosecution team to obtain Fortier's testimony and the 
other defendants' convictions and allowed the victims to testify during 
the sentencing hearings of the defendants.
    Some point to the Oklahoma City bombing trials as support for the 
proposed Victims' Rights Amendment, but in fact I believe that the 
trials proved that the interests of victims can be vindicated without a 
constitutional amendment. When the victims found themselves having to 
choose between attending the trial and testifying about the impact of 
the crime, Congress responded with the Victim Rights Clarification Act 
of 1997, enabling the victims to view the trial and speak during the 
penalty phase of the proceedings. The statute worked. No victims were 
precluded from testifying. Indeed 37 witnesses appeared over two and a 
half days during the sentencing hearing for Timothy McVeigh. The 
jurors, who had to decide whether to sentence McVeigh to life or death, 
listened to the testimony of each of those witnesses.
    . There are many things that can and should be done to assure that 
victims are part of the criminal process. All crime victims should 
receive notice of public proceedings in a case and be permitted to 
attend if they so choose. We kept the victims of the Oklahoma City 
bombing informed by establishing a victim-witness unit which maintained 
contact with all of the victims and their family members. We also sent 
letters detailing the progress of the case, and met with people on a 
regular basis to answer questions and prepare them for the difficult 
testimony and issues that would arise at trial. Through interviews of 
family members and survivors in preparation for the trial, we gained 
insight into the needs of those who grieved. Over time, the victims 
learned to trust our judgment and to believe that we would pursue 
justice without compromising their interests.
    An amendment to the Constitution, or even a statute guaranteeing 
the rights of victims, could not mandate some of the most needed 
reforms to the criminal justice system. We must educate prosecutors, 
law enforcement and judges about the impact of crimes so that they 
better understand the importance of addressing victims' rights from the 
outset. I learned those lessons from the victims of the Oklahoma City 
bombing.
    The survivors and the family members of the Oklahoma City bombing 
waited patiently and with dignity for a just result. Their eloquent 
statements and testimony during the trials,penalty phases and 
sentencing hearings coupled with the trial judge's vigilant protection 
of the defendant's rights resulted in the vindication of the victim's 
most important right--the fair and just conviction of the guilty.

    The Chairman. Professor Cassell.

                  STATEMENT OF PAUL G. CASSELL

    Mr. Cassell. Thank you, Mr. Chairman and distinguished 
members of the committee. I appreciate the opportunity to be 
here today to urge you to pass this victims' rights amendment 
and send it on its way speedily to the States for ratification 
there.
    Around the country, a clear consensus has developed that 
victims of crime deserve protection in our criminal justice 
process. Thirty-one States now have State constitutional 
amendments protecting the rights of crime victims, and all 
States have some form of statutory recognition of the rights of 
victims to be involved in the process.
    Now, where these rights have been implemented, the results 
have been to improve the criminal justice system. Victims who 
are kept informed about the process can be more effective in 
helping the prosecution. They can help judges by providing 
information about whether to release a defendant on bail or 
what the appropriate sentence is. And this involvement in the 
process helps victims themselves to cope with debilitating 
psychological injuries inflicted by terrible crimes.
    So it is not surprising to find that those who take a 
global view of an effective criminal justice system strongly 
support the victims' rights amendment. For example, the 
Attorney General testified before this committee that ``The 
President and I have concluded that a victims' rights amendment 
would benefit not only crime victims, but also law enforcement. 
Victims will be that much more willing to participate in the 
process if they perceive that we are striving to treat them 
with respect and to recognize their central place in any 
prosecution.''
    Yet, while a clear consensus has developed that victims 
deserve these rights, disturbing evidence continues to mount 
that victims are too often denied these rights in court rooms 
around the country. Hard statistical evidence of these denials 
comes from a National Institute of Justice study released just 
three months ago. The study concluded that, ``Enactment of 
State laws and State constitutional amendments alone appears to 
be insufficient to guarantee full provision of victims' rights 
in the process.''
    For example, even in two States the National Institute of 
Justice identified as providing strong protection for crime 
victims, fewer than 60 percent of victims were notified of 
sentencing hearings, and fewer than 40 percent were notified of 
the pre-trial release of the defendant. A follow-on analysis of 
this same data found, perhaps not surprisingly, that those who 
are worse off today are racial minorities who are 
disproportionately affected by the haphazard administration and 
provision of victims' rights.
    Now, these conclusions are simply the latest in a long line 
of findings that the criminal justice system is not providing 
the rights that have been promised to victims. Perhaps most 
noteworthy among these is the conclusions of the U.S. 
Department of Justice, who carefully reviewed this issue and, 
as the Attorney General reported to this committee, found that 
State efforts are simply not sufficiently consistent, 
comprehensive, or authoritative to safeguard victims' rights.
    Similarly, Harvard law professor Laurence Tribe, after 
looking at all the evidence, has concluded that State 
protections provide too little protection whenever they come 
into conflict with bureaucratic habit, traditional 
indifference, sheer inertia, or any mention of the accused's 
rights, even when those rights are not genuinely threatened.
    It is against this backdrop that we should consider claims 
by Ms. Wilkinson and others that victims' rights can be fully 
protected by statutes. Indeed, the very case that she 
discusses, the Oklahoma City bombing case, proves the need for 
an amendment. Now, in many ways this case should have been a 
model, here where ample resources devoted to a prosecution, the 
public was watching, and this was in the Federal system, a 
model for protecting victims' rights, one would think.
    Yet, in spite of this, at a number of points in the process 
victims' rights were not respected, and indeed a good 
illustration is the very point that Ms. Wilkinson talks about, 
the plea agreement that the Government entered with Mr. 
Fortier. Now, under the Act that this Congress passed in 1990, 
the Victims' Rights and Restitution Act, the Department was 
required to use its best efforts to confer with victims about 
that plea agreement and to notify them of the plea hearing.
    Yet, the Department failed to do so, and the result of the 
surprise plea bargain was, quite predictably, hostility in the 
victims' community. Now, based on this hostility, prompted in 
no small part by the Department's failure to trust the victims, 
Ms. Wilkinson builds conjecture upon conjecture to say that the 
prosecution of Timothy McVeigh and Terry Nichols would have 
been impaired if the victims' rights amendment had been in 
place.
    Now, this conjecture assumes irrationality both on the part 
of crime victims and on the part of Federal judges. Had Ms. 
Wilkinson and her colleagues trusted the victims and explained 
to the victims why this plea agreement was necessary, they 
would have supported the agreement. And we needn't speculate 
about this. We have with us today Marsha Kight, one of the 
leaders of the victims' community in Oklahoma City, and she has 
released a statement to this committee that the great majority 
of victims would have supported that plea agreement had the 
Government taken the time to talk to them about it.
    And there is also no need to speculate about how a victim's 
right to be heard on plea agreements would operate in practice. 
Today, approximately 36 States already have on their books 
provisions allowing victims to be heard at plea agreements, and 
yet the sky has not fallen. In fact, to the contrary, it has 
improved the plea bargaining process.
    Now, even if the victims oppose a plea agreement, we should 
remember that the final decision is made by a judge. And if 
this plea agreement with Mr. Fortier was so critical, certainly 
a Federal judge would have accepted it, and indeed the Federal 
judge did accept it. So, if anything, the situation with 
Michael Fortier's plea agreement shows the need for the Federal 
amendment, not any problems with it.
    Now, this is not the only illustration of a problem in the 
Oklahoma City bombing case that arose without constitutional 
protection for victims' rights. The committee is well aware of 
the difficulties that victims had in enforcing their rights to 
attend trial. The trial judge sua sponte ordered that any 
victims in the case who were going to testify at the penalty 
phase would have to be sequestered and could not watch the 
proceedings.
    And in reaching this ruling, the court was apparently 
entirely unaware of the 1990 statute, the Victims' Rights and 
Restitution Act, that gave victims the right to attend 
hearings. Even after we filed a motion calling the statute to 
the attention of the judge, based on a vague reference to a 
defendant's constitutional rights, he refused to enforce its 
provisions.
    I then represented Marsha Kight and 89 other victims in the 
Tenth Circuit, and we were thrown out of the Tenth Circuit on 
the grounds that we lacked standing to even be heard to present 
our case that these victims of the bombing should have the 
opportunity to watch the trial. And I should point out to this 
committee that that decision remains on the books, and in all 
six States in the Tenth Circuit it is the law today that 
neither victims of crime nor the Department of Justice has any 
standing to go into court and enforce these rights.
    Congress then passed, as you know, the 1997 Victims' Rights 
Clarification Act to address this specific problem, and we 
presented that law, then, to the judge immediately after this 
committee and Congress had approved it. And yet the judge 
deferred ruling on the validity of that law, deferring his 
ruling until after the trial, forcing the victims once again to 
make the painful choice about whether to watch the trial and to 
risk losing the opportunity to testify at the impact phase of 
the trial.
    Ms. Wilkinson has testified that the statute worked, but 
the prosecutors at the time, including, I believe, Ms. 
Wilkinson, were forced to advise victims that if they went into 
the trial and watched, they would be creating substantial 
uncertainty and risk about whether they would be denied the 
opportunity to testify at the penalty phase. And some of the 
victims decided not to run that risk and lost forever the 
rights promised to them by Congress to watch the trial.
    Now, these again are not the only examples of problems in 
this case. At the sentencing of Timothy McVeigh, victims were 
not given the opportunity to make a statement. When Timothy 
McVeigh was sentenced, no order of restitution was imposed 
against him, an apparent oversight by both the Department of 
Justice and perhaps the court as well.
    If this is the treatment of victims in the very best of 
circumstances, when the spotlight is on and the Nation is 
watching, the committee can well imagine what the treatment is 
like of victims in ordinary, day-to-day criminal justice 
hearings. It is time to end this glaring mistreatment of 
victims. Our criminal justice system provides ample rights for 
criminal defendants. It should do the same for their innocent 
victims as well.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Cassell follows:]

                 Prepared Statement of Paul G. Cassell

    Mr. Chairman and Distinguished Members of the Committee, I am 
pleased to be here today.
    I am a Professor of Law at the University of Utah College of Law, 
where I teach a course devoted exclusively to the rights of crime 
victims. I have represented crime victims (always on a pro bono basis) 
on a number of legal issues and written and lectured on the subjects of 
crime victims rights, as explained at greater length in my attached 
biography. I serve on the executive board of the National Victim 
Constitutional Amendment Network, an organization devoted to bringing 
constitutional protection to crime victims across the country.
    I have previously provided extensive testimony to this Committee 
supporting the Crime Victims' Rights Amendment.\1\ I will not reiterate 
all that I have said there, but did want to briefly note that a strong 
national consensus appears to be developing that the rights of crime 
victims deserve protection and that a federal constitutional amendment 
is the only way to fully guarantee that protection. A substantial 
majority of the states have passed amendments to their own state 
constitutions protecting victims' rights and more amendments are passed 
at every national election. The amendments provide strong evidence that 
the citizens of this country believe that victims should be respected 
in the criminal process.
---------------------------------------------------------------------------
    \1\ See The Victims Right Amendment: Hearings Before the Senate 
Comm. on the Judiciary, 105th Cong., 2nd Sess. (Apr. 28, 1998); Crime 
Victims' Rights Amendment: Hearing Before the Senate Comm. on the 
Judiciary, 105th Cong., 1st Sess. (Apr. 16, 1997); The Victims' Bill of 
Rights Amendment: Hearings Before the Senate Comm. on the Judiciary, 
104th Cong., 2d Sess. (April 23, 1996).
---------------------------------------------------------------------------
    Unfortunately, however, the state amendments and related federal 
and state legislation are generally recognized by those who have 
carefully studied the issue to have been insufficient to fully protect 
the rights of crime victims. The United States, Department of Justice 
has concluded that current protection of victims is inadequate, and 
will remain inadequate until a federal constitutional amendment is in 
place. As the Attorney General explained:

        efforts to secure victims' rights through means other than a 
        constitutional amendment have proved less than fully adequate. 
        Victims rights advocates have sought reforms at the State level 
        for the past 20 years. * * * However, these efforts have failed 
        to fully safeguard victims' rights. These significant State 
        efforts simply are not sufficiently consistent, comprehensive, 
        or authoritative to safeguard victims' rights.\2\
---------------------------------------------------------------------------
    \2\ A Proposed Constitutional Amendment to Protect Victims of 
Crime: Hearing Before the Sen. Judiciary Comm., 105th Cong., 1st Sess. 
41 (Apr. 16, 1997) (statement of Attorney General Janet Reno).

A number of legal commentators have reached similar conclusions. For 
example, Harvard Law Professor Laurence Tribe has explained that the 
existing statutes and state amendments ``are likely, as experience to 
date sadly shows, to provide too little real protection whenever they 
come into conflict with bureaucratic habit, traditional indifference, 
sheer inertia, or any mention of an accused's rights regardless of 
whether those rights are genuinely threatened.'' \3\ Similarly, Texas 
Court of Appeals Justice Richard Barajas has explained that ``[i]t is 
apparent * * * that state constitutional amendments alone cannot 
adequately address the needs of crime victims.'' \4\
---------------------------------------------------------------------------
    \3\ Laurence Tribe, The Amendment Could Protect Basic Human Rights, 
Harv. L. Bull., Summer 1997, at 19, 20.
    \4\ Chief Justice Richard Barajas & Scott Alexander Nelson, The 
Proposed Crime Victims' Federal Constitutional Amendment: Working 
Toward a Proper Balance, 49 Baylor L. Rev. 1, 13 (1997).
---------------------------------------------------------------------------
    That only a federal amendment will protect victims is the view of 
those in perhaps the best position to know: crime victims and their 
advocates. The Department of Justice recently convened a meeting of 
those active in the field, including crime victims, representatives 
from national victim advocacy and service organization, criminal 
justice practitioners, allied professionals, and many others. Their 
report--published by the Office for Victims of Crime and entitled ``New 
Directions from the Field: Victims' Rights and Services for the 21st 
Century''--concluded that ``[t]he U.S. Constitution should be amended 
to guarantee fundamental rights for victims of crime.'' \5\ The report 
went on to explain,
---------------------------------------------------------------------------
    \5\ U.S. Dep't of Justice, Office for Victims of Crime, New 
Directions from the Field: Victims' Rights and Services for the 21st 
Century 9 (1998).

          A victims' rights constitutional amendment is the only legal 
        measure strong enough to rectify the current inconsistencies in 
        victims' rights laws that vary significantly from jurisdiction 
        to jurisdiction on the state and federal levels. * * * Today, 
        many victims do not report crime or participate in the criminal 
        justice system for a variety of reasons, including fear of 
        revictimization by the system and retaliation by the offender. 
        Victims will gain confidence in the system if their rights are 
        recognized and enforced, their concerns for safety are given 
        serious consideration, and they are treated with dignity and 
        respect.\6\
---------------------------------------------------------------------------
    \6\ Id. at 10-12.

    These impressionist conclusions find strong support in a December, 
1998 report from the National Institute of Justice (NIJ) finding that 
many victims are denied their rights and concluding that ``enactment of 
State laws and State constitutional amendments alone appears to be 
insufficient to guarantee the full provision of victims' rights in 
practice.'' \7\ The report found numerous examples of victims not 
provided rights to which they were entitled. For example, even in 
several states identified as giving ``strong protection'' to victims 
rights, fewer than 60 percent of the victims were notified of the 
sentencing hearing and fewer than 40 percent were notified of the 
pretrial release of the defendant.\8\ A follow-up analysis of the same 
data found that racial minorities are less likely to be afforded their 
rights under the patchwork of existing statutes.\9\
---------------------------------------------------------------------------
    \7\ Nat'l Inst. of Justice, Research in Brief, The Rights of Crime 
Victims--Does Legal Protection Make a Difference? 1 (Dec. 1998).
    \8\ Id. at 4 exh. 1.
    \9\ National Victim Center, Statutory and Constitutional Protection 
of Victims' Rights: Implementation and Impact on Crime Victims: Sub-
Report on Comparison of White and Non-White Crime Victim Responses 
Regarding Victims Rights 5 (1997).
---------------------------------------------------------------------------
    For reasons such as these, the Victims Rights Amendment has 
attracted considerable bi-partisan support, as evidenced by its 
endorsement by the President\10\ and strong approval in this Committee 
at the end of the 104th Congress.\11\ Based on this vote, the widely-
respected Congressional Quarterly has identified the Amendment as 
perhaps ``the pending constitutional amendment with the best chance of 
being approved by Congress in the foreseeable future.'' \12\
---------------------------------------------------------------------------
    \10\ See Announcement by President Bill Clinton on Victims Rights, 
available in LEXIS on Federal News Service, June 25, 1996.
    \11\ See S. Rep. No. 105-409 at 37 (Amendment approved by 11-6 
vote).
    \12\ Dan Carney, Crime Victims Amendment Has Steadfast Support, But 
Little Chance of Floor Time, Cong. Quart., July 30, 1998.
---------------------------------------------------------------------------
    As the Victims' Rights Amendment has moved closer to passage, 
defenders of the old order have manned \13\ the barricades against its 
adoption. In Congress, the popular press, and the law reviews, they 
have raised a series of philosophical and practical objections to 
protecting victims' rights in the Constitution. These objections run 
the gamut, from the structural (the Amendment will ``change[] basic 
principles that have been followed throughout American history'' \14\) 
to the pragmatic (it will ``lay waste to our criminal justice system.'' 
\15\) to the esthetic (it will ``trivialize'' the Constitution \16\). 
In some sense, such objections are predictable. The prosecutors, 
defense attorneys, and judges who labor daily in the criminal justice 
vineyards have long struggled to hold the balance true between the 
state and the defendant. To suddenly find third parties--no, third 
persons who are not even parties--threatening to storm the courthouse 
gates provokes, at least from some, an understandable defensiveness. If 
nothing else, victims promise to complicate life in the criminal 
justice system. But more fundamentally, if these victim pleas for 
recognition are legitimate, what does that say about how the system has 
treated them for so many years?
---------------------------------------------------------------------------
    \13\ I use the term ``man'' provocatively because certain aspects 
of the defense resist efforts by feminists to provide justice to 
victims of rape and domestic violence, who are disproportionately 
women. See, e.g., Beverly Harris Elliott, President of the National 
Coalition Against Sexual Assault, Balancing Justice: How the Amendment 
Will Help All Victims of Sexual Assault, www.nvc.org/newsltr/
sexass2.htm; Joan Zorza, Victims' Rights Amendment Empowers All 
Battered Women (www.nvc.org/newsltr/battwom.htm); see also infra notes 
248-52 and accompanying text (discussing woman and children who have 
died from lack of notice of an offender's release).
    \14\ A Proposed Constitutional Amendment to Protect Victims of 
Crime: Hearings before the Sen. Comm. on the Judiciary, 105th Cong, 1st 
Sess. 141 (1997) (hereinafter 1997 Sen. Judiciary Comm. Hearings) 
(letter from various law professors opposing the Amendment).
    \15\ Proposals for a Constitutional Amendment to Provide Rights for 
Victims of Crime: Hearings Before the House Judiciary Comm, 104th 
Cong., 2d Sess. 143 (1996) (hereinafter 1996 House Judiciary Comm. 
Hearings) (statement of Ellen Greenlee, President, National Legal Aid 
and Defender Association).
    \16\ A Proposed Constitutional Amendment to Establish a Bill of 
Rights for Crime Victims: Hearings Before the Sen. Judiciary Comm., 
104th Cong., 2d Sess. 101 (1996) (hereinafter 1996 Sen. Judiciary Comm. 
Hearings) (statement of Bruce Fein).
---------------------------------------------------------------------------
    My aim here focus on how victims' rights would specifically operate 
under the Victims Rights Amendment. In particular, my testimony 
analyzes the objections that the Amendment's opponents have raised.\17\ 
It should come as no great surprise that claims the Amendment 
simultaneously would ``change basic principles that have been followed 
throughout American history,'' ``lay waste to our criminal justice 
system,'' and--for good measure--``trivialize'' the Constitution'' are 
not all true. My testimony attempts to demonstrate that, in fact, none 
of these contradictory assertions is supported. A fair-minded look at 
the Amendment confirms that it will not ``lay waste'' to the system, 
but instead will build upon and improve it--retaining protection for 
the legitimate interests of prosecutors and defendants, while adding 
recognition of equally powerful interests of crime victims.
---------------------------------------------------------------------------
    \17\ My testimony draws heavily on an article that will appear 
shortly in a symposium issue of the Utah Law Review devoted to the 
rights of crime victims. See Paul G. Cassell, Barbarians at the Gates? 
A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. 
Rev.--(forthcoming). I extend my thanks to the editors of the law 
review for allowing me to use some of that material here.
---------------------------------------------------------------------------
    The objections to the Victims' Rights Amendment conveniently divide 
into three categories, which this testimony analyzes in turn. Part I 
reviews normative objections to the Amendment--that is, objections to 
the desirability of the rights. The Part begins by reviewing the 
defendant-oriented objections leveled against a few of the rights, 
specifically the victim's right to be heard at sentencing, the victim's 
right to be present at trial, and the victim's right to a trial free 
from unreasonable delay. These objections lack merit. Part I concludes 
by refuting the prosecution-oriented objections to victims' rights, 
which revolve primarily around alleged excessive consumption of scarce 
criminal justice resources. These claims, however, are inconsistent 
with the available empirical evidence on the cost of victims rights 
regimes in the states.
    Next, Part II considers what might be styled as justification 
challenges--challenges that a victims' amendment is unjustified because 
victims already receive rights under the existing amalgam of state 
constitutional and statutory provisions. This claim of an 
``unnecessary'' amendment \18\ misconceives the undeniable practical 
problems that victims face in attempting to secure their rights without 
federal constitutional protection.
---------------------------------------------------------------------------
    \18\ See, e.g., Robert P. Mosteller, The Victims' Rights Amendment: 
The Unnecessary Amendment, 1999 Utah L. Rev.--(hereinafter Mosteller, 
Unnecessary Amendment); see also Robert P. Mosteller, Victims' Rights 
and the United States Constitution: An Effort to Recast the Battle in 
Criminal Litigation, 85 Geo. L.J. 1691 (1997) (hereinafter Mosteller, 
Recasting the Battle).
---------------------------------------------------------------------------
    Part III then turns to structural objections to the Amendment--
claims that victims' rights are not properly constitutionalized. 
Contrary to this view, protection of the rights of citizens to 
participate in governmental processes is a subject long recognized as 
an appropriate one for a constitutional amendment. Moreover, 
constitutional protection for victims also can be crafted in ways that 
are sufficiently flexible to accommodate varying circumstances and 
varying criminal justice systems from state to state.
    Finally, concludes by examining the nature of the opposition to the 
Victims' Rights Amendment. Victims are not barbarians seeking to 
dismantle the pillars of wisdom from previous ages. Rather, they are 
citizens whose legitimate interests require recognition in any proper 
system of criminal justice. The Victims' Rights Amendment therefore 
deserves this Committee's full support.

                        I. Normative Challenges

    The most basic level at which the Victims Rights' Amendment could 
be disputed is the normative one: victims' rights are simply 
undesirable. Few of the objections to the Amendment, however, start 
from this premise. Instead, the vast bulk of the opponents flatly 
concedes the vitality of victim participation in the criminal justice 
system. For example, the senators on this Committee who dissented from 
supporting the Amendment \19\ began by agreeing that ``[t]he treatment 
of crime victims certainly is of central importance to a civilized 
society, and we must never simply `pass by on the other side.'' ' \20\ 
Additionally, various law professors who sent a letter to Congress 
opposing the Amendment similarly begin by explaining that they 
``commend and share the desire to help crime victims'' and that 
``[c]rime victims deserve protection. * * *'' \21\
---------------------------------------------------------------------------
    \19\ Unless otherwise specifically noted, I will refer to the 
minority views of Sens. Leahy, Kennedy, and Kohl as the ``dissenting 
senators,'' although a few other senators also briefly offered their 
dissenting views.
    \20\ S. Rep. No. 105-409 at 50 (minority views of Sens. Leahy, 
Kennedy and Kohl).
    \21\ 1997 Law Professors Letter, reprinted in 1997 Sen. Judiciary 
Comm. Hearings, supra note 14, at 141.
---------------------------------------------------------------------------
    The principal critics of the Amendment agree not only with the 
general sentiments of victims' rights advocates but also with many of 
their specific policy proposals. Strong evidence of this agreement 
comes from the federal statute proposed by the dissenting members of 
this Committee, which would extend to victims in the federal system 
most of the same rights provided in the Amendment.\22\ Other critics, 
too, have suggested protection for victims in statutory rather than 
constitutional terms.\23\ In parsing through the relevant congressional 
hearings and academic literature, many of the important provisions of 
the Amendment appear to garner wide acceptance. Few disagree, for 
example, that victims of violent crime should receive notice that the 
offender has escaped from custody and should receive restitution from 
an offender. What is most striking, then, about debates over the 
Amendment is not the scattered points of disagreement, but rather the 
abundant points of agreement.\24\ This harmony suggests that the 
Amendment satisfies a basic requirement for a constitutional 
amendment--that it reflect values widely shared throughout society. 
There is, to be sure, normative disagreement about some of the proposed 
provisions in the Amendment, disagreements analyzed below. But the 
natural tendency to focus on points of conflict should not obscure the 
substantial points of widespread agreement.
---------------------------------------------------------------------------
    \22\ See S. 1081, 105th Cong., 1st Sess. 1997; see also S. Rep. No. 
105-409 at 77 (minority views of Sens. Leahy, Kennedy and Kohl) 
(defending this statutory protection of victims rights).
    \23\ See, e.g., 1997 Law Professors Letter (``crime victims deserve 
protection, but this should be accomplished by statutes, not a 
constitutional amendment. * * *''), reprinted in 1997 Sen. Judiciary 
Comm. Hearings, supra note 14, at 141.
    \24\ See generally Stephen J. Twist, The Crime Victims' Rights 
Amendment and Two Good and Perfect Things, 1999 Utah L. Rev.--
(forthcoming) (noting frequency with which opponents of the Victims' 
Rights Amendment endorse the goals in the amendment).
---------------------------------------------------------------------------
    While near consensus has been reached on the desirability of many 
of the values reflected in the Amendment, critics dispute a few rights 
are disputed on grounds that can be conveniently divided into two 
groups. Some rights are challenged as unfairly harming defendants' 
interests in the process, others as harming prosecutors'. That the 
Amendment has drawn fire from some on both sides might suggest that it 
has things about right in the middle. Contrary to these criticisms, 
however, the Amendment does not harm the legitimate interests of either 
side.
          a. defendant-oriented challenges to victims' rights
    Perhaps the most frequently-repeatedly claim against the Amendment 
is that it would harm defendants' rights. Often this claim is made in 
general terms, relying on little more than the reflexive view that 
anything good for victims must be bad for defendants. But, as the 
general consensus favoring victims' rights suggests, rights for victims 
need not come at the expense of defendants. Strong supporters of 
defendants' rights agree. Professor Laurence Tribe, for example, has 
concluded that the proposed Amendment is ``a carefully crafted measure, 
adding victims' rights that can coexist side by side with 
defendant's.'' \25\ Similarly, Senator Joseph Biden agrees that ``I am 
now convinced that no potential conflict exists between the victims' 
rights enumerated in the [proposed Amendment] and any existing 
constitution right afforded to defendants.'' \26\ A recent summary of 
the available research on the purported conflict of rights supports 
these views, finding that victims' rights do not harm defendants:
---------------------------------------------------------------------------
    \25\ See Laurence H. Tribe & Paul G. Cassell, Embed the Rights of 
Victims in the Constitution, L.A. Times, July 6, 1998, at B5. For a 
more detailed exposition of Professor Tribe's views, see 1996 House 
Judiciary Comm. Hearings, supra note 15, at 238 (letter from Professor 
Tribe).
    \26\ S. Rep. 105-409 (additional views of Sen. Biden).

          Studies show that there ``is virtually no evidence that the 
        victims' participation is at the defendant's expense.'' For 
        example, one study, with data from thirty-six states, found 
        that victim-impact statutes resulted in only a negligible 
        effect on sentence type and length. Moreover, judges 
        interviewed in states with legislation granting right to the 
        crime victim indicated that the balance was not improperly 
        tipped in favor of the victim. One article studied victim 
        participation in plea bargaining found that such involvement 
        helped victims ``without any significant detrimental impact to 
        the interests of prosecutors and defendants.'' Another national 
        study in states with victims' reforms concluded that: ``Victim 
        satisfaction with prosecutors and the criminal justice system 
        was increased without infringing on the defendant's rights.'' 
        \27\
---------------------------------------------------------------------------
    \27\ Richard Barajas & Scott Alexander Nelson, The Proposed Crime 
Victims' Federal Constitutional Amendment: Working Toward a Proper 
Balance, 49 Baylor L. Rev. 1, 18-19 (1987) (quoting Deborah P. Kelly, 
Have Victim Reforms Gone Too Far--or Not Far Enough?, 5 Crim. Just., 
Fall 1991, at 22; Sarah N. Welling, Victim Participation in Plea 
Bargains, 65 Wash. U.L.Q. 301, 355 (1987)).

    Given these empirical findings, it should come as no surprise that 
claims that the Amendment would injure defendants rest on a predicted 
parade of horribles, not any real world experience. Yet the experience 
suggests that the parade will never materialize, particularly given the 
redrafting of the proposed amendment to narrow some of the rights it 
extends.\28\ A careful examination of the most-often advanced claims of 
conflict with defendants' legitimate interests reveals that any 
purported conflict is illusory.\29\
---------------------------------------------------------------------------
    \28\ As originally proposed, the Amendment extended victims a broad 
right ``to a final disposition of the proceedings relating to the crime 
free from unreasonable delay.'' S.J. Res. 6 (1995). It now provides 
victims a narrower right to ``consideration of the interest of the 
victim that any trial be free from unreasonable delay.'' S.J. Res. 3 
(1999). This narrower formulation, limited to a ``trial,'' avoids the 
objection that an open-ended right to a speedy disposition could 
undercut a defendant's post-trial, habeas corpus rights, particularly 
in capital cases. See, e.g, 1997 Senate Judiciary Comm. Hearings, supra 
note 14, at 155 (statement of Mark Kappelhoof, ACLU Legislative 
Counsel).
    As originally proposed, the Amendment also promised victims a broad 
right to ``be reasonably protected from the accused.'' S.J. Res. 6 
(1995). It now provides victims a right to ``have the safety of the 
victim considered in determining a release from custody.'' S.J. Res. 3 
(1999). This narrower formulation was apparently designed, in part, to 
respond to the objection that the Amendment might be construed to hold 
offenders ``beyond the maximum term or even indefinitely if they are 
found to pose a danger to their victims.'' See 1997 Senate Judiciary 
Comm. Hearings, supra note 14, at 155 (statement of Mark Kappelhoof, 
ACLU Legislative Counsel).
    Professor Mosteller has argued that these particular changes, and 
several others like them, were designed to move the Amendment away from 
providing aid to victims to instead provide nothing but a benefit to 
prosecutors. Robert P. Mosteller, Victims' Rights and the Constitution: 
Moving from Guaranteeing Participatory Rights to Benefiting the 
Prosecution, 29 St. Mary's L.J. 1053, 1058 (1998). This strikes me as a 
curious view, given the way in which these changes responded to 
concerns expressed by advocates of defendants' rights, including 
Mosteller himself. See Mosteller, Recasting the Battle, supra note 18, 
at 1707 n.58. More generally, it should be clear that the proposed 
Amendment is not predicated on the idea of providing benefits to 
prosecutors. Not only has the Amendment been attacked as harming 
prosecution interests, see infra notes 121-41 and accompanying text, 
but it does not attempt to achieve such favorite goals of prosecutors: 
overturning the exclusionary rule. Cf. Cal. Const. art. I, Sec. 28 
(victims initiative restricting exclusion of evidence); Or. Const., 
art. I, Sec. 42 (same), invalidated, Armatta v. Kitzhaber, 959 P.2d 
49(Or. 1998) (initiative violated single subject rule). See generally 
President's Task Force on Victims of Crime, Final Report 24-26 (1982) 
(urging abolition of exclusionary rule on victim-related grounds).
    \29\ Until the opponents of the Amendment can establish any 
conflict between defendants' rights under the Constitution and victims' 
rights under the Amendment, there is no need to address the subject of 
how courts should balance the rights in case of conflict. Cf S. Rep. 
105-409 at 22-23 (explaining reasons for rejecting balancing language 
in the Amendment).
---------------------------------------------------------------------------
1. The right to be heard
    Some opponents of the Amendment object that the victim's right to 
heard will interfere with a defendant's efforts to mount a defense. At 
least some of these objections appear to misunderstand the scope of the 
Amendment. For example, to prove that a victim's right to be heard is 
undesirable, objectors sometimes claim (as was done in the minority 
report of this Committee) that the proposed Amendment ``gives victims a 
constitutional right to be heard, if present, and to submit a statement 
at all stages of the criminal proceeding.'' \30\ From this premise, the 
objectors then postulate that the Amendment would make it ``much more 
difficult for judges to limit testimony by victims at trial'' and 
elsewhere to the detriment of defendants.\31\ Yet, far from extending 
victims the right to be heard at ``all'' stages of a criminal case 
including the trial, the Amendment explicitly limits the right to 
public ``proceedings to determine a conditional release from custody, 
an acceptance of a negotiated plea, or a sentence. * * *'' \32\ At 
these three kinds of hearings--bail, plea, and sentencing--victims have 
compelling reasons to be heard and can be heard without adversely 
affecting defendant's rights.
---------------------------------------------------------------------------
    \30\ S. Rep. 105-409 at 66 (minority views of Sens. Leahy, Kennedy 
and Kohl) (emphasis added).
    \31\ Id. (minority views of Sens. Leahy, Kennedy and Kohl).
    \32\ S.J. Res. 3, Sec. 1 (1999).
---------------------------------------------------------------------------
    Proof that victims can properly be heard at these points comes from 
a legislative proposal by several dissenting members of this Committee. 
While criticizing the right to be heard in the constitutional 
amendment, these senators simultaneously sponsored federal legislation 
to extend to victims in the federal system precisely the same 
rights.\33\ They urged their colleagues to pass their statute in lieu 
of the Amendment because ``our bill provides the very same rights to 
victims as the proposed constitutional amendment. * * *'' \34\ In 
defending their bill, they saw no difficulty with giving victims a 
chance to be heard,\35\ a right that already exists in many states.\36\
---------------------------------------------------------------------------
    \33\ See S. 1081, 105th Cong., 1st Sess. Sec. 101 (right to be 
heard on the issue of detention); Sec. 121 (right to be heard on merits 
of plea agreement); Sec. 122 (enhanced right of allocution at 
sentencing).
    \34\ S. Rep. 105-409 at 50 (minority views of Sens. Leahy and 
Kennedy).
    \35\ See, e.g., Cong. Rec., July 29, 1997, at S8275 (statement of 
Sen. Kennedy); Statement of Sen. Patrick Leahy on the Introduction of 
the Crime Victims Assistance Act, July 29, 1997.
    \36\ See Paul G. Cassell, Balancing the Scales of Justice: The Case 
for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah L. 
Rev. 1373, 1394-96.
---------------------------------------------------------------------------
    A more detailed critique of the victim's right to be heard is found 
in a recent prominent article by Professor Susan Bandes.\37\ Like most 
other opponents of the Amendment, she concentrates her intellectual 
fire on the victims' right to be heard at sentencing, arguing that 
victim impact statements are inappropriate narratives to introduce in 
capital sentencing proceedings. While rich in insights about the 
implications of ``outsider narratives,'' the article provides no 
general basis for objecting to a victim's right to be heard at 
sentencing. Her criticism of victim impact statements is limited to 
capital cases, a tiny fraction of all criminal trials.\38\
---------------------------------------------------------------------------
    \37\ See Susan Bandes, Empathy, Narrative, and Victim Impact 
Statements, 63 U. Chi. L. Rev. 361 (1996).
    \38\ See id. at 392-93. In a recent conversation, Professor Bandes 
stated that though her article focused on the capital context, she did 
not intend to imply that victim impact statements ought to be 
admissible in non-capital cases. Indeed, based on the proponents' 
argument that victim impact statements by relatives and friends are 
needed because the homicide victim is, by definition, unavailable, she 
believes such statements would seem even less defensible in non-
homicide cases. This extension of her argument seems unconvincing, as 
the case for excluding victim statements is stronger for capital cases 
than for others. Not only are noncapital cases generally less fraught 
with emotion, but the sentence is typically imposed by a judge, who can 
sort out any improper aspects of victim statements. For this reason, 
even when victim impact testimony was denied in capital case to juries, 
courts often concluded that judges could hear the same evidence. See 
Lightbourne v. Dugger, 829 F.2d 1012, 1027 (11th Cir. 1987); State v. 
Card, 825 P.2d 1081, 1089 (Idaho 1991); State v. Johnson, 594 N.E.2d 
253, 270 (Ill. 1992); State v. Beaty, 762 P.2d 519, 531 (Ariz. 1988), 
cert. denied, 491 U.S. 910 (1989); State v. Post, 513 N.E.2d 754, 759 
(Ohio 1987). It is also hazardous to generalize about such testimony 
given the vast range of varying circumstances presented by noncapital 
cases. See generally Stephen J. Schulhofer, The Trouble with Trials; 
the Trouble with Us, 105 Yale L.J. 825, 848-49 (1995) (noting 
differences between victim participation in capital and noncapital 
sentencings and concluding ``wholesale condemnation of victim 
participation under all circumstances is surely unwarranted'').
---------------------------------------------------------------------------
    Professor Bandes' objection is important to consider carefully 
because it presents one of the most thoughtfully developed cases 
against victim impact statements.\39\ Her case, however, is ultimately 
unpersuasive. She agrees that capital sentencing decisions ought to 
rest, at least in part, on the harm caused by murderers. She explains 
that, in determining which murderers should receive the death penalty, 
society's ``gaze ought to be carefully fixed on the harm they have 
caused and their moral culpability for that harm. * * *'' \40\ Bandes 
then contends that victim impact statements divert sentencers from that 
inquiry to ``irrelevant fortuities'' about the victims and their 
families.\41\ But in moving on to this point, she apparently assumes 
that a judge or jury can comprehend the full harm caused by a murder 
without hearing testimony from the surviving family members. That 
assumption is simply unsupportable. Any reader who disagrees with me 
should take a simple test. Read an actual victim impact statement from 
a homicide case all the way through and see if you truly learn nothing 
new about the enormity of the loss caused by a homicide. Sadly, the 
reader will have no shortage of such victim impact statements to choose 
from. Actual impact statements from court proceedings are accessible in 
various places.\42\ Other examples can be found in moving accounts 
written by family members who have lost a loved one to a murder. A 
powerful example is the collection of statements from families 
devastated by the Oklahoma City bombing collected in Marsha Kight's 
affecting Forever Changed: Remembering Oklahoma City April 19, 
1995.\43\ Kight's compelling book is not unique, as equally powerful 
accounts from the family of Ron Goldman,\44\ children of Oklahoma 
City,\45\ Alice Kaminsky,\46\ George Lardner Jr.,\47\ Dorris Porch and 
Rebecca Easley,\48\ Mike Reynolds,\49\ Deborah Spungen,\50\ John 
Walsh,\51\ and Marvin Weinstein \52\ make all too painfully clear. 
Intimate third party accounts offer similar insights about the 
generally unrecognized yet far-ranging consequences of homicide.\53\
---------------------------------------------------------------------------
    \39\ Several other articles have also focused on and carefully 
developed a case against victim impact statements. See, e.g., Lynne N. 
Henderson, The Wrongs of Victim's Rights, 37 Stan. L. Rev. 937, 986-
1006 (1985); Donald J. Hall, Victims' Voices in Criminal Court: The 
Need for Restraint, 28 Am. Crim. L. Rev. 233 (1991). Because Professor 
Bandes' is the most current, I focus on it here as exemplary of the 
critics' position.
    \40\ See Bandes, supra note 37, at 398 (emphasis added).
    \41\ See id. at 398-99.
    \42\ See, e.g., Booth v. Maryland, 482 U.S. 496, 509-515 (1987); A 
Federal Judge Speaks Out for Victims, Am. Lawyer, Mar. 20, 1995, at 4 
(statement by federal judge Michael Luttig at the sentencing of his 
father's murderers); United States v. McVeigh, 1997 WL 296395 (various 
victim impact statements at sentencing of Timothy McVeigh); United 
States v. Nichols, 1997 WL at 790551 (various victim impact statements 
at sentencing of Terry Nichols).
    \43\ Marsha Kight, Forever Changed: Remembering Oklahoma City, 
April 19, 1995 (1998).
    \44\ The Family of Ron Goldman, His Name is Ron (1997).
    \45\ Nancy Lamb and Children of Oklahoma City, One April Morning: 
Children Remember the Oklahoma City Bombing (1996).
    \46\ Alice R. Kaminsky, The Victim's Song (1985).
    \47\ George Lardner Jr., The Stalking of Kristin: A Father 
Investigates the Murder of His Daughter (1995).
    \48\ Dorris D. Porch & Rebecca Easley, Murder in Memphis: The True 
Story of a Family's Quest for Justice (1997).
    \49\ Mike Reynold & Bell Jones, Three Strikes and You're Out * * * 
A Promise to Kimber: The Chronicle of America's Toughest Anti-Crime Law 
(1996).
    \50\ Deobrah Spungen, And I Don't Want to Live This Life (1984).
    \51\ John Walsh, Tears of Rage: From Grieving Father to Crusader 
for Justice: The Untold Story of The Adam Walsh Case (1997). Professor 
Henderson describes Walsh as preaching a ``gospel of rage and 
revenge.'' Lynne Henderson, Victims Rights in Theory and Practice, 1999 
Utah L. Rev.--(forthcoming). This seems to me to misunderstand Walsh's 
efforts, which Walsh has explained as making sure that his son Adam 
``didn't die in vain.'' Walsh, supra, at 305. Walsh's Herculean efforts 
to establish the National Center for Missing and Exploited Children, 
see id, at 131-58, is a prime example of neither rage nor revenge, but 
rather a desirable public policy reform springing from a tragic crime.
    \52\ Milton J. Shapiro with Marvin Weinstein, Who Will Cry for 
Staci? The True Story of a Grieving Father's Quest for Justice (1995).
    \53\ See, e.g., Shelley Neiderbach, Invisible Wounds: Crime Victims 
Speak (1986); Gary Kinder, Victim (1982); Joseph Wambaugh, The Onion 
Field (1973); Deborah Spungeon, Homicide: The Forgotten Victims (1998); 
Janice Harris Lord, No Tine for Goodbyes: Coping with Sorrow, Anger and 
Injustice After a Tragic Death (4th ed. 1991).
---------------------------------------------------------------------------
    Professor Bandes acknowledges the power of hearing from victims' 
families. Indeed, in a commendable willingness to present victim 
statements with all their force, she begins her article by quoting from 
victim impact statement at issue in Payne v. Tennessee, a statement 
from Mary Zvolanek about her daughter's and granddaughter's deaths and 
their effect on her three-year-old grandson:

          He cries for his mom. He doesn't seem to understand why she 
        doesn't come home. And he cries for his sister Lacie. He comes 
        to me many times during the week and asks me, Grandmama, do you 
        miss my Lacie. And I tell him yes. He says, I'm worried about 
        my Lacie.\54\

    \54\ Bandes, supra note 37, at 361 (quoting Payne v. Tennessee, 501 
U.S. 808, 814-15 (1991)).

    Bandes quite accurately observes that the statement is 
``heartbreaking'' and ``[o]n paper, it is nearly unbearable to read.'' 
\55\ She goes on to argue that such statements are ``prejudicial and 
inflammatory'' and ``overwhelm the jury with feelings of outrage.'' 
\56\ In my judgment, Bandes fails here to distinguish sufficiently 
between prejudice and unfair prejudice from a victim's statement. It is 
a commonplace of evidence law that a litigant is not entitled to 
exclude harmful evidence, but only unfairly harmful evidence.\57\ 
Bandes appears to believe that a sentence imposed following a victim 
impact statement rests on unjustified prejudice; alternatively, one 
might conclude simply that the sentence rests on a fuller understanding 
of all of the murder's harmful ramifications. Why is ``heartbreaking'' 
and ``nearly unbearable to read'' about what it is like for a three-
year-old to witness the murder of his mother and his two-year-old 
sister? The answer, judging from why my heart broke as I read the 
passage, is that we can no longer treat the crime as some abstract 
event. In other words, we begin to realize the nearly unbearable 
heartbreak--that is, the actual and total harm--that the murderer 
inflicted.\58\ Such a realization may hamper a defendant's efforts to 
escape a capital sentence. But given that loss is a proper 
consideration for the jury, the statement is not unfairly detrimental 
to the defendant. Indeed, to conceal such evidence from the jury may 
leave them with a distorted, minimized view of the impact of the 
crime.\59\ Victim impact statements are thus easily justified because 
they provide the jury with a full picture of the murder's 
consequences.\60\
---------------------------------------------------------------------------
    \55\ Id. at 361.
    \56\ Id. at 401.
    \57\ See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence 
Sec. 4.5. at 197 (1995).
    \58\ Cf. Erez, Who's Afraid of the Victim?, supra note 69, at [13] 
(``legal professionals [in South Australia] who have been exposed to 
[victim impact statements] have commented on how uninformed they were 
about the extent, variety and longevity of various victimization, how 
much they have learned * * * about the impact of crime on victims'').
    \59\ See Brooks Douglas, Oklahoma's Victim Impact Legislation: A 
New Voice for Victims and Their Families, 46 Okla. L. Rev. 283, 289 
(1993) (offering an example of a jury denied the truth about the full 
impact of a crime).
    \60\ In addition to allow assessment of the harm of the crime, 
victim impact statements are also justified because they provide ``a 
quick glimpse of the life which the defendant choose to extinguish.'' 
Payne v. Tennessee, 501 U.S. at 822 (internal quotations omitted). In 
the interests of brevity, I will not develop such an argument here, nor 
will I address the more complicated issues surrounding whether a 
victim's family members may offer opinions about the appropriate 
sentence for a defendant. See id. at 830 n.2 (reserving this issue); S. 
Rep. No. 105-409 at 28-29 (indicating that the Victims' Rights 
Amendment does not alter laws precluding victim opinion as to the 
proper sentence).
---------------------------------------------------------------------------
    Bandes also contends that impact statements ``may completely 
block'' the ability of the jury to consider mitigation evidence.\61\ It 
is hard to assess this essentially empirical assertion, because Bandes 
does not present direct empirical support.\62\ Clearly many juries 
decline to return death sentences even when presented with powerful 
victim impact testimony, with Terry Nichols' life sentence for 
conspiring to set the Oklahoma City bomb a prominent example. Indeed, 
one recent empirical study of decisions from jurors who actually served 
in capital cases found that facts about adult victims ``made little 
difference'' in death penalty decisions.\63\ A case might be crafted 
from the available national data that Supreme Court decisions on victim 
impact testimony did, at the margin, alter some cases. It is arguable 
that the number of death sentences imposed in this country fell after 
the Supreme Court prohibited use of victim impact statements in 1987 
\64\ and then rose when the Court reversed itself a few years 
later.\65\ This conclusion, however, is far from clear \66\ and, in any 
event, the likelihood of a death sentence would be, at most, marginal. 
The empirical evidence in non-capital cases also finds little effect on 
sentence severity. For example, a study in California found that 
``[t]he right to allocution at sentence has had little net effect * * * 
on sentences in general.'' \67\ A study in New York similarly reported 
``no support for those who argue against [victim impact] statements on 
the grounds that their use places defendants in jeopardy.'' \68\ A 
recent comprehensive review of all of the available evidence in this 
country and elsewhere by a careful scholar concludes ``sentence 
severity has not increased following the passage of [victim impact] 
legislation.'' \69\ It is thus unclear why we should credit Bandes' 
assertion that victim impact statements seriously hamper the defense of 
capital defendants.
---------------------------------------------------------------------------
    \61\ Bandes, supra note 37, at 402.
    \62\ The only empirical evidence Bandes discusses concerns the 
alleged race-of-the-victim effect found in the Baldus study of Georgia 
capital cases in the 1980's. This study, however, sheds no direct light 
on the effect of victim impact statements on capital sentencing, as 
victim impact evidence apparently was not, and indeed could not have 
been at that time, one of the control variables. See Ga. Code Ann. 
Sec. Sec. 17-10-1.1, -1.2 (Mich. Supp. 1986) (barring victim impact 
testimony). Had victim impact evidence been one of the variables, it 
seems likely that any race-of-the-victim effect would have been reduced 
by giving the jurors actual information about the uniqueness and 
importance of the life taken, thereby eliminating the jurors' need to 
rely on stereotypic, and potentially race-based, assumptions. In any 
event, there is no need to ponder such possibilities at length here 
because the race-of-the-victim ``effect'' disappeared when important 
control variables were added to the regression equations. See McCleskey 
v. Zant, 580 F. Supp. 338, 366 (D. Ga. 1984), aff'd in part and rev'd 
in part, 753 F.2d 877 (11th Cir. 1986), aff'd, 481 U.S. 279 (1987).
    \63\ Stephen P. Garvey, Aggravation and Mitigation in Capital 
Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1556 (1998). The 
study concluded that jurors would be more likely to impose death if the 
victim was a child, id, and that ``extreme caution'' was warranted in 
interpreting its findings. Id. It should be noted that the study data 
came from cases between roughly 1986 and 1993, when victim impact 
statements were not generally used. See id. at 1554. However, it is 
possible that a victim impact statement may have been introduced in a 
few of the cases in the data set after the 1991 Payne decision. EMAIL 
from Prof. Stephen P. Garvey to Prof. Paul G. Cassell, Feb. 11, 1999 
(on file with author).
    Garvey's methodology of surveying real juries about real cases 
seems preferable to relying on mock jury research, which suggests that 
victim impact statements may affect jurors' views about capital 
sentencing. See Edith Greene, The Many Guises of Victim Impact Evidence 
and Effects on Jurors' Judgments,--Psychology, Crime & Law--
(forthcoming 1999); Edith Greene & Heather Koehring, Victim Impact 
Evidence in Capital Cases: Doe the Victim's Character Matter?, 28 J. 
Applied Social Psychology 145 (1998); James Luginbuhl & Michael 
Burkhead, Victim Impact Evidence in Capital Trial: Encouraging Votes 
for Death, 20 Am. J. Crim. Just. 1 (1995); but cf. Ronald Mazzella & 
Alan Feingold, The Effects of Physical Attractiveness, Race, 
Socioeconomic Status, and Gender of Defendants and Victims on Judgments 
of Mock Jurors: A Meta-Analysis, 1994 J. Applied Social Psychology 1315 
(1994) (meta-analysis of previous research finds that effects of victim 
characteristics on juror's judgments were generally inconsequential). 
Whether mock jury simulations capture real world effects is open to 
question generally. See Paul G. Cassell, The Guilty and the 
``Innocent'': An Examination of Alleged Cases of Wrongful Conviction 
from False Confession,--Harv. J.L. & Pub. Pol'y--, --(forthcoming 
1999); Free v. Peters, 12 F.3d 700, 705-06 (7th Cir. 1994) (en banc). 
The concerns about the realism of mock jury research apply with 
particular force to emotionally-charged death penalty verdicts. See 
Mark Costanzo & Sally Costanzo, Jury Decision Making in the Capital 
Penalty Phase, 16 Law & Human Behavior 185, 191 (1992) (``the very 
nature of the [death] penalty decision may render it an inappropriate 
topic for jury simulation studies'').
    \64\ See Booth v. Maryland, 482 U.S. 496 (1987).
    \65\ See Payne v. Tennessee, 501 U.S. 808 (1991).
    \66\ A full discussion of the data is found in Appendix B of my 
forthcoming article in the Utah Law Review, supra note 17.
    \67\ See U.S. Dep't of Justice, Nat'l Inst. of Justice, Victim 
Appearances at Sentencing Hearings Under the California Victim's Bill 
of Rights 61 (1987) () (hereinafter NIJ Sentencing Study).
    \68\ Robert C. Davis & Barbara E. Smith, The Effects of Victim 
Impact Statements on Sentencing Decisions: A Test in an Urban Setting, 
11 Just. Quart. 453, 466 (1994); accord Robert C. Davis et al., Victim 
Impact Statements: Their Effects on Court Outcomes and Victim 
Satisfaction 68 (1990).
    \69\ Edna Erez, Wno's Afraid of the Big Bad Victim? Victim Impact 
Statements as Victim Empowerment and Enhancement of Justice,--Crim. L. 
Rev.--(forthcoming 1999) (hereinafter Erez, Who's Afraid of the 
Victim?); accord Edna Erez, Victim Participation in Sentencing: And the 
Debate Goes On * * *, 3 Int'l Rev. of Victimology 17, 22 (1994) 
(``[r]esearch on the impact of victims' input on sentencing outcome is 
inconclusive. At best it suggests that victim input has only a limited 
effect'') (hereinafter Erez, Victim Participation). For further 
discussion of the effect of victim impact statements, see, e.g., Edna 
Erez & Pamela Tontodonato, The Effect of Victim Participation in 
Sentencing on Sentence Outcome, 28 Criminology 451, 467 (1990); Susan 
W. Hillenbrand & Barbara E. Smith, Victims Rights Legislation: An 
Assessment of Its Impact on Criminal Justice Practitioners and Victims, 
A Study of the ABA Criminal Justice Section Victim Witness Project 159 
(1989); see also Edna Erez & L. Roeger, The Effect of Victim Impact 
Statements on Sentencing Patterns and Outcomes: The Australian 
Experience, 23 J. Crim. Justice 363 (1995) (Australian study); R. 
Douglas et al., Victims of Efficiency: Tracking Victim Information 
Through the System in Victoria, Australia, 3 Int'l Rev. of Victimology 
95 (1994) (same); Edna Erez, Victim Impact Statements and Sentencing 
Outcomes and Process: The Perspectives of Legal Professionals, 39 
British J. of Criminology 216 (forthcoming 1999) (same).
---------------------------------------------------------------------------
    Even if such an impact on capital sentences were proven, it would 
be susceptible to the reasonable interpretation that victim testimony 
did not ``block'' jury understanding, but rather presented information 
about the full horror of the murder or put in context mitigating 
evidence of the defendant. Professor David Friedman has suggested this 
conclusion, observing that ``[i]f the legal rules present the defendant 
as a living, breathing human being with loving parents weeping on the 
witness stand, while presenting the victim as a shadowy abstraction, 
the result will be to overstate, in the minds of the jury, the cost of 
capital punishment relative to the benefit.'' \70\ Correcting this 
misimpression is not distorting the decision-making process, but 
eliminating a distortion that would otherwise occur.\71\ This 
interpretation meshes with empirical studies in non-capital cases 
suggesting that, if a victim impact statement makes a difference in 
punishment, the description of the harm sustained by the victims is the 
crucial factor.\72\ The studies thus indicate that the general tendency 
of victim impact evidence is to enhance sentence accuracy and 
proportionality rather than increase sentence punitiveness.\73\
---------------------------------------------------------------------------
    \70\ David D. Friedman, Should the Characteristics of Victims and 
Criminals Count?: Payne v. Tennessee and Two Views of Efficient 
Punishment, 34 Boston College L. Rev. 731, 749 (1993).
    \71\ See id.
    \72\ See Erez & Tontodonato, supra note 69, at 469.
    \73\ See Erez, Perspectives of Legal Professionals, supra note 69, 
at [30] (South Australian study); see also Edna Erez, Victim 
Participation in Sentencing: Rhetoric and Reality, 18 J. Crim. Justice 
19 (1990).
---------------------------------------------------------------------------
    Finally, Bandes and other critics argue that victim impact 
statements result in unequal justice.\74\ Justice Powell made this 
claim in his since-overturned decision in Booth v. Maryland, arguing 
that ``in some cases the victim will not leave behind a family, or the 
family members may be less articulate in describing their feelings even 
though their sense of loss is equally severe.'' \75\ This kind of 
difference, however, is hardly unique to victim impact evidence.\76\ To 
provide one obvious example, current rulings from the Court invite 
defense mitigation evidence from a defendant's family and friends, 
despite the fact that some defendants may have more or less articulate 
acquaintances. In Payne, for example, the defendant's parents testified 
that he was ``a good son'' and his girlfriend testified that he ``was 
affectionate, caring, and kind to her children.'' \77\ In another case, 
a defendant introduced evidence of having won a dance choreography 
award while in prison.\78\ Surely this kind of testimony, no less than 
victim impact statements, can vary in persuasiveness in ways not 
directly connected to a defendant's culpability.\79\ Yet it is 
routinely allowed. One obvious reason is that if varying persuasiveness 
were grounds for an inequality attack, then it is hard to see how the 
criminal justice system could survive at all. Justice White's powerful 
dissenting argument in Booth went unanswered, and remains unanswerable: 
``No two prosecutors have exactly the same ability to present their 
arguments to the jury; no two witnesses have exactly the same ability 
to communicate the facts; but there is no requirement * * * the 
evidence and argument be reduced to the lowest common denominator.'' 
\80\
---------------------------------------------------------------------------
    \74\ See, e.g., Bandes, supra note 37, at 408.
    \75\ 482 U.S. at 505, overruled in Payne v. Tennessee, 501 U.S. 808 
(1991).
    \76\ See Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 
90 Nw. U.L. Rev. 863, 882 (1996).
    \77\ Payne, 501 U.S. at 826.
    \78\ See Boyde v. California, 494 U.S. 370, 382 n.5 (1990). See 
generally Comment, Retribution's ``Harm'' Component and the Victim 
Impact Statement: Finding a Workable Model, 18 U. Dayton L. Rev. 389, 
416-17 (1993).
    \79\ Cf. Walton v. Arizona, 497 U.S. 639, 674 (1990) (Scalia, J., 
concurring) (criticizing decisions allowing such varying mitigating 
evidence on equality grounds).
    \80\ Booth, 482 U.S. at 518 (White, J., dissenting).
---------------------------------------------------------------------------
    Given that our current system allows almost unlimited mitigation 
evidence on the part of the defendant, an argument for equal justice 
requires, if anything, that victim statements be allowed. Equality 
demands fairness not only between cases, but also within cases.\81\ 
Victims and the public generally perceive great unfairness in a 
sentencing system with ``one side muted.'' \82\ The Tennessee Supreme 
Court stated the point bluntly in its decision in Payne, explaining 
that ``[i]t is an affront to the civilized members of the human race to 
say that at sentencing in a capital case, a parade of witnesses may 
praise the background, character and good deeds of a Defendant. * * * 
without limitation as to relevancy, but nothing may be said that bears 
upon the character of, or the harm imposed, upon the victims.'' \83\ 
With simplicity but haunting eloquence, a father whose ten-year-old 
daughter Staci was murdered, made the same point. Before the sentencing 
phase began, Marvin Weinstein asked the prosecutor to speak to the jury 
because the defendant's mother would have the chance to do so. The 
prosecutor replied that Florida law did not permit this. Here was 
Weinstein's response to the prosecutor:
---------------------------------------------------------------------------
    \81\ Gewirtz, supra note 76, at 880-82; see also Beloof, supra note 
89 (noting this value as part of a third model of criminal justice); 
President's Task Force on Victims of Crime, Final Report 16 (1982).
    \82\ Id. at 520 (Scalia, J., dissenting); accord President's Task 
Force on Victims of Crime, Final Report 77 (1982); Gewirtz, supra note 
76, at 825-26.
    \83\ Tennessee v. Payne, 791 S.W.2d 10, 19 (1990), aff'd, 501 U.S. 
808 (1991).

          What? I'm not getting a chance to talk to the jury? He's not 
        a defendant anymore. He's a murderer! A convicted murderer! The 
        jury's made its decision. * * * His mother's had her chance all 
        through the trial to set there and let the jury see her cry for 
        him while I was barred.\84\ * * * Now she's getting another 
        chance? Now she's going to sit there in that witness chair and 
        cry for her son, that murderer, that murderer who killed my 
        little girl! Who will cry for Staci? Tell me that, who will cry 
        for Staci? \85\
---------------------------------------------------------------------------
    \84\ Weinstein was subpoenaed by the defense as a witness and 
therefore required to sit outside the courtroom. See Shapiro, supra 
note 52, at 215-16.
    \85\ Id. at 319-20.

There is no good answer to this question,\86\ a fact that has led to a 
change in the law in Florida and, indeed, all around the country. Today 
the laws of the overwhelming majority of states admit victim impact 
statements in capital and other cases.\87\ These prevailing views lend 
strong support to the conclusion that equal justice demands the 
inclusion of victim impact statements, not their exclusion.
---------------------------------------------------------------------------
    \86\ A narrow, incomplete answer might be that neither the 
defendant's mother nor the victim's father should be permitted to cry 
in front of the jury. But assuming an instruction from the judge not to 
cry, the question would still remain why the defendant's mother could 
testify, but not the victim's father.
    \87\ See, e.g., Ariz. Rev. Stat. Sec. 13-4410(C), -4424, -4426; Md. 
Code (1957, 1993 Repl. Vol.), Art. 41, S 4-609(d); N.J. Stat. Ann. 
2C:11-3c(6); Utah Code Ann. 76-3-207(2). See generally State v. 
Muhammad, 678 A.2d 164, 177-78 (N.J. 1996) (collecting state cases 
upholding victim impact evidence in capital cases); Payne v. Tennessee, 
501 U.S. at 821 (Congress and most states allow victim impact 
statements). These laws answer Bandes' brief allusion to the principle 
of nulla poena sine lege (the requirement of prior notice that 
particular conduct is criminal). See Bandes, supra note 37, at 396 
n.177. Because murderers are now plainly on notice that impact 
testimony will be considered at sentencing, the principle is not 
violated. Murderers can also fully foresee the possibility of victim 
impact testimony. Murder is always committed against ``a `unique' 
individual, and harm to some group of survivors is a consequence of a 
successful homicidal act so foreseeable as to be virtually 
inevitable.'' Payne v. Tennessee, 501 U.S. at 838 (Souter, J., 
concurring). Moreover, it is unclear the extent to which nulla poena 
sine lege is designed to regulate sentencing decisions. The principle 
is one that ``condemns judicial crime creation,'' Bynum v. State, 767 
S.W.2d 769, 773 n.5 (Tex. Ct. Crim. Apps. 1989), not crafting of 
appropriate penalties for a previously-defined crime like capital 
murder.
---------------------------------------------------------------------------
    These arguments sufficiently dispose of the critics' main 
contentions.\88\ Nonetheless, it is important to underscore that the 
critics generally fail to grapple with one of the strongest 
justifications for admitting victim impact statements: avoiding 
additional trauma to the victim. For all the fairness reasons just 
explained, gross disparity between defendants' and victims' rights to 
allocute at sentencing creates the risk of serious psychological injury 
to the victim.\89\ As Professor Doug Beloof has nicely explained, a 
justice system that fails to recognize a victim's right to participate 
threatens ``secondary harm''--that is, harm inflicted by the operation 
of government processes beyond that already caused by the 
perpetrator.\90\ This trauma stems from the fact that the victim 
perceives that the system's resources ``are almost entirely devoted to 
the criminal, and little remains for those who have sustained harm at 
the criminal's hands.'' \91\ As two noted experts on the psychological 
effects of crime have concluded, failure to offer victims a chance to 
participate in criminal proceedings can ``result in increased feelings 
of inequity on the part of the victims, with a corresponding increase 
in crime-related psychological harm.'' \92\ On the other hand, there is 
mounting evidence that ``having a voice may improve victims' mental 
condition and welfare.'' \93\ For some victims, making a statement 
helps restore balance between themselves and the offenders. Others may 
consider it part of a just process or may want to communicate the 
impact of the offense to the offender.\94\ This multiplicity of reasons 
explains why victims and surviving family members want so desperately 
to participate in sentencing hearings, even though their participation 
may not necessarily change the outcome.\95\
---------------------------------------------------------------------------
    \88\ Professor Bandes and others also have suggested that the 
admission of victim impact statements would lead to offensive 
minitrials on the victim's character. See, e.g., Bandes, supra note 37, 
at 407-08. However, a recent survey of the empirical literature 
concludes that ``[c]oncern that defendants would challenge the content 
of [victim impact statements] thereby subjecting victims to unpleasant 
cross examination on their statements has also not materialized''). 
Erez, Who's Afraid of the Victim?, supra note 69, at 6. In neither the 
McVeigh nor Nichols trials, for example, did aggressive defense 
attorneys cross-examine the victims at any length about the impact of 
the crime.
    \89\ For general discussion of the harms caused by disparate 
treatment, see Lee Madigan & Nancy C. Gamble, The Second Rape: 
Society's Continued Betrayal of the Victim 97 (1989); Linda E. Ledray, 
Recovery from Rape 125 (2d ed. 1994); Marlene A. Young, A 
Constitutional Amendment for Victims of Crime: The Victims' 
Perspective, 34 Wayne L. Rev. 51, 58 (1987); Deborah P. Kelly, Victims, 
34 Wayne L. Rev. 69, 72 (1987); Douglas Evan Beloof, A Third Model of 
Criminal Process: The Victim Participation Model, 1999 Utah L. Rev.--
(forthcoming).
    \90\ See generally Douglas Evan Beloof, Constitutional Civil Rights 
of Crime Victim Participation: The Emergence of Secondary Harm as a 
Rational Principle, in Beloof, supra note 124, at [10-18] (explaining 
concept of secondary harm); Spungeon, supra note 11, at 10 (explaining 
concept of secondary victimization).
    \91\ Task Force on the Victims of Crime and Violence, Final Report 
of the APA Task Force on the Victims of Crime and Violence, 40 Am. 
Psych. 107 (1985).
    \92\ Kilpatrick and Otto, Constitutionally Guaranteed Participation 
in Criminal Proceedings for Victims: Potential Effects on Psychological 
Functioning, 34 Wayne L. Rev. 7, 21 (1987) (collecting evidence on this 
point); Erez, Who's Afraid of the Victim?, supra note 69, at [9] 
(``[t]he cumulative knowledge acquired from research in various 
jurisdictions * * * suggests that victims often benefit from 
participation and input''); Ken Eikenberry, The Elevation of Victims' 
Rights in Washington State: Constitutional Status, 17 Pepperdine L. 
Rev. 19, 41 (1989); see also Jason N. Swensen, Survivor Says Measure 
Would Dignify Victims, Deseret News (Salt Lake City), Oct. 21, 1994, at 
B4 (noting anguish widow suffered when denied chance to speak at 
sentencing of husband's murderer).
    \93\ Erez, Who's Afraid of the Victim?, supra note 69, at [10].
    \94\ Id. see also S. Rep. 105-409 at 17.
    \95\ Erez, Who's Afraid of the Victim?, supra note 69, at [10] 
(``the majority of victims of personal felonies wished to participate 
and provide input, even when they thought their input was ignored or 
did not affect the outcome of their case. Victims have multiple motives 
for providing input, and having a voice serves several functions for 
them'').
---------------------------------------------------------------------------
    The possibility of the sentencing process aggravating the grievous 
injuries suffered by victims and their families is generally ignored by 
the Amendment's opponents. But this possibility should give us great 
pause before we structure our criminal justice system to add the 
government's insult to criminally-inflicted injury. For this reason 
alone, victims and their families, no less than defendants, should be 
given the opportunity to be heard at sentencing.
2. The right to be present at trial
    The victim's right to be present at trial creates the most 
frequently alleged conflict between the Amendment and the defendant's 
rights.\96\ The most detailed and careful explication of this view is 
Professor Mosteller's, advanced in various articles\97\ and recently 
relied upon by the dissenting senators of this Committee.\98\ In brief, 
Mosteller believes that fairness to defendants requires that victims be 
excluded from the courtroom, at least in some circumstances, to avoid 
the possibility that they might tailor their testimony to that given by 
other witnesses. While I admire the clarity and doggedness with which 
Mosteller has set forth his position, I respectfully disagree with his 
conclusions for reasons to be articulated at length elsewhere.\99\ Here 
it is only necessary to note that even this strong opponent of the 
Amendment finds himself agreeing with the value underlying the victim's 
right. He writes: ``Many victims have a special interest in witnessing 
public proceedings involving criminal cases that directly touched their 
lives.'' \100\ This view is widely shared. For instance, the Supreme 
Court has explained that ``[t]he victim of the crime, the family of the 
victim, [and] others who have suffered similarly * * * have an interest 
in observing the course of a prosecution.'' \101\ Victim concern about 
the prosecution stems from the fact that society has withdrawn ``both 
from the victim and the vigilante the enforcement of criminal laws, but 
[it] cannot erase from people's consciousness the fundamental, natural 
yearning to see justice done--or even the urge for retribution.'' \102\
---------------------------------------------------------------------------
    \96\ Technically the right is ``not to be excluded.'' See infra 
notes 130-33 and accompanying text (explaining reason for this 
formulation).
    \97\ See Mosteller, Unnecessary Amendment, supra note 18; see also 
Mosteller, Recasting the Battle, supra note 18, at 1698-1704.
    \98\ S. Rep. 105-409 at 66 & n.44.
    \99\ See Paul G. Cassell, The Victim's Right to Attend the Trial: 
The Emerging National Consensus (working paper--to be submitted for 
publication shortly); see also 1996 Sen. Judiciary Comm. Hearings, 
supra note 16, at 73-81 (explaining why victim's right to attend does 
not conflict with defendant's rights).
    \100\ Mosteller, Recasting the Battle, supra note 18, at 1699.
    \101\ Gannett Co. v. DePasquale, 443 U.S. at 428 (Blackmun, J., 
concurring in part and dissenting in part).
    \102\ Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 
(1980) (plurality opinion); see also William Pizzi, Rethinking Our 
System, 1999 Utah L. Rev.--(forthcoming) (noting importance of victim 
right to attend trials).
---------------------------------------------------------------------------
    Professor Mosteller also seems to concede that defendants currently 
have no constitutional right to exclude victims from trials,\103\ 
meaning that his argument rests purely on policy. Mosteller's policy 
claim is not the general one that most victims ought to be excluded, 
but rather the much narrower one that ``victims' rights to attend * * * 
proceedings should be guaranteed unless their presence threatens 
accuracy and fairness in adjudicating the guilt or innocence of the 
defendant.'' \104\ On close examination, it turns out that, in 
Mosteller's view, victims' attendance threatens the accuracy of 
proceedings not in a typical criminal case, but only in the atypical 
case of a crime with multiple victims who are all eyewitness to the 
same event and who thus might tailor their testimony if allowed to 
observe the trial together.\105\ This is a rare circumstance indeed, 
and it is hard to see the alleged disadvantage in this unusual 
circumstance outweighing the more pervasive advantages to victims in 
the run-of-the-mine cases.\106\ Moreover, even in rare circumstances of 
multiple victims, other means exist for dealing with the tailoring 
issue. For example, the victims typically have given pretrial 
statements to police, grand juries, prosecutors, or defense 
investigators that would eliminate their ability to change their 
stories effectively.\107\ In addition, the defense attorney may argue 
to the jury that victims' have tailored their testimony even when they 
have not \108\--a fact that leads some critics of the Amendment to 
conclude this provision will, if anything, help defendants rather than 
harm them. The dissenting senators, for example, make this harms-the-
prosecutor argument,\109\ although at another point they appear to 
present a contrary harms-the-defendant claim.\110\ In short, the 
critics have not articulated a strong case against the victim's right 
to be present.
---------------------------------------------------------------------------
    \103\ See Mosteller, Recasting the Battle, supra note 18, at 1701 
n.29.
    \104\ Mosteller, Recasting the Battle, supra note 18, at 1699; see 
also Mosteller, Unnecessary Amendment, supra note 18.
    \105\ Mosteller, Recasting the Battle, supra note 18, at 1700; see 
also Mosteller, Unnecessary Amendment, supra note 18.
    \106\ See Eraz, supra note 201, at 29 (criticizing tendency of 
lawyers ``to use an atypical or extreme case to make their point'' and 
calling for public policy in the victims area to be based on more 
typical cases). Cf. Robert P. Mosteller, Popular Justice, 109 Harv. L. 
Rev. 487, 487 (1995) (critiquing George P. Fletcher's book With Justice 
for Some: Victims' Rights in Criminal Trials (1995) for ``ignor[ing] 
how the criminal justice system operates in ordinary'' cases).
    \107\ See Cassell, supra note 99.
    \108\ See S. Rep. 105-409 at 82 (additional views of Sen. Biden).
    \109\ S. Rep. 105-409 at 61 (minority views of Sens. Leahy, 
Kennedy, and Kohl) (``there is also the danger that the victim's 
presence in the courtroom during the presentation of other evidence 
will cast doubt on her credibility as a witness. * * * Whole cases * * 
* may be lost in this way'').
    \110\ Id. at 65 (minority views of Sens. Leahy, Kennedy, and Kohl) 
(``Accuracy and fairness concerns may arise * * * where the victim is a 
fact witness whose testimony may be influenced by the testimony of 
others'').
---------------------------------------------------------------------------
3. The right to consideration of the victims' interest in a trial free 
        from unreasonable delay
    Opponents of the Amendment sometimes argue that giving victims a 
right ``to consideration'' of their interest ``that any trial be free 
from unreasonable delay''\111\ would impinge on a defendant's right to 
prepare an adequate defense. For example, the dissenting Senators in 
the Judiciary Committee argued that ``the defendant's need for more 
time could be outweighed by the victim's assertion of his right to have 
the matter expedited, seriously compromising the defendant's right to 
effective assistance of counsel and his ability to receive a fair 
trial.'' \112\ Similarly Professor Mosteller advances the claim that 
this right ``also affects substantial interests of the defendant and 
may alter the outcomes of cases.''\113\
---------------------------------------------------------------------------
    \111\ S.J. Res. 44, Sec. 1.
    \112\ S. Rep. 105-409, at 66 (minority view of Sens. Leahy, Kennedy 
and Kohl).
    \113\ Mosteller, Unnecessary Amendment, supra note 18; Mosteller, 
Recasting the Battle, supra note 18, at 1706-07.
---------------------------------------------------------------------------
    These arguments fail to adequately consider the precise scope of 
the victim's right in question. The right the Amendment confers is one 
to ``consideration of the interest of the victim that any trial be free 
from unreasonable delay.'' The opponents never discuss the fact that, 
by definition, all of the examples that they give of defendants 
legitimately needing more time to prepare would constitute reasons for 
``reasonable'' delay. Indeed, it is interesting to note similar 
language in the American Bar Association's directions to defense 
attorneys to avoid ``unnecessary delay'' that might harm victims.\114\ 
The victim's right, moreover, is to ``consideration'' of victims' 
interests. The proponents of the Amendment could not have been clearer 
about the intent to allow legitimate defense continuances. As this 
Committee explained:
---------------------------------------------------------------------------
    \114\ American Bar Association, Suggested Guidelines for Reducing 
Adverse Effects of Case Continuances and Delays on Crime Victims and 
Witnesses 4 (Dec. 1985).

          The Committee intends for this right to allow victims to have 
        the trial of the accused completed as quickly as is reasonable 
        under all of the circumstances of the case, giving both the 
        prosecution and the defense a reasonable period of time to 
        prepare. The right would not require or permit a judge to 
        proceed to trial if a criminal defendant is not adequately 
        represented by counsel.\115\
---------------------------------------------------------------------------
    \115\ S. Rep. 105-409 at 3; see also The Victims Right Amendment: 
Hearings Before the Senate Comm. on the Judiciary, 105th Cong., 2nd 
Sess. (Apr. 28, 1998) (statement of Paul G. Cassell at 17-18).

    Such a right, while not treading on any legitimate interest of a 
defendant, will safeguard vital interests of victims. Victims' 
advocates have offered repeated examples of abusive delays by 
defendants designed solely for tactical advantage rather than actual 
preparation of the defense of a case.\116\ Abusive delays appear to be 
particularly common when the victims of the crime is a child, for whom 
each day without the case resolved can seem like an eternity.\117\ Such 
cases present a strong justification for this provision in the 
Amendment. Nonetheless, in his most recent article Professor Mosteller 
advances the proposition that this right ``should be debated on [its] 
merits and not as part of a campaign largely devoted to giving victims' 
rights to notice and to participate in criminal proceedings.'' \118\ 
This seems a curious argument, as the victims community has tried to 
debate this right ``on its merits'' for years. As long ago as 1982, the 
President's Task Force on Victims of Crime offered suggestions for 
protecting a victim's interest in a prompt disposition of the 
case.\119\ In the years since then, it has been hard to find critics of 
victims' rights willing to contend on the merits of the need for 
protecting victims against abusive delay.\120\ If anything, the time 
has arrived for the opponents of the victim's right to proceedings free 
from unreasonable delay to address the serious problem of unwarranted 
delay in criminal proceedings to concede that, here too, a strong case 
for the Amendment exists.
---------------------------------------------------------------------------
    \116\ See, e.g., 1997 Sen. Judiciary Comm. Hearing, supra note 14, 
at 115-16; see also Paul G. Cassell & Evan S. Strassberg, Evidence of 
Repeated Acts of Rape and Child Molestation: Reforming Utah Law to 
Permit the Propensity Inference, 1998 Utah L. Rev. 145, 146.
    \117\ See Cassell, supra note 36, at 1402-05.
    \118\ Mosteller, Unnecessary Amendment, supra note 18.
    \119\ See President's Task Force on Victims of Crime, Final Report 
76 (1982).
    \120\ Cf. Henderson, supra note 10 (conceding that 
``reasonableness'' language might ``allow judges to ferret out 
instances of dilatory tactics while recognizing the genuine need for 
time,'' but concluding that a constitutional amendment is not needed to 
confer this power on judges).
---------------------------------------------------------------------------
          b. prosecution-oriented challenges to the amendment
    Some objections to victims rights rest not on alleged harm to 
defendants' interests but rather those of the prosecution. Often these 
objections surprisingly come from persons not typically solicitous of 
prosecution concerns,\121\ suggesting some skepticism may be warranted. 
In any event, the arguments lack foundation.
---------------------------------------------------------------------------
    \121\ See, e.g., Scott Wallace, Mangling the Constitution: The 
Folly of the Victims' Rights Amendment, Wash. Post, June 28, 1996, at 
A21 (op-ed piece from special counsel with the National Legal Aid and 
Defender Association warning that Amendment would harm police and 
prosecutors).
---------------------------------------------------------------------------
    It is sometimes argued that only the state should direct criminal 
prosecutions. This claim might have some bite against a proposal to 
allow victims to initiate or otherwise control the course of criminal 
prosecutions,\122\ but it has little force against the proposed 
amendment. The Victims' Rights Amendment assumes a prosecution-directed 
system and simply grafts victims' rights onto it. Victims receive 
notification of decisions that the prosecution makes and, indeed, have 
the right to provide information to the court at appropriate junctures, 
such as bail hearings, plea bargaining, and sentencing. However, the 
prosecutor still files the complaint and moves it through the system, 
making decisions not only about which charges (if any) to file, but 
also about which investigative leads to pursue and which witnesses to 
call at trial. While the victim can follow her ``own case down the 
assembly line'' in Professor Beloof's colorful metaphor,\123\ the fact 
remains that the prosecutor runs the assembly line. This general 
approach of grafting victims' rights onto the existing system mirrors 
the approach followed by all of the various state victims' amendments, 
and few have been heard to argue that these systems interfere with 
legitimate prosecution interests.
---------------------------------------------------------------------------
    \122\ See, e.g., Peter L. Davis, The Crime Victim's ``Right'' to a 
Criminal Prosecution: A Proposed Model Statute for the Governance of 
Private Criminal Prosecutions, 38 DePaul L. Rev. 329 (1989). Allowing 
victims to initiate their own prosecutions is no novelty, as it is 
consistent with the English common law tradition of private 
prosecutions, brought to the American colonies. See 1 James F. Stephen, 
A History of the Criminal Law of England 493-503 (1883); Shirley S. 
Abrahamson, Redefining Roles: The Victims' Rights Movement, 1985 Utah 
L. Rev. 517, 521-22 (1985); Josephine Gittler, Expanding the Role of 
the Victim in a Criminal Action: An Overview of Issues and Problems, 11 
Pepp. L. Rev. 117, 125-26 (1984); Juan Cardenas. The Crime Victim in 
the Prosecutorial Process, 9 Harv. J.L. & Pub. Pol'y 358, 384 (1986); 
William F. McDonald, Towards a Bicentennial Revolution in Criminal 
Justice: The Return of the Victim, 13 Amer. Crim. L. Rev. 649 (1976).
    \123\ Beloof, supra note 89.
---------------------------------------------------------------------------
    Perhaps an interferes-with-the-prosecutor objection might be 
refined to apply only against a victim's right to be heard on plea 
bargains, since this right arguably interferes with a prosecutor's 
ability to terminate the prosecution. But today, it is already the law 
of many jurisdictions that the court must determine whether to accept 
or reject a proposed plea bargain after weighing all relevant 
interests.\124\ Given that victims undeniably have relevant, if not 
compelling, interests in proposed pleas, the Amendment neither breaks 
new theoretical ground nor displaces any legitimate prosecution 
interest. Instead, victim statements simply provide more information 
for the court to consider in making its decision. The available 
empirical evidence also suggests that victim participation in the plea 
bargaining process does not burden the courts and produces greater 
victim satisfaction even where (as is often the case) victims 
ultimately do not influence the outcome.\125\
---------------------------------------------------------------------------
    \124\ For cogent explication of the law, see Douglas Beloof, 
Victims in Criminal Procedure (1999); see also National Conference of 
the Judiciary on The Rights of Victims of Crime, Statement of 
Recommended Judicial Practices 10 (1983) (recommending victim 
participation in plea negotiations).
    \125\ See, e.g., D. Buchner et. al., Inslaw, Evaluation of the 
Structured Plea Negotiation Project: Executive Summary (1984).
---------------------------------------------------------------------------
    In addition, critics of victim involvement in the plea process 
almost invariably overlook the long-standing acceptance of judicial 
review of plea bargains. These critics portray pleas as a matter solely 
for a prosecutor and a defense attorney to work out. They then display 
a handful of cases in which the defendant was ultimately acquitted at 
trial after courts had the temerity to reject a plea after hearing from 
victims. These cases, the critics maintain, prove that any outside 
review of pleas is undesirable.\126\ The possibility of an erroneous 
rejection of a plea is, of course, inherent in any system allowing 
review of a plea. In an imperfect world judges will sometimes err in 
rejecting a plea that, in hindsight, should have been accepted. The 
salient question, however, is whether as a whole the judicial review 
does more good than harm--that is, whether, on balance, courts make 
more right decisions than wrong ones. Just as cases can be cited where 
judges apparently made mistakes in rejecting a plea, so too they have 
rejected plea bargains that were unwarranted.\127\ The reported cases 
of victims' persuading judges to reject unjust pleas form just a small 
part of the picture, because in many other cases, the mere prospect of 
victim objection undoubtedly has restrained prosecutors from bargaining 
cases away without good reason. My strong sense is that judicial review 
of pleas by courts after hearing from victims more often improves 
rather than retards justice. The failure of the critics to-contend on 
the issue of net effect and the growing number of jurisdictions that 
allow victim input \128\ is strong evidence for this conclusion.
---------------------------------------------------------------------------
    \126\ See, e.g., S. Rep. 105-409, at 66 (minority view of Sens. 
Leahy, Kennedy and Kohl).
    \127\ See, e.g., People v. Stringham, 206 Cal. App. 3d 184 (Cal. 
App. 1988); People v. Austin, 566 N.W.2d 547 (Mich. 1997).
    \128\ See Beloof, supra note 124, at 462.
---------------------------------------------------------------------------
    Another prosecution-based objection to victims' rights is that, 
while they are desirable in theory, in practice they would be unduly 
expensive.\129\ Here again, prominent critics misread the language of 
the Amendment. For example, the dissenting Senators have advanced the 
position that the victim's right ``not to be excluded from'' the trial 
equates with a victim's right to be transported to the trial. They then 
conclude that ``[t]he right not to be excluded could create a duty for 
the Government to provide travel and accommodation costs for victims 
who could not otherwise afford to attend.'' \130\ This objection 
appears to be contrary to both the plain language of the Amendment and 
the explicit statements of its supporters and sponsors. The underlying 
right is not for victims to be transported to the courthouse, but 
simply to enter the courthouse once there. As the Senate Judiciary 
Committee report explains, ``The right conferred is a negative one--a 
right `not to be excluded'--to avoid the, suggestion that an 
alternative formulation--a right ``to attend''--might carry with it 
some governmental obligation to provide funding * * * for a victim to 
attend proceedings.'' \131\ The objection also runs counter to current 
interpretations of comparable language in other enactments. Federal law 
and many state constitutional amendments already extend to victims the 
arguably more expansive right ``to be present'' at or ``to attend'' 
court proceedings.\132\ Yet no court has interpreted any one of these 
provisions as guaranteeing a victim a right of transportation and 
lodging at public expense. The federal amendment is even less likely to 
be construed to confer such an unprecedented entitlement because of its 
negative formulation.\133\
---------------------------------------------------------------------------
    \129\ Sometimes the argument is cast not in terms of the Amendment 
diminishing prosecutorial resources, but rather victim resources. For 
example, Professor Henderson urges rejection of the Amendment on 
grounds that ``we need to concentrate on things that aid recovery'' by 
spending more on victim-assistance and similar programs. See Henderson, 
supra note 51, at [72-73]; see also Henderson, supra note 221, at 606. 
But there is no compatibility between passing the Amendment and 
expanding such programs. Indeed, if the experience at the state level 
is any guide, passage of the federal Amendment will (if anything) lead 
to an increase in resources devoted to victim-assistance efforts 
because of their usefulness in implementing the rights contained in the 
Amendment.
    \130\ S. Rep. 105-409 at 63 (minority views of Sens. Leahy, Kennedy 
and Kohl).
    \131\ See, e.g., S. Rep. 105-409 at 26.
    \132\ For right to ``be present'' formulations, see, e.g., 42 
U.S.C. Sec. 10606(b)(4); Alaska Const. art. I, Sec. 24; Ariz. Const., 
art. 2, Sec. 2.1(A)(3) & (4)1 Idaho Const., art. I, Sec. 22(4) & (6); 
Ill. Const., art. I, Sec. 8.1; Ind. Const. Art. I, Sec. 13(b); Miss. 
Rev. St. 99-36-5; Mo. Const. art. I, Sec. 32(1); Mont. Const., art. 3, 
Sec. 26A(1); Nev. Const., art. I, Sec. 8(2); N.M. Const., art. 2, 
Sec. 24; N.C. Const., art. I, Sec. 37(a); Okla. Const., art. II, 
Sec. 34A; S.C. Const. Art. I, Sec. 24(A)(3); Utah Const. art. I, 
Sec. 29(1)(b); see also Ark. Stat. Ann. Sec. 16-41-101 (1994) (rule 
616). For a right ``to attend'' formulation, see Mich. Const., art. I, 
Sec. 24(1).
    \133\ An Alabama statute also uses this phrasing without reported 
deleterious consequences. See Ala. Code Sec. 15-14-54 (recognizing 
victim's right ``not [to] be excluded from court or counsel table 
during the trial or hearing or any portion thereof. * * *
---------------------------------------------------------------------------
    Once victims arrive at the courthouse, their attendance at 
proceedings imposes no significant incremental costs. In exercising 
their right to attend, victims simply can sit in the benches that have 
already been built. Even in cases involving hundreds of victims, 
innovative approaches such as closed-circuit broadcasting have proven 
feasible.\134\ As for the victims' right to be heard, the state 
experience reveals only a modest cost impact.\135\
---------------------------------------------------------------------------
    \134\ See 42 U.S.C. 10608(a) (authorizing close circuit broadcast 
of trials whose venue has been moved more than 500 miles). This 
provision was used to broadcast proceedings in the Oklahoma City 
bombing trial in Denver back to Oklahoma City.
    \135\ See, e.g., NIJ Study, supra note 67, at 59 (right to allocute 
in California ``has not resulted in any noteworthy change in the 
workload of either the courts, probation departments, district 
attorneys' offices or victim/witness programs''); id. at 69 (no 
noteworthy change in the workload of California parole board); Erez, 
Victim Participation, supra note 69, at 22 (``Research in jurisdictions 
that allow victim participation indicates that including victims in the 
criminal justice process does not cause delays or additional 
expense''); see also Davis et al., supra note 68, at 69 (expanded 
victim impact program did not delay dispositions in New York).
---------------------------------------------------------------------------
    Most of the cost arguments have focused on the Amendment 
notification provisions. It is already recognized as sound 
prosecutorial practice to provide notice to victims. The National 
Prosecution Standards prepared by the National District Attorney 
Association recommends that victims of violent crimes and other serious 
felonies should be informed, where feasible, of important steps in the 
criminal justice process.\136\ In addition, many states have required 
that victims receive notice of a broad range of criminal justice 
proceedings. Nearly every state provides notice of the trial, 
sentencing, and parole hearings.\137\ In spite of the fact that notice 
is already required in many circumstances across the country, the 
dissenting Senators on the Judiciary Committee argued that the 
``potential costs of [the Amendment's] constitutionally-mandated notice 
requires alone are staggering. * * *'' \138\ This suggestion is 
inconsistent with the relevant evidence. The experience with victim 
notice requirements already used at the state level suggests that the 
costs are relatively modest, particularly since computerized mailing 
lists and telephone calls can be used. The Arizona amendment serves as 
a good illustration. That amendment extends notice rights far beyond 
what is called for in the federal amendment,\139\ yet prosecutors have 
not found the expense burdensome in practice.\140\ As a result of the 
existing state notification requirements, any incremental expense in 
Arizona from the federal amendment should be quite modest.
---------------------------------------------------------------------------
    \136\ National District Attorneys Association, National Prosecution 
Standards Sec. 26.1 at 92 (2d ed. 1991).
    \137\ See National Victim Center, 1996 Victims' Rights Sourcebook: 
A Compilation and Comparison of Victims' Rights Legislation 24 
(collecting statutes).
    \138\ S. Rep. 105-409 at 62 (minority views of Sens. Leahy, 
Kennedy, and Kohl).
    \139\ The Arizona Amendment extends notification rights to all 
crime victims, not just victims of violent crime as provided in the 
federal amendment. Compare Ariz. Const. Sec. 2.1(A)(3); Sec. 2.1(C) 
with S.J. Res. 3 (1999).
    \140\ See Richard M. Romley, Constitutional Rights for Victims: 
Another Perspective, The Prosecutor, May 1997, at 7 (noting modest cost 
of the state amendment in Phoenix); Statement of Barbara LaWall, Pima 
County Prosecutor, in A Proposed Constitutional Amendment to Protect 
Victims of Crime: Hearings Before the Sen. Judiciary Comm., 105th 
Cong., 1st Sess. 97 (1997) (noting cost has not been a problem in 
Tucson).
---------------------------------------------------------------------------
    The only careful and objective assessment of the costs of the 
Amendment also reaches the conclusion that the costs are slight. The 
Congressional Budget Office reviewed the financial impact of not just 
the notification provisions of the Amendment, but of all its provisions 
on the federal criminal justice system. The CBO concluded that, were 
the Amendment to be approved, it ``could impose additional costs on the 
Federal courts and the Federal prison system. * * * However, CBO does 
not expect any resulting costs to be significant.'' \141\
---------------------------------------------------------------------------
    \141\ Congressional Budget Office Report on S.J. Res. 44, reprinted 
in S. Rep. 105-409 at 40.
---------------------------------------------------------------------------
    This CBO report is a good one on which to wrap up the discussion of 
normative objections to the Amendment. Here is an opportunity to see 
how the critics' claims fare when put to a fair-minded and neutral 
assessment. In fact, the critics' often-repeated allegations of 
``staggering'' costs were found to be exaggerated.

                      II. Justification Challenges

            a. the ``unnecessary'' constitutional amendment
    Because the normative arguments for victims' rights are so 
powerful, some critics of the Victims' Rights Amendment take a 
different tack and mount what might be described as a justification 
challenge. This approach concedes that victims' rights may be 
desirable, but maintains that victims already possess such rights or 
can obtain such rights with relatively minor modifications in the 
current regime. The best single illustration of this attack is found in 
Professor Mosteller's soon-to-be-published article, entitled ``The 
Victims' Rights Amendment: The Unnecessary Amendment.'' \142\ There, 
Mosteller contends that a constitutional amendment is not needed 
because the obstacles that victims face--described by Mosteller as 
``official indifference'' and ``excessive judicial deference''--can all 
be overcome without a constitutional amendment.\143\
---------------------------------------------------------------------------
    \142\ Mosteller, The Victims' Rights Amendment: The Unnecessary 
Amendment, 1999 Utah L. Rev.--(forthcoming).
    \143\ Id.; see also Mosteller, Recasting the Battle, supra note 18 
(developing similar argument).
---------------------------------------------------------------------------
    Professor Mosteller's clearly developed position is ultimately 
unpersuasive because it supplies a purely theoretical answer to a 
practical problem. In theory, victims' rights could be safeguarded 
without a constitutional amendment. It would only be necessary for 
actors within the criminal justice system--judges, prosecutors, defense 
attorneys, and others--to suddenly begin fully respecting victims' 
interests. The real world question, however, is how to actually trigger 
such a shift in the Zeitgeist. For nearly two decades, victims have 
obtained a variety of measures to protect their rights. Yet, the 
prevailing view from those who work in the field is that these efforts 
``have all too often been ineffective.'' \144\ Rules to assist victims 
``frequently fail to provide meaningful protection whenever they come 
into conflict with bureaucratic habit, traditional indifference, or 
sheer inertia. * * *'' \145\ The view that state victims provisions 
have been and will continue to be often disregarded is widely shared, 
as some of the strongest opponents of the Amendment seem to concede the 
point. For example, Ellen Greenlee, President of the National Legal Aid 
and Defender Association bluntly and revealingly told Congress that the 
state victims' amendments ``so far have been treated as mere statements 
of principle that victims ought to be included and consulted more by 
prosecutors and courts. A state constitution is far * * * easier to 
ignore than the federal one.'' \146\
---------------------------------------------------------------------------
    \144\ Tribe & Cassell, supra note 25, at B5. See, e.g., 1996 Sen. 
Judiciary Comm. Hearings, supra note 16, at 109 (statement of Steven 
Twist); id. at 30 (statement of John Walsh); id. at 26 (statement of 
Katherine Prescott).
    \145\ See Tribe & Cassell, supra note 25, at B5.
    \146\ 1996 House Judiciary Comm. Hearings, supra note 15, at 147.
---------------------------------------------------------------------------
    Professor Mosteller attempts to minimize the current problems, 
conceding only that ``existing victims' rights are not uniformly 
enforced.'' \147\ This is a grudging concession to the reality that 
victims rights are often denied today, as numerous examples of 
violations of rights in the congressional record and elsewhere 
attest.\148\ A comprehensive view comes from a careful study of the 
issue by the Department of Justice. As reported by the Attorney 
General, the Department found that
---------------------------------------------------------------------------
    \147\ Mosteller, Unnecessary Amendment, supra note 18.
    \148\ See, e.g., 1998 Sen. Judiciary Committee Hearings [not yet in 
print] (statement of Marlene Young).

        efforts to secure victims' rights through means other than a 
        constitutional amendment have proved less than fully adequate. 
        Victims' rights advocates have sought reforms at the state 
        level for the past twenty years, and many states have responded 
        with state statutes and constitutional provisions that seek to 
        guarantee victims' rights. However, these efforts have failed 
        to fully safeguard victims' rights. These significant state 
        efforts simply are not sufficiently consistent, comprehensive, 
        or authoritative to safeguard victims' rights.\149\
---------------------------------------------------------------------------
    \149\ 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 64 
(statement of Attorney General Reno).

    Similarly, a exhaustive report from those active in the field 
concluded that ``[a] victims' rights constitutional amendment is the 
only legal measure strong enough to rectify the current inconsistencies 
in victims' rights laws that vary significantly from jurisdiction to 
jurisdiction on the state and federal level.''\150\
---------------------------------------------------------------------------
    \150\ New Directions from the Field, supra note 5, at 10.
---------------------------------------------------------------------------
    Hard statistical evidence on non-compliance with victims' rights 
confirms these general conclusions about inadequate protection. As 
mentioned at the outset of this testimony, a 1998 report from the 
National Institute of Justice NIJ) found that many crime victims are 
denied their rights and concluded that ``enactment of State laws and 
State constitutional amendments alone appears to be insufficient to 
guarantee the full provision of victims' rights in practice.'' \151\ 
The report provided numerous situations in which victims were not 
provided rights to which they were entitled. For example, even in 
several states identified as giving ``strong protection'' to victims 
rights, fewer than 60 percent of the victims were notified of the 
sentencing hearing and fewer than 40 percent were notified of the 
pretrial release of the defendant.\152\ A follow-up analysis of the 
same data found that racial minorities are less likely to be afforded 
their rights under the patchwork of existing statutes.\153\ Professor 
Mosteller dismisses these figures with the essentially ad hominem 
attack that they were collected by the National Victim Center, which 
supports a victims' rights amendment.\154\ However, the data themselves 
were collected by an independent polling firm.\155\ Mosteller also 
cites one internal Justice Department reviewer who stated during the 
review process in conclusory terms that the report was unsatisfactory 
and should not be published.\156\ The conclusion of the NIJ review 
process, however, after hearing from all reviewers (including 
apparently favorable peer reviews) was to publish the study.\157\ 
Finally, Mosteller criticizes the data as resting on unverified self-
reported data from crime victims. But since the research question was 
how many victims had been afforded their rights, asking victims (rather 
than the agencies suspected of failing to provide rights) would appear 
to be a standard methodological approach. The study also obtained a 
very high 83 percent response rate from the victims interviewed,\158\ 
suggesting that the findings are not due to any kind of responder bias. 
And given the magnitude of the alleged failures to provide victims' 
rights--ranging up to 60 percent and more--the general dismissal 
picture presented by the NIJ report is clear. Opponents of the 
Amendment offer no competing statistics, and such other data as exist 
tend to corroborate the NIJ findings of substantial noncompliance.\159\
---------------------------------------------------------------------------
    \151\ Nat'l Inst. of Justice, supra note 7, 151, at 1.
    \152\ Id. at 4 exh. 1.
    \153\ National Victim Center, Statutory and Constitutional 
Protection of Victims' Rights: Implementation and Impact on Crime 
Victims: Sub-Report on Comparison of White and Non-White Crime Victim 
Responses Regarding Victims' Rights 5 (1997).
    \154\ See Mosteller, Unnecessary Amendment, supra note 18.
    \155\ Nat'l Inst. of Justice, supra note 7, 151, at 11.
    \156\ See Mosteller, Unnecessary Amendment, supra note 18 (citing 
McQuade to Travis memorandum).
    \157\ See Nat'l Inst. of Justice, Guide to Writing Reports for NIJ: 
Policy, Requirements, and Procedures at 3 (noting peer review process).
    \158\ Nat'l Inst. of Justice, supra note 7, 151, at 3.
    \159\ See, e.g., Hildenbrand & Smith, supra note 69, at 112 
(prosecutors and victims consistently report that victims ``not 
usually'' given notice or consulted in a significant proportion of 
cases); Erez, Victim Participation, supra note 69, at 26 (finding 
victims rarely informed of right to make statements and victim impact 
statements not always prepared).
---------------------------------------------------------------------------
    Given such statistics, it is interesting to consider what the 
defenders of the status quo believe is an acceptable level of violation 
of rights. Suppose new statistics could be gathered that show that 
victims rights are respected in 75 percent of all cases, or 90 percent, 
or even 98 percent. America is so far from a 98 percent rate for 
affording victims rights that my friends on the front lines of 
providing victim services probably will dismiss this exercise as a 
meaningless law school hypothetical. But would a 98 percent compliance 
rate demonstrate that the amendment is ``unnecessary''? Even a 98 
percent enforcement rate would leave numerous victims unprotected. As 
the Supreme Court has observed in response to the claim that the Fourth 
Amendment exclusionary rule affects ``only'' about 2 percent of all 
cases in this country, ``small percentages * * * mask a large absolute 
number of'' cases.\160\ A rough calculation suggests that even if the 
Victims Rights Amendment improved treatment for only 2 percent of the 
violent crime cases it affects, a total of about 30,000 victims would 
benefit each year.\161\ Even more importantly, we would not tolerate a 
mere 98 percent ``success'' rate in enforcing other important rights. 
Suppose that, in opposition to the Bill of Rights, it had been argued 
that 98 percent of all Americans could worship in the religious 
tradition of their choice, 98 percent of all newspapers could publish 
without censorship from the government, 98 percent of criminal 
defendants had access to counsel, and 98 percent of all prisoners were 
free from cruel and unusual punishment. Surely the effort still would 
have been mounted to move the totals closer to 100 percent. Given the 
wide acceptance of victims rights, they deserve the same respect.
---------------------------------------------------------------------------
    \160\ United States v. Leon, 468 U.S. 897, 907 n.6 (1984); see also 
Craig M. Bradley, The Failure of the Criminal Procedure Revolution 43-
44 (1993).
    \161\ FBI estimates suggest an approximate total of about 2,303,600 
arrests for violent crimes each year, broken down as follows: 729,000 
violent crimes within the crime index (murder, forcible rape, robbery, 
aggravated assault), 1,329,000 other assaults, 95,800 sex offenses, and 
149,800 offenses against family and children. U.S. Dep't of Justice, 
Fed. Bureau of Investigation, Uniform Crime Reports: Crime in the 
United States --1996 at 214 tbl. 29 (1997). A rough estimate is that 
about two-thirds of these cases (66 percent) will be accepted for 
prosecution, either within the adult or juvenile system. See Brain 
Forst, Prosecution and Sentencing, in Crime 363, 36 (James Q. Wilson & 
Joan Petersilia eds. 1995). Assuming the Amendment would benefits 2 
percent of the victims within these charged cases produces the figure 
in text. For further discussion of issues surrounding such 
extrapolations, see Paul G. Cassell, Miranda's Social Costs: An 
Empirical Reassessment, 90 Nw. U.L. Rev. 387, 438-40; Paul G. Cassell, 
Protecting the Innocent from False Confessions and Lost Confessions--
And From Miranda, 88 J. Crim. L. & Crimnology 497, 514-16 (1998).
---------------------------------------------------------------------------
    Professor Mosteller does not spend much time reviewing the level of 
compliance in the current system, instead moving quickly to the claim 
that the constitutional amendment will ``not automatically 
eliminate[]'' the problem of official indifference to victims' 
rights.\162\ But the key issue is not whether the Amendment will 
``eliminate'' indifference, but rather whether it will reduce 
indifference--thereby improving the lot of victims. Here the posture of 
the Amendment's critics is quite inconsistent. On the one hand, they 
posit dramatic damaging consequences that will reverberate throughout 
the system after the Amendment's adoption, even though those 
consequences are entirely unintended. Yet at the same time, they are 
unwilling to concede that the Amendment will make even modest positive 
consequences in the areas that it specifically addresses.
---------------------------------------------------------------------------
    \162\ Mosteller, Unnecessary Amendment, supra note 18, at [7].
---------------------------------------------------------------------------
    The best view of the Amendment's effects is a moderate one that 
avoid the varying extremes of the critics. Of course the Amendment will 
not eliminate all violations of victims' rights, particularly because 
practical politics have stripped from the Amendment its civil damages 
provision.\163\ But neither will the Amendment amount to an ineffectual 
response to official indifference. On this point, it is useful to 
consider the steps involved in adopting the Amendment. Both the House 
and Senate of the United States Congress would pass the measure by two-
thirds votes. Then a full three-quarters of the states would ratify the 
provision.\164\ No doubt these events would generate dramatic public 
awareness of the nature of the rights and the importance of providing 
them. In short, the adoption of the Amendment would constitute a major 
national event. One might even describe it as a ``constitutional 
moment'' (of the old fashioned variety) where the nation recognizes the 
crucial importance of protecting certain rights for its citizens.\165\ 
Were such events to occur, the lot of crime victims likely would 
improve considerably. The available social science research suggests 
that the primary barrier to successful implementation of victims' 
rights is ``the socialization of [lawyers] in a legal culture and 
structure that do not recognize the victim as a legitimate party in 
criminal proceedings.'' \166\ Professor Mosteller seems to agree 
generally with this view, explaining that ``officials fail to honor 
victims' rights largely as a result of inertia and past learning, 
insensitivity to the unfamiliar needs of victims, lack of training, and 
inadequate or misdirected institutional incentives.'' \167\ A 
constitutional amendment, reflecting the instructions of the nation to 
its criminal justice system, is perfectly designed to attack these 
problems and develop a new legal culture supportive of victims. To be 
sure, one can paint the prospect of such a change in culture as 
``entirely speculative.'' \168\ Yet this means nothing more than that, 
until the Amendment passes, we will not have an opportunity to 
precisely assay its positive effects. Constitutional amendments have 
changed our legal culture in other areas, and clearly the logical 
prediction is that a victims' amendment would go a long way towards 
curing official indifference. This hypothesis is also consistent with 
the findings of the NIJ study on state implementation of victims' 
rights. The study concluded that ``[w]here legal protection is strong, 
victims are more likely to be aware of their rights, to participate in 
the criminal justice system, to view criminal justice system officials 
favorably, and to express more overall satisfaction with the system.'' 
\169\ It is hard to imagine any stronger protection for victims' rights 
than a federal constitutional amendment. Moreover, we can confidently 
expect that those who will most often benefit from the enhanced 
consistency in protecting victims' rights will be members of racial 
minorities, the poor, and other disempowered groups. Such victims are 
the first to suffer under the current, ``lottery'' implementation of 
victims' rights.\170\
---------------------------------------------------------------------------
    \163\ See S.J. Res. 3, Sec. 2 (1999). See generally Cassell, supra 
note 36, at 1418-21 (discussing damage actions under victims' rights 
amendments).
    \164\ See U.S. Const., art. V.
    \165\ Cf. 1 Bruce Ackerman, We The People passim (1990) (discussing 
``constitutional moments'').
    \166\ Erez, Victim Participation, supra note 69, at 29; see also 
William Pizzi, Trials Without Truth (1999) (discussing problems with 
American trial culture); Pizzi, supra note 102, at [11] (noting trial 
culture emphasis on winning and losing that may overlook victims); 
William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A 
Comparative Perspective on American Problems, 32 Stan. J. Int'l L. 37, 
41 (1996) (``So poor is the level of communication that those within 
the system often seem genuinely bewildered by the victims' rights 
movement, even to the point of suggesting rather condescendingly that 
victims are seeking a solace from the criminal justice system that they 
ought to be seeking elsewhere'')
    \167\ Mosteller, Unneccesary Amendment, supra note 18.
    \168\ Id. at 4.
    \169\ NIJ Study, supra note 7, at 10.
    \170\ See supra note 9 (noting minority victims least likely to be 
afforded rights today). Cf. Henderson, supra note 51 (criticizing 
``lottery approach to affording victims' rights).
---------------------------------------------------------------------------
    Professor Mosteller devotes much of his article to challenging the 
claim that the Amendment is needed to block excessive official 
deference to the rights of criminal defendants. Proponents of the 
Amendment have argued that, given two hundred years of well-established 
precedent supporting defendants' rights, the apparently novel victims' 
rights found in state constitutional amendments and elsewhere too 
frequently have been ignored on spurious grounds of alleged 
conflict.\171\ Professor Mosteller, however, rejects this argument on 
the ground that there is no ``currently valid appellate case in which a 
defendant's conviction was reversed because of a provision of state or 
federal law or state constitution that granted a right to a victim.'' 
\172\ As a result, he concludes, there is no evidence of ``a 
significant body of law that would warrant the cure of a constitutional 
provision.'' \173\
---------------------------------------------------------------------------
    \171\ See, e.g., infra notes 182-226 and accompanying text 
(discussing victims rights in the Oklahoma City bombing case).
    \172\ Mosteller, Unnecessary Amendment, supra note 18.
    \173\ Id. at 7-8.
---------------------------------------------------------------------------
    This argument does not refute the case for the Amendment, but 
rather a strawman erected by the opponents. The important issue is not 
whether victims rights are thwarted by a body of appellate law, but 
rather whether they are blocked by any obstacles, including most 
especially obstacles at the trial level where victims must first 
attempt to secure their rights. One would naturally expect to find few 
appellate court rulings rejecting victims' rights; there are few 
victims' rulings anywhere, let alone in appellate courts. To get to the 
appellate level--in this context, the ``mansion'' of the criminal 
justice system--victims first must pass through the ``gatehouse''--the 
trial court.\174\ That trip is not an easy one. Indeed, one of the main 
reasons for the Amendment is that victims find it extraordinarily 
difficult to get anywhere close to appellate courts. To begin with, 
victims may be unaware of their rights or discouraged by prosecutors 
from asserting them. Even if aware and interested in asserting their 
rights in court, victims may lack the resources to obtain counsel. 
Finding counsel, too, will be unusually difficult, since the field of 
victims' rights is a new one in which few lawyers specialize.\175\ Time 
will be short, since many victims' issues (particularly those revolving 
around sequestration rules) arise at the start of or even during the 
trial. Even if a lawyer is found, she must arrange to file an 
interlocutory appeal in which the appellate court will be asked to 
intervene in on-going trial proceedings in the court below. If victims 
can overcome all these hurdles, the courts still possess an astonishing 
arsenal of other procedural obstacles to prevent victim actions, as 
Professor Bandes' soon-to-be-published article cogently 
demonstrates.\176\ In light of all these hurdles, appellate opinions 
about victims issues seem, to put it mildly, quite unlikely.
---------------------------------------------------------------------------
    \174\ Cf. Yale Kaimsar, Equal Justice in the Gatehouses and 
Mansions of American Criminal Procedure, in Yale Kamisar, et al., 
Criminal Justice in Our Time 19 (1965) (famously developing this 
analogy in the context of police interrogation).
    \175\ See Henderson, supra note 51. Hopefully this situation may 
improve with the publication of Professor Beloof's law school casebook 
on victim's rights, see Beloof, supra note 124, which may encourage 
more training in this area.
    \176\ See Susan Bandes, Victim Standing, 1999 Utah L. Rev.--
(forthcoming); see also Susan Bandes, The Negative Constitution: A 
Critique, 88 Mich. L. Rev. 2271 (1991); Susan Bandes, The Idea of a 
Case, 42 Stan. L. Rev. 227 (1990).
---------------------------------------------------------------------------
    One can read the resulting dearth of rulings as proving, as 
Professor Mosteller would have it, that no reported appellate decisions 
strike down victims' rights. Yet it is equally true that, at best, only 
a handful of reported appellate decisions uphold victims' rights. This 
fact tends to provide an explanation for the frequent reports of 
denials of victims' rights at the trial level. Given that these rights 
are newly-created and the lack of clear appellate sanction, one would 
expect trial courts to be wary of enforcing these rights against the 
inevitable, if invariably imprecise, claims of violations of a 
defendant's rights.\177\ Narrow readings will be encouraged by the 
asymmetries of appeal--defendants can force a new trial if their rights 
are denied, while victims cannot.\178\ Victims, too, may be reluctant 
to attempt to assert untested rights for fear of giving defendant a 
grounds for a successful appeal and a new trial.\179\
---------------------------------------------------------------------------
    \177\ As shown supra, victims rights do not actually conflict with 
defendant's rights. Frequently, however, it is the defendant's mere 
claim of alleged conflict, not carefully considered by the trial court, 
that ends up producing. (along with the other contributing factors) the 
denial of victims rights.
    \178\ See Kate Stith, The Risk of Legal Error in Criminal Cases: 
Some Consequences of the Asymmetry in the Right to Appeal, 57 U. Chi. 
L. Rev. 1 (1990); see also Erez, Perspectives of Legal Professionals, 
supra note 69, at 20 (noting reluctance of South Australian judges to 
rely on victim evidence because of appeal risk).
    \179\ See Paul G. Cassell, Fight for Victims' Justice is Going 
Strong, Deseret News, July 10, 1996, at A7 (illustrating this problem 
with uncertain Utah case law on victim's right to be present).
---------------------------------------------------------------------------
    In short, nothing in the appellate landscape provides a basis for 
concluding that all is well with victims in the nation's trial courts. 
The Amendment's proponents have provided ample examples of victims 
denied rights in the day-to-day workings of the criminal trials. The 
Amendment's opponents seem tacitly to concede the point by shifting the 
debate to the more rarified appellate level. Thus, here again, the 
opponents have not fully engaged the case for the Amendment.
    As one final fallback position, the Amendment's critics maintain 
that it will not ``eliminate'' the problems in enforcing victims rights 
because some level of uncertainty will always remain.\180\ However, as 
noted before, the issue is not eliminating uncertainty, but reducing 
it. Surely giving victims explicit constitutional protection will 
vindicate their rights in many circumstances where today the trial 
judge would be uncertain how to proceed. Moreover, the Amendment's 
clear conferral of ``standing'' on victims \181\ will help to develop a 
body of precedents on how victims are to be treated. There is, 
accordingly, every reason to expect that the Amendment will reduce 
uncertainties substantially and improve the lot of crime victims.
---------------------------------------------------------------------------
    \180\ Mosteller, Unnecessary Amendment, supra note 18.
    \181\ See S.J. Res. 3, Sec. 2.
---------------------------------------------------------------------------
    b. the oklahoma city illustration of the ``necessary'' amendment
    On assessing whether the amendment is ``necessary,'' it might be 
said that a page of history is worth of volume of logic.\182\ To be 
sure, one can cite examples of victims who have received fair treatment 
in the criminal justice system.\183\ Nonetheless, this and other 
examples hardly make the case against reform given the pressing need 
for improvement in other cases.\184\ The question then becomes whether 
a constitutional amendment would operate to spur that improvement. Here 
it is necessary to look not at the system's successes in ruling on 
victims claims, but rather at its failures. The Oklahoma City bombing 
case provides an illustration of the difficulties victims face in 
having their claims considered by appellate courts.
---------------------------------------------------------------------------
    \182\ Cf. New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) 
(Holmes, J.).
    \183\ See e.g., Henderson, supra note 51.
    \184\ See id. (Conceding this point).
---------------------------------------------------------------------------
    During a pre-trial hearing on a motion to suppress, the District 
Court sua sponte issued a ruling precluding any victim who wished to 
provide victim impact testimony at sentencing from observing any 
proceeding in the case.\185\ The court based its ruling on Rule 615 of 
the Federal Rules of Evidence--the so-called ``rule on witnesses.'' 
\186\ In the hour that the court then gave to victims to make this 
wrenching decision about testifying, some of the victims opted to watch 
the proceedings; others decided to leave Denver to remain eligible to 
provide impact testimony.\187\
---------------------------------------------------------------------------
    \185\ United States v. McVeigh, No. 96-CR-68 (D. Colo.), 6/26/96 
Tr. at 5.
    \186\ See Fed. R. Evid. 615. United States v. McVeigh, 6/26/96 Tr. 
at 4-5.
    \187\ See 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 73 
(statement of Marsha Kight).
---------------------------------------------------------------------------
    Thirty-five victims and survivors of the bombing then filed a 
motion asserting their own standing to raise their rights under federal 
law and, in the alternative, seeking leave to file a brief on the issue 
as amici curiae.\188\ The victims noted that the district court 
apparently had overlooked the Victims' Bill of Rights, a federal 
statute guaranteeing victims the right (among others) ``to be present 
at all public court proceedings, unless the court determines that 
testimony by the victim would be materially affected if the victim 
heard other testimony at trial.'' \189\
---------------------------------------------------------------------------
    \188\ Motion of Marsha and Tom Kight et al. and the National 
Organization for Victim Assistance Asserting Standing to Raise Rights 
Under the Victims' Bill of Rights and Seeking Leave to File a Brief as 
Amici Curiae, United States v. McVeigh, No. 96-CR-68-M (D. Colo. Sept. 
30, 1996). I represented a number of the victims on this matter on a 
pro bono basis, along with able co-counsel at Robert Hoyt, Arnon 
Siegel, Karan Bhatia, and Reg Brown at the Washington, D.C., law firm 
of Wilmer, Cutler, and Pickering and Sean Kendall of Boulder, Colorado. 
For a somewhat fuller recounting of the victims' issues in the case, 
see my statement in 1997 Sen. Judiciary Comm. Hearing, supra note 14, 
at 106-13.
    \189\ 42 U.S.C. Sec. 10606(b)(4). The victims also relied on a 
similar provision found in the authorization for closed circuit 
broadcasting on the trial, 42 U.S.C. Sec. 10608(a), and on a First 
Amendment, right of access to public court proceedings. See Richmond 
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
---------------------------------------------------------------------------
    The District Court then held a hearing to reconsider the issue of 
excluding victim witnesses.\190\ The court first denied the victims' 
motion asserting standing to present their own claims, allowing them 
only the opportunity to file a brief as amici curiae.\191\ After 
argument by the Department of Justice and by the defendants, the court 
denied the motion for reconsideration.\192\ It concluded that victims 
present during court proceedings would not be able to separate the 
``experience of trial'' from ``the experience of loss from the conduct 
in question,'' and, thus, their testimony at a sentencing hearing would 
be inadmissible.\193\ Unlike the original ruling, which was explicitly 
premised on Rule 615, the October 4 ruling was more ambiguous, alluding 
to concerns under the Constitution, the common law, and the rules of 
evidence.\194\
---------------------------------------------------------------------------
    \190\ United States v. McVeigh, No. 96-CR-69 D. Colo.), 10/4/96 Tr.
    \191\ Id. at 499-500.
    \192\ Id., at 519.
    \193\ Id. at 517.
    \194\ Id. at 519.
---------------------------------------------------------------------------
    The victims then filed a petition for writ of mandamus in the U.S. 
Court of Appeals for the Tenth Circuit seeking review of the district 
court's ruling.\195\ Because the procedures for victims appeals were 
unclear, the victims filed a separate set of documents appealing from 
the ruling.\196\ Similarly, the Department of Justice, uncertain of 
precisely how to proceed procedurally, filed both an appeal and a 
petition for a writ of mandamus.
---------------------------------------------------------------------------
    \195\ Petition for Writ of Mandamus, Kight et al. v. Matsch, No. 
96-1484 (10th Cir. Nov. 6, 1996).
    \196\ United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997).
---------------------------------------------------------------------------
    Three months later, a panel of the Tenth Circuit rejected--without 
oral argument--both the victims' and the United States' claims on 
jurisdictional grounds. With respect to the victims' challenges, the 
court concluded that the victims lacked ``standing'' under Article III 
of the Constitution because they had no ``legally protected interest'' 
to be present at the trial and consequently had suffered no ``injury in 
fact'' from their exclusion.\197\ The Tenth Circuit also found the 
victims had no right to attend the trial under any First Amendment's 
right of access.\198\ Finally, the Tenth Circuit rejected, on 
jurisdictional grounds, the appeal and mandamus petition filed by the 
United States.\199\ Efforts by both the victims and the Department to 
obtain a rehearing were unsuccessful,\200\ even with the support of 
separate briefs urging rehearing from 49 members of Congress, all six 
Attorneys General in the Tenth Circuit, and some of the leading victims 
groups in the nation.\201\
---------------------------------------------------------------------------
    \197\ Id. at 334.
    \198\ Id. at 335.
    \199\ Id. at 329-35.
    \200\ Order, United States v. McVeigh, No. 96-1469 (10th Cir. Mar. 
11, 1997).
    \201\ See Br. of Amici Curiae Washington Legal Foundation and 
United States Senators Don Nickles and 48 other members of Congress, 
United States v. McVeigh, No. 96-1469 (10th Cir. 1997) (warning that 
decision meant victims of federal crimes will never be heard for 
violations of their rights); Br. of Amici curiae States of Oklahoma, 
Colorado, Kansas, New Mexico, Utah, and Wyoming Supporting the 
Suggestion for Rehearing and the Suggestion for Rehearing En Banc by 
the Oklahoma City Bombing Victims and the United States, United States 
v. McVeigh, No. 96-1469 (10th Cir. Feb. 14, 1997) (warning decision 
created ``an `important problem' for the administration of justice 
within the Tenth Circuit''); Br. of Amici Curiae National Victims 
Center, Mothers Against Drunk Driving, the National Victims' 
Constitutional Amendment Network, Justice for Surviving Victims, Inc., 
Concerns of Police Survivors, Inc., and Citizens for Law and Order, 
Inc., in Support of Rehearing, United States v. McVeigh, No. 96-1469 
(10th Cir. Feb. 17, 1997) (warning that decision will ``preclude anyone 
from exercising any rights afforded under the Victims' Bill of 
Rights'').
---------------------------------------------------------------------------
    In the meantime, the victims, supported by the Oklahoma Attorney 
General's Office, sought remedial legislation in Congress clearly 
stating that victims should not have to decide between testifying at 
sentencing and watching the trial. The Victims' Rights Clarification 
Act of 1997 was introduced to provide that watching a trial does not 
constitute grounds for denying the chance to provide an impact 
statement. Representative McCollum, a sponsor of the legislation, 
observed the painful choice that the district court's ruling was 
forcing on the victims:

          As one of the Oklahoma City survivors put it, a man who lost 
        one eye in the explosion, ``It's not going to affect our 
        testimony at all. I have a hole in my head that's covered with 
        titanium. I nearly lost my hand. I think about it every minute 
        of the day.'' That man, incidentally, is choosing to watch the 
        trial and to forfeit his right to make a victim impact 
        statement. Victims should not have to make that choice.\202\
---------------------------------------------------------------------------
    \202\ 142 Cong. Rec. H1050 (daily ed. Mar. 18, 1997) (statement of 
Rep. McCollum).

The 1997 measure passed the House by a vote of 414 to 13.\203\ The next 
day, the Senate passed the measure by unanimous consent.\204\ The 
following day, President Clinton signed the Act into law,\205\ 
explaining that ``when someone is a victim, he or she should be at the 
center of the criminal justice process, not on the outside looking 
in.'' \206\
---------------------------------------------------------------------------
    \203\ Id. at H1068 (daily ed. Mar. 19, 1997).
    \204\ Id. at S2509 (daily ed. Mar. 19, 1997).
    \205\ Pub. L. 105-6, codified as 18 U.S.C. Sec. 3510.
    \206\ Statement by the President, Mar. 20, 1997.
---------------------------------------------------------------------------
    The victims then promptly filed a motion with the district court 
asserting a right to attend under the new law.\207\ The victims 
explained that the new law invalidated the court's earlier 
sequestration order and sought a hearing on the issue.\208\ Rather than 
squarely uphold the new law, however, the district court entered a new 
order on victim-impact witness sequestration.\209\ The court concluded 
``any motions raising constitutional questions about this legislation 
would be premature and would present issues that are not now ripe for 
decision.'' \210\ Moreover, the court held that it could address issues 
of possible prejudicial impact from attending the trial by conduct a 
voir dire of the witnesses after the trial.\211\ The district court 
also refused to grant the victims a hearing on the application of the 
new law, concluding that its ruling rendered their request ``moot.'' 
\212\
---------------------------------------------------------------------------
    \207\ Memorandum of Marsha Kight et al. on the Victims Rights 
Clarification Act of 1997, United States v. McVeigh, No. 96-CR-68-M (D. 
Colo. Mar. 21, 1997).
    \208\ Motion of Marsha Kight et al. for Hearing, United States v. 
McVeigh, No. 96-CR-68-M (D. Colo. Mar. 21, 1997).
    \209\ Order Amending Order Under Rule 615, United States v. 
McVeigh, No. 96-CR-68-M (D. Colo. Mar. 25, 1997).
    \210\ Id.
    \211\ Id. at 4-5.
    \212\ Order Declaring Motion Moot, United States v. McVeigh, No. 
96-CR-68-M (D. Colo. Mar. 25, 1997).
---------------------------------------------------------------------------
    After that ruling, the Oklahoma City victim impact witnesses --once 
again--had to make a painful decision about what to do. Some of the 
victim impact witnesses decided not to observe the trial because of 
ambiguities and uncertainties in the court's ruling, raising the 
possibility of exclusion of testimony from victims who attended the 
trial.\213\ The Department of Justice also met with many of the impact 
witnesses, advising them of these substantial uncertainties in the law, 
and noting that any observation of the trial would create the 
possibility of exclusion of impact testimony.\214\ To end this 
confusion, the victims filed a motion for clarification of the judge's 
order.\215\ The motion noted that ``[b]ecause of the uncertainty 
remaining under the Court's order, a number of the victims have been 
forced to give up their right to observe defendant McVeigh's trial. 
This chilling effect has thus rendered the Victims Rights Clarification 
Act of 1997 * * * for practical purposes a nullity.'' \216\ 
Unfortunately, the effort to obtain clarification did not succeed, and 
McVeigh's trial proceeded without further guidance for the victims.
---------------------------------------------------------------------------
    \213\ See 1997 Sen. Judiciary Comm. Hearing, supra note 14 
(statement of Paul Cassell); id. (statement of Marsha Kight).
    \214\ See 1997 Sen. Judiciary Comm. Hearing, supra note 14 
(statement of Paul Cassell).
    \215\ Request of the Victims of the Oklahoma City Bombing and the 
National Organization for Victim Assistance for Clarification of the 
Order Amending the Order Under Rule 615, United States v. McVeigh, No. 
96-CR-68-M (Apr. 4, 1997).
    \216\ Id. at 2.
---------------------------------------------------------------------------
    After McVeigh was convicted, the victims filed a motion to be heard 
on issues pertaining to the new law.\217\ Nonetheless, the court 
refused to allow the victims to be represented by counsel during 
argument on the law or during voir dire about the possible prejudicial 
impact of viewing the trial.\218\ The court, however, concluded (as the 
victims had suggested all along) that no victim was in fact prejudiced 
as a result of watching the trial.\219\
---------------------------------------------------------------------------
    \217\ Motion of the Victims of the Oklahoma City Bombing to 
Reassert the Motion for a Hearing on the Application of the Victim 
Rights Clarification Act of 1997, United States v. McVeigh, No. 96-CR-M 
(June 2, 1997).
    \218\ See Hearing on Victims Rights Clarification Act, U.S. v. 
McVeigh, available in 1997 WL 290019, at *7 (concluding that statute 
does not ``creates standing for the persons who are identified as being 
represented by counsel in filing that brief'').
    \219\ See, e.g., Examination of Diane Leonard, U.S. v. McVeigh, 
June 4, 1997, available in 1997 WL 292341.
---------------------------------------------------------------------------
    This recounting of the details of the Oklahoma City bombing 
litigation leaves no doubt about the difficulties that victims face 
with mere statutory protection of their rights. For a number of the 
victims, the rights afforded in the Victims Rights Clarification Act of 
1997 and the earlier Victims Bill of Rights were not protected. They 
did not observe the trial of defendant Timothy McVeigh because of 
lingering doubts about the constitutional status of these statutes.
    Not only were these victims denied their right to observe the 
trial, but perhaps equally troubling is that the fact that they were 
never able to speak even a single word in court, through counsel, on 
this issue. This denial occurred in spite of legislative history 
specifically approving of victim participation. In passing the Victims 
Rights Clarification Act, the House Judiciary Committee stated that it 
``assumes that both the Department of Justice and victims will be heard 
on the issue of a victim's exclusion, should a question of their 
exclusion arise under this section.'' \220\ In the Senate, the primary 
sponsor of the bill similarly stated: ``In disputed cases, the courts 
will hear from the Department of Justice, counsel for the affected 
victims, and counsel for the accused.'' Yet the victims were never 
heard.
---------------------------------------------------------------------------
    \220\ H.R. Rep. 105-28 at 10 (Mar. 17, 1997) (emphasis added). 
Supporting this statement was the fact that, while the Victims Bill of 
Rights apparently barred some civil suits by victims, 42 U.S.C. 
Sec. 10606(c), the new law contained no such provision. This was no 
accident. As the Report of the House Judiciary Committee pointedly 
explained, ``The Committee points out that it has not included language 
in this statute that bars a cause of action by the victim, as it has 
done in other statutes affecting victims' rights.'' H.R. Rep. 105-28 at 
10 (Mar. 17, 1997).
---------------------------------------------------------------------------
    Some might claim that this treatment of the Oklahoma City bombing 
victims should be written off as atypical. However, there is every 
reason to believe that the victims here were far more effective in 
attempting to vindicate their rights than victims in less notorious 
cases. The Oklahoma City bombing victims were mistreated while the 
media spotlight has been on, when the nation was watching. The 
treatment of victims in forgotten courtrooms and trials is certainly no 
better, and in all likelihood much worse. Moreover, the Oklahoma City 
bombing victims had six lawyers working to press their claims in 
court--a law professor familiar with victims rights, four lawyers at a 
prominent Washington, D.C. law firm, and a local counsel in Colorado--
as well as an experienced and skilled group of lawyers from the 
Department of Justice. In the normal case, it often will be impossible 
for victims to locate a lawyer willing to pursue complex and unsettled 
issues about their rights without compensation. One must remember that 
crime most often strikes the poor and others in a poor position to 
retain counsel.\221\ Finally, litigating claims concerning exclusion 
from the courtroom or other victims rights promises to be quite 
difficult. For example, a victim may not learn that she will be 
excluded until the day the trial starts. Filing timely appellate 
actions in such circumstances promises to be practically impossible. It 
should therefore come as little surprise that this litigation was the 
first in which victims sought federal appellate court review of their 
rights under the Victims Bill of Rights, even though that statute was 
passed in 1990.
---------------------------------------------------------------------------
    \221\ U.S. Dept. of Justice, Office of Justice Programs, Bureau of 
Justice Statistics, Violent Crime in the United States 8 (March 1991). 
Cf. Lynn Henderson, Co-Opting Compassion: The Federal Victim's Rights 
Amendment, 10 St. Thomas L. Rev. 579 (1998) (noting many crime victims 
come from disempowered groups).
---------------------------------------------------------------------------
    The undeniable, and unfortunate, result of that litigation has been 
to establish--as the only reported federal appellate ruling--a 
precedent that will make effective enforcement of the federal victims 
rights statutes quite difficult. It is now the law of the Tenth Circuit 
that victims lack ``standing'' to be heard on issues surrounding the 
Victims' Bill of Rights and, for good measure, that the Department of 
Justice may not take an appeal for the victims under either of those 
statutes. For all practical purposes, the treatment of crime victims' 
rights in federal court in Utah, Colorado, Kansas, New Mexico, 
Oklahoma, and Wyoming has been remitted to the unreviewable discretion 
of individual federal district court judges. The fate of the Oklahoma 
City victims does not inspire confidence that all victims rights will 
be fully enforced in the future. Even in other circuits, the Tenth 
Circuit ruling, while not controlling, may be treated as having 
persuasive value. If so, the Victims Bill of Rights will effectively 
become a dead letter.
    The Oklahoma City bombing victims would never have suffered these 
indignities if the Victims Rights Amendment had been the law of the 
land. First, the victims would never have been subject to 
sequestration. The Amendment guarantees all victims the constitutional 
right ``not to be excluded from all public proceedings relating to the 
crime.'' \222\ This would have prevented the sequestration order from 
being entered in the first place. Moreover, the Amendment affords 
victims the right ``[t]o be heard, if present, at a public * * * trial 
proceeding to determine a * * * sentence. * * *'' \223\ This provision 
would have protected the victims' right to provide impact testimony. 
Finally, the Amendment provides that ``the victim shall have standing 
to assert the rights established by this article,'' \224\ a protection 
guaranteeing the victims, through counsel, the opportunity to be heard 
to protect those rights.
---------------------------------------------------------------------------
    \222\ S.J. Res. No. 3, Sec. 1, 106th Cong., 1st Sess. (1999).
    \223\ Id.
    \224\ Id., Sec. 2.
---------------------------------------------------------------------------
    Critics of the Victims' Rights Amendment have cited the Oklahoma 
City remedial legislation as an example of the ``capability of victims 
to secure their interests through popular political action'' \225\ and 
``a paradigmatic example of how statutes, when properly crafted, can 
and do work.'' \226\ This sentiment is wide of the mark. To the 
contrary, the Oklahoma City case provides a compelling illustration of 
why a constitutional amendment is ``necessary'' to fully protect 
victims rights in this country.
---------------------------------------------------------------------------
    \225\ Mosteller, Unnecessary Amendment, supra note 18.
    \226\ S. Rep. 105-409 at 56 (minority view of Sens. Leahy, Kennedy, 
and Kohl).
---------------------------------------------------------------------------

                       III. Structural Challenges

    A final category of objections to the Victims' Rights Amendment can 
be styled as ``structural'' objections. These objections concede both 
the normative claim that victims' rights are desirable and the factual 
claim that such rights are not effectively provided today. These 
objections maintain, however, that a federal constitutional amendment 
should not be the agency through which victims' rights are afforded. 
These objections come in three primary forms. The standard form is that 
victims' rights simply do not belong in the Constitution as they are 
different from other rights found there. A variant on this critique is 
that any attempt to constitutionalize victims' rights will lead to 
inflexibility, producing disastrous, unintended consequences. A final 
form of the structural challenge is that the Amendment violates 
principles of federalism. Each of these arguments, however, lacks 
merit.
    a. claim that victims' rights do not belong in the constitution
    Perhaps the most basic challenge to the Victims' Rights Amendment 
is that victims' rights simply do not belong in the Constitution. The 
most fervent exponent of this view may be constitutional scholar Bruce 
Fein, who has testified before Congress that the Amendment is improper 
because it does not address ``the political architecture of the 
nation.'' \227\ Putting victims' rights into the Constitution, the 
argument runs, is akin to constitutionalizing provisions of the 
National Labor Relations Act or other statutes, and thus would 
``trivialize'' the Constitution.\228\ Indeed, the argument concludes, 
to do so would ``detract from the sacredness of the covenant.'' \229\
---------------------------------------------------------------------------
    \227\ Proposals to Provide Rights to Victims of Crime: Hearings 
Before the House Judiciary Comm., 105th Cong., 1st Sess. 96 (1997).
    \228\ See 1996 Sen. Judiciary Comm. Hearings, supra note 16, at 101 
(statement of Bruce Fein).
    \229\ Id. at 100. For similar views, see, e.g., Cluttering the 
Constitution, N.Y. Times, July 15, 1996; Stephen Chapman, 
Constitutional Clutter: The Wrongs of the Victims' Rights Amendment, 
Chi. Trib., Apr. 20, 1997.
---------------------------------------------------------------------------
    This argument misconceives the fundamental thrust of the Victims' 
Rights Amendment, which is to guarantee victim participation in basic 
governmental processes. The Amendment extends to victims the right to 
be notified of court hearings, to attend those hearings, and to 
participate in them in appropriate ways. As Professor Tribe and I have 
elsewhere explained:

          These are rights not to be victimized again through the 
        process by which government officials prosecute, punish, and 
        release accused or convicted offenders. These are the very 
        kinds of rights with which our Constitution is typically and 
        properly concerned--rights of individuals to participate in all 
        those government processes that strongly affect their 
        lives.\230\
---------------------------------------------------------------------------
    \230\ Tribe & Cassell, supra note 25, at B7.

    Indeed, our Constitution has been amended a number of times to 
protect participatory rights of citizens. For example, the Fourteenth 
Amendment and Fifteenth Amendment was added, in part, to guarantee that 
the newly-freed slaves could participate on equal terms in the judicial 
and electoral processes, while the Nineteenth Amendment and Twenty-
Sixth Amendments were added to protect the voting rights of women and 
eighteen-year-olds.\231\ The Victims Rights Amendment continues in that 
venerable tradition by recognizing that citizens have the right to 
appropriate participation in the state procedures for punishing crime.
---------------------------------------------------------------------------
    \231\ U.S. Const. amends. XIV, XV, XIX, XXVI.
---------------------------------------------------------------------------
    Confirmation of the constitutional worthiness of victims' rights 
comes from the judicial treatment of an analogous right: the claim of 
the media to a constitutionally protected interest in attending trials. 
In Richmond Newspapers v. Virginia,\232\ the Court agreed that the 
First Amendment guaranteed the right of the public and the press to 
attend criminal trials. Since that decision, few have argued that the 
media's right to attend trials is somehow unworthy of constitutional 
protection, suggesting a national consensus that attendance rights to 
criminal trials are properly the subject of constitutional law. Yet the 
current doctrine produces what must be regarded as a stunning disparity 
in the way courts handle claims of access to court proceedings. 
Consider, for example, two issues actually litigated in the Oklahoma 
City bombing case. The first was the request of an Oklahoma City 
television station for access to subpoenas for documents issued through 
the court. The second was the request of various family members of the 
murdered victims to attend the trial, discussed previously.\233\ My 
sense is that the victims' request should be entitled to at least as 
much respect as the media request. Yet under the law that exists today, 
the television station has a First Amendment interest in access to the 
documents, while the victims' families have no First Amendment interest 
in challenging their exclusion from the trial.\234\ The point here is 
not to argue that victims deserve greater constitutional protection 
than the press, but simply that if press interests can be read into the 
Constitution without somehow violating the ``sacredness of the 
covenant,'' the same can be done for victims.\235\
---------------------------------------------------------------------------
    \232\ 448 U.S. 555 (1980).
    \233\ See notes 182-226 supra and accompanying text.
    \234\ Compare United States v. McVeigh, 918 F. Supp. 1452, 1465-66 
(W.D. Okl. 1996) (recognizing press interest in access to documents) 
with United States v. McVeigh, 106 F.3d 325, 335-36 (10th Cir. 1997) 
(victims do not have standing to raise First Amendment challenge to 
order excluding them from trial); see also United States v. McVeigh, 
119 F.3d 806 (10th Cir. 1997) (recognizing First Amendment interest of 
the press in access to documents, but finding sufficient findings made 
to justify sealing order).
    \235\ In this way, the Victims' Amendment expands First Amendment 
liberties, not detracts from them. But cf. Henderson, supra note 51 
(suggesting that victims' rights arguably could affect First Amendment 
liberties, but conceding that ``no one has argued for a balancing of 
victims' rights against the rights of the press. * * *'').
---------------------------------------------------------------------------
    Professor Henderson has advanced a variant on the victims'-rights-
don't-belong-in-the-Constitution argument with her claim that ``a 
theoretical constitutional ground for victim's rights has yet to be 
developed.'' \236\ Law professors, myself included, enjoy dwelling on 
theory at the expense of real world issues; but even on this plane the 
objection lacks merit. Henderson seems to concede, if I read her 
correctly, that new constitutional rights can be justified on grounds 
they support individual dignity and autonomy.\237\ In her view, then, 
the question becomes one of discovering which policies society should 
support as properly reflecting individual dignity and autonomy. On this 
score, there is little doubt that society currently believes that a 
victim's right to participate in the criminal process is a fundamental 
one deserving protection. As Professor Beloof has explained at length 
in his piece here, ``Love it or loath it, the law now acknowledges the 
importance of victim participation in the criminal process.'' \238\
---------------------------------------------------------------------------
    \236\ Id.
    \237\ See id.
    \238\ Beloof, supra note 89; see also id. at Appdendix A 
(collecting numerous examples from around the country). See generally 
Beloof, supra note 124 (legal case book replete with examples of 
victims' rights in the process).
---------------------------------------------------------------------------
    A further variant on the unworthiness objection is that our 
Constitution protects only ``negative'' rights against governmental 
abuse. Professor Henderson writes, for example, that the Amendment's 
rights differs from others in the Constitution, which ``tend to be 
rights against government.'' \239\ Setting aside the possible response 
that the Constitution ought to recognize affirmative duties of 
government,\240\ the fact remains that the Amendment's thrust is to 
check governmental power, not expand it.\241\ Again, the Oklahoma City 
case serves as a useful illustration. When the victims filed a 
challenge to a sequestration order directed at them, they sought the 
liberty to attend court hearings. In other words, they were challenging 
the exercise of government power deployed against them, a conventional 
subject for constitutional protection. The other rights in the 
Amendment fit this pattern, as they restrain government actors, not 
extract benefits for victims. Thus, the state must give notice before 
it proceeds with a criminal trial; the state must respect a victim 
right to attend that trial; and the state must consider the interests 
of victims at sentencing and other proceedings. These are the standard 
fare of constitutional protections, and indeed defendants already 
possess comparable constitutional rights. Thus, extending these rights 
to victims is no novel creation of affirmative government 
entitlements.\242\
---------------------------------------------------------------------------
    \239\ Henderson, supra note 51 (emphasis in original; see also 1996 
House Judiciary Comm. Hearings, supra note 6 (statement of Roger Pilon 
(Amendment has the ``feel'' of listing ``rights not as liberties that 
government must respect as it goes about its assigned functions but as 
`entitlements that the government must affirmatively provide''); The 
Nation, Feb. 10, 1997, at 16 (Amendment ``[u]pends the historic purpose 
of the Bill of Rights'').
    \240\ See Susan Bandes, The Negative Constitution: A Critique, 88 
Mich. L. Rev. 2271 (1971).
    \241\ See Beloof, supra note 89.
    \242\ Perhaps some might quibble with this characterization as 
applied to a victims' right to an order of restitution, contending that 
this is a right solely directed against deprivations perpetrated by 
private citizens. However, the right to restitution is also a right 
against government, as it is a right to ``an order of restitution,'' an 
order that can only be provided by the courts. In any event, even if 
the restitution right is somehow regarded as implicating private 
action, it should be noted that the Constitution already addresses 
private conduct. The Thirteenth Amendment forbids ``involuntary 
servitude,'' U.S. Const. amend. XIII, a provision that encompasses 
private violation of rights. See, e.g., United States v. Kozminski, 487 
U.S. 931 (1988). See generally Henderson, supra note 51 (noting ``good 
arguments'' that the Thirteenth Amendment ``applies to individuals''); 
Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth 
Amendment Response to Deshaney, 105 Harv. L. Rev. 1359 (1992) 
(discussing contours of Thirteenth Amendment).
    Similarly, some might argue that the Constitution does not 
generally require that the government give citizens notice of their 
rights. Whatever the merits of this claim as a general matter, it has 
little application to the criminal justice system. To cite but one 
example, the Sixth Amendment right to counsel, requires notice to 
criminal defendants, indeed express notice. See Faretta v. California, 
422 U.S. 806, 835-36 (1975). Along the same lines it would be unheard 
of to schedule a trial without providing notice to a criminal 
defendant. Thus notice to victims simply follows in these well trodden 
paths.
---------------------------------------------------------------------------
    Still another form of this claim is that victims' rights need not 
be protected in the Constitution because victims possess power in the 
political process--unlike, for example, unpopular criminal 
defendants.\243\ This claim is factually unconvincing because victims' 
power is easy to overrate. Victims' claims inevitably bump up against 
well entrenched interests within the criminal justice system,\244\ and 
to date the victims' movement has failed to achieve many of its 
ambitions. Victims have not, for example, generally obtained the right 
to sue the government for damages for violations of their rights, a 
right often available to criminal defendants and other ostensibly less 
powerful groups. Additionally, the political power claim is 
theoretically unsatisfying as a basis for denying constitutional 
protection. After all, freedom of speech, freedom of religion, and 
similar freedoms hardly want for lack of popular support, yet they are 
appropriately protected by constitutional amendments. A standard 
justification for these constitutionally guaranteed freedoms is that we 
should make it difficult for society to abridge such rights, to avoid 
the temptation to violate them in times of stress or for unpopular 
claimants.\245\ Victims' rights fit perfectly within this rationale. 
Institutional players in the criminal justice system are subject to 
readily understandable temptations to give short shrift to victims' 
rights. And their willingness to protect the rights of unpopular crime 
victims is sure to be tested no less than society's willingness to 
protect the free speech rights of unpopular speakers.\246\ Indeed, 
evidence exists that the biggest problem today in enforcing victims' 
rights is inequality, as racial minorities and other less empowered 
victims are more frequently denied their rights.\247\
---------------------------------------------------------------------------
    \243\ See, e.g, Henderson, supra note 51; Mosteller, supra note 18; 
1996 Senate Judiciary Comm. Hearings, supra note 16 (statement of Bruce 
Fein).
    \244\ See Andrew J. Karmen, Who's Against Victims' Rights? The 
Nature of the Opposition to Pro-Victim Initiatives in Criminal Justice, 
8 St. John's J. of Legal Commentary 157, 162-69 (1992).
    \245\ See Abrams v. United States, 250 U.S. 616, 629 (1919) 
(Holmes, J., dissenting); see also Vincent Blasi, The Pathological 
Perspective and the First Amendment, 85 Colum. L. Rev. 449 (1985).
    \246\ See Karmen, supra note 244 (explaining why criminal justice 
professionals are particularly unlikely to honor victims' rights for 
marginalized groups).
    \247\ National Victim Center, Statutory and Constitutional 
Protection of Victims' Rights: Implementation and Impact on Crime 
Victims--Sub-Report: Comparison of White and Non-White Crime Victim 
Responses Regarding Victims' Rights 5 (June 5, 1997).
---------------------------------------------------------------------------
    A final worthiness objection is the claim that victims' rights 
``trivialize'' the Constitution,\248\ by addressing such a mundane 
subject. It is hard for anyone familiar with the plight of crime 
victims to respond calmly to this claim. Victims of crime literally 
have died because of the failure of the criminal justice system to 
extend to them the rights protected by the Amendment. Consider, for 
example, the victims' right to be notified upon a prisoner's release. 
The Department of Justice recently explained that ``[a]round the 
country, there are a large number of documented cases of women and 
children being killed by defendants and convicted offenders recently 
released from jail or prison. In many of these cases, the victims were 
unable to take precautions to save their lives because they had not 
been notified.''\249\ The tragic unnecessary deaths of those victims 
is, to say the least, no trivial concern.
---------------------------------------------------------------------------
    \248\ 1996 Senate Judiciary Comm. Hearings, supra note 16, at 101 
(statement of Bruce Fein).
    \249\ U.S. Dep't of Justice, Office for Victims of Crime, New 
Directions from the Field: Victims' Rights and Services for the 21st 
Century 14 (1998); see Jeffrey A. Cross, Note, The Repeated Sufferings 
of Domestic Violence Victims Not Notified of Their Assailant's Pre-
Trial Release from Custody: A Call for Mandatory Domestic Violence 
Victim Notification Legislation, 34 J. Family L. 915 (1996).
---------------------------------------------------------------------------
    Other rights protected by the Amendment are similarly 
consequential. Attending a trial, for example, can be a crucial event 
in the life of the victim. The victim's presence can not only 
facilitate healing of debilitating psychological wounds,\250\ but also 
help the victim try to obtain answers to haunting questions. As one 
woman who lost her husband in the Oklahoma City bombing explained, 
``When I saw my husband's body, I began a quest for information as to 
exactly what happened. The culmination of that quest, I hope and pray, 
will be hearing the evidence at a trial.'' \251\ On the other hand, 
excluding victims from trials--while defendants and their families may 
remain--can itself revictimize victims, creating serious additional or 
``secondary'' harm from the criminal process itself.\252\ In short, the 
claim that the Victims Rights Amendment trivializes the Constitution is 
itself a trivial contention.
---------------------------------------------------------------------------
    \250\ See supra notes 89-95 and accompanying text.
    \251\ 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 110 
(statement of Paul Cassell) (quoting victim).
    \252\ See supra notes 90-92 and accompanying text.
---------------------------------------------------------------------------
           b. the problem of inflexible constitutionalization
    Another argument raised against the Victims' Rights Amendment is 
that victims' rights should receive protection through flexible 
statutes, not an inflexible constitutional amendment. If victims' 
rights are placed in the Constitution, the argument runs, it will be 
impossible to correct any problems that might arise. The Judicial 
Conference explication of the argument for statutory protection is 
typical: ``Of critical importance, such an approach is significantly 
more flexible. It would more easily accommodate a measured approach, 
and allow for `fine tuning' if deemed necessary or desirable by 
Congress after the various concepts in the Act are applied in actual 
cases across the country.'' \253\
---------------------------------------------------------------------------
    \253\ Letter from George P. Kazen, Chief U.S. District Judge, 
Chair, Comm. on Criminal Law of the Judicial Conference of the United 
States. to Sen. Edward M. Kennedy, Senate Comm. on the Judiciary, at 2 
(Apr. 17, 1997), quoted in S. Rep. No. 105-409 at 53.
---------------------------------------------------------------------------
    This argument contains a kernel of truth because its premise--the 
Constitution is less flexible than a statute--is undeniably correct. 
This premise is, however, the starting point for the victims' position 
as well. Victims' rights all too often have been ``fine tuned'' out of 
existence. As even the Amendment's critics agree, statutes are ``far 
easier to ignore,'' \254\ and for this very reason victims seek to have 
their rights protected in the Constitution. To carry any force, the 
argument must establish that the greater respect victims will receive 
from constitutionalization of their rights is outweighed by the 
unintended, undesirable, and uncorrectable consequences of lodging 
rights in the Constitution.
---------------------------------------------------------------------------
    \254\ 1996 House Judiciary Comm. Hearings, supra note 15, at 147.
---------------------------------------------------------------------------
    Such a claim is untenable. To begin with, the Victims' Rights 
Amendment spells out in considerable detail the rights it extends. 
While this wordiness has exposed the Amendment to the charge of 
``cluttering the Constitution'' \255\ the fact is that the room for 
surprises is substantially less than with other previously adopted, 
more open-ended amendments. On top of the Amendment's precision, its 
sponsors further have explained in great detail their intended 
interpretation of the Amendment's provisions.\256\ In response, the 
dissenting senators were forced to argue not that these explanations 
were imprecise or unworkable, but that courts simply would ignore them 
in interpreting the Amendment \257\ and, presumably, go on to impose 
some contrary and damaging meaning. This prediction that courts would 
leap over these explanations seems unpersuasive because courts 
routinely look to the intentions of drafters, in interpreting 
constitutional language no less than other enactments.\258\ Moreover, 
the assumption that courts will interpret the Amendment to produce 
great mischief requires justification. One can envision, for instance, 
precisely the same arguments about needing flexibility being leveled 
against a defendant's right to a trial by jury.\259\ What about petty 
offenses? \260\ What about juvenile proceedings? \261\ How many jurors 
will be required? \262\ All these questions have, as indicated in the 
footnotes, been resolved by court decision without disaster to the 
Union. There is every reason to expect that the Victims' Rights 
Amendment will be similarly interpreted in a sensible fashion. Just as 
courts have not read the seemingly unqualified language of the First 
Amendment as creating a right to yell ``Fire!'' in a crowded 
theater,\263\ they will not construe the Victims Rights Amendment as 
requiring bizarre results.\264\
---------------------------------------------------------------------------
    \255\ See Cluttering the Constitution, NY Times, July 15, 1996, at 
A12.
    \256\ See S. Rep. No. 105-409 at 22-37.
    \257\ See S. Rep. 105-409 at 50-51 (dissenting views of Sen. Leahy, 
Kennedy, and Kohl).
    \258\ See, e.g., U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779, 
790 (1995).
    \259\ U.S. Const. amend. VI (``the accused shall enjoy the right to 
a * * * trial[] by an impartial jury'').
    \260\ See Baldwin v. New York, 399 U.S. 66 (1970).
    \261\ See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
    \262\ See Thompson v. Utah, 170 U.S. 343 (1898).
    \263\ Holmes.
    \264\ Critics of the Amendment have been forced to use improbable 
examples to suggest that the Amendment will create unintended 
difficulties. See 1997 Sen. Judiciary Comm. Hearings, supra note 14 
(statement of Paul Cassell). It is interesting on this score to note 
that the law professors opposed to the Amendment were unable to cite 
any real world examples of language in the many state victims rights 
amendments that has produced serious unintended consequences. See 1997 
Letter from Law Professors, in 1997 Sen. Jud. Comm. Hearings, supra; 
1996 Letter from Law Professors, in 1996 House Jud. Comm Hearings, 
supra note 15.
---------------------------------------------------------------------------
    In any event, the claim of unintended consequences amounts to an 
argument about language--specifically, that the language is 
insufficiently malleable to avoid disaster. An argument about 
inflexible language can be answered with language providing elasticity. 
The Victims' Rights Amendment has a provision addressed to precisely 
this point. The Amendment provides that ``[e]xceptions to the rights 
established by this article'' may be created ``when necessary to 
achieve a compelling interest.'' \265\ Any parade of horribles 
collapses under this provision. A serious unintended consequence under 
the language of the Amendment is, by definition, a compelling reason 
for creating an exception. Curiously, those who argue that the 
Amendment is not sufficiently flexible to avoid calamity have yet to 
explain why the exceptions clause fails to guarantee all the 
malleability that is needed.
---------------------------------------------------------------------------
    \265\ S.J. Res. 44, Sec. 3.
---------------------------------------------------------------------------
                        c. federalism objections
    A final structural challenge to the Victims Rights Amendment is the 
claim that it violates principles of federalism by mandating rights 
across the country. For example, a 1997 letter from various law 
professors objected that ``amending the Constitution in this way 
changes basic principles that have been followed throughout American 
history. * * * The ability of states to decide for themselves is denied 
by this Amendment.'' \266\ Similarly, the American Civil Liberties 
Union warned that the Amendment ``constitutes [a] significant intrusion 
of federal authority into a province traditionally left to state and 
local authorities.'' \267\
---------------------------------------------------------------------------
    \266\ 1997 Law Profs Letter, reprinted in 1997 Sen. Judiciary Comm. 
Hearings, supra note 14, at 140, 141; see also Mosteller, Recasting the 
Battle, supra note 18.
    \267\ 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 159.
---------------------------------------------------------------------------
    The inconsistency of many of these newfound friends of federalism 
is almost breathtaking. Where were these law professors and the ACLU 
when the Supreme Court federalized a whole host of criminal justice 
issues ranging from the right to counsel, to Miranda, to death penalty 
procedures, to search and seizure rules, among many others? The answer, 
no doubt, is that they generally applauded nationalization of these 
criminal justice standards despite the adverse effect on the ability of 
states ``to decide for themselves.'' Perhaps the law professors and the 
ACLU have had some epiphany and mean to now launch an attack on the 
federalization of our criminal justice system and to try and return 
power to the states. Certainly quite plausible arguments could be 
advanced in support of trimming the reach of some federal 
provisions.\268\ But whatever the law professors and the ACLU may 
think, it is unlikely that we will ever retreat from our national 
commitment to afford criminal defendants basic rights like the right to 
counsel. Victims are not asking for any retreat, but for an extension--
for a national commitment to provide basic rights in the process to 
criminal defendants and to their victims. This parallel treatment works 
no new damage to federalist principles.\269\
---------------------------------------------------------------------------
    \268\ See, e.g., Donald A. Dripps, Foreword: Against Police 
Interrogation--And the Privilege Against Self-Incrimination, 78 J. 
Crim. L. & Criminology 699 (1988); Barry Latzer, Toward the 
Decentralization of Criminal Procedure: State Constitutional Law and 
Selective Disincorporation, 87 J. Crim. L. & Criminology 63 (1996).
    \269\ If federalism were an important concern of the law 
professors, one would also expect to seem them supporting language in 
the Amendment guaranteeing flexibility for the states. Yet the 
professors found fault with language in any earlier version of the 
Amendment that gave both Congress and the states the power to 
``enforce'' the Amendment, apparently encouraging the deletion of this 
language. See 1997 Law Profs Letter in 1997 Sen. Judiciary Comm. 
Hearings, supra note 14, at 141.
---------------------------------------------------------------------------
    Precisely because of the constitutionalization and nationalization 
of criminal procedure, victims now find themselves needing 
constitutional protection. In an earlier era, it may have been possible 
for judges to informally accommodate victims' interests on an ad hoc 
basis. But coin of the criminal justice realm has now become 
constitutional rights. Without those rights, victims have not been 
taken seriously in the system. Thus, it is not a victims' rights 
amendment that poses a danger to state power, but the lack of an 
amendment. Without an amendment, states cannot give full effect to 
their policy decision to protect the rights of victims. Only elevating 
these rights to the federal Constitution will solve this problem. This 
is why the National Govenor's Association--a long-standing friend of 
federalism--has strongly endorsed the Amendment: ``The rights of 
victims have always received secondary consideration within the U.S. 
judicial process, even though States and the American people by a wide 
plurality consider victims' rights to be fundamental. Protection of 
these basic rights is essential and can only come from a fundamental 
change in our basic law: the U.S. Constitution.'' \270\
---------------------------------------------------------------------------
    \270\ National Govenors Association, Policy 23.1 (effective winter 
1997 to winter 1999).
---------------------------------------------------------------------------
    While the Victims' Rights Amendment will extend basic rights to 
crime victims across the country, it leaves considerable room to the 
states to determine how to accord those rights within the structures of 
their own systems. For starters, the Amendment extends rights to a 
``victim of a crime of violence, as these terms may be defined by law. 
* * *'' \271\ The ``law'' that will define these crucial terms will 
come from the states. Indeed, states retain a bedrock of control over 
all victims rights provisions--without a state statute defining a 
crime, there can be no ``victim'' for the criminal justice system to 
consider.\272\ The Amendment also is written in terms that will give 
the states considerable latitude to accommodate legitimate local 
interests. For example, the Amendment only requires the states to 
provide ``reasonable'' notice to victims, avoiding the inflexible 
alternative of mandatory notice (which, by the way, is required for 
criminal defendants \273\).
---------------------------------------------------------------------------
    \271\ S.J. Res. 3, Sec. 1 (1999) (emphasis added).
    \272\ See Beloof, supra note 124, at 41-43.
    \273\ See United States v. Reiter, 897 F.2d 639, 642-44 (2d Cir.), 
cert. denied, 498 U.S. 817 (1990).
---------------------------------------------------------------------------
    In short, federalism provides no serious objection to the 
Amendment. Any lingering doubt on the point disappears in light of the 
Constitution's prescribed process for amendment, which guarantees ample 
involvement by the states. The Victims' Rights Amendment will not take 
effect unless a full three-quarters of the states, acting through their 
state legislatures, ratify the Amendment within seven years of its 
approval by Congress.\274\ It is critics of the Amendment who, by 
opposing congressional approval, deprive the states of their 
opportunity to consider the proposal.\275\
---------------------------------------------------------------------------
    \274\ U.S. Const. Amend. V; S.J. Res. 3 (1999), preamble; see also 
The Federalist No. 39.
    \275\ Cf. Mosteller, Unnecessary Amendment, supra note 18 (noting 
that ``unfunded mandates'' argument is ``arguably inapposite for a 
constitutional amendment that must be supported by three fourths of the 
states since the vast majority of state would have approved imposing 
the requirement on themselves''); Richard B. Bernstein, Amending 
America 220 (1993) (recalling defeat of the Equal Rights Amendment in 
the states and observing ``[t]he significant role of state governments 
as participants in the amending process is thriving'').
---------------------------------------------------------------------------

                               Conclusion

    This testimony has attempted to review thoroughly the various 
objections leveled against the Victims' Rights Amendment, finding them 
all wanting. While a few normative objections have been raised to the 
Amendment, the values undergirding it are widely shared in our country, 
reflecting a strong consensus that victims' rights should receive 
protection. Contrary to the claims that a constitutional amendment is 
somehow unnecessary, practical experience demonstrates that only 
federal constitutional protection will overcome the institutional 
resistance to recognizing victims' interests. And while some have 
argued that victims' rights do not belong in the Constitution, in fact 
the Victims' Rights Amendment addresses subjects that have long been 
considered entirely appropriate for constitutional treatment.
    Stepping back from these individual objections and viewing them as 
a whole reveals one puzzling feature emerges that is worth a few 
concluding observations. While some of the objections are carefully 
developed,\276\ many others are contradicted by either specific 
language in the Amendment or real world experience with the 
implementation of victims' rights programs. I hasten to add that others 
have observed this phenomenon of unsustainable arguments being raised 
against victims' rights. One careful scholar in the field of victim 
impact statements, Professor Edna Erez, comprehensively reviewed the 
relevant empirical literature and concluded that the actual experience 
with victim participatory rights ``suggests that allowing victims' 
input into sentencing decisions does not raise practical problems or 
serious challenges from the defense. Yet there is a persistent belief 
to the contrary, particularly among legal scholars and professionals.'' 
\277\ Erez attributed the differing views of the social scientists (who 
had actually collected data on the programs in action) and the legal 
scholars primarily to ``the socialization of the latter group in a 
legal culture and structure that do not recognize the victim as a 
legitimate party in criminal proceedings.'' \278\
---------------------------------------------------------------------------
    \276\ See especially the views of the dissenting Senators in this 
Committee's Report and Bandes, supra note 176; Mosteller, Unnecessary 
Amendment, supra note 18; Henderson, supra note 51.
    \277\ Erez, Victim Participation, supra note 69, at 28.
    \278\ Id. at 29; see also Erez, Perspectives of Legal 
Professionals, supra note 69, at [29] (noting similar barriers to 
implementing victims reforms in South Australia); Edna Erez & Kathy 
Laster, Neutralizing Victim Reform: Legal Professionals' Perspectives 
on Victims and Impact Statements, (unpublished manuscript on file with 
author Dec. 16, 1998).
---------------------------------------------------------------------------
    The objections against the Victims' Rights Amendment, often 
advanced by attorneys, provide support for Erez's hypothesis. Many of 
the complaints rest on little more than an appeal to retain a legal 
tradition that excludes victims from participating in the process, to 
in some sense leave it up to the ``professionals''--the judges, 
prosecutors, and defense attorneys--to do justice as they see fit. Such 
entreaties may sound attractive to members of the bar, who not only 
have vested interests in maintaining their monopolistic control over 
the criminal justice system but also have grown up without any exposure 
to crime victims or their problems. The ``legal culture'' that Erez 
accurately perceived is one that has not made room for crime victims. 
Law students learn to ``think like a lawyer'' in classes such as 
criminal law and criminal procedure, where victims' interests receive 
no discussion. In the first year in criminal law, students learn in 
excruciating detail to focus on the state of mind of a criminal 
defendant, through intriguing questions about mens rea and the 
like.\279\ In the second year, students may take a course on criminal 
procedure, where defendants' and prosecutors' interests under the 
constitutional doctrine governing search and seizure, confessions, and 
right to counsel are the standard fare. Here, too, victims are absent. 
The most popular criminal procedure casebook, for example, spans some 
1692 pages; \280\ yet victims' rights' appear directly only in two 
paragraphs, made necessary because in California a victims' rights 
initiatives affected a defendant's right to exclude evidence.\281\ 
Finally, in their third year, students may take a clinical course in 
the criminal justice process, where they may be assigned to assist 
prosecutors or defense attorneys in actual criminal cases. Not only are 
they never assigned to represent crime victims, but in courtrooms they 
will see victims frequently absent, or participating only through 
prosecutors or the judicial apparatus such as probation officers.
---------------------------------------------------------------------------
    \279\ For a good example of the standard criminal law curriculum, 
see Ronald N. Boyce & Rollin M. Perkins, Criminal Law and Procedure: 
Cases and Materials (7th ed. 1989).
    \280\ Yale Kamisar et al., Modern Criminal Procedure: Cases, 
Comments and Questions (8th ed. 1994).
    \281\ See id. at 60 (discussing Cal. Const., art. I, Sec. 28, the 
``truth-in-evidence'' provision).
---------------------------------------------------------------------------
    Given this socialization, it is no surprise to find that when those 
lawyers leave law school they become part of a legal culture 
unsympathetic, if not overtly hostile, to the interests of crime 
victims.\282\ The legal insiders view with great suspicion demands from 
the outsiders--the barbarians, if you will--to be admitted into the 
process. A prime illustration comes from Justice Stevens' concluding 
remarks in his dissenting opinion in Payne. He found it almost 
threatening that the Court's decision admitting victim impact 
statements would be ``greeted with enthusiasm by a large number of 
concerned and thoughtful citizens.'' \283\ For Justice Stevens, the 
Court's decision to structure this rule of law in a way consistent with 
public opinion was ``a sad day for a great institution.'' \284\ To be 
sure, the Court must not allow our rights to be swept away by popular 
enthusiasm. But when the question before the Court is the separate and 
ancillary one of whether to recognize rights for victims, one would 
think that public consensus on the legitimacy of those rights would be 
a virtue, not a vice. As Professor Gewirtz has thoughtfully concluded 
after reviewing this same passage, ``The place of public opinion cannot 
be dismissed so quickly, with `a sad day' proclaimed because a great 
public institution may have tried to retain the confidence of its 
public audience.'' \285\
---------------------------------------------------------------------------
    \282\ One hopeful sign of impending change is the publication of an 
excellent casebook addressing victims in criminal procedure. See 
Beloof, supra note 89.
    \283\ Payne, 501 U.S. at 867 (Stevens, J., dissenting).
    \284\ Id. at 867 (Stevens, J., dissenting).
    \285\ Gewirtz, supra note 76, at 893.
---------------------------------------------------------------------------
    Justice Stevens' views were, on that day at least,\286\ in the 
minority. But in countless other ways, his antipathy to recognizing 
crime victims prevails in the day-to-day workings of our criminal 
justice system. Fortunately, there is a way to change this hostility, 
to require the actors in the process to recognize the interests of 
victims of crime. As Thomas Jefferson once explained, ``Happily for us, 
* * * when we find our constitutions defective and insufficient to 
secure the happiness of our people, we can assemble with all the 
coolness of philosophers, and set them to rights, while every other 
nation on earth must have recourse to arms to amend or to restore their 
constitutions.'' \287\ Our nation, through its assembled 
representatives here in Congress and the state legislatures, should use 
the recognized amending power to secure a place for victims' rights in 
our Constitution. While conservatism is often a virtue, there comes a 
time when the case for reform has been made. Today the criminal justice 
system too often treats victims as second-class citizens, almost as 
barbarians at the gates that must be repelled at all costs. The widely-
shared view is that this treatment is wrong, that victims have 
legitimate concerns that can--indeed must--be fully respected for the 
system to be fair and just. The Victims' Rights Amendment is an 
indispensable step in that direction, extending protection for the 
rights of victims while doing no harm to the rights of defendants and 
of the public. The Amendment will not plunge the criminal justice 
system into the dark ages, but will instead herald a new age of 
enlightenment. It is time for the defenders of the old order to 
recognize these facts, to help swing open the gates, and welcome 
victims to their rightful place in our nation's criminal justice 
system. Congress should approve the carefully crafted current version 
of the Victims' Rights Amendment and send it on its way to the states 
for ratification. Our criminal justice system already provides ample 
rights for the accused and the guilty; it can--and should--do the same 
for the innocent.
---------------------------------------------------------------------------
    \286\ See, e.g., Booth v. Maryland, 482 U.S. 496 (1987) (rejecting 
victim impact statements); South Carolina v. Gathers, 490 U.S. 805 
(1989) (same).
    \287\ Thomas Jefferson, Letter to C.W.F. Dumas, Sept. 1787, in John 
P. Foley ed., The Jeffersonian Cyclopidia (1900).
---------------------------------------------------------------------------

                        Attachment A--Biography

    I am a Professor of Law at the University of Utah College of Law, 
where I teach victims rights and criminal procedure among other 
subjects. I have written and lectured on the subjects of crime victims 
rights. See, e.g., Paul G. Cassell, Balancing the Scales of Justice: 
The Case for and the Effects of Utah's Victims' Rights Amendment, 1994 
Utah L. Rev. 1373. I serve on the executive board of the National 
Victim Constitutional Amendment Network, an organization devoted to 
bringing constitutional protection to crime victims across the country.
    I am also a member of the Utah Council on Victims, the statewide 
organization in Utah responsible for monitoring the treatment of crime 
victims in the courts of our state. In 1994, I was chair of the 
Constitutional Amendment Subcommittee of the Council, where I helped to 
draft and obtain passage of the Utah Victims Rights Amendment. I have 
also represented crime victims in legal actions to enforce their 
rights, including several actions on behalf of the victims of the 
Oklahoma City bombing, as discussed in more detail in my testimony.
    By way of further background, from 1988 to 1991, I served as an 
Assistant United States Attorney in the Eastern District of Virginia, 
where I was responsible for prosecuting federal criminal cases and 
working with the victims in those cases. From 1986 to 1988, I served as 
an Associate Deputy Attorney General at the United States Department of 
Justice, handling various matters relating to criminal justice. I have 
also served as a law clerk to then-Judge Antonin Scalia and Chief 
Justice Warren E. Burger. I graduated from Stanford Law School in 1984, 
after serving as President of the Stanford Law Review.

    The Chairman. Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman, and I appreciate 
the courtesy. I had wanted to hold off until after Prof. 
Cassell had testified. When he was here last year--I think it 
was his third appearance before the committee--I had asked him 
whether he could identify any currently valid appellate 
decisions anywhere in the country in which a victim's right 
under a statute or a State constitutional amendment was ruled 
invalid because of a defendant's right under the Federal 
Constitution.
    I believe the professor was working on book at that time 
and would get back to us, but I notice he has not yet 
identified one. And I hope when the question time comes, if 
there has been even one anywhere in the 50 States or the 
thousands of smaller jurisdictions, you would let us know 
because it might give more weight to why we would have to make 
a change.
    I think proposals for amending the Constitution of the 
United States are serious matters. I have often said that 
declarations of war, the impeachment of the President, and 
constitutional amendments are the most significant actions any 
Senate can. I also believe strongly that victims of crime ought 
to be treated with respect, and questions of crime victims' 
rights ought to be treated with dignity.
    When I was a prosecutor, long before it was a fad, we 
insisted that victims be heard at sentencing and in plea 
negotiations and everywhere else. We did this without a 
constitutional mandate.
    This hearing was originally going to be before the 
Subcommittee on the Constitution. Then a couple of days ago, it 
was moved to a hearing before the full committee. So it has 
been a little bit difficult arranging some of the people who 
might come here. Mr. Twist and Mr. Cassell have already 
testified here, and I am sure that they will be adding to their 
previous testimony. We did not get their written testimony 
until yesterday afternoon, so it is hard to make that 
comparison.
    We are now in the third month, Mr. Chairman, of the 106th 
Congress. There have been 30 proposals to amend the 
Constitution already. That is more proposed amendments in 3 
months than the country adopted in 200 years. My friend from 
Arizona, I think, has introduced at least three constitutional 
amendments and cosponsored a couple more.
    One of the proposed amendments in the House is aimed at 
easing the ability to amend the Constitution in the future. I 
would like to enter into the record the guidelines developed by 
Citizens for the Constitution for when and how the Constitution 
should be amended. This is a non-partisan organization of 
former public officials, constitutional scholars, and others. 
And if that could be part of the record, Mr. Chairman?
    The Chairman. Without objection.
    [The information referred to is located in the appendix.]
    Senator Leahy. They point out the fact that we ought to 
have full consideration of all proposed amendments before votes 
are taken either in committee or on the floor. I know that many 
times--and I know the concern I have when I see actions in this 
country, and you have the momentary passion that we amend the 
Constitution. Usually, cooler heads prevail and we find a good 
legislative way to do it, but that means full consideration on 
two types of questions, policy questions, whether the idea is 
sound; operational questions, whether there are problems with 
the way it would work.
    To date, we have only looked at the first question. Do we 
really need a victims' rights amendment? That is an important 
question. We should consider it. There are 32 States with 
constitutional protection of crime victims' rights. And as I 
said, I am not aware of any case that has been overturned on 
this.
    But then how would the amendment work in practice? I am 
concerned that the proposed constitutional amendment could 
impede the effective prosecution of violent crimes. I think Ms. 
Wilkinson's testimony was very significant in that regard. She 
is a former principal deputy chief of the Terrorism and Violent 
Crime Section of the Criminal Division of the U.S. Department 
of Justice.
    I was one who watched very closely her work in the Oklahoma 
City bombing case. In fact, I thought she was very much a 
prosecutor's prosecutor in that, and I commend you and your 
whole team for the work you did there. I think her testimony 
about how the proposed amendment might have impaired the 
prosecution of that case merits some very serious thinking.
    We should also consider the views of the many crime 
victims' rights groups that oppose the amendment. They were not 
able to testify today, given the late notice and limited nature 
of the hearing. But some did manage to write to the committee--
for example, the National Clearinghouse for the Defense of 
Battered Women, the National Network to End Domestic Violence--
and I would ask that their letters and some others be also 
placed in the record at this point.
    The Chairman. Without objection.
    [The letters referred to are located in the appendix.]
    Senator Leahy. I should note the letter from Victims' 
Services, the largest victim assistance agency in the country. 
They serve over 200,000 crime victims every year. They don't 
support a constitutional amendment. They urge us to take a 
statutory approach.
    I think that there should be some meaningful legislation, 
and I think there can be. And knowing how State courts tend to 
follow the procedure in the Federal system, I think that we 
could have meaningful legislation. Senator Kennedy and I and 
others introduced a bill that would have provided real relief 
for victims immediately, real rights, and the resources to back 
them up.
    I know we have been busy, Mr. Chairman, but we haven't had 
a minute to consider that legislative initiative in the past 
year. And I know we probably will have more hearings on the 
constitutional amendment, but I would hope that we might have a 
hearing on the other because even if this Congress were to pass 
a constitutional amendment on victims' rights, it still has to 
go through all the other processes, whereas the statutory 
provisions that we have talked about could be done immediately.
    I would put my whole statement in the record. I don't want 
to hold you up here.
    The Chairman. We will put it in the record.
    Senator Leahy. I appreciate your usual courtesy.
    The Chairman. Thank you, Senator Leahy.
    [The prepared statement of Senator Leahy follows:]

                Prepared Statement of Hon. Patrick Leahy

    Proposals for amending the Constitution of the United States are 
serious matters. I have often said that declarations of war, the 
impeachment of the President and constitutional amendments are the most 
significant actions any Senate can take. I also believe strongly that 
victims of crime ought to be treated with respect and questions of 
crime victims' rights ought to be treated with dignity.
    This brief ``hearing'' was not noticed until the last possible 
minute last week as a hearing before the Subcommittee on the 
Constitution, Federalism, and Property Rights. On Friday, the majority 
unilaterally chose to bypass the Subcommittee, in spite of its express 
jurisdiction over constitutional amendments, and to redesignate this as 
a ``hearing'' before the full Judiciary Committee.
    The Committee is proceeding to hear again from two witnesses who 
have already testified repeatedly on this issue. I will be interested 
to hear what they have to add to their previous testimony. I understand 
that their written testimony was not made available until yesterday 
afternoon. This slapdash mini-hearing is no way to go about the serious 
business of constitutional change.
    As James Madison argued in Federalist 49, the ``constitutional 
road'' to amendment should be ``marked out, and kept open,'' but only 
``for certain great and extraordinary occasions.'' Whether this rush to 
judgment can provide the type of record that would be needed to provide 
the factual, policy and legal basis for the Senate to determine 
whether, in the language of Article V of the Constitution, such a 
constitutional amendment is ``necessary'' is extremely doubtful.
    I am concerned that this Committee, and this Congress, is not 
approaching the constitutional amendment process with anywhere near the 
gravity it deserves. We are in only the third month of the 106th 
Congress, and already there have been over 30 proposals to amend the 
Constitution introduced in this Congress. That is more proposed 
amendments in three months than this country has seen fit to adopt in 
over 200 years. I see that Senator Kyl has introduced at least three 
constitutional amendments and cosponsored two more. It is perhaps a 
sign of the times that one of the proposed amendments in the House is 
aimed at easing the requirements for future constitutional amendments.
    I would like to enter into the record the guidelines developed by 
Citizens for the Constitution for when and how the Constitution should 
be amended. Citizens for the Constitution is a non-partisan 
organization of former public officials, constitutional scholars, and 
other prominent Americans who urge restraint in the consideration of 
proposals to amend the Constitution. Its guidelines address the 
problems Congress has often fallen into of moving popular amendments 
with little hearing or debate, and more quickly than is prudent.
    Citizens for the Constitution emphasizes the need for full 
consideration of all proposed amendments before votes are taken either 
in Committee or on the floor. That means full consideration of two 
types of questions--policy questions, which include whether the basic 
idea is sound, and operational questions, including whether there are 
problems in the way that the amendment would work in practice.
    To date, what modest work this Committee has done on this issue has 
concentrated on the first question--do we really need a Victims' Rights 
Amendment. That is an important question, and it is appropriate that we 
consider it fully. There are now at least 32 States with constitutional 
protections of crime victims, rights. That is three States more than 
when this Committee last considered the proposed amendment. I asked 
Professor Cassell last year, at his third appearance before this 
Committee, whether he could identify any currently valid appellate 
decisions anywhere in the country in which a victim's right under a 
statute or State constitutional amendment was ruled invalid because of 
a defendant's right under the federal Constitution; he did not identify 
a single case.
    I have expressed the view that Congress should not be rushing to 
amend the Constitution to resolve problems that can and should be 
addressed through other less drastic means. The progress on victims, 
rights that is being achieved by the States, the good work that is 
being done in prosecutors' offices across the country, the efforts 
being made in State legislatures and at the ballot boxes ought not be 
ignored.
    As for the second question--how would the amendment work in 
practice--this Committee has barely scratched the surface. As a former 
prosecutor, I am particularly concerned with whether the proposed 
constitutional amendment could impede the effective prosecution of 
violent crimes. I am pleased that we have with us today Ms. Beth 
Wilkinson, formerly the principal deputy chief of the Terrorism and 
Violent Crimes Section of the Criminal Division of the United States 
Department of Justice, and a lead prosecutor in the Oklahoma City 
bombing case. Her testimony about how the proposed amendment might have 
impaired the prosecution of that case merits serious attention.
    We should also consider the views of the many crime-victims, rights 
groups that oppose the amendment. They were not able to testify today 
given the late notice and limited nature of this hearing, but some of 
them did manage to write to the Committee about S.J. Res. 3--National 
Clearinghouse for the Defense of Battered Women; National Network to 
End Domestic Violence; and Victim Services. I ask that their letters be 
included in the record.
    I would also like to put in the record letters I recently received 
from the Conference of Chief Justices, Professor Robert Mosteller of 
Duke University Law School, and Professor Lynne Henderson of Indiana 
Law School, all in opposition to the proposed amendment.
    Special note should be made of the letter from Victim Services, 
which is the largest victim assistance agency in the country. They 
serve over 200,000 crime victims every year, and they say do not 
support this constitutional amendment. They want crime victims, rights 
as much as anybody, but they understand the dangers of monkeying around 
with the United States Constitution. They urge us to consider a 
statutory alternative.
    I agree that crime victims deserve meaningful legislation. Last 
Congress, Senator Kennedy and I introduced a bill that would have 
provided real relief for victims--real rights and the resources to back 
them up. Unfortunately, this Committee has devoted not a minute to 
consideration of the legislative initiatives that Senator Kennedy and I 
have introduced over the past years to assist crime victims and better 
protect their rights. Like many other deserving initiatives, it has 
taken a back seat to the constitutional amendment debate that 
continues. I regret that we did not do more for victims last year or 
the year before. Over the course of that time, I have noted my concern 
that we not dissipate the progress we could be making by focusing 
exclusively on efforts to amend the Constitution. Regretfully, I must 
note that the pace of victims legislation has slowed noticeably and 
many opportunities for progress have been squandered.
    As Chairman Hatch noted in his additional views last year on the 
proposed constitutional amendment, ordinary legislation could achieve 
many of the objectives of the proposed amendment, without the peril of 
upsetting the States' experimentation in this area. Last Friday 
Chairman Hatch indicated in a press conference that he would be 
introducing legislation to assist crime victims. I would welcome the 
opportunity to work with the Chairman on legislation that would provide 
needed relief to victims, and provide it now. I hope that this 
Committee and the Congress will take a look at his proposals and those 
that Senator Kennedy and I will be reintroducing and pass federal 
legislation on these matters that can be enacted this year and 
effective immediately.
    With a simple majority of both Houses of Congress, the Crime 
Victims Assistance Act could have been enacted last Congress. Its 
provisions could be making a difference in the lives of crime victims 
throughout the country without delay. There would be no need to achieve 
super-majorities in both Houses of Congress, no need to await 
ratification efforts among the States and no need to go through the 
ensuing process of enacting implementing legislation.

    The Chairman. Let me turn to you, Mr. Twist, first. In your 
prepared testimony, you quote an Arizona case that states, 
``The Supremacy Clause requires that the Due Process Clause of 
the U.S. Constitution prevail over State constitutional 
provisions.'' Now, which of the victims' rights provided by the 
proposed amendment are not cognisable under the current due 
process jurisprudence?
    Mr. Twist. In that case, Mr. Chairman, the right implicated 
was the State constitutional right not to be forced to submit 
to a pretrial interrogation by the defendant or the defendant's 
attorney. That same proposal is not offered in S.J. Res. 3 
because that practice which was occurring in Arizona was such 
an aberrant one which allowed defendants to force victims to go 
through pretrial depositions or interviews.
    And in that particular case, the rights at issue were the 
State constitutional right of the victim to not be forced to an 
interview and the due process right of the defendant to obtain 
exculpatory information. And in the balance of those, the court 
came to what I think is a sensible conclusion that when a State 
constitutional right is balanced against Federal constitutional 
right that the Federal constitutional right will be supreme.
    The Chairman. But even so, could you list any rights that 
would not be covered under the current due process law?
    Mr. Twist. Any rights of a defendant that would not?
    The Chairman. No; any rights of the victims.
    Mr. Twist. I am sorry, Mr. Chairman. I am not following 
your question.
    The Chairman. Which of the victims' rights provided by the 
proposed amendment are not cognisable under current due process 
jurisprudence?
    Mr. Twist. Well, to my knowledge, Mr. Chairman, there is no 
case in the country that has found a constitutional right for a 
victim under the 14th amendment to assert any of the specifics 
that we have included in section 1 of the amendment.
    The Chairman. OK. You have been a tireless advocate for 
victims' rights in Arizona. I recognize that, and your State 
constitution is a model of what concerned citizens can 
accomplish for a good cause. Now, in your experience, what have 
been the most important and the least important protections for 
victims that the Arizona constitutional amendment provision has 
provided?
    Mr. Twist. Mr. Chairman, I think this is a question that 
was put to me in written form during the last round of 
hearings, and I believe my answer was it was very difficult to 
pick out one or two that are more important than others. There 
are so many different stories and so many different cases.
    Certainly, the basic rights to notice and to presence and 
the right to be heard at some critical stages are fundamental. 
Are they more important than the right to a final conclusion 
free from unreasonable delay? Not in some cases. In some cases, 
that is critical. I think that the rights that we have listed 
in section 1 of S.J. Res. 3 form the core values that victims 
seek in their desire for justice in the system, and I think all 
of them are important because of that.
    The Chairman. That sums it up pretty well.
    Professor Cassell, I believe that amending the Constitution 
should be reserved for only the most serious problems which 
cannot be resolved by legislation. Thus, I have led the fight 
for the balanced budget amendment, the flag protection 
amendment, that really cannot be solved by legislation. In 
those cases--the Supreme Court cases in both of those instances 
defining the parameters of legislation before we acted on the 
amendments.
    Now, in your prepared testimony you discuss the 
difficulties encountered by the victims of the Oklahoma City 
bombing case in the district court and in the Tenth Circuit 
Court of Appeals. How have other courts, including the Supreme 
Court, treated the existing victims' rights protections?
    Mr. Cassell. Senator, the difficulty has been frankly 
getting into court to be heard on many of these issues. The 
Oklahoma City case that you mention is a prime example. There, 
we had several Federal statutes passed; indeed, one of them 
precisely on point to the issue that we sought to raise in 
court. We assembled a legal team of myself and four experienced 
lawyers from Wilmer, Cutler and Pickering. We had a local 
counsel in Colorado assisting us, so we had six lawyers working 
on this project.
    The result was that we were not even able to be heard in 
the Tenth Circuit on the merits of our claim. And that has been 
a problem around the country in the cases that I have seen. 
Victims simply lack standing to enforce these rights, to even 
be heard. That is just one of the obstacles that victims face 
today. As you know, victims are not entitled to counsel at 
State expense. It is only in relatively unusual situations 
where someone steps forward to take the matter on a pro bono 
basis that they will even have counsel to move forward. Yet, 
there are these standing problems and other problems. Senator 
Leahy was referring to the appellate law jurisprudence. We 
don't have appellate law jurisprudence on this at this point 
because victims are simply not given their day in court.
    The Chairman. In your prepared statement, you note the 
existence of numerous State constitutional and statutory 
protections for victims, but you conclude that these 
protections are not solving the practical problems of victims. 
How much of these practical problems are caused by a lack of 
vigorous enforcement by State authorities and how much is 
caused by specific Federal constitutional barriers to victims' 
rights?
    Mr. Cassell. I think it is a combination of a variety of 
things. Part of it is lack of resources, but I think much of it 
is simply a lack of education, a lack of awareness of victims' 
rights. I gave some illustrations in the Oklahoma City case 
where the Federal judge and even the Federal prosecutors were 
apparently unaware of a number of provisions that existed for 
Federal statutes.
    And the way that this has to be overcome, then, is with 
something that basically changes the ``zeitgeist'' in the 
criminal justice process, that changes our feeling about the 
importance of crime victims. The best way to do that is, of 
course, with a Federal amendment that elevates the importance 
of these rights and sends a clear signal to State actors, to 
prosecutors, to judges, to defense attorneys, to all who are 
involved in the process that victims' rights have to be 
respected.
    The Chairman. Now, it is not entirely clear what the phrase 
``crime of violence'' actually means or covers. For example, if 
a person commits treason by turning over information to a 
foreign government and that foreign government uses the 
information to uncover and kill American agents, would the 
families of the victims be entitled to rights under this 
amendment?
    Mr. Cassell. Yes, Senator, in that situation there would be 
identifiable victims. And let me just comment briefly. I think 
this committee has pointed the way to defining the phrase 
``crime of violence.'' As you know, I believe, Mr. Chairman, 
you were involved in the efforts to pass the right for victims 
of crimes of violence to make statements in Federal sentencing 
hearings. I think we can use that same definition for the 
Federal amendment.
    The Chairman. Will this phrase cover attempted crimes or 
conspiracy crimes when the underlying substantive offense is a 
crime of violence?
    Mr. Cassell. Yes. If somebody points a gun and shoots 
someone, that is clearly a crime of violence. The mere fact 
that the bullet misses the victim would not eliminate the 
violent nature of the offense.
    The Chairman. There are also other crimes in which notice 
and restitution may be very important; for instance, defrauding 
the elderly of their savings. Should the amendment exclude that 
type of a crime?
    Mr. Cassell. In my view, the amendment ought to cover that, 
but I understand there is a need for consensus to focus the 
amendment in on consensus points. So if consensus could be 
achieved on that, absolutely, the reach should be expanded.
    The Chairman. As an example of the complex issues raised by 
this amendment, there is a question about when the rights 
granted by this amendment vest in a victim. Often, a defendant 
might be suspect in several similar crimes, but will not be 
charged with all of them, for various legitimate prosecutorial 
reasons. The committee in the past has wrestled with this very 
issue during the adoption of the Mandatory Victim Restitution 
Act.
    Recognizing the need to provide restitution to all victims 
while still cognizant of the very real constitutional dangers 
of requiring restitution for conduct for which the defendant 
has not been charged or convicted, the MVRA requires Federal 
prosecutors to attempt to negotiate restitution for all victims 
in any plea agreements.
    Now, would the proposed amendment create a similar conflict 
between the constitutional right of the victims of such 
uncharged counts to a restitution order and the due process 
rights of the defendant?
    Mr. Cassell. I don't think there would be any conflict with 
the rights of defendants. In fact, I think the victims' rights 
would be treated in the same way as defendants' rights are 
treated. Currently, as you know, defendants' rights attach once 
formal criminal charges are filed in the process. The Federal 
amendment would operate in the same way.
    Once criminal charges are filed, then the victims of those 
charged crimes would have rights. So victims in uncharged 
crimes would not have the mandatory right to restitution. Now, 
as you are suggesting, that raises some issues and I think the 
way to address it is exactly the way that you, Mr. Chairman, 
have worked on trying to address it by encouraging prosecutors 
to reach plea agreements or to provide full charging of various 
crimes. But there is not going to be a conflict with 
defendants' rights because unless a charge is filed, victims' 
rights do not attach.
    The Chairman. One final question and then I will turn to 
Senator Leahy. The proposed amendment requires that victims be 
given notice of their constitutional rights. When will the 
victims receive such notice? Would that be after arrest, after 
charging, after bail? Also, who would be responsible for giving 
the notice, the police, the prosecutor, the court, who?
    Mr. Cassell. The notice would be given after charging. The 
rights of the victim would attach in the same way as a 
defendant's rights attach. So defendants get notice today of 
when court hearings are scheduled. Those notices are given 
after charges are filed against the defendant. The same thing 
can be done for victims.
    Now, who would provide notice? As you know, the amendment 
provides for reasonable notice. It leaves the implementation to 
be done by the various State agencies. My sense is that most 
States will leave that duty with the prosecutors' offices. 
However, there are varying local circumstances, and the 
amendment is certainly written in flexible terms that would 
allow various jurisdictions to structure notice in whichever 
way they thought was reasonable.
    The Chairman. You have been very helpful here.
    I have some questions for you, Ms. Wilkinson, but I will 
submit them because my time is up.
    Can I just ask one question of Ms. Wilkinson?
    Senator Leahy. Of course, of course.
    The Chairman. Then I will turn to Senator Leahy. I think it 
might be helpful just from the debate standpoint here so we can 
understand, because you and Professor Cassell differ on some 
matters.
    You have heard Professor Cassell's comments on the Oklahoma 
City bombing case. I would like to give you a chance to respond 
to any of his comments, since you were there. And keep in mind, 
I have deep respect for both of you. Professor Cassell is one 
of the truly leading lights in criminal law in this country, 
and you have done a terrific job as I have watched what you 
have done in the past, not only on the Oklahoma City case, but 
also at the Department of Justice.
    So let me just ask you if you have any comments you would 
care to make.
    Ms. Wilkinson. Thank you, Mr. Chairman.
    The Chairman. And then I will allow you to make final 
comments.
    Ms. Wilkinson. I would like to clarify two points. I 
appreciate that. As you said, I was there everyday for about 
2\1/2\ years, and I believe there are some representations that 
are misleading about what did occur and there are three I would 
like to clarify.
    The first is Mr. Cassell stated that no one was permitted 
to testify at Mr. McVeigh's sentencing. That is incorrect. As 
you know, it is the jury in a death penalty case that 
determines the defendant's sentencing, and that phase of the 
trial is called the penalty phase. There were 37 witnesses, 
including by and large almost all victim impact witnesses, who 
testified during that phase of the trial.
    So I believe the proceeding he is referring to is when the 
judge imposed the sentencing, but that was a proceeding that is 
just pro forma under the rules where the judge has no 
discretion. He takes the sentence that the jury announced, 
which was death for Mr. McVeigh, propounds it upon the 
defendant. He doesn't hear from the defendant's witnesses or 
from the government.
    So I think it is very misleading if you are left with the 
understanding that no one testified regarding Mr. McVeigh's 
sentence. Thirty-seven people who I believe talked about the 
loss of young children, about adults, a father who talked about 
losing his grown daughter, and many other relationships that 
were destroyed as a result of the Oklahoma City bombing were 
discussed with the jury who had to make that life-and-death 
decision.
    The second issue I would like to clarify is about the 
statute that you all passed that assisted us and permitted 
victims to sit through the McVeigh trial. Mr. Cassell believes 
that that did not work and that the court did not honor the 
statute, and I respectfully disagree.
    What happened in that case was once you all passed the 
statute, the judge said that the victims could sit in, but they 
may have to undergo a voir dire process to determine under rule 
403 whether their testimony would have been impacted and could 
be more prejudicial.
    What we told the victims is not what you heard here today. 
We told them that they could sit through the process and that 
all they had to understand was that they would have to undergo 
the voir dire by the judge. I am proud to report to you that 
every single one of those witnesses who decided to sit through 
the trial, including a woman named Diane Leonard who was 
married to a Secret Service agent who had protected six 
Presidents and died on April 19th, survived the voir dire, and 
not only survived, but I think changed the judge's opinion on 
the idea that any victim impact testimony would be changed by 
sitting through the trial. So Ms. Leonard and the rest of the 
witnesses underwent the voir dire and testified during the 
penalty phase for Mr. McVeigh.
    It worked in that case, but it worked even better in the 
next case. Just 3 months later when we tried the case against 
Terry Nichols, every single victim who wanted to watch the 
trial either in Denver or through the closed-circuit television 
proceedings that were provided also by statute by this 
Congress, were permitted to sit and watch the trial and testify 
against Mr. Nichols in the penalty phase.
    That operated smoothly. The defendant had no objection, and 
the judge allowed every one of those witnesses to testify 
without even undergoing a voir dire process in the second 
trial. I think that proves, Senator Hatch, your point, which is 
you do not want to amend the Constitution if there are some 
statutory alternatives. And I saw the Victim Rights 
Clarification Act work. Within a year of passage, it had been 
tried two times and I believe by the second time it had 
operated smoothly and rectified an interest and a right that I 
think the victims were entitled to that had not been recognized 
until passage of that statute.
    The third thing that I would like to clarify is that the 
plea with Mr. Fortier was taken before Mr. McVeigh and Mr. 
Nichols were even indicted. It was just less than 2 months 
after the bombing when he pled guilty. That plea was public and 
the public was notified. The victims were not organized either 
through our victim witness unit, which recognized 2,500 victims 
of this crime, or through their own organizations at that time. 
So I think it is unfair to suggest that the prosecution team 
did not sit down with all of the victims and explain the 
consequences of the plea.
    We had a limited ability to do that, due to our duty under 
the grand jury secrecy rules to keep the information that we 
were collecting in the grand jury secret and not to disclose it 
to anyone, unfortunately, including victims. And that is 
something, regardless of whether you pass this constitutional 
amendment or not, we will be stuck with. The prosecutors will 
still during the investigatory stage of a case be precluded 
from revealing any grand jury material to victims or anyone 
else in the public.
    The Chairman. Professor Cassell.
    Mr. Cassell. Let me talk about each of those three 
situations because I think that there are perhaps a few points 
that ought to be clarified.
    First of all, with respect to whether anyone was permitted 
to testify at the sentencing of Timothy McVeigh, the proceeding 
in question was the point at which the judge actually imposed 
sentence. And as you know, Congress has passed a law requiring 
the judge not only to address the defendant at that point--and 
Judge Matsch addressed Timothy McVeigh--but also to address the 
victims. The judge did not do that, and as a result a number of 
victims were denied any opportunity to speak when Timothy 
McVeigh was sentenced.
    This was not a pro forma matter, as Ms. Wilkinson has 
suggested, for such victims as Marsha Kight, who is seated here 
today. She forever lost the opportunity to tell the world and 
to tell Timothy McVeigh what that crime did to her and her 
family. And so to suggest that this is some pro forma 
opportunity that, well, we should go on with business as usual, 
I think, frankly is unfair to the victims that were denied that 
right. And I feel very strongly about that.
    Also, I should point out that this pro forma hearing ended 
up making a mistake, a very serious mistake potentially. The 
hearing did not follow Federal law in requiring that a 
restitution order be imposed against Timothy McVeigh. That is 
part of the Mandatory Victim Restitution Act that Senator Hatch 
and a number of other members of this committee worked on that 
required restitution be imposed. Yet, as a result of an 
apparent oversight by the Department of Justice and perhaps the 
court, no restitution order was entered.
    Now, perhaps Timothy McVeigh will never have any money and 
so this will be a moot point. But it is also possible that 
tomorrow ``Hard Copy'' or some other scurrilous publication 
might come along and offer him money if he would tell his 
story. If that were to be the case, it will then be very 
difficult to get the restitution back to the victims where it 
ought to go. So those are some points about the McVeigh 
sentencing.
    The second issue is what about whether victims were denied 
the opportunity to watch the trial of McVeigh and Nichols' case 
after the passage of the Victims' Rights Clarification Act of 
1997. I think here we really ought to go to the victims and ask 
them, what were the prosecutors telling you at that time?
    I talked to Marsha Kight and a number of the other people 
that were involved and we were getting reports that the 
prosecutors were saying, well, you know, if you go in there, 
there are certainly going to be some questions that will be 
asked. So it is up to you, but you will avoid an appellate 
issue if you don't go into the trial.
    The fact of the matter is that after receiving that advice, 
some victims did not exercise their congressionally-protected 
right to watch the trial of Timothy McVeigh. So to say that the 
statute worked simply does not recognize the reality that some 
victims were denied the opportunity to see the McVeigh trial.
    And the last point that was discussed was this issue about 
the plea agreement with Mr. Fortier. My suggestion is that the 
Department should have sat down with all the victims at the 
time and said, look, we are preparing to enter into a plea; 
here is how we want to do that. They did that later on in the 
process with great success. However, they didn't do this with 
the Fortier plea, and I think that was a mistake.
    Now, I realize there are grand jury secrecy rules. But as 
you well know, the grand jury secrecy rules only cover 
materials and proceedings that are happening within the grand 
jury. There was a vast collection of materials that was outside 
of grand jury secrecy rules. Certainly, that could have been 
disclosed to the victims and it could have been made clear why 
the plea agreement with Mr. Fortier was necessary.
    Even if it was necessary to go into grand jury secrecy--and 
I don't think it was, but even if it was necessary, rule 6(e) 
of the Federal Rules of Criminal Procedure authorizes the 
Department of Justice to seek a court order to release the 
information. And yet it never occurred to the Department and 
the prosecutors to think about trying to get that court 
authorization to release information and to talk to Marsha 
Kight and the other victims.
    That is the kind of mind set that the victims' rights 
amendment will change. It will bring victims into the process, 
and I think it will make the system work better not just from a 
victims' point of view but also from a law enforcement point of 
view.
    The Chairman. Thank you.
    We will turn to the ranking member, Senator Leahy.
    Senator Leahy. Thank you.
    The Chairman. Senator Kyl, I am going to ask you to preside 
from here on in.
    Senator Leahy. Mr. Chairman, I might say I have a much 
higher opinion of the work law enforcement did in both of these 
cases than I believe Mr. Cassell does. I realize he advocates 
from a position there, but I think that the law enforcement 
people--both the investigators and the prosecutors--did a 
superb job.
    In the McVeigh case, victims were allowed to speak at the 
sentencing phase before the jury and elsewhere. I am not sure, 
if they were to come in and speak again, whether Mr. McVeigh--
what greater penalty he might have received than the death 
penalty. That is something that can be argued, but frankly I 
for one feel in a very terrible situation that the prosecutors 
and law enforcement did a very good job.
    I cannot even begin to imagine how hard it was for the 
family members and loved ones of those who were killed. I know 
how shocked all the rest of us were who were not related to the 
people killed. But I am not sure that some of the efforts to 
second-guess law enforcement and prosecutors on this helps a 
great deal.
    Mr. Twist, in Romley v. Superior Court, from the Arizona 
Court of Appeals in 1992, the defendant, Anne Roper, was 
charged with stabbing her husband. She claimed that she had 
been the victim of horrendous emotional and physical abuse by 
her husband during their marriage, that the husband was a 
violent and psychotic individual who had been treated for 
multiple-personality disorder for over a decade, that he was 
manifesting one of his violent personalities at the time of the 
assault, and that she had acted in self-defense.
    It was undisputed as I read the case that the husband was 
mentally ill, that he had three prior arrests and one 
conviction for domestic violence toward the defendant, and that 
the defendant, Anne Roper, not the husband, the victim of the 
stabbing, as he made out to be--the defendant made the 911 call 
to the police, asking for help because her husband was beating 
her and threatening her with a knife. I know you are familiar 
with this case, but for those who are not, I wanted to go 
through it.
    Under these circumstances, the Arizona Court of Appeals 
came to what I believe is a very sensible conclusion that the 
defendant's due process rights superseded the State law right 
of the husband victim, as he was claiming to be, having been 
stabbed, to disclose his medical records.
    Now, do you agree that Romley v. Superior Court was 
correctly decided in Arizona, one, as a matter of policy and, 
two, as a matter of constitutional interpretation?
    Mr. Twist. Yes, to both questions, Senator.
    Senator Leahy. You do not see any other way the court could 
have, or should have balanced the competing interests of the 
defendant and her, in this case, victim?
    Mr. Twist. I think the court came to the right conclusion, 
and I think it is an example of how courts properly can balance 
rights in conflict and reach appropriate conclusions. And if 
S.J. Res. 3 were the law, I would not expect the conclusion to 
be any different.
    Senator Leahy. You don't think S.J. Res. 3 would have 
affected the court's holding in any way?
    Mr. Twist. No, sir.
    Senator Leahy. And there is no necessity to change any of 
the wording of S.J. Res. 3 as it now is to make sure that they 
would not override Arizona?
    Mr. Twist. Senator, I cannot think of an area where we 
would have to do that. If someone were to make the case, as 
always we would be happy to look at it. But I think, in fact, 
that the result would be the same if S.J. Res. 3 were the law. 
And, indeed, the exceptions clause of section 3 of S.J. Res. 3 
allows this Congress more latitude to craft appropriate 
exceptions for exactly these kinds of cases.
    Senator Leahy. Mr. Cassell, as I understand it, you have 
argued that the court in the Oklahoma City bombing trials 
ignored the Victim Rights Clarification Act of 1997 in 
excluding victims who could be called to testify at sentencing, 
something we have discussed here this morning. Judge Matsch 
read that Act as reversing the presumption of a prejudicial 
effect on victim impact testimony of observation of the trial 
proceedings.
    He permitted victims to observe the trial proceedings. He 
later made individual determinations of which victims, having 
sat through the trial, could not give fair testimony at the 
capital sentencing hearing. And then as I recall, once he did 
that, not one victim was prevented from testifying at 
sentencing on the ground that he or she had observed part of 
the trial.
    Would the proposed constitutional amendment require that 
all those victims be allowed to testify across the board 
regardless of their individual ability to testify fairly, 
regardless of what a court might find?
    Mr. Cassell. Well, there are a couple of different things 
in your question, Senator. First of all, with respect to 
whether Judge Matsch ignored the law, I think I gave more 
nuanced presentation as to precisely what happened and I will 
just rest on my prepared----
    Senator Leahy. Your presentation is in the record and we 
will rely on that, but on my question, would the proposed 
constitutional amendment require that all victims be allowed to 
testify across the board even if a judge were to find that they 
could not testify fairly?
    Mr. Cassell. It depends on what you mean by ``not testify 
fairly,'' I suppose. The victims' rights amendment would 
establish a right for all victims to be heard at sentencing. 
When you say ``not testify fairly,'' I would assume you are 
referring to a situation where the victim's testimony might 
somehow unfairly affect the jury.
    It seems to me in those situations--and we are talking in 
hypotheticals now; if we had a tangible example, we could play 
with that. But hypothetically, in that situation it seems to me 
the court could well do a couple of things. First of all, the 
court could limit what that victim would testify to. Typically, 
of course, it is not the mere fact of testifying that is 
prejudicial; it is some particular aspect of the testimony.
    Senator Leahy. Is there anything in the amendment--then 
what does the amendment provide that the Victims' Rights 
Clarification Act does not provide?
    Mr. Cassell. It provides--one thing, for example, is this 
clear standing to enforce the rights. One of the difficulties 
that we had even when we went back to Judge Matsch is we were 
never allowed to appear in front of them. We were filing these 
motions and they were sometimes ruled on; sometimes they were 
deferred, sometimes postponed.
    The victims' rights amendment would have given us standing. 
So as a lawyer for Marsha Kight and the other victims, I would 
have had a right to say, judge, I would like a hearing on this; 
here is our motion, here is our reason for being heard. We 
never got past first base on many of these issues, which is why 
we had such great difficulty in getting those rights protected.
    Senator Leahy. But the victims did testify. The victims 
were able to observe the trial. The victims did testify. Mr. 
McVeigh was given the death penalty, but you feel more could 
have been done?
    Mr. Cassell. The difficulty is that some of the victims 
were not able to watch the McVeigh trial because of the legal 
uncertainties that were swirling around their status. The 
victims' rights amendment, had it been in place, would have 
ended all of those uncertainties and spoken in no uncertain 
terms and told all of the victims that they had an unequivocal 
right to watch the trial.
    Senator Leahy. Well, let's speak of the unequivocal rights 
that come under the Constitution. You seem to take--and I don't 
want to put words in your mouth, but the constitutional 
approach here is preferable to a statutory approach?
    Mr. Cassell. Yes.
    Senator Leahy. But in United States v. Dickerson, you 
seemed to prefer the flexibility of a statutory solution, and 
let me tell you how I interpret that in implementing Fifth 
Amendment rights. In that case, you argued that a voluntary 
confession should be admissible in a criminal case irrespective 
of whether it was obtained in violation of Miranda. Then you 
said in an interview, ``Dickerson really highlights this issue 
whether the Miranda rights are constitutional rights or whether 
they are just prophylactic safeguards, and that ends up making 
a big difference. If they are constitutional rights, then they 
are essentially set in stone and it is very difficult to change 
them. On the other hand, if they are mere evidentiary 
safeguards, then Congress can tinker with them or replace them. 
And so that is the question. Are we locked into this one 
approach with the Constitution or is there some play in the 
joints?''
    Now, I understand your appreciation of flexibility when it 
comes to defendants' rights. Why is it necessary then to lock 
the country into one constitutional approach regarding victims' 
rights? Couldn't Federal legislation and State amendments give 
exactly the same type of play in the joints that you have 
talked about, or do we need to override the States with a 
constitutional amendment?
    Mr. Cassell. This case you are talking about, United States 
v. Dickerson, would be entirely unaffected by the victims' 
rights amendment.
    Senator Leahy. No, no, no. I understand that. What I am 
saying, though, there when we talked about what is seen as a 
constitutional right under Miranda, you said this should be 
more flexible. And you argued there that the statutory ability 
gives you more flexibility than locking something into a 
constitutional right. I understand your feeling about that when 
we are talking about defendants' rights.
    Should we not have the same test of the same kind of 
flexibility when we are talking about victims' rights?
    Mr. Cassell. What we should do, Senator--I have said that 
the Fifth Amendment rights of defendants should be fully 
protected. The victims' rights amendment would fully protect 
the rights of crime victims as well.
    One other just brief point about the Dickerson case. Again, 
this is an entirely separate matter. My arguments in that case 
on behalf of the clients there have been to support what this 
committee did. As you know, the Senate Judiciary Committee 
passed a statute, and I have simply been defending the work of 
this committee and that is really all that is involved in that 
case.
    Senator Leahy. We love defenders anywhere we can get them.
    Mr. Cassell. Well, unfortunately, I have had to step up to 
the plate where the current Department of Justice is not 
willing to do so.
    Senator Leahy. You have been here three or four times. I 
have more questions, but I am told by Senator Kyl that some of 
the other Senators have scheduling difficulties. So I will 
yield back the----
    Senator Kyl [presiding]. Well, we can get back to you.
    Senator Leahy. No. That is all right. I will yield back the 
time, but I will put other questions in the record.
    [The questions of Senator Leahy are located in the 
appendix.]
    Senator Kyl. Great. OK, thank you.
    Both Senator Ashcroft and Senator Feingold are going to 
have to leave. I know Senator Ashcroft has to be on the floor 
by 11:30, so let me call upon you, Senator Ashcroft, and then 
Senator Feingold, and Senator Feinstein and I. If that is all 
right with you, Senator Feinstein, we can defer.
    Senator Feinstein. Fine.
    Senator Kyl. In any event, we have the chairman and the 
ranking member of the subcommittee, and so I think it is 
appropriate that they proceed.
    Senator Ashcroft.

STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE 
                          OF MISSOURI

    Senator Ashcroft. Well, thank you, and good morning. I want 
to thank Chairman Hatch for holding the hearing. And, of 
course, I want to thank Senators Kyl and Feinstein for their 
work on this proposed constitutional amendment. I appreciate 
it.
    I have long been a supporter of recognizing the rights of 
victims of crime. We must never forget that the best protection 
for crime victims is effective law enforcement, but we do need 
to do more than strive to enforce the laws with vigor. The 
criminal justice system must act with greater compassion for 
victims, with a sensitivity to the suffering that is inflicted 
by murderers, rapists and other criminals.
    For too long, victims were forgotten in the criminal 
justice system. As the Warren Court expanded the rights of 
criminal defendants well beyond their original scope, the 
rights of victims were ignored. In the name of promoting 
individual rights, the Warren Court sided with criminal 
defendants over State prosecutors, while the individual rights 
of victims were not part of the Court's calculus.
    As a consequence, movements started in many States to 
guarantee victims of crime a place at the table. Victims were 
afforded the essential components of due process--notice of 
proceedings affecting them and an opportunity to be heard. I 
supported this process in Missouri. Indeed, when I was Governor 
of Missouri, the State enacted its own constitutional amendment 
protecting victims of crime.
    Unfortunately, these State efforts, while an important step 
in the right direction, have failed to provide sufficient 
protection for crime victims. When the Federal constitutional 
rights created for criminal defendants clash with the statutory 
or State constitutional rights of victims, the Supremacy Clause 
dictates that the criminal defendant's rights must prevail. The 
only way to ensure that the victims stand on equal footing with 
those who perpetrate the crimes is equally to enshrine their 
rights in the Constitution. The proposed amendment we are 
considering today does just that.
    Although I am generally supportive of protecting victims' 
rights, I have two concerns about this proposed amendment that 
I would like to explore at today's hearing. First, I am 
concerned that the proposed amendment does not expressly 
provide any rights to the victim when a State official commutes 
or pardons the sentence of a convicted criminal.
    The amendment provides victims with the right to notice 
and, where appropriate, an opportunity to be heard at every 
other critical stage in the process, from trial to 
incarceration to release. It provides rights to victims when a 
court imposes a sentence and the parole board reviews the 
sentence, but it denies victims any rights when an executive 
considers overturning a sentence with a stroke of his pen. 
Victims of crime deserve more compassion from our system of 
justice. The emotional impact on a victim's family of the 
commutation or pardon of a cold-blooded killer is at least as 
distressing as an early release by a parole board.
    A recent commutation in Missouri should make all Senators 
sensitive to the suffering that a commutation can cause to a 
family already scarred by violent crime. In this case, the 
family experienced the horror of having three family members 
murdered--one, a handicapped teenager. After shooting all three 
of them, the killer then shot each of them once more in the 
head at point-blank range. As the Missouri Supreme Court 
observed, the killer was, ``a cold, calculating, highly 
motivated assassin who planned and executed three murders, with 
chilling attention to the details of ensuring the death of his 
victims.''
    After the family suffered through the stress of a capital 
murder trial for their paraplegic son's brutal slaying, the 
killer was sentenced to death by a Missouri jury. Years passed 
as the family waited for the killer to be executed. No credible 
evidence disputed the jury's careful judgment based on the 
killer's confession, but just days before the sentence was to 
be carried out, without notice, without opportunity to comment, 
the death sentence of the confessed triple murderer was 
commuted.
    Family members did not get a phone call, even a letter. 
They learned of the decision on the news. That is just wrong, 
and it violates our basic sense of decency, fairness and 
compassion. Should the Constitution be amended to guarantee a 
right to be present at sentencing if the State retains the 
right to revise that sentence through a commutation with no 
notice to the victims? Throughout the entire process, our 
system of justice should care about victims' suffering, not 
cause more pain. This committee should show compassion and 
protect victims from sentence commutations or pardons without 
notice.
    The second concern I have about the constitutional 
amendment is that it limits its protections to the victims of 
violent crime. We know that violent crimes certainly are 
serious, but victims of non-violent crimes are no less 
deserving of protection. The courts certainly did not 
distinguish between violent and non-violent crime in creating 
constitutional rights for criminal defendants.
    There does not seem to be any better basis for making such 
a distinction in protecting the rights of victims. Indeed, the 
victims of some non-violent crimes, such as fraud, where 
criminals carefully select their victims to prey on the elderly 
or the ailing, are perhaps the most deserving of protection. 
Victims of elder fraud and identity theft should be protected.
    There are few government functions that are more important 
than the protection of crime victims. The proposed 
constitutional amendment makes important strides to guarantee 
victims a seat at the table to ensure that the rights of 
criminal defendants are not the only individual rights 
considered by judges and parole officers and executives. The 
current draft falls short of the full measure of protection 
that I believe crime victims deserve, and I hope that today's 
hearing will provide a basis for amendments that can move 
forward to protect crime victims, whether they be violent or 
non-violent crime victims, and whether they are to be protected 
from arbitrary actions by the court or by the executive.
    If I might, may I have just one question?
    Senator Kyl. Certainly.
    Senator Ashcroft. I would address it to Professor Cassell. 
Do you think that the emotional effect of a parole board's 
early release of a convicted criminal, or pardon thereof, is 
substantially different than the emotional effect of a 
commutation or a pardon of the same criminal by an executive?
    Mr. Cassell. I think from a victim's point of view, you are 
essentially looking at very equivalent actions that can have 
devastating effects on crime victims. And it is very important, 
as I think your remarks were suggesting, to have victims 
involved in the process. Now, that is not to say that the 
victims can order the governor what to do, but it is to say 
that the governor ought to certainly listen to victims, 
consider their point of view in reaching a careful, measured, 
considered judgment, and not act precipitously without at least 
getting some suggestions or advice, just basically input from 
the victims in the process.
    Senator Ashcroft. Thank you, and I thank the chairman.
    Senator Kyl. Thank you. Let me just ask the other two 
witnesses, and I recognize that Ms. Wilkinson may not support 
the amendment, but in the abstract, would you both agree with 
Senator Ashcroft and Mr. Cassell on this point regarding 
commutation?
    Mr. Twist. Yes, Mr. Chairman. It is not immediately obvious 
looking at the language that it extends to the problem that the 
Senator has raised, and I think he is wise to raise it because 
the emotional harm, not to say the possibility of future 
physical harm, is indistinguishable. And so I think we look 
forward to the chance to work with Senator Ashcroft to fashion 
appropriate language to deal with this.
    Senator Kyl. Thank you. Ms. Wilkinson.
    Ms. Wilkinson. Yes. I agree with Senator Ashcroft, also, 
and I believe his second point about limiting these proposed 
constitutional rights to the victims of violent crimes is a 
mistake, in that I have prosecuted myself many of these fraud 
cases where the victims are not only elderly, but mentally 
handicapped, and those were some of the most difficult cases 
that I ever saw. And I believe those victims deserve the same 
type of protections you all are discussing today, as well as 
the victims of violent crimes.
    Senator Kyl. Thank you very much. I will turn to Senator 
Feingold now, but let me just reiterate what I think Professor 
Cassell said before, in that, when this amendment was first 
drafted, we did include all crime. Out of a sense of necessity 
to gain support from other members sufficient to pass the 
amendment, we agreed to a compromise to limit it to violent 
crime. That is to say, we, Senator Feinstein and I.
    But I think any effort to broaden that would certainly not 
be inappropriate. And I share my agreement with you and I 
appreciate your bringing this matter of commutation to our 
attention, Senator Ashcroft.
    Now, Senator Feingold, I know you have to run, too, so 
please go ahead.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I need to be 
somewhere by 11:30 and it is 11:30, so I will keep it extremely 
short. Let me ask that my full statement be included in the 
record.
    Let me compliment you and Senator Feinstein for your 
leadership on this issue. I voted for Wisconsin's 
constitutional amendment on victims' rights when I was a State 
senator and thought that was an appropriate place for that. But 
I do hesitate with regard to a constitutional amendment to the 
U.S. Constitution both because of the tremendous proliferation 
of these proposed constitutional amendments in general which 
Senator Leahy outlined--there is far too much of that going on. 
I will be candid with you. This is certainly not the worst of 
the bunch. This one at least relates to a difficult problem and 
interesting question of whether we should really change the 
U.S. Constitution to deal with this. But given the serious 
concerns about victims' rights, I think it is properly before 
the committee.
    The other reason that I certainly am not convinced yet is 
the potential adequacy of statutory alternatives, both ones 
that have already passed and ones that have been proposed in 
this committee. So I will do the best I can to keep an open 
mind about many aspects of it, but at this point I still am not 
persuaded that it is worth changing the Constitution, the basic 
structure of individual rights and criminal defendants' rights, 
in order to do this.
    Let me just ask one question because that is all the time I 
have. One of the key provisions of the proposed constitutional 
amendment is to provide crime victims with the right to attend 
proceedings and to be heard at those proceedings.
    In Payne v. Tennessee, however, the Supreme Court held that 
victims have a right to be present and testify at the 
sentencing phase of a trial, even a capital case. The only 
exception to this rule occurs when the victim's presence would 
result in a constitutional unfairness to the accused on trial.
    With respect to this particular part of the proposed 
amendment, and given the Court's decision in Payne, isn't 
establishing a constitutional right for victims only necessary 
if it is intended to create an absolute right that would be 
used to overcome a constitutional right currently afforded 
defendants?
    And that is just another way of my asking you why do you 
oppose adding a provision to the amendment, such as the one 
that is contained in the Wisconsin constitutional amendment 
that I supported that makes it clear that the amendment is not 
intended to, and should not be interpreted to limit the rights 
of those accused of crimes.
    I would ask each of you to respond, if you could. Professor 
Cassell.
    Mr. Cassell. The result in Payne you referred to, of 
course, came on the heels of two defeats for the victims 
movement in the Supreme Court. There were two earlier cases, 
the Booth case and the Gathers case, in which precisely the 
argument that prevailed in Payne had been rejected. In those 
two earlier cases, the Supreme Court had denied a victim an 
opportunity to provide an impact statement at sentencing.
    So the reason for the amendment is to make sure that the 
Payne result stays in place; that is, to make sure that the 
Supreme Court down the road doesn't get a few more members that 
see things differently and end up going back to that other rule 
of denying victims an opportunity to be heard.
    In my testimony last year, I gave some proposed language if 
that were thought to be necessary. But, frankly, I don't think 
any such language is necessary. The opponents of the amendment 
have not provided specific examples, in my mind, to illustrate 
where there would be a conflict between victims' rights and 
defendants' rights. We can do both. We can have victims' rights 
and defendants' rights. This victims' rights amendment has been 
very carefully drafted. I know Professor Laurence Tribe at 
Harvard and Senator Biden and others who have been very 
solicitous of defendants' rights have looked at this and don't 
see the potential for conflict.
    Senator Feingold. Mr. Twist.
    Mr. Twist. Mr. Chairman and Senator Feingold, I think it is 
important to focus on a slightly different aspect of your 
question, and it is made real for us today because of Marsha 
Kight's presence in the hearing room. In her situation, she was 
not afforded an opportunity to be heard at sentencing because 
of her personal opposition to the death penalty.
    And this is an example, I think, of an often overlooked 
point in the argument for victims' rights that these are rights 
that exist and ought to exist independent of the government's 
prosecution of the case at these critical stages, so that if 
the victim chooses to assert a right to be heard at sentencing 
and offer her own--in Marsha's case, her own heartfelt view, 
she ought to be afforded that opportunity as a matter of 
constitutional right regardless of what the outcome is. And I 
think that it is important to focus on that aspect as well.
    Senator Feingold. Ms. Wilkinson.
    Ms. Wilkinson. I believe, Senator Feingold, that that would 
be a worthy addition to the amendment, and that is because of 
really the continuum of rights that we talk about. I think 
there is a mistake when we use the term the criminal's rights 
versus the victim's rights. As we all know, these defendants 
are presumed innocent in our system until they are convicted, 
and so the rights are weighed differently during the pre-trial 
and trial process.
    However, once a defendant is convicted, I believe that is 
when most of the victim's substantive rights kick in, where 
they are allowed to speak at the sentencing and talk to the 
judge or the jury about the appropriate sentencing. And so I 
believe if you added that provision to the amendment, it would 
allow courts to do that balancing test and determine at what 
point in the process those rights must be recognized.
    That is not to say that victims don't have rights during 
the pre-trial phase and the trial, but many of those even 
described in the current proposed amendment are procedural to 
have notice, to be present at those proceedings, and I believe 
those rights should be protected. But they must be balanced 
against a defendant's rights while the defendant is still a 
defendant and not a convicted criminal.
    Senator Feingold. Thank you very much, and thank you for 
your courtesy, Mr. Chairman.
    Senator Kyl. You are very welcome.
    [The prepared statement of Senator Feingold follows:]

             Prepared Statement of Hon. Russell D. Feingold

    Thank you, Mr. Chairman, for holding this hearing. I want to 
commend Senators Feinstein and Kyl for their dedication to this 
important issue of protecting crime victims' rights.
    I want to make it clear, Mr. Chairman, that I share the sponsors' 
concern for the victims of crime. I share their desire to make sure 
that those in our society who most directly feel the pain callously 
inflicted by criminals do not suffer yet again at the hands of a 
criminal justice system that ignores victims. A victim of a particular 
crime has a personal interest in the prosecution of the alleged 
offender. Victims want their voices to be heard. They want and deserve 
to participate in the system that is designed to redress the wrongs 
that they--and society--have suffered at the hands of criminals. That 
is why I voted for a crime victims amendment to the Wisconsin state 
constitution in 1991 when I was a member of the Wisconsin state senate.
    But there are strong differences of opinion as to how victims 
rights should be protected. And I approach any effort to amend the 
United States Constitution with great trepidation. In the 207 year 
history of the U.S. Constitution, only 27 amendments have been 
ratified--just 17 since the Bill of Rights was ratified in 1791. Yet, 
nine proposed amendments to the Constitution received a hearing or 
floor consideration in the 104th Congress and nine were also considered 
in the 105th Congress. Literally hundreds of constitutional amendments 
have been introduced in the past few Congresses. So far, in just the 
first few months of this 106th Congress, 10 constitutional amendments 
have been introduced. Twenty-nine constitutional amendments have 
already been introduced in the House.
    I view this as a very disturbing trend. Frankly, I doubt it can be 
stopped. It is awfully easy to score political points by drafting a 
constitutional amendment and introducing it with a passionate speech. 
But I think it trivializes the great and historic governing document of 
our democratic system when we so easily turn to the amendment process 
to address contemporary and often transient policy problems. I have 
enormous respect for the Constitution. I certainly do not believe we 
should amend if there are other means by which we can achieve our 
goals.
    These concerns are especially important in the case of this 
particular proposed amendment. Issues related to crime are primarily 
the province of state and local governments. Twenty-nine states have 
passed victims' rights amendments and every state has enacted statutes 
protecting victims. I know that there is some disagreement on this, but 
I think the majority of these amendments and statutes, like the 
Wisconsin state constitutional amendment for which I voted, are 
functioning as effective tools to protect victims.
    In addition, we have not yet tried a thorough federal statutory 
approach to protecting victims' rights. For instance, during the last 
Congress, Senators Leahy and Kennedy introduced S. 1081, a bill which I 
cosponsored, that would be more effective than the proposed amendment. 
That bill contained specific language and authorized funds that would 
provide crime victims with rights that could effectively be enforced by 
federal, state, and local officials. I simply do not believe it is 
necessary to turn to a constitutional amendment when we have not yet 
tried to address the problems with a workable and enforceable statute.
    A statutory approach to these issues has one distinct advantage: It 
would not present the potential of expanding victims rights at the 
expense of narrowing the rights of other citizens, including criminal 
defendants, which this constitutional amendment plainly does. Professor 
Mosteller of Duke gave us one excellent example when he testified last 
year, which I think is worth repeating. He described an Oregon statute 
that requires pretrial detention of anyone arrested for a crime for 
which there is a mandatory minimum sentence, unless the person arrested 
can prove by clear and convincing evidence that he or she will not 
commit another crime while on pretrial release. That statute obviously 
presents serious due process problems before any court, but a 
constitutional amendment that guarantees ``consideration for the safety 
of the victim in determining any conditional release from custody'' 
would almost certainly change the constitutional analysis of that 
statute. It might actually narrow the right to due process of law in 
criminal cases.
    Some people believe that our Constitution provides too many rights 
to criminal defendants. I don't share that view, but I know it exists. 
If there are particular provisions or court decisions that seem to go 
too far in defining the rights of defendants, then perhaps we should 
debate measures designed to narrow the courts' understanding of those 
guarantees. But an amendment to protect victims' rights should not 
provide a ``backdoor'' route to narrowing the rights that all citizens 
may exercise if they are charged with a crime. I do not understand why 
proponents of this amendment are unwilling to assure that the rights of 
victims that they wish to enshrine in the Constitution do not lessen 
the precious rights that the Constitution already guarantees to other 
citizens.
    In conclusion, I want to state again: All of us on this Committee 
support victims' rights and understand that these rights must be 
protected. But because of my great respect for the Constitution, I 
cannot support this amendment so long as the normal legislative process 
offers significant promise as a means to address the rights of victims. 
I therefore urge my colleagues to consider other alternatives before 
amending the Constitution.

    Senator Kyl. Well, Senator Feinstein, it is left to you and 
me. Why don't I call upon you, since you have been so 
supportive and so important to getting this where we are? I 
guess I would just note that as I think you pointed out before, 
this is the fourth hearing that has been held before the full 
Judiciary Committee on this constitutional amendment. By my 
count, we have had 31 witnesses so far and 62 drafts of the 
proposed amendment. As a result, we have significant bipartisan 
support for it.
    And I know that victims may be wondering why it takes so 
long, but I am sure they also appreciate that amending the 
Constitution is a very serious proposition. We want to make 
sure we are doing it right. I can only hope that as a result of 
this hearing today, we will very soon get to a markup so that 
we can then pass out the amendment and have it considered on 
the floor of the full Senate. That is our goal. We even have 
kind of a secret goal to have that done during National Crime 
Victims' Rights Week. That is a fairly ambitious goal, but we 
will at least work toward it.
    Senator Feinstein.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Well, thank you very much, Mr. Chairman, 
and I want you to know what a pleasure it has been for me to 
work with you these past 3 years on our 60-plus drafts.
    Let me just begin by thanking Professor Cassell and Mr. 
Twist. There are few people, I think, in this Nation that take 
the time and that have the energy and talent that the two of 
you have to really devote themselves to improving the rights of 
victims. And I want you both to know how much it means, I 
think, both to Senator Kyl and to myself. You have been with us 
every step of the way through what has been a very difficult 
process, and I want to just extend to you my heartfelt thanks.
    Mr. Twist. Thank you.
    Senator Feinstein. Mr. Chairman, I would also like to 
acknowledge the fact that in addition to Ms. Kight, there are 
other victims present here in the audience today--Marlene Young 
and John Stein, sitting in the second row, representing the 
National Organization for Victims Assistance, and Roberta 
Roper, sitting in the first row, representing the Stephanie 
Roper Committee. They have been with us every step of the way 
as well and I want them to know how much your support and 
looking out and seeing your faces present here today mean to 
both of us. We hope to prevail in this and if we do, it will be 
because of the support of victims.
    Mr. Chairman, you mentioned that this is the third hearing. 
I also want to point out that the amendment was actively 
considered and debated at no less than five markups, and 
several members of the committee even remarked, I think, at the 
end of some of those markups what a good discussion we had. 
Then the amendment was passed and voted out on a bipartisan 
vote of 11 to 6. Unfortunately, the action came too late in the 
last session to allow time for the amendment to be considered 
on the floor.
    So I just want to reiterate your statement that we would 
hope that we could have a markup very shortly, and that we 
would hope that the amendment could be on the floor during 
National Victims' Rights Week, which is April 25th to May 1st. 
The amendment that we are considering today is identical to the 
amendment that was marked up and voted out by this 11 to 6 
vote, so we hope we can replicate that once again.
    I am glad that you entered into the record the statement of 
Professor Larry Tribe, whose statement in support of this 
amendment and the guarantee that the amendment provides for 
victims' rights is very important.
    I would like just basically to call everybody's attention 
to the chart up there, which to me has been kind of the 
overwhelmingly important statement of all of this, and that is 
that defendants have 15 specific rights guaranteed to them by 
the Constitution of the United States, and victims have no 
rights guaranteed to them.
    Now, I had always wondered, not being an attorney, how does 
this happen, until I read that when the Constitution was 
written in 1789, the Founding Fathers wrote the Constitution 
without providing any specific rights for victims. Now, in the 
first place, in 1789, there weren't 9 million victims of 
violent crime every year; there weren't even 9 million 
Americans of the 13 colonies.
    Now, there was another reason, and that was the way the 
criminal justice system worked in 1789. Victims didn't really 
need constitutional rights because in America, in the late 18th 
century and well into the 19th century, public prosecutors 
didn't exist, such as Ms. Wilkinson, at least in her former 
life. There weren't public prosecutors. Victims could, and did, 
in fact, bring criminal cases themselves. They hired a sheriff 
to arrest the defendant and they initiated a private 
prosecution. The core rights of our amendment--notice, the 
ability to attend and to be heard--were inherently made 
available to the victim.
    Now, all this changed in the mid-1850's when the concept of 
the public prosecutor was developed and the State took on that 
right, and the victim in the process was essentially left out. 
And for me, that is the rub because no matter what you do in 
the 31 States that have enacted individual State constitutional 
amendments, once the rights of the defendant come into conflict 
with the rights of the victim, the defendant's rights 
automatically trump those rights.
    Now, for me, I became involved in this--and I didn't even 
realize I was really becoming involved--in 1974 when I was a 
supervisor in San Francisco. And there was one particularly 
horrifying case and it was known as the Pavajo case. It took 
place when a man invaded a home on Portrero Hill in San 
Francisco and he tied one of the victims to a chair; he 
bludgeoned him to death with a hammer, a chopping block and a 
vase. And then he repeatedly raped the man's 24-year-old wife, 
broke her bones, slit her wrists, tried to strangle her and, 
before fleeing, set the home on fire.
    Ms. Carlson survived the fire and she testified against the 
defendant, and her testimony really resulted in the conviction 
of this person. And then her life became a terrible life 
because he threatened to get her when he was released. And 
every year she would call me and say, please, you have got to 
help me; I have got to know when the parole hearing is coming 
up; I live in dread of this man being released. She changed her 
name. To this day, she lives anonymously. Now, no one in the 
United States of America should have to live this way.
    Then in 1982, California really led all of the States in 
passing the first victims' rights constitutional amendment. It 
was called Proposition 8. I supported its passage. So those who 
saw the family of Nicole Brown Simpson or Mr. Ronald Goldman in 
court, it was really because of Proposition 8 that they had 
certain rights to be able to come into court.
    Just this past November, Mississippi, Montana and Tennessee 
added victims' rights amendments to their State constitutions. 
These amendments were overwhelmingly passed by 71 percent and 
89 percent of the vote, respectively. So as Professor Cassell 
testified, today there are 32 different State constitutional 
amendments and they differ from one another. Some present 
certain rights, others present other rights. So they form kind 
of a patchwork quilt of rights that vary from State to State.
    We believe that victims deserve a basic floor of rights, 
and that these rights be guaranteed to them by the Constitution 
of the United States. And those rights constitute the right to 
be present, the right to make a statement, the right to notice 
of a release, and so on and so forth, as indicated in our 
amendment today.
    Now, to those who believe it is enough to have a State 
provide these rights, I would like to point out that Maryland 
has a State amendment, but when Cheryl Ray Resch was beaten to 
death by her husband, her mother wasn't notified of the 
killer's early release only 2.5 years into his 10-year 
sentence. And she was not given the opportunity to be heard 
about this release, in direct violation of Maryland's State 
amendment.
    Arizona has a State amendment, but an independent audit--
and I am sure Senator Kyl can testify to this--found that 
victims were not consistently notified of hearings. Victims 
were not consistently conferred with by prosecutors regarding 
plea bargains. Victims were not consistently provided with an 
opportunity to request post-conviction notification.
    Ohio has a State amendment, but when the murderer of Maxine 
Johnson's husband changed his plea, Maxine was not notified of 
the public hearing and was not given the opportunity to testify 
at the sentencing, as provided by the Ohio law.
    Now, as Professor Cassell also stated, the Justice 
Department took a look at this and their study made a similar 
finding, ``Even in States with strong legal protections for 
victims' rights, the victims' rights study revealed that many 
victims are denied their rights. Statutes themselves appear to 
be insufficient to guarantee the provision of victims' rights. 
Nearly two-thirds of crime victims, even in States with strong 
victims' rights protections, were not notified that the accused 
offender was out on bond.'' And that has got to be a primary 
right that a victim has the right to know when their assailant 
is released, if only so that that victim can protect 
themselves.
    The study also found that a substantial number of victims 
reported they were not given an opportunity to make a victim 
impact statement at sentencing or parole. These are the basic 
rights that this amendment would afford to every victim of a 
crime of violence anywhere in the United States, a basic floor 
of basic rights so that that scale of justice can be somewhat 
equalized. So here we are today.
    Ms. Wilkinson, the case of the McVeigh and Nichols 
defendants in the Oklahoma City case has been raised, and my 
staff handed me a copy of the judge's order and I want to read 
into the record one part of that order because I think it 
indicates the equivocation that exists even with the Federal 
statute clarifying this.
    ``If there is a conviction, the court can protect against 
any prejudicial effect from victim impact witnesses' attendance 
at the trial, including closed-circuit telecast of the trial 
proceedings, by permitting voir dire,'' as you suggested, ``of 
victim witnesses outside of the presence of the jury before 
they testify. All interests, including the public interest in 
proceeding with Mr. McVeigh's trial, can be accommodated by 
construing Public Law 105-6 as simply reversing the presumption 
of a prejudicial effect on victim impact testimony of 
observation of the trial proceedings. Thus, the distinction 
between the effects of the crime of conviction and any effects 
from the adjudicative process will still be preserved if this 
court now reverses the exclusionary order, permits observation 
of the trial proceedings by potential penalty phase victim 
impact witnesses, and reserves ruling on the admissibility of 
the testimony of particular witnesses who observed any part of 
the trial proceedings,'' therefore, it seems to me setting in 
doubt that if a victim is present in the case, they might not 
be able to later testify and present a victim impact statement.
    That is the kind of equivocation that I believe is present 
in this court order, and I would like to ask that the full 
order be entered into the record, if I might.
    Senator Kyl. It will be entered into the record.
    [The order referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T1438.001
    
    [GRAPHIC] [TIFF OMITTED] T1438.002
    
    [GRAPHIC] [TIFF OMITTED] T1438.003
    
    Senator Feinstein. So, Mr. Chairman, let me just say in 
conclusion we have a Constitution that was written when there 
weren't 8 million victims of violent crime, when the 
circumstances of trial were totally different than they are 
today. And for the last century-and-a-half, victims have 
essentially been left out of the process. What we want to do is 
see that there are certain basic rights that the Constitution 
will guarantee.
    Now, we, as you have said, have had to compromise because 
we have to produce 67 votes on the floor of the Senate, and 
that is not an easy thing to do. Both you and I originally had 
this amendment so that it applied to all victims, not just 
victims of violence. But we increase our votes, we know, if we 
limit it just to violence, and that is the only reason we made 
the change in this amendment.
    I believe it is extraordinarily important that victims of 
crimes of violence have the right to be noticed of a hearing, 
have the right to be present, have the right to give testimony, 
have the right to at least know when their assailant is 
released, and have the right to give testimony at a parole 
hearing. These are basic rights, and unless they are provided 
in the Constitution of the United States, any time they come 
into conflict with these basic rights for the accused, they 
will be trumped.
    Thank you.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you very much, Senator Feinstein. That 
is an eloquent statement. Let me now make a very brief 
statement and then ask a couple more questions.
    It seems to me that most of the arguments of opponents have 
been pretty well dispensed with. We are now down to arguments 
like the ranking member made when he was here that there are an 
awful lot of proposed constitutional amendments floating 
around. Well, that is not to suggest that any one of them is 
not necessarily a good one.
    We all agree that the Constitution should not be lightly 
amended, but it is not the Senate that does the amending. All 
we can do is pass it out of here with 67 votes, hope that the 
House of Representatives will do the same thing, and then it 
goes to the States. That is where the amendment process occurs 
if three-fourths of the State legislatures agree. So it is a 
huge burden, but it can't get started until we get it out of 
the Senate.
    Therefore, I think it is not too much to ask our colleagues 
to help us in that endeavor. And we have worked very hard to 
make sure that we have the most perfect document we can under 
the circumstances drafted for that purpose. So as to the first 
point that there are a lot of constitutional amendments 
floating around, my response is so what? That doesn't mean that 
at least one of them isn't very, very good and that we 
shouldn't move it forward.
    The second argument has been that State statutes and 
constitutional provisions are adequate to the task. And I think 
that particularly, Professor Cassell, your opening remarks in 
that regard, as well as statements by Professor Tribe, the 
Department of Justice and others who have spoken to the issue 
refute that claim. It is more honored in the breach, it 
appears. And so it seems to me that as long as we are not 
finding that these statutes are providing the kind of 
protection that we all want, it is appropriate to turn to the 
constitutional amendment.
    The third is not really spoken, but there is an implication 
that we are really rushing this along. Well, it has been 17 
years since President Reagan's 1982 task force, and I am not 
sure that some of you were around at that time. I am not even 
going to inquire, but some of you were. In any event, along the 
way a lot of victims and victims' rights groups have been 
created to advance this cause.
    And so for 17 years, in our case after 31 State 
constitutional changes, even State statutory, action here in 
the U.S. Congress, now the fourth year of work on it and the 
fourth hearing before this full committee, it doesn't seem to 
me that one could contend that we are rushing this along. We 
have tried to meet every objection, every question, including 
even a suggestion here that we add one more concept, which I am 
pleased to say that all three witnesses were in general 
agreement on.
    So it seems to me that we have come a long way, and for 
those who might say why aren't there more witnesses at this 
hearing, it is that the testimony that we have received from 
the victims' rights groups over the years, I think, has been 
overwhelmingly persuasive. The only thing we are arguing about 
now is a few nits and gnats in the language, and that is why we 
wanted to have three lawyers here, each of whom have a slightly 
different view, but all of whom have certainly added to the 
record here today.
    So what I am hopeful of is that if there are others out 
there who still have some question about specifics, they should 
come forward so that we can get this thing into its final draft 
and marked up and onto the floor of the U.S. Senate. I think 
that victims of crime deserve that, and that any further delay 
or obstruction or nit-picking frankly is unwarranted. Let me 
just put it that way.
    Now, in an effort to bend over backwards here and provide 
the rationale for some things that we have done, in case there 
is any question about it, because some questions have been 
raised, let me ask a couple of questions here and maybe we can 
just have a very brief response.
    Let me start with you, Professor Cassell. Some have argued 
that the Constitution protects only negative rights, i.e. 
rights against the government--``the State shall not.'' What do 
you think of this argument as an argument against this proposed 
amendment?
    Mr. Cassell. That argument obviously fails. What the 
victims' rights amendment would do would be to protect the 
rights of citizens like Marsha Kight against government power. 
She and some of the other victims were told by Judge Matsch 
that they either had to leave the court room or they would not 
be able to present testimony down the road. So it is to protect 
against the use of government power to exclude victims, for 
example, that the victims' rights amendment would exist.
    Senator Kyl. Thank you. Incidentally, there are numerous 
representatives of victims groups in the audience, but Marsha 
Kight has been referred to so many times, I might hold up her 
book, Forever Changed: Remembering Oklahoma City April 19, 
1995, compiled by Marsha Kight, Director of Families and 
Survivors United. And if anybody in the audience would like to 
see some evidence of lives forever changed, come to my office 
or come to Senator Feinstein's office. There are two large--
what would you call them--banners from the Oklahoma City 
bombing case that have literally thousands of names, signatures 
and messages penned on them. And they are separate; there is 
one in my office and one in Senator Feinstein's office. Lives 
were forever changed, and we appreciate your presence here, 
Marsha Kight, and all of the other representatives.
    One more question, Professor Cassell. I am actually trying 
to get an appropriation this year for a grant to advance a 
cause which has become apparent to me, and that is that law 
schools don't appear to be focusing on victims' rights, which 
suggests to me that it may be one of the reasons why the Crime 
Victims' Rights Amendment is not perceived as well in the legal 
profession as it should be.
    What is your take on that?
    Mr. Cassell. I think you have put your finger on a very 
serious problem in legal education today. I am teaching at the 
University of Utah College of Law this semester for the first 
time a course focusing on crime victims' rights. There is a new 
law school textbook out by Professor Doug Beloof that will be 
very useful in that regard.
    But apart from my class and Professor Beloof's class and 
just really one or two others around the country that I am 
aware of, victims' rights are not part of the law school 
curriculum. If you go to the bar exam, which is the process by 
which lawyers are certified, they are not asked questions about 
victims' rights, but they are asked questions about defendants' 
rights and prosecutors' interests, and so forth.
    So I think there is a real gap in legal education there, 
and one of the things that would come out of a victims' rights 
amendment would be an encouragement to the legal community to 
begin educating on this, focusing on this, dealing with some of 
the questions that victims present.
    Senator Kyl. Thank you.
    Mr. Twist, one of the things that has been raised is how to 
deal with the exceptional case, and certainly the Oklahoma City 
bombing case would be an example of that where you have a large 
number of victims. What is the reason for the exceptions clause 
in this amendment?
    Mr. Twist. Senator Kyl, it is for precisely the reasons 
that opponents of the amendment have offered from time to time 
in their opposition, examples of hypothetical horrors which 
might result if the amendment were to be enacted, by arguing 
that the language of the amendment is a straightjacket that 
would put the criminal justice system and the prosecutor and 
the court without anywhere to turn in hard cases.
    It is appropriate that the amendment include this exception 
language so that it is clear that it is the Congress, the 
legislative body, that will have the authority to, after a 
deliberative process, craft exceptions to the otherwise 
unequivocal language in order to accommodate those cases.
    For example, where a victim of domestic violence may, in 
her anguish, strike out at her batterer, and frankly be 
prosecuted and convicted and incarcerated for that, the 
language of the amendment would allow an exception to be 
created whereby that batterer, the underlying batterer, would 
not have to get notice of the release of the victim of that 
domestic violence, exceptions like that that will be the 
product of a deliberative process in Congress, where those 
debates ought to occur.
    Senator Kyl. I also think that the point made earlier with 
respect to notice was important because I have heard some say 
this is going to be an extraordinarily burdensome and costly 
process to notify everyone. I think prosecutors who are 
conscientious already do that and try very hard to do it. But 
it wouldn't necessarily be the prosecutor.
    As we have drafted this, the individual State legislatures 
would decide. Maybe it is the clerk of the superior court in 
Arizona. But the State legislators can determine who should 
have that responsibility and they can see to it that the funds, 
as needed, are provided to the entity, whether it be the clerk 
of the court, the county attorney's office or whoever, to 
ensure that that notice is provided. That seems to me to be 
quite a bogus argument. I know I talked to the county attorney 
in the fastest growing county in the country, Maricopa County, 
Arizona, who said that he thought the notice requirement would 
take about the equivalent of one-half the time of a full-time 
equivalent employee. So I don't think that is a significant 
objection.
    One final question has to do with the balancing. There were 
some other questions asked, I think, by Chairman Hatch about 
this. May I ask you, Mr. Twist, if I am incorrect on this? 
There is at least one of the rights that would be provided--and 
there may be others, but I can only think of cases where it 
would arise in connection with the right to be present at the 
trial, as opposed to a defendant's right to a fair trial, which 
in some circumstances in the past has resulted in exclusion of 
a victim or a victim's family from the court room, in which 
there could be a conflict between a right of the defendant 
which has been held to be constitutionally guaranteed and a 
right of the victim which would now be constitutionally 
guaranteed.
    I can't think of any other situation in which you would 
have those two rights conflict, but there may be some. I view 
this as similar to the right of the free press to cover a 
trial, but the judge's ability to protect the right of a 
defendant to a fair trial, and in some cases therefore exclude 
the press. Now, the First Amendment is the first among the 10 
and is usually held up as inviolate. But courts have 
historically balanced those two complete rights and have struck 
the balance to ensure that both of them are satisfied to the 
extent that they can be when there is a conflict.
    Is there any difference with respect to the granting of a 
constitutional right here where finally the victim would have 
equal standing in at least this one situation? But with respect 
to Senator Feingold's concern that maybe we have to have a 
separate little tag line that says, however, any of the 
defendant's rights are still number one, would you have to have 
that?
    Mr. Twist. No, Senator. In fact, I think the consequences 
of that language could be quite pernicious. In fact, you are 
exactly right that courts are in the business of balancing 
rights that come into conflict, whether those rights are 
grounded in the Constitution or elsewhere. And that is exactly 
what courts would do with this amendment. If this amendment 
were to be the law, they would balance these amendments against 
other enshrined amendments in the Constitution for persons 
accused or convicted.
    And the only way for the balance to be true, for the 
assessment to be fair among these competing rights is if they 
both reside in the fundamental law of the country, the U.S. 
Constitution. And without that, there is forever an imbalance 
in the way courts go about their decision to weigh the rights 
of the victim and the rights of the defendant.
    We think it is absolutely clear throughout the history of 
our constitutional law that courts will balance rights when 
they come in conflict. And in earlier testimony from Professor 
Cassell, we have even proposed, if some feel it is necessary to 
codify that principle, some language that would codify the 
principle of striking a balance. Certainly, no one could ask 
for more. Certainly, no one should ask for a defendant to have 
codified into the Constitution an automatic victory regardless 
of the facts, regardless of the circumstances, regardless of 
the context, whenever rights come in conflict.
    Senator Kyl. Well, I thank you. I know we have that 
language, but we can add that if we need to.
    Let me say we have gone over our time. There will be 1 week 
for people to submit statements to the record, for additional 
questions to be posed and for their response, one week from 
today's hearing. Let me also again thank, in their absence, 
Senator Ashcroft and Senator Feingold, the chairman and ranking 
member of the subcommittee, who did not insist on their 
jurisdiction in this case, Senator Feingold keeping an open 
mind on the amendment and Senator Ashcroft supporting it, with 
a couple of suggestions as to how we might strengthen it; to 
Senator Feinstein for all of her extraordinarily hard work and 
efforts at ensuring a very strong bipartisan support for the 
amendment; to thank Senator Hatch for conducting the hearing; 
and for all of the guests who are here, and most especially for 
the three members of the panel. We very much appreciate your 
presence here today.
    If there is nothing further, I will declare the hearing 
adjourned.
    [Whereupon, at 12:10 p.m., the committee was adjourned.]

    [GRAPHIC] [TIFF OMITTED] T1438.004
    
    [GRAPHIC] [TIFF OMITTED] T1438.005
    
    [GRAPHIC] [TIFF OMITTED] T1438.006
    
    [GRAPHIC] [TIFF OMITTED] T1438.007
    
                         Questions and Answers

                              ----------                              


      Response of Steven J. Twist to a Question From Senator Hatch

    Question 1. In your prepared testimony, you quote an Arizona case 
that states, ``the Supremacy Clause requires that the Due Process 
Clause of the U.S. Constitution prevail over state constitutional 
provisions.''
    If all the rights set forth in the proposed constitutional 
amendment were incorporated into a federal statute or into a state 
constitutional provision, which of these rights would be struck down or 
curtailed under the Due Process Clause of the federal Constitution as 
currently interpreted by the federal courts.
    Answer 1. The sad truth is that any one of them could be. The 
principle has been articulated by at least one court, Division One of 
the Arizona Court of Appeals, several times, most recently in Romley v. 
Martin, 1 CA-SA 98-0085, Memorandum Decision, (June 18, 1998). In this 
case the court wrote, ``We also understand that ``when the defendant's 
constitutional right to due process conflicts with the Victim's Bill of 
Rights in a direct manner, * * * then due process is the superior 
right.' '' [quoting Romley v. Superior Court., 172 Ariz. 232, 236, 836 
P.2d 445, 449 (App. 1992)]. As I said in response to Senator Leahy's 
question on this point:

          This black-letter principle is the very point that proponents 
        of the Crime Victims' Rights Amendment have been making. One 
        need look no further than these cases for evidence that courts 
        in fact adopt the principle. The only way to strike a fair 
        balance when the defendant's rights and the victim's are 
        alleged to be in conflict is to elevate victims' rights to the 
        same fundamental status accorded to defendants' rights. Only 
        then will courts be able to truly accommodate the legitimate 
        rights of both.

      Responses of Steven J. Twist to Questions From Senator Leahy

    Question 1. When you testified on this issue last April, I asked 
you whether you knew of any appellate cases in which defendants had 
successfully overturned their convictions based on the presence of 
victims at trial, or other provisions of state or federal victims' 
rights provisions. You directed me to an unpublished decision of the 
Arizona Court of Appeals, Romley v. Martin [1 CA-SA 98-0085 May 7, 1998 
(Mem. Decision)], which held that the defendant's due process right to 
present a defense took precedence over the victim's right, under the 
Arizona Constitution, to refuse a pre-trial demand that she submit to a 
psychological examination.
    As is typical of cases presented as examples of defendants' rights 
``trumping'' victims' rights, the Arizona Court of Appeals subsequently 
reversed itself in Romley v. Martin, issuing an amended decision on 
June 18, 1998, which concluded, on the facts of that case: ``[T]he 
victim's right to refuse a defense examination is superior to 
Defendants' interest in having her examined,'' and, ``[T]he Defendants 
constitutional rights are not violated by upholding the victim's 
constitutional rights.''
    The amended decision in Romley v. Martin appears consistent with 
other recent decisions by the Arizona courts. For example, just this 
month, the Arizona Supreme Court upheld a victim-witness's 
constitutional right to be present in the courtroom against a 
defendant's due process challenge. [State v. Fulminante, 1999 WL 
102251, at *17-18 (Ariz. Mar. 2, 1999).] Similarly, in August 1998, the 
Arizona Court of Appeals upheld a parent's right to attend trial 
proceedings with and on behalf of her child, even though the parent 
would later testify. [State v. Uriarte, 1998 WL 540998 (Ariz. App. Div. 
1, Aug. 27, 1998).]
    I am aware of one Arizona case which held that a victim's right 
under the state Constitution to refuse discovery requests by the 
defendant must yield to the defendant's due process right. [Romley v. 
Superior Court, 835 P.2d 445 (Ariz. Ct. App. 1992).] Other than that 
case, which you agreed at the hearing was correctly decided, are you 
aware of any appellate cases anywhere in the United States that were 
finally decided and not subsequently reversed in which a defendant's 
right under the Federal Constitution was held to ``trump'' a victim's 
right under a state or federal victims' rights provision?
    Answer 1. The second Martin opinion did not ``reverse'' the first 
opinion on the legal principle which is the focus of your question, in 
fact, on that issue, it reaffirmed the principle. In the second 
opinion, the court wrote, at page 5, ``We also understand that, ``when 
the defendant's constitutional right to due process conflicts with the 
Victim's Bill of Rights in a direct manner, * * * then due process is 
the superior right.' '' [quoting Romley v. Superior Court., 172 Ariz. 
232, 236, 836 P.2d 445, 449 (App. 1992)].
    This black-letter principle is the very point that proponents of 
the Crime Victims' Rights Amendment have been making. One need look no 
further than these cases for evidence that courts in fact adopt the 
principle. The only way to strike a fair balance when the defendant's 
rights and the victim's are alleged to be in conflict is to elevate 
victims' rights to the same fundamental status accorded to defendants' 
rights. Only then will courts be able to truly accommodate the 
legitimate rights of both.

    Question 2. As you know, this Committee reported a resolution 
identical to S.J. Res. 3 toward the end of the last Congress. The 
Majority Report accompanying that resolution contended that, 
``consistent with the plain language of [Section 3],'' the States would 
retain the power to implement the amendment, including the power to 
flesh out the contours of the amendment by providing definitions of 
``victims'' of crime and ``crimes of violence.'' As I read Section 3, 
only ``The Congress'' would have the power to implement the amendment. 
Please discuss how much latitude you think that the States would have 
in implementing this amendment and any necessary exceptions to it.
    Answer 2. Professor Cassell and I have both been asked similar 
questions. We have collaborated on our answer to provide you with the 
benefit of our collective thinking on this point.
    We agree with the language of the Majority Report you quote. As the 
Majority Report explained:

          This provision [section 3 of the Amendment] is similar to 
        existing language found in section 5 of the 14th amendment to 
        the Constitution. This provision will be interpreted in similar 
        fashion to allow Congress to ``enforce'' the rights, that is, 
        to insure that the rights conveyed by the amendment are in fact 
        respected. At the same time, consistent with the plain language 
        of the provision, the Federal Government and the States will 
        retain their power to implement the amendment. For example, the 
        States will, subject to the Supremacy Clause, flesh out the 
        contours of the amendment by providing definitions of 
        ``victims'' of crime and ``crimes of violence.''

S. Rep. 105-409 at 35.
    The important point to distinguish here is between ``enforcement'' 
power under the Amendment and implementation power. The question posed 
seems to conflate the two points, referring to a general congressional 
power to implement the Amendment. While Congress will surely have the 
power to implement the Amendment in the federal system, it does not 
have this implementation power in the state system. Section 3 of S.J. 
Res. 3 confers on Congress only the power to ``enforce'' the Amendment. 
This enforcement power is not unlimited, as the Supreme Court's recent 
decision in City of Boerne v. Florida, 117 S. Ct. 2157, 2163-64 (1997), 
makes clear in the context of similar language found in the Fourteenth 
Amendment. As a consequence, this grant of a congressional enforcement 
power does not remove from the states their plenary power over their 
criminal justice systems. Thus, we believe, as did the majority of this 
Committee, that the states have considerable implementation power under 
the Amendment.

    Question 3. The International Association of Chiefs of Police 
(IACP) has raised concerns that the proposed Victims' Rights Amendment 
could ``allow delays in the swift administration of justice, or the 
creation of civil or criminal liability for failure to protect the 
victims' or their survivors' rights.'' Can you assure us that the 
IACP's concerns are unfounded?
    Answer 3. Yes. Professor Cassell and I have both been asked similar 
questions, so we have collaborated on our answer to give you the 
benefit of our collective thinking on this point.
    We do not have IACP document to which this question refers before 
us, so we will answer this question without reference to the IACP. 
Indeed, we know that many law enforcement offices and chiefs of police 
around the country support the Victims Rights Amendment. They have good 
reason for doing so. The Victims Rights Amendment will not delay 
justice. To the contrary, it contains a provision that should speed up 
the administration of justice--the victims right to ``consideration of 
the interest of the victim that any trial be free from unreasonable 
delay.'' Nor would it allow the creation of civil or criminal liability 
for failure to protect victims. This concern appears to have been 
raised with respect to an earlier version of the proposed Amendment. 
S.J. Res. 3 does not contain a right of a victim to be protected from a 
defendant. Instead, it contains specific rights dealing with court 
consideration of the victims' interest in safety. Moreover, section 2 
of S.J. Res. 3 states that the amendment does not create civil damages 
actions against state entities, so any concern about new liability is 
unfounded.

    Question 4. The proliferation of state laws and constitutional 
amendments protecting victims rights is a relatively recent phenomenon. 
Just last year, Mississippi, Montana and Tennessee approved state 
constitutional amendments providing rights to crime victims, joining 29 
other states that have adopted such amendments since 1982. Why 
shouldn't we learn from the experience of the states before imposing a 
single federal standard in this area?
    Answer 4. Professor Cassell and I have been asked similar 
questions, so we have collaborated on our answer to give you the 
benefit of our collective thinking.
    We certainly agree that the country should learn from the 
experience of the states in considering whether to pass a victims 
rights amendment. As was explained at greater length at the hearing (in 
Professor Cassell's prepared statement), on this point it is useful to 
consider the result of a meeting recently convened by the Department of 
Justice of those active in the field, including crime victims, 
representatives from national victim advocacy and service organization, 
criminal justice practitioners, allied professionals, and many others. 
Their report--published by the office for Victims of Crime and entitled 
``New Directions from the Field: Victims' Rights and Services for the 
21st Century''--concluded that ``[t]he U.S. Constitution should be 
amended to guarantee fundamental rights for victims of crime.'' The 
report went on to explain,

          A victims' rights constitutional amendment is the only legal 
        measure strong enough to rectify the current inconsistencies in 
        victims' rights laws that vary significantly from jurisdiction 
        to jurisdiction on the state and federal levels. * * * Today, 
        many victims do not report crime or participate in the criminal 
        justice system for a variety of reasons, including fear of 
        revictimization by the system and retaliation by the offender. 
        Victims will gain confidence in the system if their rights are 
        recognized and enforced, their concerns for safety are given 
        serious consideration, and they are treated with dignity and 
        respect.

These impressionist conclusions find strong support in a December, 1998 
report from the National Institute of Justice (NIJ) finding that many 
victims are denied their rights and concluding that ``enactment of 
State laws and State constitutional amendments alone appears to be 
insufficient to guarantee the full provision of victims' rights in 
practice.'' The report found numerous examples of victims not provided 
rights to which they were entitled. For example, even in several states 
identified as giving ``strong protection'' to victims rights, fewer 
than 60 percent of the victims were notified of the sentencing hearing 
and fewer than 40 percent were notified of the pretrial release of the 
defendant. A follow-up analysis of the same data found that racial 
minorities are less likely to be afforded their rights under the 
patchwork of existing statutes.
    Of course, at some point the time for learning passes and the time 
for action begins, particularly because each day that passes in a 
``learning'' process means denials of rights to victims of crime. We 
believe the time for action on a federal amendment has come.

    Question 5. (A) What is the state of the law regarding crime 
victims' rights in each of the states that does not currently provide 
such rights in its constitution?
    (B) What efforts are being made in these states to support passage 
of state constitutional amendments regarding crime victims' rights?
    (C) What efforts are being made in these and other states to 
increase the protection of crime victims' rights other than efforts at 
constitutional change (state and federal)?
    (D) In states with victims' rights constitutional amendments, 
please provide examples of cases in which the constitutional rights of 
victims came into conflict with the constitutional rights of the 
accused.
    Answer 5. Professor Cassell and I have been asked similar 
questions, so we have collaborated on our answer to provide you with 
the benefit of our collective thinking.
    (A) Providing precise information on the ``state of the law'' in 
states without state constitutional amendments is difficult. We are 
aware of no readily-available source that contains this information. 
Indeed, this is one problem that victims face in attempting to assert 
their rights. The treatise Professor Beloof and Professor Cassell are 
working on will provide further information about the state of the law 
around the country.
    (B) The National Victims Constitutional Amendment Network (NVCAN) 
supports state victims amendments. An information packet has been 
prepared that is provided to persons interest in state amendments.
    (C) Each year in the states, of course, various statutory changes 
are made or proposed in laws concerning crime victims. For example, 
this year in Utah, the Utah Council on Victims attempted to change 
procedures for collecting restitution. We were unsuccessful, but will 
make further efforts next year. Again, we do not have available a 
comprehensive listing of all such efforts around the country. The 
National Center for Victims of Crime attempts to keep track of various 
legislative initiatives pursued on behalf of victims, and they may be 
able to provide you with more comprehensive information.
    (D) See our answers to question 1, above, which provides detailed 
information on this question.

      Responses of Beth Wilkinson to Questions From Senator Hatch

    Question 1. As you know, the Department of Justice has a long 
standing tradition of defending the constitutionality of Acts of 
Congress whenever ``reasonable'' arguments to that effect can be made. 
Terry Nichols has argued that it is a violation of the Ex Post Facto 
Clause of the Constitution to apply the provisions of the 1996 
Mandatory Victim Restitution Act (MVRA), 19 U.S.C. 
Sec. Sec. 3664(f)(1)(A) (Supp. II 1996), retroactively to the 1995 
bombing as Congress intended. In its decision last month, the 10th 
Circuit rejected Nichols' position, concluding that restitution serves 
to compensate victims rather than punish defendants and therefore that 
the Act could be applied to his sentencing. United States v. Nichols, 
No. 98-1231 (10th Cir. Feb. 26, 1999). Do you think that the 10th 
Circuit's position (following, a 7th Circuit ruling in United States v. 
Newman, 144 F.3d 531 (7th Cir. 1998),) is a ``reasonable'' one and, if 
so, shouldn't the Department's lawyers be defending this ruling and 
helping victims around the country obtain restitution from violent 
offenders?
    Answer 1. While the 10th Circuit recently ruled that the 1996 
Mandatory Victim Restitution Act (MVRA) applies retroactively, most 
other circuits have decided differently. In light of the split in the 
circuits, the Department of Justice is right to take the most 
conservative position to ensure that victims obtain restitution from 
violent offenders without risking a reversal of the order on appeal. In 
United States v. Terry Nichols, the government successfully persuaded 
the trial court to order $14.5 restitution under the prior statute. 
Thus, the restitution order would have been upheld on appeal regardless 
of how the 10th Circuit interpreted the MVRA.

    Question 2. Given the 10th and 7th Circuits' recent rulings on the 
retroactive application on the MVRA rejecting the Department's views, 
it seems clear that victims of crimes of violence in a number of cases 
would have benefitted from having separate legal representation to help 
them obtain the maximum possible restitution. In the cases you have 
seen, what steps did the Department take to see that the victims were 
aware of their right to separate legal representation on this issue and 
what steps, in your view, should it have taken? For example, given the 
difficulties that victims of violent crime have in obtaining separate 
legal representation, would it have been desirable for the Department 
of Justice to at least lay out to courts around the country the 
argument recently adopted by the 10th and 7th circuits so that these 
were aware of what the victims' legal arguments would be?
    Answer 2. It would be wise for the Department of Justice to advise 
victims of crime of their right to separate legal representation. There 
are times when crime victims may want to seek counsel from those other 
than the prosecution team. That counsel for victims take different 
positions from Justice Department attorneys does not mean such 
arguments will prevail. Lawyers for some of the victims in United 
States v. Terry Nichols made arguments to the trial court that were 
unsuccessful. The Justice Department attorneys are obligated to take 
reasonable positions based on a fair interpretation of the law of the 
case and the law or the circuit.

    Question 3. Why didn't Department of Justice lawyers seek any order 
of restitution against Timothy McVeigh, particularly given the 
possibility that he might be able to ``sell his story'' by giving an 
``exclusive'' interview to some curious media outlet?
    Answer 3. Timothy McVeigh received a sentence of death from the 
jury and Judge Matsch imposed that sentence without considering 
restitution. Neither the prosecutors nor the victims, some of whom had 
their own counsel, asked Judge Matsch to order restitution.

      Responses of Beth Wilkinson to Questions From Senator Leahy

    Question 1. In your experience, are Federal prosecutors and courts 
equipped with sufficient resources to identify and locate victims and 
assist them with their special needs, or would additional resources be 
necessary to ensure that the rights proposed in this amendment could be 
carried out?
    Answer 1. To address the needs of victims, Congress must bolster 
the presently limited resources of the judicial system. At present, 
prosecutors and courts labor to fulfill the social and legal 
requirements of criminal prosecution without sufficient funds and 
administrative support necessary to assist victims of crime. The 
resources marshaled in the Oklahoma City bombing cases were atypical 
and most prosecutors struggle to successfully try their cases and meet 
the needs of the victims. Any effort to redress the shortcomings of 
society's response to victims will fail if not sufficiently funded and 
staffed.

    Question 2. In your experience, do victims generally want the same 
thing from the judicial process, or do their expectations differ? If 
the former, what do they seek? If the latter, please explain the 
differences.
    Answer 1. One of the most delicate aspects of working with victims 
of crime is recognizing that each survivor and each family member deals 
differently with the judicial system. As a prosecutor, I spoke to 
survivors and family members of victims of crime who had vastly 
different expectations of the criminal justice system. Some wanted 
little from the process other than the just conviction of the 
perpetrators. Many of the victims of the Oklahoma City bombing avoided 
any contact with the system. They chose not to attend the trials, some 
vehemently refused to testify as penalty witnesses. Others attended 
nearly every proceeding that occurred in the cases and felt a need to 
testify about their losses.
    It would be inappropriate to believe that the opinions of the most 
vocal are shared by those who choose to deal with their grief in a 
different way. Because the reactions to the criminal justice system are 
as varied as the victims themselves, it is difficult to generalize 
about the expectations of crime victims.

    Question 3. You have given us examples of how the proposed 
constitutional amendment could have impeded the effective prosecution 
of the Oklahoma City bombing defendants. Can you identify other 
examples from your experience in which the amendment could have 
impaired the criminal justice process?
    Answer 3. The other major terrorism case that I handled could have 
been put at risk if the proposed constitutional amendment were adopted. 
In United States v. Dandeny Munoz Mosquera, a case prosecuted in the 
Eastern District of New York, the defendant was convicted, among other 
things, of bombing an airplane in Bogota, Colombia. The proposed 
amendment would have required us to contact all of the victims, most of 
whom resided in Colombia. To further complicate matters, we encountered 
difficulties with elements of the Colombian government when we sought 
cooperation and evidentiary testimony. The drug cartels threatened law 
enforcement officials and made communication with witnesses and victims 
extremely difficult.
    Although the requirements of the proposed amendment may not be 
burdensome in some local cases, the difficulties multiply when the 
United States prosecutes crimes that occurred outside its borders. If, 
for example, the government was prosecuting members of a foreign 
terrorist organization, the prosecutorial strategy behind a plea with a 
less culpable member of the organization may be best left unexplained 
until the time of trial. With the requirements of the proposed 
amendment, the victims could insist that the prosecution team explain 
the rationale for the plea, thereby jeopardizing the prosecution of the 
main perpetrators.

    Question 4. The Committee has heard testimony that prosecutors did 
not allow a victim of the Oklahoma City bombing to be heard at the 
sentencing of Timothy McVeigh because she was opposed to the death 
penalty. Is that correct? Please explain your response.
    Answer 4. No one who opposed the death penalty was prohibited from 
testifying during the penalty phase of the McVeigh trial. If a family 
member or survivor chose to testify, the prosecution team explained 
that the statement would be used to support the government's request 
for the death penalty. Some who opposed a death sentence felt it would 
be inappropriate for them to testify in a proceeding in which the 
government would argue that death was the just sentence.
    Whether a victim-witness supported or opposed the death penalty was 
not, in any event, proper subject of testimony. No victim-witness was 
permitted to testify regarding their personal views on the death 
penalty.

    Question 5. You suggested during the hearing that the rights of 
victims should be balanced with the rights of the accused. (A) In cases 
of irreconcilable conflict, where accommodation cannot protect the 
rights of both the victim and the accused, do you believe that the 
accused's historical constitutional right to a fair trial must be 
preserved? (B) Would you support the addition to S.J. Res 3 of the 
following language: ``Nothing in this article shall be construed to 
deny or diminish the rights of the accused as guaranteed by this 
Constitution''?
    Answer 5. Until a defendant is convicted of a crime, a conflict 
between the rights of a victim and the rights of the accused must be 
decided in such a way as to preserve the right to a fair trial for the 
accused. One way of ameliorating a deficiency in the current proposed 
amendment would be to add the following language: ``Nothing in this 
article shall be construed to deny or diminish the rights of the amused 
as guaranteed by this Constitution.''

    Question 6. You testified that, in your opinion, the proposed 
constitutional amendment should not be limited to victims of violent 
crimes, but should instead extend to all crime victims. Is it your 
testimony that you would support the adoption of S.J. Res 3 were it so 
broadened?
    Answer 6. No, I do not support the adoption of S.J. Res 3 in its 
current form, for the reasons I have stated. I also think any proposed 
amendment to protect crime victims should include all victims, not just 
victims of violent crimes.

       Responses of Beth Wilkinson to Questions From Senator Kyl

    Question 1. In your testimony, you explain that it was desirable 
for victims to be heard at sentencing. Could you elaborate on the 
positive aspects of victims making statements at sentencing?
    Answer 1. There are several reasons that victim testimony at 
sentencing is beneficial to the criminal justice system. First, whether 
it is a judge or jurors who must decide the sentence of a convicted 
defendant, it is essential that the impact of the crime be considered. 
In most cases, survivors and family members are in the best position to 
describe the loss to society. Second, many victims of crime want to 
express their views to the defendant and the sentencing court. Speaking 
at a sentencing hearing provides them with the opportunity to express 
their views in a dignified and serious setting. Finally, when victims 
of crime speak at a sentencing hearing, the community benefits from 
hearing about the after effects of a crime.
    Apart from the cathartic and retributive attributes of sentencing 
hearings, the essential purpose is to determine the just sentence for a 
defendant. Unlike the trial proceeding, during the sentencing hearing a 
judge or jury should consider the impact of the crime when deciding 
that just sentence. Of course, the court must always ensure that a 
sentencing decision is based on reason and not on emotion or passion.

    Question 2. During the Oklahoma City bombing case, Department of 
Justice lawyers held several mass meetings with victims of the bombing 
to explain developments in the case. Do you think these meetings helped 
the victims understand the proceedings or were useful in other ways?
    Answer 2. The meetings we held with the victims of the Oklahoma 
City bombing were helpful to the victims and the prosecution team. 
During those meetings we explained the proceedings and the issues we 
anticipated would arise during the trial. The victims were able to ask 
questions and express their views. One of the most important aspects of 
the meetings was the time we had to get to know the victims and the 
opportunity they had to get to know us. Victims who have suffered such 
severe trauma and loss need to know the people who are responsible: for 
the prosecution of the defendants. Likewise, it was a privilege for me 
and the rest of the prosecution team to get to know the survivors and 
family members and to understand the issues they were confronting.

    Question 3. On June 26, 1996, Judge Matsch sua sponte ordered 
victims of the Oklahoma City bombing who wish to be eligible to give 
victim impact statements at sentencing to stop watching any of the 
proceedings in the case. Judge Matsch gave the victims the lunch break 
to make this wrenching decision of whether to stop watching the 
proceedings or lose any opportunity to make an impact statement. What 
was it like for the victims to make such an important decision with so 
little time to deliberate?
    Answer 3. The decision for some of the victims was very difficult 
and was only exacerbated by the lack of time they had to make that 
decision. Fortunately, the passage of the Victims Rights Clarification 
Act of 1997 allowed many of the victims who had initially decided to 
avoid watching the proceedings to attend the trials.

    Question 4. On March 25, 1997, Judge Matsch ruled that the victims 
request for a ruling clearly upholding the Victims Rights Clarification 
Act of 1997 was moot. After that ruling, were Department lawyers able 
to assure prospective victim impact witnesses unequivocally that they 
would run no risks from watching the proceedings and, if not, what 
risks did the Department lawyers see?
    Answer 4. When Judge Matsch first ruled on the Victims Rights 
Clarification Act of 1997, we could not unequivocally assure 
prospective victims impact witnesses that they would be permitted to 
testify if they viewed the trial. Judge Matsch did suggest that he 
would determine at a hearing after the initial phase of the trial 
whether attendance at the trial adversely affected the impact testimony 
of any potential witnesses. Fortunately, none of the victims who chose 
to watch the trial was precluded from testifying. The issue was 
resolved in the McVeigh case and no victim had to face that choice 
during the Nichols case.

    Question 5. The proposed Victims' Rights Amendment would give ``a 
victim of a crime of violence'' the right to be heard before a plea 
bargain is accepted. Federal Rule of Criminal Procedure 32(c)(3)(E) 
gives a victim of ``a crime of violence'' a right to be heard at the 
sentencing of a defendant. Our Committee has expressed the view that 
the two phrases should be given identical constructions. See S. Rep. 
105-409 at 23. Do you believe that Marsha Knight and other victims of 
the Oklahoma City bombing were victims of a ``crime of violence'' by 
Michael Fortier under the Victims Rights Amendment and under the Rules 
of Criminal Procedure. (As you know, he pled guilty to misprision of a 
felony in violation of 18 U.S.C. Sec. 4 in connection with failing to 
alert government authorities to the bombing.) If so, why did you and 
other Department attorneys decline to join the victims' argument that 
they were victims of such a ``crime of violence'' when they sought the 
right to be heard at Fortier's sentencing under Rule 32(c)(3)(E)?
    Answer 5. Victims did testify at the sentencing hearing for Michael 
Fortier and the Justice Department advocated for their right to do so. 
The Department argued that the court should exercise its discretion to 
hear from any victim who wanted to speak; and the court agreed. Whether 
Michael Fortier committed a crime of violence is irrelevant. I believe 
victims of crime, regardless of whether the crime qualifies as a crime 
of violence, should be permitted to speak at the sentencing hearing of 
a defendant.

    Question 6. After the 10th Circuit's ruling in United States v. 
McVeigh, 106 F.3d 325 (10th Cir. 1997), how difficult is it for victims 
and the Department of Justice to seek appellate review of decisions by 
district court judges who fail to provide to victims of crime their 
rights under the Victims Bill of Rights, 42 U.S.C. 10606(b)? Would 
passage of the Victims Rights Amendment, particularly with its 
provisions conferring ``standing'' on victims, improve the prospects of 
obtaining appellate review of trial level denial of victims rights?
    Answer 6. The provisions conferring standing to victims in the 
proposed Victim's Rights Amendment need to be clarified as to when a 
victim of crime would have a stand to seek appellate review. Any 
standing problems that currently exist for victims could easily be 
addressed through legislation. An amendment to the Constitution is 
unnecessary to rectify those problems. To the extent some may suggest 
that victims should have more interlocutory appeals, it should also be 
understood that such appeals could unnecessarily delay a trial, thus 
adversely impacting a case.

    Question 7. Do you believe it would have been desirable for Marsha 
Knight and other victims who were not able to testify at the penalty 
phase of Timothy McVeigh's trial to have had the opportunity to give an 
impact statement later when Judge Matsch actually imposed the capital 
sentence?
    Answer 7. It is not accurate to state that some victims were unable 
to testify at the penalty phase for Timothy McVeigh. There were 
approximately 37 witnesses who testified in front of the jury which 
decided the just sentence for McVeigh. Any impact statement given later 
when Judge Matsch actually imposed the capital sentence would have had 
no effect on the sentence. The jury had already determined that the 
death penalty was the appropriate sentence. If one of the purposes of 
victim impact testimony is to provide the jury with information to 
consider when sentencing a defendant, testimony at the imposition of 
the sentence would not serve that purpose.

       Responses of Paul Cassell to Questions From Senator Leahy

    I appreciate the opportunity to respond to your questions 
concerning the Victims Rights Amendment and hope that my answers will 
allay some of the concerns that have lead you to oppose the Amendment.
    Question 1. When you testified on this issue last year, I asked you 
to provide a list of all appellate cases in which defendants had 
successfully overturned their convictions based on the presence of 
victims at trial, or other provisions of state or federal victims' 
rights provisions. You did not respond by citing a single case. 
Instead, you noted that you and Professor Doug Beloof were preparing a 
treatise on the rights of crime victims that would comprehensively 
survey the relevant case law, and that the relevant chapters had not 
yet been completed.
    Professor Beloof's casebook on victims has now been completed. Are 
you aware of (A) any decisions that were not eventually reversed in 
which victims' rights laws or state constitutional amendments were not 
given effect because of defendants' rights in the federal Constitution 
or (B) any cases in which defendants' convictions were reversed because 
of victims' rights legislation or state constitutional amendments?
    Answer 1. My answer last year mentioned a treatise that Professor 
Beloof and I are preparing on victims' rights. This is a separate, more 
comprehensive work than the Beloof casebook that your question 
references. The Beloof casebook is a very useful teaching tool. I am 
teaching a course on crime victims rights and the book has done an 
excellent job in exposing the students to the various issues raised by 
victims' demand for fair treatment in the process. However, the 
casebook does not comprehensively collect appellate case law on 
victims' right.
    Only the treatise will review all the caselaw. Until such a 
treatise is prepared (we estimate the task will take several years), it 
is impossible to report on the precise status of victims' case law in 
all fifty states. While I am not aware of any appellate cases today of 
the type you describe that pertain directly to the rights contained in 
the proposed Victims Rights Amendment, I should hasten to point out 
that appellate cases of any sort involving victims are quite rare. This 
is because of the difficulties victims have in protecting their rights. 
As I explained at greater length in my prepared statement:

          The important issue is not whether victims rights are 
        thwarted by a body of appellate law, but rather whether they 
        are blocked by any obstacles, including most especially 
        obstacles at the trial level where victims must first attempt 
        to secure their rights. One would naturally expect to find few 
        appellate court rulings rejecting victims' rights; there are 
        few victims' rulings anywhere, let alone in appellate courts. 
        To get to the appellate level--in this context, the ``mansion'' 
        of the criminal justice system--victims first must pass through 
        the ``gatehouse''--the trial court [see footnote 174 in my 
        prepared statement]. That trip is not an easy one. Indeed, one 
        of the main reasons for the Amendment is that victims find it 
        extraordinarily difficult to get anywhere close to appellate 
        courts. To begin with, victims may be unaware of their rights 
        or discouraged by prosecutors from asserting them. Even if 
        aware and interested in asserting their rights in court, 
        victims may lack the resources to obtain counsel. Finding 
        counsel, too, will be unusually difficult, since the field of 
        victims' rights is a new one in which few lawyers specialize 
        [see footnote 175 in my prepared statement]. Time will be 
        short, since many victims' issues (particularly those revolving 
        around sequestration rules) arise at the start of or even 
        during the trial. Even if a lawyer is found, she must arrange 
        to file an interlocutory appeal in which the appellate court 
        will be asked to intervene in on-going trial proceedings in the 
        court below. If victims can overcome all these hurdles, the 
        courts still possess an astonishing arsenal of other procedural 
        obstacles to prevent victim actions, as Professor Bandes' soon-
        to-be-published article cogently demonstrates [see footnote 176 
        in my prepared statement]. In light of all these hurdles, 
        appellate opinions about victims issues seem, to put it mildly, 
        quite unlikely.
          One can read the resulting dearth of rulings as proving, as 
        Professor Mosteller would have it, that no reported appellate 
        decisions strike down victims' rights. Yet it is equally true 
        that, at best, only a handful of reported appellate decisions 
        uphold victims' rights. This fact tends to provide an 
        explanation for the frequent reports of denials of victims' 
        rights at the trial level. Given that these rights are newly-
        created and the lack of clear appellate sanction, one would 
        expect trial courts to be wary of enforcing these rights 
        against the inevitable, if invariably imprecise, claims of 
        violations of a defendant's rights [see footnote 177 in my 
        prepared statement]. Narrow readings will be encouraged by the 
        asymmetries of appeal--defendants can force a new trial if 
        their rights are denied, while victims cannot [see footnote 178 
        in my prepared statement]. Victims, too, may be reluctant to 
        attempt to assert untested rights for fear of giving a 
        defendant a grounds for a successful appeal and a new trial 
        [see footnote 179 in my prepared statement].
          In short, nothing in the appellate landscape provides a basis 
        for concluding that all is well with victims in the nation's 
        trial courts. The Amendment's proponents have provided ample 
        examples of victims denied rights in the day-to-day workings of 
        the criminal trials. The Amendment's opponents seem tacitly to 
        concede the point by shifting the debate to the more rarified 
        appellate level. Thus, here again, the opponents have not fully 
        engaged the case for the Amendment.

    Question 2. One of the rights enumerated by S.J. Res. 3 is the 
right ``to reasonable notice of the rights established by this 
article.'' You have written that this provision is necessary because 
``Rights for victims are of little value if victims remain unaware of 
them.'' [Prepared statement of Paul G. Cassell, Hearing before the 
Senate Comm. on the Judiciary on S.J. Res. 44, 105th Cong., 2d Sess., 
Apr. 28, 1998 (S. Hrg. 105-798), at p. 40.] Aren't you in fact 
advocating for a governmental duty to warn victims along the lines of 
Miranda?
    Answer 2. No. No one disputes the rights of criminal defendants to 
information about governmental processes after charges have been filed. 
For example, to my knowledge, no one argues against informing indigent 
defendants of their right to court-appointed counsel at the court 
arraignment. The Sixth Amendment's right to counsel requires a criminal 
defendant be notified expressly of this right, typically by a judge in 
court. See, e.g., Faretta v. California, 422 U.S., 806, 835 (1975). The 
Miranda apparatus is controversial because it does not follow along 
these lines of rights within court proceedings but rather extend rights 
to criminal suspects even before they have been formally charged. 
Moreover, these rights are extended to suspected lawbreakers in a 
manner that makes it difficult for police to obtain voluntary 
confessions, significantly harming law enforcement efforts to control 
crime. In stark contrast, the Victims Rights Amendment does not extend 
rights before the formal initiation of criminal charges. As a result, 
it does not impair law enforcement efforts to solve crimes.

    Question 3. As you know, Rule 615 of the Federal Rule of Evidence 
authorizes courts to exclude witnesses from the courtroom so that they 
cannot hear the testimony of other witnesses. Rule 615 was amended last 
year to create an exception for persons authorized by statute to be 
present. It could have been amended to create an exception for victims. 
In, your opinion, would such an amendment (A) be effective in 
guaranteeing victims the right to attend trials, and (B) provide a 
clear and visible test of whether a statutory/rule approach can work?
    Answer 3. The recent amendment of rule 615 is an interesting 
illustration of the delays in effectively implementing victims rights. 
In 1990, Congress passed the Victims Rights and Restitution Act, more 
commonly known as the Victims Bill of Rights, 42 U.S.C. Sec. 10606(b), 
extending victims the right to be present at trial in certain 
circumstances. This statute obviously superseded the blanket 
authorization of Rule 615 to exclude victims who happened to be 
witnesses. Yet it took the Federal Rules Committee a full eight years 
to amend the Rule to reflect this fact. Even then, the amendment they 
passed is a very narrow one.
    Even if Rule 615 had been more broadly amended to create an 
exception for victims back in 1990, it is improbable that this would 
have been ``effective in guaranteeing victims the right to attend 
trials'' in, for example, the Oklahoma City bombing case. As I 
testified at greater length in my prepared statements submitted at the 
hearing, in excluding the victim-impact witnesses, Judge Matsch 
referenced not only the rules of evidence but also the common law and 
the Constitution as a basis for removing them from the courtroom. Only 
a constitutional amendment would clearly have invalidated the judge's 
ruling.
    You also ask whether an amendment to Rule 615 would provide a 
``clear and visible test'' of whether a statutory approach could work. 
It would provide a test, no less than the 1990 Victims' Bill of Rights 
(among other enactments) provided a ``clear and visible'' test. Of 
course, that 1990 test (among others) demonstrated that the statutory 
approach to victims rights is not fully effective.

    Question 4. As I understand it, Utah Rule 615, which gives victims 
``an absolute right to attend trial, provided that the prosecutor 
agrees,'' was left unchanged when in the mid-1990's legislation 
implementing the Utah's Victims' Rights Amendment was enacted. I 
believe you were very involved in that legislative effort as Chair of 
the Utah Council of Victims Constitutional Amendment Committee.
    In your article entitled ``Balancing the Scales of Justice'' that 
appeared in the 1994 Utah Law Review, you defended the language in Utah 
Rule 615 concerning agreement of the prosecutor, which was added at the 
suggestion of the Statewide Association of Public Attorneys, by saying:

          The prosecutors' concern was that there might be 
        circumstances in which, if a victim was present during trial, a 
        defense attorney might convince a jury that the victim's 
        testimony was irretrievably tainted from hearing the testimony 
        of other witnesses. Because prosecutors are in the best 
        position to make the tactical decision of when to prevent such 
        an attack by the defense, prosecutors were given the sole power 
        to exclude victim-witnesses. Such prosecutorial power generally 
        serves victims' best interests because effective prosecution is 
        good for victims.

    Have you changed your mind about the impact of this provision on 
effective prosecution? If so, as someone who has remained very active 
in litigating and drafting provisions regarding victims' rights, have 
you proposed legislation to rectify this obvious invitation to violate 
victims' participatory rights?
    Answer 4. This question appears to misunderstand one critical point 
about the timing of passage of victims initiatives in Utah. Both the 
Utah Victims Rights Amendment and its accompanying implementing 
legislation were passed on the same day in the Utah legislature. Thus, 
it is not clear what the question means when it says that this 
provision ``was left unchanged when in the mid-1990's legislation 
implementing the Utah's Victims' Rights Amendment was enacted.'' In 
fact, this provision was put in at the suggestions of some prosecutors 
to obtain the broad consensus support necessary to move the Utah 
amendment through the Utah legislature.
    Since the passage of that provision, the Utah Council on Victims of 
Crime (on which I serve as the Chair of the Legislative Committee) has 
not made a priority of changing this provision. Although the general 
view of the our Council is (I believe) that victims deserve a blanket 
right to attend trials, we have had so many other complaints' about 
inadequate protection of victims' rights, particularly with respect to 
enforcement of our existing rights, that we have focused our efforts on 
these more pressing problems. Moreover, the Council is well aware of 
efforts to pass the federal constitutional amendment, the passage of 
which would obviate this peculiar glitch in Utah's efforts to extend 
rights to victims.
    Finally, you quote my law review article about the Utah provision. 
I should point out that this article was a statement of the intentions 
of the drafters of the Utah Victims Rights Amendment, see footnote * in 
the article, not necessarily an explication of how a perfect victims 
rights amendment should be drafted.

    Question 5. Do you agree that Megan's law has been effective in 
notifying communities regarding the whereabouts of registered sex 
offenders? If so, why won't the same approach work with victims' rights 
generally? If not, why isn't community notification included in the 
proposed victims' rights constitutional amendment?
    Answer 5. To take the last part of your question first, community 
notification has not been included in the Amendment because the focus 
has been on extending rights to individuals. As you know, the 
Constitution generally protects the rights of persons, not communities, 
and the victims rights amendment follows in that venerable tradition.
    Turning to the first part of your question, I have the general 
impression (although I have not fully studied all the ramifications of 
Megan's laws) that the notification provisions have not been fully 
effective in notifying communities about registered sex offenders. In 
any event, even were these laws fully effective, they would not answer 
questions about how to implement victims rights in the context of on-
going criminal proceedings. Megan's laws apply only when a convicted 
offender is about to be released from prison. These laws thus shed no 
light on how statutes work to protect victims during the pre-trial, 
trial, and sentencing proceedings. Moreover, the focus of Megan's laws 
is prevent future crimes by a particular offender. It thus sheds little 
light on the Victims Rights Amendment, whose primary focus is on 
protecting the rights of victims within a process that focuses on an 
already-committed act. Finally, my sense is that criminal defendants 
find the provisions of Megan's law notifying entire communities of past 
sex offenses much more onerous than any of the provisions of the 
Victims Rights Amendment.

    Question 6. The proliferation of state laws and constitutional 
amendments protecting victims rights is a relatively recent phenomenon. 
Just last year, Mississippi, Montana and Tennessee approved state 
constitutional amendments providing rights to crime victims, joining 29 
other states that have adopted such amendments since 1982. Why 
shouldn't we learn from the experience of the states before imposing a 
single federal standard in this area?
    Answer 6. Steve Twist and I have been asked similar questions, so 
we have collaborated on our answer to give you the benefit of our 
collective thinking.
    We certainly agree that the country should learn from the 
experience of the states in considering whether to pass a victims 
rights amendment. As was explained at greater length at the hearing (in 
Professor Cassell's prepared statement), on this point it is useful to 
consider the result of a meeting recently convened by the Department of 
Justice of those active in the field, including crime victims, 
representatives from national victim advocacy and service organization, 
criminal justice practitioners, allied professionals, and many others. 
Their report--published by the Office for Victims of Crime and entitled 
``New Directions from the Field: Victims' Rights and Services for the 
21st Century''--concluded that ``[t]he U.S. Constitution should be 
amended to guarantee fundamental rights for victims of crime.'' The 
report went on to explain,

          A victims' rights constitutional amendment is the only legal 
        measure strong enough to rectify the current inconsistencies in 
        victims' rights laws that vary significantly from jurisdiction 
        to jurisdiction on the state and federal levels. * * * Today, 
        many victims do not report crime or participate in the criminal 
        justice system for a variety of reasons, including fear of 
        revictimization by the system and retaliation by the offender. 
        Victims will gain confidence in the system if their rights are 
        recognized and enforced, their concerns for safety are given 
        serious consideration, and they are treated with dignity and 
        respect.

These impressionist conclusions find strong support in a December, 1998 
report from the National Institute of Justice (NIJ) finding that many 
victims are denied their rights and concluding that ``enactment of 
State laws and State constitutional amendments alone appears to be 
insufficient to guarantee the full provision of victims' rights in 
practice.'' The report found numerous examples of victims not provided 
rights to which they were entitled. For example, even in several states 
identified as giving ``strong protection'' to victims rights, fewer 
than 60 percent of the victims were notified of the sentencing hearing 
and fewer than 40 percent were notified of the pretrial release of the 
defendant. A follow-up analysis of the same data found that racial 
minorities are less likely to be afforded their rights under the 
patchwork of existing statutes.
    Of course, at some point the time for learning passes and the time 
for action begins, particularly because each day that passes in a 
``learning'' process means denials of rights to victims of crime. We 
believe the time for action on a federal amendment has come.

    Question 7. (A) What is the state of the law regarding crime 
victims' rights in each of the states that does not currently provide 
such rights in its constitution?
    (B) What efforts are being made in these states to support passage 
of state constitutional amendments regarding crime victims' rights?
    (C) What efforts are being made in these and other states to 
increase the protection of crime victims' rights other than efforts at 
constitutional change (state and federal)?
    (D) In states with victims' rights constitutional amendments, 
please provide examples of cases in which the constitutional rights of 
victims came into conflict with the constitutional rights of the 
accused.
    Answer 7. Steve Twist and I have been asked similar questions, so 
we have collaborated on our answer to provide you with the benefit of 
our collective thinking.
    (A) Providing precise information on the ``state of the law'' in 
states without state constitutional amendments is difficult. We are 
aware of no readily-available source that contains this information. 
Indeed, this is one problem that victims face in attempting to assert 
their rights. The treatise Professor Beloof and Professor Cassell are 
working on will provide further information about the state of the law 
around the country.
    (B) The National Victims Constitutional Amendment Network (NVCAN) 
supports state victims amendments. An information packet has been 
prepared that is provided to persons interest in state amendments.
    (C) Each year in the states, of course, various statutory changes 
are made or proposed in laws concerning crime victims. For example, 
this year in Utah, the Utah Council on Victims attempted to changes 
procedures for collecting restitution. We were unsuccessful, but will 
make further efforts next year. Again, we do not have available a 
comprehensive listing of all such efforts around the country. The 
National Center for Victims of Crime attempts to keep track of various 
legislative initiatives pursued on behalf of victims, and they may be 
able to provide you with more comprehensive information.
    (D) See our answers to question 1, above, which provides detailed 
information on this question.

    Question 8. Would the proposed constitutional amendment make it 
possible for victims to bring federal class actions against non-
complying state prosecutors and law enforcement authorities? Could such 
class actions result in ``extensive lower federal court surveillance of 
the day to day operations of State law enforcement operations,'' as the 
Conference of Chief Justices has warned?
    Answer 8. If a federal amendment passes, there is every reason for 
believing that state prosecutors and law enforcement authorities will 
protect the constitutional rights of victims that have been sanctioned 
through the amendment process. Thus, the need for enforcement will 
likely be limited to rare situations. Even in those rare situations, 
class actions seem very unlikely.
    The experience with the state amendments supports this conclusion, 
as state class action suits have been quite rare, if not in fact 
nonexistent. I am not aware of any such suit in Utah, for example. It 
is also interesting that the Conference of Chief Justice provided no 
example of the surveillance-of-day-to-day-operations concern actually 
materializing under the state amendments through state class action 
suits. The reason for the rarity of class action suits is probably due 
to various factors, one of which is the requirement that such suits 
show common issues of law and fact in a large number of cases. Denials 
of victims rights not infrequently occur in situations were it can be 
argued that such commonality is lacking. Moreover, it is unclear why 
victims would pursue collateral litigation when they could avail 
themselves of a prospective order directly in their own criminal case. 
Section 3 of the proposed amendment confers ``standing'' on victims to 
enforce their rights in their own criminal case. This will, no doubt, 
be far and away the predominant way in which victims rights are 
enforced rather than through the collateral class action approach.
    Further information about this subject is also found in my answer 
to the next question.

    Question 9. What do you think is meant in Section 2 by the victim's 
standing with respect to reopening proceedings or invalidating rulings 
``to provide rights guaranteed by this article in future proceedings''? 
Does this contemplate an injunction? If so, against whom?
    Answer 9. As to the meaning of Section 2 of the Amendment, I can do 
little to improve the detailed statement found in the Senate Report 
105-409 at pp. 34-35, which lays out the meaning of the provision in 
considerable detail. I think that this statement answers your question, 
particularly with its description of the circumstances in which court 
orders could be granted requiring the admission of victims to ``future 
proceedings.'' As the Report suggests, these orders would not be in the 
form of an injunction, but rather in the form of a court order in the 
context of a particular case.
    The exclusion of victims from proceedings in the Oklahoma City 
bombing case will serve to illustrate this point. There the victims did 
not seek an injunction against Judge Matsch. Rather, they sought 
initially reconsideration by Judge Matsch of his ruling. When that was 
unsuccessful, they sought a writ of mandamus from the Tenth Circuit 
requiring Judge Matsch to admit the victims. (Because the procedural 
vehicle for challenging Judge Matsch's ruling was unclear, the victims 
also took an appeal from his order.) As recounted at greater length in 
my testimony, these efforts to obtain a writ of mandamus were 
unsuccessful because the Tenth Circuit concluded the victims lacked 
``standing'' to challenge the order. Section 2 of the Amendment would, 
in essence, reverse the Tenth Circuit's result by conferring standing 
on the victims to seek such a writ.

    Question 10. As you know, this Committee reported a resolution 
identical to S.J. Res. 3 toward the end of the last Congress. The 
Majority Report accompanying that resolution contended that, 
``consistent with the plain language of [Section 3],'' the States would 
retain the power to implement the amendment, including the power to 
flesh out the contours of the amendment by providing definitions of 
``victims'' of crime and ``crimes of violence.'' As I read Section 3, 
only ``The Congress'' would have the power to implement the amendment. 
Please discuss how much latitude you think that the States would have 
in implementing this amendment and any necessary exceptions to it.
    Answer 10. Steve Twist and I have both been asked similar 
questions. We have collaborated on our answer to provide you with the 
benefit of our collective thinking on this point.
    We agree with the language of the Majority Report you quote. As the 
Majority Report explained:

          This provision [section 3 of the Amendment] is similar to 
        existing language found in section 5 of the 14th amendment to 
        the Constitution. This provision will be interpreted in similar 
        fashion to allow Congress to ``enforce'' the rights, that is, 
        to insure that the rights conveyed by the amendment are in fact 
        respected. At the same time, consistent with the plain language 
        of the provision, the Federal Government and the States will 
        retain their power to implement the amendment. For example, the 
        States will, subject to the Supremacy Clause, flesh out the 
        contours of the amendment by providing definitions of 
        ``victims'' of crime and ``crimes of violence.''

S. Rep. 105-409 at 35.
    The important point to distinguish here is between ``enforcement'' 
power under the Amendment and implementation power. The question posed 
seems to conflate the two points, referring to a general congressional 
power to implement the Amendment. While Congress will surely have the 
power to implement the Amendment in the federal system, it does not 
have this implementation power in the state system. Section 3 of S.J. 
Res. 3 confers on Congress only the power to ``enforce'' the Amendment. 
This enforcement power is not unlimited, as the Supreme Court's recent 
decision in City of Boerne v. Florida, 117 S. Ct. 2157, 2163-64 (1997), 
makes clear in the context of similar language found in the Fourteenth 
Amendment. As a consequence, this grant of a congressional enforcement 
power does not remove from the states their plenary power over their 
criminal justice systems. Thus, we believe, as did the majority of this 
Committee, that the states have considerable implementation power under 
the Amendment.

    Question 11. In his Additional Views accompanying S.J. Res. 44, 
Chairman Hatch agreed with the Department of Justice that the standard 
of a ``compelling interest'' for any exceptions to rights enumerated by 
the proposed constitutional amendment may be too demanding and 
inflexible. He wrote:

          The compelling interest test is itself derived from existing 
        constitutional jurisprudence, and is the highest level of 
        scrutiny given to a government act alleged to infringe on a 
        constitutional right. The compelling interest test and its 
        twin, strict scrutiny, are sometimes described as `strict in 
        theory but fatal in fact.' I truly question whether it is wise 
        to command through constitutional text the application of such 
        a high standard to all future facts and circumstances.

[S.Rpt. 105-409, 105th Cong., 2d Sess., p. 45.] In your opinion, would 
the ``compelling interest'' standard provide the necessary flexibility 
when the proposed amendment (A) imposes costs on corrections officers 
to transport incarcerated victims to court proceedings; or (B) is 
invoked against true victims who are wrongly charged in domestic 
violence cases?
    Answer 11. (A) I do not see the ``compelling interest'' interest 
standard as coming into play in circumstances involving the 
transportation of incarcerated victims. Those victims do not have a 
right to compel transportation to court proceedings, as explained in 
greater length in my prepared testimony.

          This objection [that victims might be able to compel the 
        state to transport them to court] appears to be contrary to 
        both the plain language of the Amendment and the explicit 
        statements of its supporters and sponsors. The underlying right 
        is not for victims to be transported to the courthouse, but 
        simply to enter the courthouse once there. As the Senate 
        Judiciary Committee report explains, ``The right conferred is a 
        negative one--a right `not to be excluded'--to avoid the 
        suggestion that an alternative formulation--a right ``to 
        attend''--might carry with it some governmental obligation to 
        provide funding * * * for a victim to attend proceedings'' [see 
        footnote 131 in my prepared statement]. The objection also runs 
        counter to current interpretations of comparable language in 
        other enactments. Federal law and many state constitutional 
        amendments already extend to victims the arguably more 
        expansive right ``to be present'' at or ``to attend'' court 
        proceedings [see footnote 132 in my prepared statement]. Yet no 
        court has interpreted any one of these provisions as 
        guaranteeing a victim a right of transportation and lodging at 
        public expense. The federal amendment is even less likely to be 
        construed to confer such an unprecedented entitlement because 
        of its negative formulation [see footnote 133 in my prepared 
        statement].

    (B) It is not clear to me how the proposed Amendment could be 
``invoked against'' victims of domestic violence who have been 
wrongfully charged. The Amendment is designed to create rights for 
victims rather than take them away from defendants. Thus, it is unclear 
from the question how one should envision a wrongfully charged victim 
of domestic violence--no less than any other criminal defendant--
finding the Amendment deployed against her.
    Hypothetically, were such circumstances to arise, it is important 
to recognize that, while the ``compelling interest'' standard is a 
significant one, it is not an impossible one to meet. The example of 
yelling ``Fire!'' in a crowded theater is widely-cited example, Schenck 
v. U.S., 249 U.S. 47, 52 (1919) (Holmes, J.), but recent cases 
specifically allow First Amendment exceptions to be made for compelling 
reasons in a variety of circumstances. See, e.g., Burson v. Freeman, 
504 U.S. 191 (1992) (prohibition of campaigning close to a voting booth 
upheld); Osborn v. Ohio, 495 U.S. 103 (1990) (prohibition of child 
pornography upheld). Accordingly, were the circumstances you describe 
to materialize--involving the ``invocation'' of a victims rights 
enactment against the type of person it was designed to protect--the 
exceptions clause offers sufficient flexibility to cover it.

    Question 12. The Majority Report (at p. 9) cites the case of 
Virginia Bell, and criticizes the system for ordering restitution in an 
amount that was ``arbitrary and utterly inadequate.'' Roughly, 90 
percent of criminal defendants are indigent, yet the amendment would 
seem to require judges, prosecutors and public defenders to calculate, 
argue and decide upon the amount of a restitution order--an order that 
would be completely unenforceable as to indigent defendants. Is this a 
good use of the scarce resources in the criminal justice system?
    Answer 12. Here again, I find myself in agreement with this 
Committee. The Committee previously made findings on the need for 
mandatory restitution in connection with the passage of the Mandatory 
Victims Restitution Act. There the Committee explained that ``[i]t is 
essential that the criminal justice system recognize the impact that 
crime has on the victim, and, to the extent possible, ensure that [the] 
offender be held accountable to repay these costs.'' S. Rep. 104-179 at 
18. The Committee went on to explain why, even though many defendants 
lack substantial resources, a system of mandatory restitution orders is 
important. My impression is that these views on the desirability of 
mandatory restitution were widely shared in Congress, as my 
understanding is that the Mandatory Victim Restitution Act ultimately 
was enacted with strong, bipartisan support.

    Question 13. I am also concerned that the routine issuance of 
unenforceable restitution orders could lead to citizen contempt for 
government. If a defendant is indigent, the federal constitutional 
right to restitution is meaningless, isn't it? It might also suggest 
that the constitutional right should be against the government, so that 
it will pay victims for the injuries inflicted upon them by criminal 
defendants. Do you advocate extending the constitutional right to 
guarantee compensation from government resources to pay restitution for 
victims who were injured by indigent defendants?
    Answer 13. These questions were, I believe, carefully considered by 
this Committee when the Mandatory Victim Restitution Act was passed. 
With respect to the possible indigency of a defendant, for example, the 
Committee explained that ``this position underestimates the benefits 
that even nominal restitution payments have for the victim of crime, as 
well as the potential penalogical benefits of requiring the offenders 
to be accountable for the harm caused to the victim.'' S. Rep. 104-179 
at 18. Since the passage of the federal Mandatory Victim Restitution 
Act, I am not aware of any evidence that it has lead to victim 
``contempt'' of the federal courts.
    Extending the proposed Victims Rights Amendment to require 
government compensation to victims would extend the amendment beyond 
the traditional bounds of the state victims amendments. The consensus 
that appears to support S.J. Res. 3 might begin to dissipate were the 
Amendment to be extended to such less charted terrain. Because the 
existing provisions in S.J. Res. 3 are so important, I would not be in 
favor of possibly jeopardizing their passage through such an extension 
of the language of the Amendment.

    Question 14. If I'm an indigent victim, and all it takes to 
``exclude'' me from the proceedings is to refuse to pay my travel 
expenses, would the proposed amendment give me a constitutional right 
to bus fare?
    Answer 14. No. See my answer to question 11(A), above.

    Question 15. The International Association of Chiefs of Police 
(IACP) has raised concerns that the proposed Victims' Rights Amendment 
could ``allow delays in the swift administration of justice, or the 
creation of civil or criminal liability for failure to protect the 
victims' or their survivors' rights.'' Can you assure us that the 
IACP's concerns are unfounded?
    Answer 15. Yes. Steve Twist and I have both been asked similar 
questions, so we have collaborated on our answer to give you the 
benefit of our collective thinking on this point.
    We do not have the IACP document to which this question refers 
before us, so we will answer this question without reference to the 
IACP. Indeed, we know that many law enforcement offices and chiefs of 
police around the country support the Victims Rights Amendment. They 
have good reason for doing so. The Victims Rights Amendment will not 
delay justice. To the contrary, it contains a provision that should 
speed up the administration of justice--the victims right to 
``consideration of the interest of the victim that any trial be free 
from unreasonable delay.'' Nor would it allow the creation of civil or 
criminal liability for failure to protect victims. This concern appears 
to have been raised with respect to an earlier version of the proposed 
Amendment. S.J. Res. 3 does not contain a right of a victim to be 
protected from a defendant. Instead, it contains specific rights 
dealing with court consideration of the victims' interest in safety. 
Moreover, section 2 of S.J. Res. 3 states that the amendment does not 
create civil damages actions against state entities, so any concern 
about new liability is unfounded.

    Question 16. At the hearing, you suggested that victims' rights 
under the proposed constitutional amendment should attach at the moment 
that a suspect in the case has been charged with the crime. I am 
concerned about the effect of naming a ``victim'' before the accused, 
who must be presumed innocent, has been found guilty. This problem is 
particularly acute in cases where the defendant claims self-defense? As 
one commentator has written:

          ``[A] defendant in an assault case who claims he acted in 
        self defense is asserting that the act was not a criminal 
        offense, and, a fortiori, that there is no victim. Under these 
        circumstances, the state cannot give the complaining party the 
        rights of a 'victim' unless it presumes that the defendant's 
        justification is invalid and that an actual criminal offense 
        did occur. To allow the state to make such a presumption prior 
        to any judicial finding necessarily renders a defendant 
        presumptively guilty prior to trial and puts a jury in the 
        position of reconsidering a factual finding that the state has 
        already made.''

    [Comment, ``Arizona Criminal Procedure After the Victims' Bill of 
Rights Amendment,'' 23 Az. St. L.J. 831, 836.] Under the proposed 
amendment, would victims' rights ``attach'' upon charging when the 
defendant claims he acted in self-defense? What if the defendant does 
not notice an intention to claim self-defense until weeks or months 
after he or she is charged?
    Answer 16. It is important here to be precise about the rights in 
the Amendment to which one is referring. For example, the right of a 
victim to speak at sentencing will not exist until a sentencing 
proceeding takes place--that is, until a defendant has been convicted 
by proof beyond a reasonable doubt and rejection of all defenses that 
have been raised. on the other hand, for example, a victim's right to 
be notified of court proceedings pertaining to a defendant will attach 
once formal criminal charges are filed. Thus, once a defendant is 
charged with criminal assault, a victim will be informed when future 
public court proceedings concerning those charges will take place. It 
is important to emphasize that charges do not proceed in our criminal 
justice system unless a finding of probable cause has been made by a 
judge. That determination is, of course, subject to challenge by the 
defendant at trial, including the presentation of defenses such as 
self-defense. The victims rights amendment will not interfere with the 
opportunity to present such defenses. The victim, however, should be 
notified of public court proceedings in which such defenses will be 
presented and should be able to attend those proceedings. 

[GRAPHIC] [TIFF OMITTED] T1438.008

[GRAPHIC] [TIFF OMITTED] T1438.009

[GRAPHIC] [TIFF OMITTED] T1438.010

[GRAPHIC] [TIFF OMITTED] T1438.011

[GRAPHIC] [TIFF OMITTED] T1438.012

[GRAPHIC] [TIFF OMITTED] T1438.013

[GRAPHIC] [TIFF OMITTED] T1438.014

[GRAPHIC] [TIFF OMITTED] T1438.015

[GRAPHIC] [TIFF OMITTED] T1438.016

[GRAPHIC] [TIFF OMITTED] T1438.017

[GRAPHIC] [TIFF OMITTED] T1438.018

[GRAPHIC] [TIFF OMITTED] T1438.019

[GRAPHIC] [TIFF OMITTED] T1438.020

[GRAPHIC] [TIFF OMITTED] T1438.021

[GRAPHIC] [TIFF OMITTED] T1438.022

[GRAPHIC] [TIFF OMITTED] T1438.023

[GRAPHIC] [TIFF OMITTED] T1438.024

[GRAPHIC] [TIFF OMITTED] T1438.025

[GRAPHIC] [TIFF OMITTED] T1438.026

[GRAPHIC] [TIFF OMITTED] T1438.027

[GRAPHIC] [TIFF OMITTED] T1438.028

[GRAPHIC] [TIFF OMITTED] T1438.029

[GRAPHIC] [TIFF OMITTED] T1438.030

[GRAPHIC] [TIFF OMITTED] T1438.031

[GRAPHIC] [TIFF OMITTED] T1438.032

[GRAPHIC] [TIFF OMITTED] T1438.033

[GRAPHIC] [TIFF OMITTED] T1438.034

[GRAPHIC] [TIFF OMITTED] T1438.035

[GRAPHIC] [TIFF OMITTED] T1438.036

[GRAPHIC] [TIFF OMITTED] T1438.037

[GRAPHIC] [TIFF OMITTED] T1438.038

[GRAPHIC] [TIFF OMITTED] T1438.039

[GRAPHIC] [TIFF OMITTED] T1438.040

[GRAPHIC] [TIFF OMITTED] T1438.041

[GRAPHIC] [TIFF OMITTED] T1438.042

[GRAPHIC] [TIFF OMITTED] T1438.043

[GRAPHIC] [TIFF OMITTED] T1438.044

[GRAPHIC] [TIFF OMITTED] T1438.045

[GRAPHIC] [TIFF OMITTED] T1438.046

[GRAPHIC] [TIFF OMITTED] T1438.047

[GRAPHIC] [TIFF OMITTED] T1438.048

[GRAPHIC] [TIFF OMITTED] T1438.049

[GRAPHIC] [TIFF OMITTED] T1438.050

[GRAPHIC] [TIFF OMITTED] T1438.051

[GRAPHIC] [TIFF OMITTED] T1438.052

[GRAPHIC] [TIFF OMITTED] T1438.053

[GRAPHIC] [TIFF OMITTED] T1438.054

[GRAPHIC] [TIFF OMITTED] T1438.055

[GRAPHIC] [TIFF OMITTED] T1438.056

[GRAPHIC] [TIFF OMITTED] T1438.057

[GRAPHIC] [TIFF OMITTED] T1438.058

[GRAPHIC] [TIFF OMITTED] T1438.059

[GRAPHIC] [TIFF OMITTED] T1438.060

[GRAPHIC] [TIFF OMITTED] T1438.061

 Prepared Statement of Douglas Beloof and Dean James Huffman on Behalf 
         of Northwestern School of Law of Lewis & Clark College

    My name is Douglas Beloof, I am a visiting Professor of law at 
Northwestern School of Law at Lewis & Clark College. I have written the 
casebook, Victims in Criminal Procedure. I have also written The Third 
Model of the Criminal Process: The Victim Participation Model 99 Utah 
L.Rev. v. 4 (pending May 1999), which explores the value underlying 
victim participation. I have devoted most of my professional career to 
crime victims. I am joined in my support of the Crime Victims Rights 
Amendment by the Dean of our law school, James Huffman.
    The question before the Senate is whether or not the victim of 
crime should obtain very modest constitutional rights in the criminal 
justice system. While various rationales are articulated in opposition, 
at bottom the opposition is that these minimal victim accommodations 
are not valued highly by the opponents.
    There are those who will rely upon any and all rationales to deny 
crime victims modest constitutional rights. Distilling the opposition 
to its essence, the opposition believes that the human dignity of crime 
victims should not be valued highly enough to allow for modest victim 
rights to co-exist with the criminal defendant's rights. To say that 
statutes provide adequate protections for crime victims is to say that 
victim rights just aren't important enough for constitutional status. 
To put this argument in perspective, no one would suggest that we 
should reduce a criminal defendant's rights from constitutional to 
statutory status. If it is necessary to protect the dignity of the 
defendant in the constitution, it is also appropriate to provide the 
dignity of the crime victim with the same protection. This is because 
the human dignity of both the criminal defendant and the crime victim 
are worthy of constitutional recognition. I do not expect to change the 
minds of those adamantly opposed to the future. The future is revealed 
in an emerging reality of criminal procedure which includes the victim 
in various stages of the criminal process. But, for those with an open 
mind, consider that the real issue before the Senate is how highly the 
Senate values the dignity of the crime victim. It is easy to find 
rationales to deny crime victims these modest rights. But these 
opposing rationales only rule when the human dignity of crime victims 
is devalued and is valued below the human dignity of the criminal 
defendant. The rationales used in opposition to the Crime Victim Rights 
Amendment carry weight only when basic human rights of crime victims 
are perceived as trivial compared to the rights of others. In 
particular these opposing rationales carry weight when the human 
dignity of crime victims is perceived as trivial compared to the human 
dignity of criminal defendants.
    Principles of federalism are but one example of a rationale used to 
deny the human dignity of crime victims. But, principles of federalism 
only interfere with enacting victim rights legislation if a lower value 
is placed on civil rights for crime victims than civil rights for 
others. No one would suggest that the First Amendment be repealed so 
that the states, in the name of federalism, could experiment with 
freedom of religion or freedom of the press. No one would suggest this 
because fundamental civil rights are more highly valued than federalism 
principles. To say that the principle of federalism, or any other 
principle, trumps basic rights for crime victims is to devalue the 
human dignity of crime victims. It is to say that while federalism 
principles do not prevent other fundamental rights from attaining 
constitutional status, crime victim rights are citizens whose dignity 
ought not to be constitutionally recognized along with the human 
dignity of the criminal defendant. It is to say that crime victims are 
citizens who are not as worthy as criminal defendants. Of course, it is 
not necessary for the states to ``experiment'' with basic human rights 
before the Senate elevates such rights to constitutional status. 
Experimentation was never intended for fundamental civil rights but for 
less important matters. The Amendment is designed not to reduce the 
dignity of criminal defendants, but to acknowledge at a constitutional 
level the similar dignity of the crime victim.
    If you come to the Crime Victims Rights Amendment with an open 
mind, then ask yourself these questions: Should the victims of the 
Oklahoma City bombing have had the accommodation of these modest 
constitutional rights? Should the families of the security officers 
killed while protecting Members of Congress have these modest rights? 
Should your constituents have these modest rights when they are 
victimized by crime? These questions are not intended to appeal to 
emotion. Rather, they are intended to assist you in prioritizing 
values. Prioritization of values is the fundamental exercise in 
creating laws. When values are prioritized, can there be any question 
that these fundamental civil rights and the values they represent are 
worthy of constitutional status? Throughout my career as lawyer and law 
professor, it has always been true that conservatives, moderates and 
liberals have joined together to create constitutional rights for 
victims in state constitutions. Professors Lawrence Tribe and Paul 
Cassell, as persons from the left and right who support the Crime 
Victim's Amendment, agree that victims rights are fundamental civil 
rights. We agree and add our voices to those of Professors Cassell and 
Tribe to urge you to support the Crime Victim Rights Amendment. We hope 
you will see that a vote for the Crime Victim Amendment is a vote that 
moves all of us farther down the road liberty and justice for all.

                  Prepared Statement of James E. Doyle

  victims' rights constitutional amendment--senate joint resolution 3
    As Attorney General of the State of Wisconsin, I wish to reaffirm 
my support for a federal constitutional amendment which recognizes the 
fundamental right of crime victims to have access to the criminal 
justice process.
    As a district attorney more than 20 years ago, I began one of the 
first victim/witness programs in the nation. Since that time in 1978, I 
have watched the development of rights and services for victims of 
crime. I have seen prosecutors, judges and law enforcement officials 
become more sensitive to the needs of crime victims.
    This increased awareness came, not because leaders in the criminal 
justice system were great visionaries, but because victims who were 
treated badly by the system demanded better treatment. Victims, 
advocates and family members who have fought for a voice in the 
criminal justice process should receive our respect for what they have 
endured and our thanks for enlightening us.
    Due to the work of victims and their advocates, Wisconsin has a 
long history of recognizing and addressing the needs of victims of 
crime. One of the nation's first two victim/witness programs was 
started in Milwaukee in 1975 and we enacted the nation's first victims' 
bill of rights in 1980. Wisconsin was among the first states to amend 
its constitution to recognize crime victims' rights in 1993.
    I believe that prosecutors today at the local, state and federal 
levels share a sincere appreciation for the critical role that victims 
play in ensuring that the criminal justice system functions to protect 
all of us. Those of us who are responsible for public safety should 
treat crime victims with fairness, dignity and respect. It is the right 
thing to do.
    Respect for victims' rights also has improved our ability to fight 
crime. When victims are treated well by the criminal justice system, 
other victims are encouraged to report crimes and cooperate with law 
enforcement officers and prosecutors.
    I believe that most prosecutors strongly support victims' rights. 
The major issues of concern to prosecutors have dealt with ensuring 
that an amendment does not diminish the discretion of prosecutors or 
their ability to carry out effectively their responsibility for 
enforcing the law. I believe those concerns are more than adequately 
addressed in S.J. Res. 3.
    Wisconsin law, effective December 1, 1998, provides for greater 
accountability and enforceability of our state statutory and 
constitutional rights. In many respects, Wisconsin's crime victims' 
rights amendment is broader than S.J. Res 3. They are similar in that 
it is left to the legislature to define who are ``crime victims.'' Our 
new law affords all rights to all crime victims (misdemeanors and 
felonies) in both adult and juvenile proceedings. It applies to 
business, corporate and governmental victims as well as natural 
persons.
    In addition to those rights contained in S.J. Res. 3, our state 
constitution gives victims the right to confer with the prosecution, 
the right to receive compensation and, importantly, requires that the 
legislature provide remedies to victims. The guiding philosophy is that 
government has a firm obligation to ensure that victims are adequately 
informed about their rights, but that all victims should be afforded 
the courtesy of deciding whether they wish to exercise those rights.
    Among the more noteworthy provisions of this law is the creation of 
a Crime Victims Rights Board that, among other powers, may seek the 
imposition of a civil forfeiture for intentional violations of victims' 
rights.
    I raise this because many of the issues we debated in Wisconsin in 
developing this legislation are similar to those that have been 
discussed with respect to the federal amendment. What I think is quite 
significant about the Wisconsin experience was that our prosecutors, 
including those in our major metropolitan areas, supported effective 
and meaningful enforcement of victims' rights. (Indeed, a principal 
drafter of the new law was the then-president of our state prosecutor's 
association.) In other words, please do not be misled into thinking 
that meaningful victims' rights in anyway impedes effective law 
enforcement.
    In closing, I believe that we can achieve reasonable and workable 
approaches to the implementation of constitutional rights for crime 
victims. It is our duty to ensure that innocent victims of crime who 
have already suffered at the hands of a criminal do not suffer again 
because the criminal justice system does not care.
    I strongly urge you to support S.J. Res. 3.

                 Prepared Statement of Marsha A. Kight

    My name is Marsha Kight, I am Director of Families and Survivors 
United, a Oklahoma based advocacy organization.
    On April 19,1995 I lost my daughter, Frankie Merrell, in the worst 
act of terrorism in the history of this country. A day of Infamy. In 
the months that followed I found myself in a downward spiral. There was 
no question--my life had to change if I was to continue to live.
    I knew that, for myself I must find a voice to survive this tragic 
loss. I became an advocate for victims' of the Oklahoma City bombing, 
and through that experience, I exposed myself to the plight and pain of 
so many others. For all of us who joined together in this way, the veil 
of innocence was removed. Among other things, we determined that the 
silence of the victims had to end.
    In the years following the bombing, as that crime has been 
prosecuted in the courts, I have learned that it is not sufficient for 
the victims to speak just to anyone willing to listen, they must also 
have the right to be heard in the justice system.
    There have been millions of victims' before the Oklahoma bombing 
and sadly, many are yet to follow. My hope is that the good which comes 
from this tragedy will shine as a beacon of hope for all victims' of 
crime, everywhere, and act as the catalyst for positive change in 
American laws on victimization. That hope has yet to be realized.
    Every time innocent people are murdered, it should and does affect 
us all everytime an act of violence happens, every American loses some 
sense of security and freedom.
    How many more of our sons and daughters, brothers and sisters, 
friends, spouses, mothers and fathers have to be slaughtered before we 
unite and cease to tolerate violence in our country, or to be treated 
disrespectfully by our government afterwards.
    I have experienced the indignities of the justice system first 
hand, for me this debate is not about abstract constitutional theory, 
it is not about what the lawyers or the law professors or the experts 
have to say. For me this debate is about my daughter and the voice that 
I must now be for her.
    The constitutional protections, so important in criminal 
proceedings, were put in place by our founding fathers to ``provide for 
the common defense and ensure domestic tranquillity.'' Civil liberties 
were recognized as fundamental for everyone in establishing this 
nation.
    On a June 1996 morning, Judge Richard P. Matsch informed family 
members and survivors, who were seated in his courtroom, that they had 
the lunch hour recess to decide whether or not they would remain as 
observers of the trial, either in the Denver courtroom or in Oklahoma 
City on the closed-circuit television, or be impact witnesses during 
the penalty phase of the trial, if McVeigh was found guilty. For 
victims', who had lost their loved ones and survivors, this was a 
shocking, painful event and yet another victimization this time by the 
judicial process.
    Although a grueling decision like this normally requires very 
careful thought, we were given no time. Every family member and 
survivor present tearfully made his or her choice that noon hour. Many, 
who had just arrived for the hearings, left in dismay, excluded from 
the most important judicial process in their lives and in the history 
of this nation.
    I opted to remain and upon return to Oklahoma City began seeking a 
way to reverse Judge Matsch's decision on behalf of families and 
survivors, as well as all victims' of crime.
    Paul Cassell, a Utah attorney and professor of law, and Bob Hoyt 
and his associates at the Washington, D.C., law firm of Wilmer, Cutler 
and Pickering took up our plight. They filed an emergency petition with 
the Tenth Circuit Court of Appeals in Denver, Colorado, asking that the 
court rescind Judge Matsch's order. Professor Cassell specifically 
cited an act of Congress that permitted victims to observe court 
proceedings without prejudicing their right to also speak at 
sentencing. Without a hearing, the Appeals Court's three-judge panel 
ruled that victims' did not have the right to be heard on this 
violation of their rights, that they had no ``standing'' to even our 
challenge to this cruel exclusion from judicial proceedings, 
considered, much less vindicated.
    We then filed an En Banc petition, asking that all judges in the 
Tenth Circuit Court of Appeals review this decision. Supporting our 
request for review were all the Attorney Generals in the Tenth Circuit, 
49 members of Congress, and the Department of Justice. The Court 
refused to even hear the case, once again, we were turned away.
    Knowing the time constraints before the trial, the decision was 
made by all concerned to take our case to the United States Congress. 
In a non-partisan act, our President and this Congress took a giant 
step toward the fair treatment of victims' by enacting the ``Victims' 
Clarification Act of 1997.''
    We returned once again to the courts and asked that Judge Matsch 
rescind his Order, however, incredibly he left open the possibility 
that victims' may still be excluded during the sentencing phase if they 
choose to remain in the courtroom throughout the trial. He said that 
there may be a Constitutional defect in the new law and that our 
hearing the trial testimony may improperly influence the impact 
testimony of some individuals, but the time to hear these challenges 
would come after the conviction, if there was one.
    Because of this cloud over his ruling, on April 4, 1997 we filed 
another motion seeking clarification, stating that ``the victims' 
impact witnesses continue to face the exclusion of their impact 
testimony, or remaining eligible to testify but not being able to 
observe the trial.'' The prosecutors advised the family members, 
``notwithstanding our new law, victims' should still stay out of the 
trial if they want to be heard at sentencing, if there is a 
conviction.''
    The prosecution team told me that, under the current rules, that I 
was ineligible to be an impact witness because I am a member of a 
minority group, those who oppose the death penalty.
    If a Constitutional Amendment had already been passed, I could have 
accepted an implementation statute limiting the number of impact 
witnesses, since 2,500 of us qualified as victims' of this crime. I 
could also accept that I might not win a random drawing to speak. What 
I could not accept is some ideological, religious, or philosophical 
test that automatically excluded me from speaking.
    The victims' right to be heard must be made as sacred as the 
defendant's right to counsel, and must be protected as zealously as the 
accused right to remain silent.
    Indeed, we cherish the constitutional protections for the accused, 
to ensure that all participants in the criminal justice system perform 
their duties honorably, ethically, and in accord with the highest 
standards. We also support the ideal that no one should be convicted of 
a crime unless that conviction is backed up with proper evidence, 
obtained in full compliance with the rules of criminal procedure.
    But we have learned from experience that these protections for 
defendants must be balanced with constitutional considerations for the 
rights of victims', their families and representatives, to fully 
participate in each and every stage of the justice process through the 
investigation, indictment, bail, motions, trial, sentencing, appeals 
and parole.
    Society, itself, is harmed by violent crime, through assaults on 
the peace, dignity and good order of its people. Only the direct 
victims' of a criminal act can testify to both the physical and 
emotional pain caused by such an act. Just as defendants have the right 
to introduce mitigating circumstances at sentencing and parole 
hearings, victims, too, must have the right to share the impact of the 
crime on their lives with presiding officials.
    The right of victims' to present impact statements at all 
appropriate stages of the judicial process must be absolute. Never 
before, in the history of our country, have so many been so negatively 
impacted as victims, of ever increasing violent crime. And even if the 
annual roster of new victims is declining, it is well to remember that 
they join a huge number of other victims, whose wounds have not healed.
    Crime Victims' are liberals and conservatives, rich and poor, for 
and against the death penalty, vengeful and forgiving, weak and strong, 
black, white and every color between and none of us should be barred 
from speaking as a result of our views or social status.
    I do not take lightly the idea of advocating an amendment to the, 
U.S. Constitution. I am aware of the fact that this country has seen 
fit to add only twenty-seven such amendments since its inception a 
little over 200 years ago. But never before, in the history of our 
country, has violent crime been so pervasive, and never before, in the 
history of our country, have so many victims, been impacted by such 
horrific crimes.
    I have been saddened, confused and hurt by my experience, with the 
criminal justice system which seems to defend itself by sending 
conflicting messages to victims'.
    Now is the time for all of us to make certain that the voices, 
their experiences and the presence of the victims' are given legitimate 
standing in every Court, on every level, throughout America. The only 
way to guarantee that is by enforceable and meaningful rights enshrined 
in the U.S. Constitution.
    It now falls upon Congress to interpret the conflicting messages 
and suggested legal theories, in a manner consistent with securing the 
blessings of liberty upon us and our descendants. And, in a manner that 
provides equal protection to the innocent, as has been and is applied 
to the protection of the accused.
    Let me say, the hole in my heart remains unfilled and will always 
be open, but your actions may help give me, hope. I ask you if not the 
Oklahoma City bombing what will it take to bring about change? Or maybe 
the question is * * *. Who's next? Possibly someone you love or your 
child?
                                 ______
                                 

                Let Victims' Rights Ring Across America

Marsha Kight

    April 19, 1995, was the worst attack of terrorism in the history of 
this country. Its target was the U.S. government, but instead it 
shattered innocent lives. I lost my daughter, Frankie Merrell, and my 
five-year-old granddaughter, Morgan, lost her mother. In the months 
that followed I found myself in a downward spiral. There was no 
question my life had to change if I was to continue to live.
    I knew that, for myself, I must find a voice to survive this tragic 
loss. I became an advocate for victims of the Oklahoma City bombing, 
and through that experience, I exposed myself to the plight and pain of 
so many others. For all of us who joined together in this way, the veil 
of innocence was removed. Among other things, we determined that the 
silence of the victims had to end.
    This book has been our effort to act on that belief, to put our 
memories into words. I am proud of our collaborative efforts to give 
voice to our pain. But in the years following the bombing, as that 
crime has been prosecuted in the courts, I have learned that it is not 
sufficient for the victims to speak to anyone willing to listen, they 
must also have the right to be heard in the justice system.
    There have been millions of victims before the Oklahoma bombing 
and, sadly, many are yet to follow. My hope is that the good which 
comes from this tragedy will shine as a beacon of hope for all victims 
of crime everywhere, and that it will act as the catalyst for positive 
change in American laws on victimization. That hope has yet to be 
realized.
    Every time innocent people are murdered, it should and does affect 
us all. Every time an act of violence happens, every American loses 
some sense of security and freedom.
    How many more of our sons and daughters, brothers and sisters, 
friends, spouses, mothers, and fathers have to be slaughtered before we 
unite in an effort to stop violence in our country, and the 
disrespectful ways in which our government treats victims afterward?
    The constitutional protections, so important in criminal 
proceedings, were put in place by our founding fathers to ``provide for 
the common defense and ensure domestic tranquility.'' Civil liberties 
were recognized as fundamental for everyone in establishing this 
nation.
    On a June 1996 morning, Judge Richard P. Matsch informed family 
members and survivors who were seated in his courtroom that they had 
the lunch-hour recess to decide whether or not they would remain as 
observers of the trial, either in the Denver courtroom or in Oklahoma 
City on the closed-circuit television, or be impact witnesses during 
the penalty phase of the trial, if McVeigh was found guilty. For the 
victims, who had lost their loved ones, and the survivors, this was a 
shocking, painful event and yet another victimization--this time by the 
judicial process.
    Although a grueling decision like this normally requires very 
careful thought, we were given no time. Every family member and 
survivor present tearfully made his or her choice that noon hour. Many, 
who had just arrived for the hearings, left in dismay, excluded from 
the most important judicial process in their lives and in the history 
of this nation.
    I opted to remain in the courtroom as an observer, but upon my 
return to Oklahoma City I began seeking a way to reverse judge Matsch's 
decision on behalf of families and survivors, as well as all victims of 
crime.
    Paul Cassell, a Utah attorney and professor of law, and Bob Hoyt 
and his associates at the Washington, D.C., law firm of Wilmer, Cutler 
and Pickering took up our cause. They filed an emergency permit with 
the Tenth Circuit Court of Appeals in Denver, Colorado, asking that the 
court rescind judge Matsch's order. Professor Cassell specifically 
cited an act of Congress that permitted victims to observe court 
proceedings without prejudicing their right to also speak at 
sentencing. Without a hearing, the Appeals Court's three-judge panel 
ruled that victims did not have the right to be heard on this violation 
of their rights, that we had no ``standing'' to even have our challenge 
to this cruel exclusion from judicial proceedings considered, much less 
vindicated.
    We then filed an En Banc petition, asking that all judges in the 
Tenth Circuit Court of Appeals review this decision. Supporting our 
request for review were all the attorneys general in the Tenth Circuit, 
forty-nine members of Congress, and the Department of Justice. The 
court refused to hear the case. Once again we were turned away.
    Knowing the time constraints before the trial, the decision was 
made by all concerned to take our case to the United States Congress. 
In a nonpartisan act, the president and the Congress took a giant step 
toward the fair treatment of victims by enacting the Victim Allocution 
Clarification Act of 1997.
    The victim's right to be heard must be made as sacred as the 
defendants right to counsel, and must be protected as zealously as the 
accused's right to remain silent.
    Indeed, we cherish the constitutional protections for the accused, 
to ensure that all participants in the criminal justice system perform 
their duties honorably, ethically, and in accordance with the highest 
standards. We also support the ideal that no one should be convicted of 
a crime unless that conviction is backed up with proper evidence, 
obtained in full compliance with the rules of criminal procedure.
    But we have learned from experience that these protections for 
defendants must be balanced with constitutional considerations for the 
rights of victims, their families and representatives, to fully 
participate in each and every stage of the justice process: through the 
investigation, indictment, bail, motions, trial, sentencing, appeals, 
and parole.
    Society itself is harmed by violent crime, through assaults on the 
peace, dignity, and good order of its people. Only the direct victims 
of a criminal act can testify to both the physical and emotional pain 
caused by such an act. Just as defendants have the right to introduce 
mitigating circumstances at sentencing and parole hearings, victims, 
too, must have the right to share the impact of the crime on their 
lives with presiding officials.
    The right of victims to present impact statements at all 
appropriate stages of the judicial process must be absolute. Never 
before in the history of our country have so many been so negatively 
impacted as victims of ever-increasing violent crime. And even if the 
annual roster of new victims is declining, it is wise to remember that 
they join a huge number of other victims whose wounds have not healed.
    Crime victims are liberals and conservatives; rich and poor; for 
and against the death penalty; vengeful and forgiving; weak and strong; 
black, white, and every color in between--none of us should be barred 
from speaking as a result of our views or social status.
    I do not take lightly the idea of advocating an amendment to the 
U.S. Constitution. I am aware of the fact that this country has seen 
fit to add only twenty-seven such amendments since its inception a 
little over two hundred years ago. But never before in the history of 
our country has violent crime been so pervasive, and never before have 
so many victims been impacted by such horrific crimes.
    I have been saddened, confused, and hurt by my experiences with the 
criminal-justice system, which seems to defend itself by sending 
conflicting messages to victims.
    Now is the time for all of us to make certain that the voices, the 
experiences, and the presence of the victims are given legitimate 
standing in every court on every level, throughout America. The only 
way to guarantee that is by enforceable and meaningful rights enshrined 
in the U.S. Constitution. I call upon each person who reads this book 
to contact their members of Congress and ask them to support this 
amendment. If not the Oklahoma City bombing, what will it take? The 
death of your loved one?
                                 ______
                                 

 Prepared Statement of Marsha A. Kight in Response to the Testimony of 
                           Beth A. Wilkinson

    My daughter, Frankie Merrell, was murdered in the Oklahoma City 
bombing, and in tribute to her and all the others, I founded Families 
and Survivors United, which took a leading role in advocating for the 
victims and survivors before and during the trials which followed. This 
is how I first came to meet Beth Wilkinson.
    Having attended every day of the McVeigh trial, I came to regard 
Beth Wilkinson as the most effective advocate on the prosecution team. 
More than that, I and others trusted her to bring the victims' 
perspective into the courtroom, and she lived up to that trust. So, I 
believe that her statement before the Judiciary Committee today is from 
the heart--that she really believes that if our Victims Rights 
Amendment were in place, it might have jeopardized a very basic right--
the ``right of the just conviction of the guilty,'' as she puts it.
    But she is wrong. As she describes so well, the prosecution team 
worked hard to earn our trust, and for the great majority of the 2,000-
plus of us who were designated victims under the law, we gave them our 
trust. But on the one tactical issue she says argues against the 
Amendment, the prosecution team chose not to trust us for the reasons 
she describes, and in the process, that team broke both our trust and 
the law.
    She claims that, had the Amendment been in place, its right for 
victims to be heard before a plea bargain is accepted might have harmed 
the prosecution. Specifically her suggestion that might have persuaded 
the judge to not accept the guilty plea of Michael Fortier--and thus 
might have jeopardized the eventual conviction of Timothy McVeigh and 
Terry Nichols. There are three things wrong with this conjecture.
    First, Michael Fortier's testimony was not crucial to either 
conviction, as several jurors later made clear to me.
    Second, had the Justice Department taken us into its trust on the 
usefulness of the Fortier plea, the great majority of us would have 
reciprocated that trust and encouraged the judge to accept the plea. I 
think from everything else Beth Wilkinson describes about the trust-
building between the prosecution and the victims confirms this belief. 
We were not blind sheep, willing to accept everything the prosecutors 
said was so--we were, most of the time, informed citizens who were 
persuaded by the prosecutors' reasoning. Beth Wilkinson as much as 
admits this when she notes that the victims overwhelming asked for a 
provable and sustainable case against the guilty.
    And third, the prosecution team's mistrust of us over the Fortier 
plea agreement was so great that it chose not to notify us over the 
hearing in which the plea was offered, and it chose not to confer with 
any of us beforehand about the plea--both of which were in violation of 
existing federal law.
    So when Beth Wilkinson says that statutory reform will meet our 
just demands, we must ask, what happened to the statutes already on the 
books?
    I am increasingly persuaded that the most formidable enemy of crime 
victims' aspirations for getting justice under our Constitution are 
criminal Justice officials--even well-meaning ones like Beth 
Wilkinson--who believe that only government lawyers know best. Her 
testimony is in fact Exhibit A in the case for the Amendment because it 
is the voice of a superior government extending handouts as an act of 
grace, not protecting legitimate rights of a free people. She says that 
the ``concerns'', of the victims must be balanced with the ``need for a 
just trial,'' as though these important values were somehow in 
conflict, and that only the government knows how to achieve this goal.
    I cannot tell you how these words hurt me; they confirm my worst 
fears about the treatment of victims in our justice system and how 
nothing will change without constitutional rights.
    It is painfully obvious to me that she thinks of us as mere 
meddlers who must be kept out of this important government business for 
fear that we might break something. Beth Wilkinson may believe that she 
``grew to understand my grief first hand,'' but clearly she does not. 
For me and so many of our families our grief was profoundly extended 
when our government minimized and discounted our interests by refusing 
to consult with us about this important development early in the case.
    For example, consider the point Beth Wilkinson makes about grand 
jury secrecy. She says, ``Due to the secrecy rules of the grand jury, 
we could not explain to the victims why Fortier's plea and cooperation 
was important to the prosecution of Timothy McVeigh and Terry 
Nichols.'' Under existing federal law, however, courts are authorized 
to enter appropriate orders allowing for the disclosure of grand jury 
information in advance of a court proceeding. It apparently did not 
even occur to her then, nor does it today, to have sought such a court 
order for disclosure. Nor is it clear that such an order would even 
have been necessary, as surely there would have been ways to explain 
the circumstances to the victims without going confidential grand jury 
matters.
    Perhaps most disturbing of all to me is Beth Wilkinson's assertion 
that the Victims Rights Clarification Act of 1997 ``worked''--no 
victims were precluded from testifying.'' In fact, I was precluded from 
testifying in the sentencing phase of the trial. As she is well aware, 
I very much wanted to be a penalty phase witness. But because of my 
philosophical beliefs in opposition to capital punishment, I was not 
allowed by the government prosecutors to testify. Clearly the statute 
did not work for me.
    In addition, a number of victims lost their right to attend the 
trial of Timothy McVeigh because of legal uncertainties about the 
status of victims' rights. As I testified before the Senate Judiciary 
Committee in 1997, Judge Matsch rejected a motion made by a number of 
us to issue a final ruling upholding the new law as McVeigh's trial 
began. His reluctance led the prosecution team (including Beth 
Wilkinson) to tell us that, if we wanted to give an impact statement at 
the penalty phase, we should seriously consider not attending the 
trial. Some of the victims on the prosecution's penalty phase list 
followed this pointed suggestion and forfeited their supposedly 
protected right to attend McVeigh's trial. Our lawyers also sought 
further clarification from the judge (unsuccessfully), but had to do so 
without further help from the prosecution team. The prosecutors were 
apparently concerned about pressing this point further because the 
judge might become irritated.
    Beth Wilkinson urges the Congress to ``consider statutory 
alternatives to protect the rights of victims.'' While she says that 
she opposes the Victim's Rights Amendment in its ``current form,'' the 
context of this statement makes it clear that she opposes any 
constitutional rights for crime victims. She concludes with the 
following prescription: ``We must educate prosecutors, law enforcement 
and judges about the impact of crimes so that they better understand 
the importance of addressing victims' rights from the outset.'' But the 
truth is that there will be no real rights to address, as my experience 
makes clear, unless those rights are enshrined in the United States 
Constitution. Only then will victim's rights be meaningful and 
enforceable.

                  Prepared Statement of Anne McCloskey

    The Maryland Coalition Against Crime supports passage of S.J. Res. 
3 because it will provide meaningful and enforceable rights for crime 
victims. Just as the accused defendants' rights are ensured by the 
United States Constitution, crime victims also must be guaranteed 
certain basic rights under this fundamental law of our country. A 
victims' rights amendment to the Constitution is vital to establish 
balance in our criminal justice system. Nothing in this amendment 
diminishes the rights of the accused. It simply allows victims access 
to information and limited participation in the criminal justice 
system.
    Crime victims throughout our country should be allowed consistent 
rights in the judicial process. At this time, 32 states have passed 
constitutional amendments that articulate victims' rights in various 
ways. While the plight of crime victims has improved through these 
efforts, there is no unifying law that would treat all these victims in 
a fair manner. In fact, 18 states provide no constitutionally protected 
rights for crime victims. Only through the passage of a U.S. 
Constitutional Amendment can we be sure that all crime victims are 
guaranteed the same rights.
    In 1994, Maryland voters overwhelmingly approved a comprehensive 
Constitutional Amendment for crime victims' rights. I co-chaired the 
coalition of victims' rights organizations that campaigned for eight 
years for this amendment. During that time, I became very knowledgeable 
about the benefits and the problems with various proposals. Opponents 
argued that defendants would be denied rights; the justice system would 
be bogged down; appeals would proliferate; it would be too costly to 
the state. I am pleased to say that after four years of implementation 
none of the dire predictions has come to pass. The amendment works, not 
only for the victims, but for the benefit of society and the criminal 
justice system.
    Our country can no longer continue to deny basic rights to so many 
of its citizens. MCAC urges you to support S.J. Res. 3 and provide a 
framework for all states to utilize in protecting crime victims' 
rights.

               Prepared Statement of Karolyn V. Nunnallee

    People victimized by drunk driving crashes too often get hit with a 
cruel double whammy. First, they lose loved ones who do not survive 
and/or they themselves suffer injuries that range from minor to 
disabling. Then, when their cases get to the courthouse, they learn 
that they have far fewer guaranteed rights than the accused drunk 
driving offenders.
    Consider how Marilyn Mathis must have felt after her husband, 
Minister, was killed by a drunk driver. Marilyn felt the last thing she 
could do to honor her husband was to give a victim impact statement at 
the trial. ``I wanted to let the court know how lost our family was 
without him,'' said Marilyn. ``I was astounded, then sad, then angry 
when the defense attorney asked the judge to keep me out of the 
courtroom during the trial. The judge acted as if he had no choice 
since the defense attorney asked for it. So, I sat outside, upset and 
alone. Because of my continual pleading with the prosecutor to allow me 
in, she did arrange for me to address the jury, but only after the 
offender had been sentenced.''
    Marilyn's story poignantly captures the plight of surviving drunk 
driving victims. As of March 1997, 32 states have victims' rights 
constitutional amendments to ensure that victims have rights throughout 
the judicial process. Forty-eight states have enacted victims' bills of 
rights. However, the U.S. Constitution includes rights for defendants 
and none for victims, leaving them seriously shortchanged.
    Even in states with strong victims' bills of rights and state 
constitutional amendments, a substantial number of victims are denied 
their rights, according to survey research funded by the National 
Institute of Justice, U.S. Department of Justice and conducted by 
National Victim Center in spring 1997. The survey showed that a 
majority of victims--63.3 percent in states with ``strong'' victims' 
rights laws and 74.5 percent in ``weak'' states--are not informed of 
the offender's bail release.
    In strong states, only half the victims whose cases concluded in a 
plea agreement are being informed of negotiations, although prosecutors 
are required by law to consult with victims in advance. One-fourth of 
the victims in these so-called strong states are not given the 
opportunity to present a victim impact statement at sentencing.
    In addition to disturbing research findings like these, there is 
abundant anecdotal evidence that victims are not receiving their day in 
court. Stories like the saga of Sue Phillips of Louisiana are unfolding 
every day in towns across America and illustrate how easily victims' 
rights can be violated in the judicial process. When a drunk driving 
crash left Sue Phillips and her family injured, the defendant was 
charged with a fclony. At the sentencing hearing, the judge denied 
Sue's request to give her victim impact statement even though the state 
Victims' Bill of Rights guaranteed her the right to do so. The judge 
cited his ``busy docket'' as the reason for denying her request.
    Victims of all crimes experience these injustices on a daily basis. 
The infamous Oklahoma City bombing case victimized hundreds of people. 
The trial court judge, Richard Matsch, ruled that victims would not be 
allowed to attend the trial if they wished to present a victim impact 
statement at sentencing. The Tenth Circuit Court of Appeals upheld the 
trial court, saying that victims had no legal standing to assert their 
right to be present and that the government could not enforce that 
right by appeal or by seeking a mandatory order. Shortly after, 
President Clinton signed a federal bill that had been overwhelmingly 
passed by both the Senate and the House allowing victims whose only 
testimony would be impact statements to attend the trial. Still, Judge 
Matsch ruled ambiguously, including the fact that those who wished to 
give a victim impact statement would be subject to voir dire.
    It will take an amendment to the U.S. Constitution for crime 
victims to have their say in court and every other room in the 
courthouse where decisions are made daily about their cases. The U.S. 
Constitutional Amendment for Victims Rights is now pending before 
Congress. In late 1996, Senators John Kyl (R-AZ) and Dianne Feinstein 
(D-CA), introduced the federal amendment in the Senate and Congressman 
Henry Hyde (R-IL) introduced it in the House. Constitutional protection 
for victims is not a partisan issue. It has support on both sides of 
the aisle on Capitol Hill. Also, it was supported in both political 
party platforms and by both Presidential candidates in 1996. 
``Participation in all forms of government is the essence of 
democracy,'' said President Bill Clinton when he announced his support 
for the Victims Federal Constitutional Amendment in June 1996, 
``Victims should be guaranteed the right to participate in proceedings 
related to crimes committed against them,'' said the President. 
``People accused of crimes have explicit constitutional rights. 
Ordinary citizens have a constitutional right to participate in 
criminal trials by serving on a jury. The press has a constitutional 
right to attend trials. ``All of this is as it should be. It is only 
the victims of crime who have no constitutional rights to participate, 
and that is not the way it should be. When someone is a victim, he or 
she should be at the center of the criminal justice process, not on the 
outside looking in.''
    The Victims' Rights Constitutional Amendment was reintroduced at 
the opening of the 106th Congress. If passed by a simple majority in 
each committee, the amendment should reach the floor or both chambers 
in 1999. If passed by a two-thirds majority in both the House and the 
Senate, it will go to the states for ratification. Three-fourths of the 
state legislatures (38) must ratify it before the amendment becomes 
part of the U.S. Constitution.
    The journey from idea to law of the land has been long and arduous, 
and it isn't over yet. It began in 1982 as a vision of Frank 
Carrington, founder of Victims Assistance Legal Organization (VALOR), 
Washington State Attorney General Kenneth Eikenberry and other members 
of President Reagan's Task Force on Victims of Crime which published 
its Final Report in December of that year.
    Although some members of the task force were skeptical about it, 
Eikenberry practically demanded that the report call for a sixth U.S. 
constitutional amendment to create specific rights for crime victims, 
foremostly the right to be informed of as well as present and heard at 
criminal justice proceedings.
    The next milestone came in 1984 when Mothers Against Drunk Driving 
(MADD) and the National Organization for Victim Assistance brought 
together leaders from key national organizations and grassroots self-
help advocacy groups. The purpose of the meeting was to share 
information and insight on successful strategies for grassroots 
activism and to explore ways to assist each other.
    During an early plenary session, a vocal victims' rights advocate 
put a spotlight on the Presidential Task Force's recommendation. Robert 
Preston, President of Florida-based Justice for Surviving Victims 
implored the victims' rights movement to take the idea seriously. The 
next evening, about 30 advocates--including 10 from MADD--gathered 
informally to strategize about the process of amending the federal 
constitution.
    After everyone returned home to their communities, this initial 
group continued dialogue among one another, culminating in the November 
1987 founding of the National Victims' Constitutional Amendment Network 
(NVCAN). Bob Preston served as the coalition's first chair and Janice 
Lord, who was then MADD's director of Victim Services, was the first 
secretary.
    The coalition decided the best strategy would be to first generate 
support from the states for victims' rights. The coalition's specific 
objective became ratification of state constitutional amendments for 
victims' rights in 38 states--the number required to ratify a federal 
constitutional amendment. Passage by the states would create a strong 
foundation of support for federal reform.
    NVCAN labored for the next decade to push through state amendments. 
The National Victim Center became a repository for information about 
amendment efforts throughout the country. Victims' rights advocates 
were onto something powerful. In each of the 32 states where victims' 
rights amendments have made it to a vote of the people, they have 
passed by an overwhelming majority, receiving 80 to 90 percent approval 
in most states.
    By 1995, NVCAN decided it was time to move forward with the 
proposed federal amendment. By directive of its national board of 
directors, MADD, too, joined the federal push.
    U.S. Attorney General Janet Reno, a staunch victims' rights 
supporter, immediately supported the amendment. ``Let us make sure that 
we give our victims the right to be, heard--not in some dispassionate 
way in [only a written] impact statement, but in a courtroom if they 
want to be heard, so that people can know what it's like to be a 
victim,'' said Reno at a Candlelight Vigil for Victims in New York 
City. ``Let us give them an opportunity to participate, to be there, 
and to hold the criminal justice system accountable at every level.''
    Reno has continued to be outspoken on the issue. ``Efforts to 
secure victims' rights through means other than a constitutional 
amendment have proven less than fully adequate,'' Reno testified before 
the U.S. House Judiciary Committee in June 1997. ``Unless the 
Constitution is amended * * * we will never correct the existing 
imbalance in this country between defendants' constitutional rights and 
the current haphazard patchwork of victims' rights.''
    The proposed victims rights constitutional amendment is the only 
constitutional amendment that the U.S. Justice Department and the 
President currently support. Without a federal Constitutional 
Amendment, victims will never be assured that their rights are balanced 
with those of their offenders.
    The time has come to balance the scales of justice to ensure that 
crime victims are guaranteed a voice in the criminal justice process in 
which they have become unwitting participants. The drafters of the 
Constitution designed this document to help remove tyranny and control 
over the powerless and to assure that all Americans would have. a voice 
in the very system of government that could control their daily lives. 
Our forefathers intended for the Constitution to be a living and 
growing document. If this were not so, we would still have slavery 
today, women would not have the right to vote and defendants in 
criminal cases would not have the enumerated rights they enjoy today in 
the criminal justice system. We do not seek to take away the rights 
guaranteed to criminal defendants. We only seek to assure that our 
Constitution protects the innocent victims of crime to the same degree 
that it protects those who are accused of committing the crime.
    All crime victims want is fairness, and as the late U.S. Supreme 
Court Justice Potter Stewart observed, ``Fairness is what justice 
really is.''

                 Prepared Statement of William T. Pizzi

    Dear Senator Kyl:
    I am writing in support of the Victims' Rights Amendment and have 
enclosed with this letter the draft of an article that will appear in 
the Utah Law Review explaining why I think such an amendment is needed.
    I have also enclosed a second article published in the Stanford 
Journal of International Law comparing the advantages that victims have 
in the German trial system with the disadvantages victims have in our 
trial system. I enclose this second article simply as background so 
that those interested might understand why our trial system needs a 
Victims' Rights Amendment.
                            i. introduction
    The Austrian philosopher Ludwig Wittgenstein describing a certain 
philosophical problem wrote that ``a picture held us captive. And we 
could not get outside of it because it lay in the nature of our 
language.'' \1\ I want to borrow his metaphor, specifically his claim 
that a picture holds us captive and we have difficulty getting outside 
it because I see running through American legal scholarship and 
judicial opinions a picture of our trial system that holds us captive. 
It is the picture of a trial as a two-sided contest between the state 
and the individual.
---------------------------------------------------------------------------
    \1\ Ludwig Wittgenstein, Philosophical Investigations 48e (G.E.M. 
Anscombe, translator) (1953) (emphasis in original).
---------------------------------------------------------------------------
    The Victims' Rights Amendment is important because it challenges 
our two-sided trial model and forces us to confront some difficult and 
painful realities about our trial system that we have avoided for too 
long. The Victims' Rights Amendment carries with it fonnal 
acknowledgement that victims of violent crime have a stake in the trial 
that is different from that of the general public or even the 
prosecutor. One can see this most clearly in the first part of the 
amendment providing that victims of a crime of violence have the right 
``not to be excluded from any proceedings relating to the criime.'' But 
it also is evident in other parts of the amendment, such as the section 
giving victims of violent crimes the right to be heard on the merits of 
any proposed plea bargain.
    While much that is contained in the Victims' Rights Amendment has 
already been enacted through state constitutional amendments as well as 
state and federal statutes, recognition of the interests of crime 
victims in the Constitution is important because it may encourage us to 
rethink our trial system. In this article I want to use the Victims' 
Rights Amendment to raise questions about our trial system and the 
system's priorities. I think reexamination of our trial system is long 
overdue. To help provide perspective on the treatment of victims in our 
trial system, I will contrast with our system the treatment of crime 
victims in other western trial systems.
                    ii. multi-sided criminal trials
    The picture of criminal trials as two-sided has a powerful hold on 
us. As a way of representing the fact that we have moved away from 
system of private prosecution--like other western countries--to one in 
which prosecutorial power is vested in a public official, I see nothing 
wrong with thinking of criminal cases as two-sided. Normally our 
criminal courts usually have two tables in the front of them, one for 
the prosecution and one for the defense. Also we caption our criminal 
cases ``State v. Jones'' or ``The People v. Jones'' which seems to 
suggest a two-sided contest. But when this generalization about 
criminal cases is put forward as if it were the metaphysical structure 
of criminal cases in this country, it becomes inaccurate, artificial, 
and confining. Hence the importance of the Victims' Rights Amendment.
    When you examine the structure more closely, it quickly becomes 
clear that there is no metaphysical constraint that demonstrates that 
criminal cases have two and only two sides. Take the courtroom, for 
example. The courtroom is set up for convenience, and there is nothing 
to stop us from changing it to make it work better or to permit more 
people to sit in the front of the courtroom. While usually we have two 
tables, sometimes we put more in the front of the courtroom, 
particularly when there are two or more defendants on trial. More 
importantly, when there are two defendants, our system recognizes that 
the interests of the defendants will almost always differ. The American 
Bar Association Standards for the Defense Function state that because 
``the potential conflict of interest in representing multiple 
defendants is so grave,'' ordinarily a lawyer should decline to 
represent more than one defendant in the same criminal case.\2\ Because 
the potential conflict is so serious, some public defender offices have 
a policy of never representing more than a single defendant in multiple 
defendant cases.\3\
---------------------------------------------------------------------------
    \2\ American Bar Association, Standards for Criminal Justice, The 
Defense Function, Sec. 4-3.5 (c) (1992).
    \3\ See Gary Lowenthal, Joint Representation in Criminal Cases, 64 
Va. L. Rev. 939, 950 (1978).
---------------------------------------------------------------------------
    But somehow it is easier to see divergent interests on the defense 
side of a criminal case than on the prosecution side. Perhaps it is 
because those supposedly on the prosecution side are masked with a 
sweeping label, ``the state'' or ``the people.'' But what does it mean 
to say that ``the state'' is opposed to the defendant? The prosecutor 
is usually not even an employee of the state, but an employee of a much 
smaller entity, be it a county, borough, parish or city. The police who 
investigate the case may be employees of the same governmental unit, 
but quite often they may be employees of a different geographical unit, 
or even employees of the federal government. The prosecutor does not 
represent the police and sometimes there are differences between the 
police and the prosecution over the handling of a criminal matter 
before trial and even at trial.
    One example of differences between the police and the prosecution 
becoming public occurred in the murder investigation of Jon Benet 
Ramsey in Boulder. There have been indications throughout the 
investigation that the police and the district attorney's officer were 
having troubling cooperating.\4\ Eventually, one of the lead detectives 
resigned from the investigation and submitted an angry resignation 
letter that alleged that the district attorney's office was crippling 
police efforts and compromising the case.\5\
---------------------------------------------------------------------------
    \4\ See Hector Gutierrez, Assistant DA apologizes to Boulder cops, 
Rocky Mountain News, February 15, 1997 4A.
    \5\ See Hector Gutierrez, Detective Blasts DA's Handling of Jon 
Benet Ramsey Slaying, Pittsburgh Post Gazette, August 8, 1998, A4; 
Detective Blasts DA's Handling of Jon Benet Ramsey Slaying in Thomas 
Resignation Letter, Boulder Daily Camera, August 7, 1998, http://
www.insideboulder.com/extra/ramsey/1998/07thomle.html.
---------------------------------------------------------------------------
    More importantly, even if the investigators and the prosecutors are 
employees of the same governmental unit, isn't it clear that the police 
and the prosecutor ought to have different responsibilities in a strong 
criminal justice system? It is certainly true that in a serious 
criminal case that the police and the prosecution will want to see the 
person who committed the criminal act convicted and sentence 
appropriately. That will often be true of the trial judge as well, and 
perhaps even of the defense attorney where the crime is particularly 
horrendous. But each has a distinct professional role to play in the 
system and they need to perform that role whatever their personal 
feelings about the crime and what the desirable outcome of the criminal 
case should be.
    Yet when it comes to the police and the prosecutor our system tends 
to see them as working together ``on the same side'' against the 
defendant. But if the police are part of the prosecution team, who is 
supposed to seek-out evidence at the crime scene that may be important 
for the defense? In those cases in which the perpetrator may not be 
apprehended for several weeks after the crime, the police must see 
themselves as duty-bound to do a complete and thorough investigation 
that considers possible exculpatory evidence as well as incriminating 
evidence. When a criminal justice system falls to emphasize the need 
for thorough and objective investigators, the results of an 
investigation can more easily become slanted and biased against the 
defendant. We should be shocked that a once-prestigious entity such as 
the FBI laboratory began to shade its reports and distort its findings 
to favor the prosecution.\6\ But it is not surprising that it would 
occur in a system that often fails to distinguish between the police 
and the prosecution. Instead of driving them closer together as our 
system does and conceptualizing the police and prosecution as a single 
entity, the ``state,'' which is trying to convict the defendant, our 
system should encourage the police to see themselves as having 
responsibilities independent of the prosecution of the case.
---------------------------------------------------------------------------
    \6\ Roberto Suro and Pierre Thomas, Justice Dept. Cites Failures Of 
FBI Lab; Evidence Was Flawed In Several Major Cases, Washington Post, 
April 16, 1997, A01.
---------------------------------------------------------------------------
    The relationship between the victim and the prosecutor presents a 
similar situation to the police and the prosecutor. For starters, the 
prosecutor doesn't represent the victim and cannot give the victim the 
same advice that a private attorney might give. A victim may, for 
example, want advice from the prosecutor as to whether she should meet 
with the defense investigator who is trying to interview trial 
witnesses. A private attorney representing the victim, who knows what a 
good defense attorney can do at trial with even minor inconsistencies 
in prior statements, would often advise the victim not to meet with the 
investigator. But tempting as it may be to a prosecutor to give the 
same advice, it would be unethical for a prosecutor to do so. The 
American Bar Association Standards Relating to the Prosecution Function 
state that it ``is improper for a prosecutor * * * to suggest to a 
witness that the witness not submit to an interview by opposing 
counsel.'' \7\
---------------------------------------------------------------------------
    \7\ American Bar Association, Standards for Criminal Justice, The 
Prosecution Function, Sec. 3-3.1 (C) (1992).
---------------------------------------------------------------------------
    While the interests of the victim and the prosecutor will often 
converge in many cases, there will sometimes be cases in which the 
interests of the victim and the prosecutor may sharply diverge. This 
will often reflect the fact that the victim's focus is on the 
particular criminal case while a prosecutor often has to see the same 
case in broader terms that may be influenced by limited resources, 
prosecutorial priorities, and even political considerations. An obvious 
example where some divergence would manifest itself would be a 
relatively serious case where the prosecutor believes the chances of 
conviction are not sufficiently high to merit prosecution while the 
victim feels that the crime should be prosecuted even if conviction is 
not likely. There is no right or wrong in this situation but rather 
both the victim and the prosecutor are looking at the case from 
different perspectives. A prosecutor these days usually has no choice 
but to make difficult decisions about how limited prosecutorial 
resources are to be invested. At the same time, a victim may not agree 
with the prosecutor's priorities or the decision about the way that the 
case involving the victim is to be handled.
    Crime victims have often expressed frustration with our trial 
system because they are to a considerable extent invisible in the 
system.\8\ They have a legitimate interest in the way a criminal case 
is handled, yet it has been a battle to get prosecutors, judges, and 
defense attorneys to respect that interest. The Victims' Rights 
Amendment represents formal acknowledgement that victims have a role in 
the system that can be different from the prosecutor or the police.
---------------------------------------------------------------------------
    \8\ See, e.g., Steve Baker, Justice Not Revenge: A Crime Victim's 
Perspective on Capital Punishment, 40 U.C.L.A. L. Rev. 339, 340 (1992) 
(``The criminal justice equation does not include the relatives or 
friends of victims.'')
---------------------------------------------------------------------------
    This is not to say that the interests of the victim should be 
paramount to those of the prosecutor but the victim's interest should 
be understood and considered before an important decision affecting the 
victim is reached. A nice example is plea bargaining. The Victims' 
Rights Amendment gives victims the right to be heard, if present, prior 
to the acceptance of a negotiated plea.\9\ There will be cases in which 
the victim is completely supportive of the proposed plea agreement and 
may desire to tell this to the court. But there will be cases in which 
the victim is strongly opposed to the plea agreement, perhaps because 
the victim believes that the charge to which the defendant wishes to 
plea guilty or the sentence to be imposed does not adequately reflect 
the seriousness of the crime. It is important that the victim have the 
right to be heard on the proposed plea bargain.
---------------------------------------------------------------------------
    \9\ See S.J. Res. 44, Section 1.
---------------------------------------------------------------------------
    Permitting the victim to express opposition to the agreement 
provides a check on plea bargains that do not serve the public 
interest. But one suspects that in the vast majority of cases where the 
victim is opposed to the proposed bargain, the prosecutor's view of the 
public interest ought to lead to acceptance of the bargain by the 
court. But even if it is a rare case in which the victim's opposition 
to a plea agreement is likely to alter the proposed plea bargain, it is 
still very important that the victim be heard. We have a criminal 
justice system in which lawyers and judges spend a great deal of their 
time talking to each other. But the system does it a very poor job of 
listening to citizens, and that includes not only victims but 
defendants as well. Sometimes it is easier to accept decisions with 
which one disagrees if one feels that one's views have been heard and 
have been considered before the decision was made. This is what the 
Victims' Rights Amendment gives victims.
                     iii. victims in the courtroom
    Defense attorneys understand that constitutional recognition of a 
status for victims of serious crimes independent of the prosecutor has 
a tremendous symbolic value and they don't want to see it accorded 
victims. Gerald Lefcourt, a leading criminal defense attorney and then 
president of the National Association of Criminal Defense Lawyers, 
wrote an article in The Champion, the magazine of the NACDL, attacking 
the Victims' Rights Amendment in extreme terms.\10\ One of the first 
worries that he expresses is his concern that such an amendment ``would 
give victims equal standing in what amounts to a place at their own 
counsel table.'' \11\
---------------------------------------------------------------------------
    \10\ See Gerald B. Lefcourt, President's Column, Of Danger To All, 
Of Benefit to None, The Champion, 5 (July 1998).
    \11\ Id.
---------------------------------------------------------------------------
    I want to reply to this remark by considering his worry that 
victims might be permitted to sit in the front of the courtroom at 
their own counsel table. To Lefcourt, this seems so clearly wrong as to 
need no further explanation for why it is wrong.
    I think he is correct that the Victims' Rights Amendment might 
encourage more states to rethink where the victim should be seated at 
criminal trials but this is exactly the sort of question that we ought 
to be thinking about. While it is rare for a state to permit victims to 
sit in the front of the courtroom at criminal trials,\12\ it is not 
unusual among western countries to find victims in the front of the 
courtroom, even occasionally participating in the trial. In 
Belgium,\13\ France,\14\ and Italy,\15\ victims have long had a right 
to participate in the criminal trial on a rather equal basis with the 
state's attorney and the defense attorney. One of the reasons why 
victims often choose to participate at the criminal trial is that the 
victim may be awarded civil damages at the criminal trial. It is 
cheaper for the victim to join in the criminal case and seek damages 
rather than later having to bear the expense of a separate civil case.
---------------------------------------------------------------------------
    \12\ See, e.g., Ala Code section 15-14-54 (``A victim of a criminal 
offense shall not be excluded from court or counsel table during the 
trial or hearing or any portion thereof conduct by any court which in 
any way pertains to such offense. * * *''). This statute was upheld in 
Pierce v. State, 576 So. 2d 236, 251 (Ala. Crim. App. 1990).
    \13\ Christine Van Den Wyngaert, Belgium, 17-18, in Criminal 
Procedure Systems in thE European Community (Christine Van Den 
Wyngaert, editor) (1993).
    \14\ R.L. Jones, Victims of Crime in France, 158 Justice of the 
Peace & Local Government Law 795-96, December 3, 1994.
    \15\ William T. Pizzi and Luca Marafioti, The New Italian Code of 
Criminal Procedure: The Difficulties of Building an Adversarial Trial 
System on a Civil Law Foundation, 17 Yale J. Int. L. 1, 14 (1992).
---------------------------------------------------------------------------
    Obviously, this is a different model from our country where civil 
damages would have to be pursued separately from the criminal cases. 
But my point is not that these countries are a model for us. But I use 
these countries simply to point out that permitting some form of victim 
participation in a criminal trial may seem radical to American lawyers, 
but it is not at all radical among westem countries.
    Another country with a somewhat different model of victim 
participation at trial is Germany.\16\ Damages are not a possibility at 
a German criminal trial so victim participation at trial is not 
generally permitted, except for a small category of serious crimes.\17\ 
Among the crimes permitting such participation are murder, kidnapping, 
and rape.\18\ Victims rarely wish to participate in the trial, feeling 
that they can rely on the state's attorney and the judges to reach a 
fair verdict and sentence.\19\ But the exception is sexual assault 
where a high percentage of victims always wish to participate in the 
trial.\20\ Victims feel they have a stake in the trial and want to be 
present and be represented.
---------------------------------------------------------------------------
    \16\ See generally William T. Pizzi and Walter Perron, Crime 
Victims in German Courtrooms: A Comparative Perspective on American 
Problems, 32 Stan. J. Int. L. 37 (1996).
    \17\ Id. at 54-55.
    \18\ See StPO Sec. 395.
    \19\ See William T. Pizzi and Walter Perron, supra note at 55, n. 
76.
    \20\ Id. at 59.
---------------------------------------------------------------------------
    That most sexual assault victims would wish to participate at trial 
through counsel while victims of other serious crimes rarely wish to do 
so should not be surprising. For one thing, the victim's character and 
credibility is likely to come under a much more severe attack in a 
sexual assault case. Often, for example, in acquaintance-rape cases the 
attack on the victim includes the allegation that no crime ever took 
place because the victim consented to have sex with the defendant. The 
defense may attack the victim on almost every aspect of her testimony 
in an attempt to suggest that she is lying and trying to convict the 
defendant for corrupt reasons. Additionally, it is not unusual in such 
cases for issues having to do with the prior relationship between the 
victim and the defendant to be raised, which may mean delving into very 
private events separate from the crime in question. When one considers 
the nature of the crime and the likelihood that the victim may be ``put 
on trial,'' it is easy to see why sexual assault victims in Germany 
tend to see the trial as ``their trial'' and want to participate in the 
trial through counsel.
    If some continental countries think that it is appropriate for 
victims of serious crimes to participate in criminal trials, why is the 
Victims' Rights Amendment so controversial? Notice that the Victims' 
Rights Amendment is very modest in what it provides victims with regard 
to the trial. It gives victims no right of participation at trial, nor 
even a right to sit in the front of the courtroom. In fact, it doesn't 
even give victims ``a right to be present'' at the trial. Instead, it 
provides victims only the right ``not to be excluded from any 
proceedings relating to the crime.'' \21\ Presumably, this would allow 
the victim of a violent crime who is a witness to resist a motion for 
sequestration and remain in the back of the courtroom. Given the fact 
that some states already exempt victims from sequestration orders and 
permit them to remain in the courtroom at trial,\22\ what is being 
sought with respect to trial for victims in the Victims' Rights 
Amendment is very limited. And when one compares being able to remain 
in the courtroom with the participatory role that victims have at trial 
in the European countries just mentioned, the change proposed becomes 
even more modest.
---------------------------------------------------------------------------
    \21\ See S.J. Res. 44, Section 1.
    \22\ See, e.g., Ariz. R. Crim. Proc. 9.3 (a) (1998); Ala. Rules of 
Evid. R. 615 (4) (1998); Or. Evid. Code R. 615 (1998).
---------------------------------------------------------------------------
                      iv. our ``adversary system''
    In the previous section I described some European trial systems 
that give victims a participatory role in the courtroom in some cases. 
If those countries think it appropriate to recognize an active role for 
victims in some criminal cases, why is the Victims' Rights Amendment so 
wrong in thinking that the interests of victims of violent crime 
deserve some formal recognition in our Constitution? I think that one 
argument that American lawyers are likely to raise is that European 
trial systems and our American trial system are fundamentally 
different. Under the traditional dichotomy, we are supposed to have 
``an adversary system'' and European countries are supposed to have 
``an inquisitorial system.'' \23\
---------------------------------------------------------------------------
    \23\ See Monroe H. Freedman, Our Constitutionalized Adversary 
System, 1 Chapman L. Rev. 57, 84-85 (1998).
---------------------------------------------------------------------------
    I think this distinction has become blurred over time and that all 
western trial systems are adversarial to a degree today.\24\ Obviously, 
``to a degree'' means that there are considerable differences from 
system to system, with some systems not very adversarial and others 
more adversarial. To try to make this point, I want to turn to explore 
briefly what it might mean when American lawyers say that our trial 
system is ``an adversary system'' and that this is supposed to 
distinguish our trial system from European trial systems.
---------------------------------------------------------------------------
    \24\ I make this point at some length using the countries of the 
Netherlands, Germany, Norway, and England in chapter five of William T. 
Pizzi, Trial without Truth 89-116 (1998).
---------------------------------------------------------------------------
    Recently, Professor Monroe Freedman has written an article in which 
he argues that our adversary system is built into our Constitution.\25\ 
I think he is wrong in making that claim but I don't intend to dispute 
that point here. What I want to do is use the definition he uses as a 
basis for trying to understand what is special about an adversary 
system as opposed to the supposedly inquisitorial systems on the 
continent. He begins his article with the following definition: ``In 
its simplest terms, an adversary system resolves disputes by presenting 
conflicting views of fact and law to an impartial and relatively 
passive arbiter, who decides which side wins what.'' \26\ Working with 
this definition, which aspects of the definition distinguish American 
trials from those that occur on the continent?
---------------------------------------------------------------------------
    \25\ Monroe H. Freedman, Our Constitutionalized Adversary System, 1 
Chapman L. Rev. 57 (1998).
    \26\ Id.
---------------------------------------------------------------------------
a. Hotly contested factual and legal issues
    Surely, it is not the idea the presentation of conflicting views of 
fact and law at trial as there are often hotly contested factual or 
legal issues in all trial systems. To follow up with the acquaintance-
rape example from the previous section, such trials will often be 
bitterly contested in any country and in any trial system, with the 
victim insisting that she did not give consent and the defense 
insisting that the victim consented and is not telling the truth. 
Several years ago, I witnessed a rape trial in a courtroom in Freiberg, 
Germany, where the victim, an admitted drug addict, claimed that she 
had been raped by the two defendants.\27\ They in turn insisted that 
she had agreed to have sex with them on the promise that they would 
give her heroin the following day. The defendants and their lawyers 
launched a major assault on the victim's credibility and her character. 
They brought in witnesses who testified that the victim had prostituted 
herself for heroin on past occasions. In each case the victim was 
recalled to the stand to answer the allegations. It was a very bitterly 
contested trial, yet it took place within a trial system that is 
supposedly not an adversary system. In short, I don't think ``hotly 
contested'' serves to distinguish among western trial system those that 
are adversary systems from those that are not.
---------------------------------------------------------------------------
    \27\ See Pizzi and Perron, supra note at 63 n. 124.
---------------------------------------------------------------------------
b. Impartial and relatively passive judges
    Perhaps the distinction lies in the fact that the trial takes place 
before ``an impartial and relatively passive arbiter.'' The first part 
of this element--that the judge be ``impartial'' draws no meaningful 
distinction among trial systems as every western trial system wants its 
factfinders, be they professional judges, lay judges, jurors, or some 
combination thereof, to be impartial in the important task before them. 
Article 14 of the International Covenant of Civil and Political Rights, 
which has been ratified by all western countries, states that anyone 
charged with a crime is entitled to a trial before ``a competent, 
independent and impartial tribunal.'' \28\ All western countries hope 
that their judges and factfinders are impartial.
---------------------------------------------------------------------------
    \28\ International Covenent on Civil and Political Rights (adopted 
December 19, 1966, entered into force March 23, 1976, 99 U.N.T.S. 171), 
Sec. 14, 1.
---------------------------------------------------------------------------
    The second part of this element--that the arbiter be ``relatively 
passive'' does draw a distinction among western trial systems but the 
distinction is not as clear as some might think. Certainly judges on 
the continent often take the primary responsibility for calling and 
questioning witnesses at trial and they can be very active in 
controlling the conduct of the trial to the point that the lawyers play 
a greatly reduced role at trial.\29\ But there are other continental 
countries where the parties call the witnesses and do the bulk of the 
questioning of witnesses. In Norway\30\ and Italy,\31\ for example, the 
public prosecutor and the defense attorney call their own witnesses and 
do the initial questioning, rather on the American model. In fact, 
Italy considers its trial system to be an adversarial trial system\32\ 
and yet victims have broad rights of participation at trial including 
questioning witnesses and making legal arguments. Is Italy an adversary 
system because the judges are relatively passive compared to judges in 
other continental countries?
---------------------------------------------------------------------------
    \29\ See generally, John H. Langbein, Comparative Criminal 
Procedure: Germany, 3-60 (1977).
    \30\ Robin Thrap-Meyer, Introduction to the Legal System of Norway, 
p. 12.
    \31\ See William T. Pizzi and Luca Marafioti, supra note at 14.
    \32\ See Lawrence J. Fassler, Note, The Italian Penal Procedure 
Code: An Adversarial System of Criminal Procedure in Continental 
Europe, 29 Colum. J. Transnat'l L. 245 (1991).
---------------------------------------------------------------------------
    What makes this notion of a ``relatively passive arbiter'' somewhat 
difficult as a feature that should distinguishes an adversary systems 
from an inquisitorial system is the fact that American trial judges 
have the power to ask questions.\33\ While in jury trials, American 
judges tend to be very passive, at bench trials some judges ask many 
questions.\34\ When you consider that individual judges often vary 
considerably in their willingness to intervene and ask questions at 
trial, ``relatively passive'' seems to suggest a difference of degree 
among trial systems rather than a bright line that would separate our 
trial system from those on the continent.
---------------------------------------------------------------------------
    \33\ See Fed. R. Evid. 610.
    \34\ Further complicating the American criminal trial system is the 
fact that we have a system of military trials where the fact-finders 
are encouraged to ask questions during the trial and sometimes play an 
active role at trial. See Schleuter, Military Criminal Justice: 
Practice and Procedure 630 (1996).
---------------------------------------------------------------------------
c. Winning
    What really stands out in Freedman's definition of adversary 
systems is the last part of Freedman's description of our adversary 
system. It states that the duty of the impartial arbiter is to decide 
``which side wins what.'' End of definition. American trials are about 
winning. European trials are not conceptualized in that way: trials are 
supposed to aim at the truth and to that end judges (and also the 
state's attorney) have a responsibility to pursue relevant issues even 
if not raised by the parties or to call witnesses if that becomes 
necessary.\35\ In short, European judges feel responsible for the 
outcome of the trial and the justice of the result.
---------------------------------------------------------------------------
    \35\ See Mirjan Damaska, Evidentialy Barriers to Conviction and Two 
Models of Criminal Procedure, 121 U. Pa. L. Rev. 506, 586 (1973); John 
H. Merryman, The Civil Law Tradition (2d ed. 1985).
---------------------------------------------------------------------------
    I think a trial system defined in Freedman's terms is ultimately 
sterile. Any trial system that is to have credibility has to place 
heavy emphasis on trial verdicts that are accurate and reliable. But 
there is no emphasis on truth or reliability in Freedman's definition 
and, unfortunately, his definition accurately reflects a trial cultural 
where winning and losing are central and heavily emphasized. In an 
expensive and extremely complicated system, the winner will often be 
the side that has greater resources or the side with the more skillful 
advocate, not the side with the stronger evidence. What should be the 
responsibility of the trial judge in such a situation? \36\
---------------------------------------------------------------------------
    \36\ American trial judges have the power to call their own 
witnesses at trial, see Federal Rule of Evidence 614 (a), but there is 
no guidance as to when or why that power should be used so it is rarely 
exercised.
---------------------------------------------------------------------------
    Surprisingly, there is no guidance for trial judges in such a 
situation. Franklin Strier in his book Reconstructing Justice points 
out that the ABA Code of Judicial Conduct fails to impose any 
obligation on the trial judge to seek justice.\37\ Instead, the only 
adjudicative constraint on a trial judge is to perform her task 
impartially. Strier warns that when impartiality is thought to require 
passivity that ``can make the judge an unwilling abettor of intolerable 
injustice.'' \38\
---------------------------------------------------------------------------
    \37\ See Franklin Strier, Reconstructing Justice 83 (1994).
    \38\ Id.
---------------------------------------------------------------------------
    Some strong European trial systems permit victim participation in 
some criminal cases but some strong European trial systems, such as 
those in the Netherlands \39\ or Denmark,\40\ do not pen-nit victim 
participation at trial. But those countries would not define their 
trial systems as being aimed at deciding ``who wins what.'' The case 
for victim participation at trial is much stronger in a system like 
ours that places a low priority on truth and a high priority on 
winning. If you are not a winner in such a system, you will be a loser, 
and that is exactly the way that victims are often portrayed after an 
acquittal. Has anyone ever heard a defense attorney on the courthouse 
steps following an acquittal say anything other than that the verdict 
shows that the jury believed the defendant and obviously didn't believe 
the defendant?
---------------------------------------------------------------------------
    \39\ See A.H.J. Swart, The Netherlands, at 291-92 in Criminal 
Procedure Systems in the European Community (Christine Van Den 
Wyngaert, editor) (1993).
    \40\ See Vagn Greve, Denmark, at 59-60 in Criminal Procedure 
Systems in the European Community (Christine Van Den Wyngaert, editor) 
(1993).
---------------------------------------------------------------------------
                  v. a trial system unsure what it is
    Of course judges do care about the justice of the results that take 
place in their courtrooms, but they often seem unsure whether this 
concern should temper the system's adversarial excesses. A case that 
nicely illustrates the difficulties for judges in our trial system is 
the Louise Woodward case which received international publicity.\41\ As 
you may recall, Woodward was the English au pair charged in 
Massachusetts with first and second degree murder in the death of 
Matthew Eappen, the infant in her care. While murder was a possible 
verdict, the case always seemed more appropriate as a manslaughter 
case. It seemed to fit better the facts of the case in which the 
teenage defendant was supposed to have become frustrated with the 
infant in her care and caused his death through the very rough way she 
shook him in frustration.
---------------------------------------------------------------------------
    \41\ When the author was lecturing in China in late October of 
1997, he was able to follow developments in the trial on CNN 
International.
---------------------------------------------------------------------------
    But at the end of the trial, the defense team, led three 
experienced defense attorneys, asked that the lesser included charge of 
manslaughter not be given to the jury.\42\ This was viewed as an 
audacious gamble because the jury would be left with the difficult 
choice of either returning a verdict of second-degree murder or a 
verdict of acquittal.\43\ Making the stakes very high for the defendant 
was the fact that first-degree murder carried with it a mandatory life 
sentence, while second-degree carried with it a life sentence, but 
permitted parole after a minimum of fifteen years in prison.\44\ 
Manslaughter had no minimum.
---------------------------------------------------------------------------
    \42\ See William F. Doherty, Woodward team wins bid to limit 
verdict to murder or acquittal; Boston Globe, October 28, 1997, A1; 
David Usborne, Will it be `noose-or-loose'?; The Independent, October 
26, 1997, 17; CourtTV, Daily Updates from Commonwealth v. Woodward, 
Highlights from October 27, http://www.courttv.com/trials/woodward/
week4.html#oct27.
    \43\ See Tunku Varadarajan, Au pair risks `noose or loose' verdict, 
The Times, October 28, 1997, Home News.
    \44\ See William F. Doherty, supra note at A1.
---------------------------------------------------------------------------
    If you want to understand how extremely adversarial our trial 
system can be and how invisible victims are at times in the system, 
there could hardly be a better example. The trial judge did not see it 
as his responsibility to put to the jury the option that seemed most 
likely to fit the facts. We can rationalize this decision by saying 
that the prosecution ``blew it'' by charging murder instead of 
manslaughter, but is it fair to visit this decision on the victim and 
the victim's family? As mentioned earlier, victims in our trial system 
feel like they are invisible and this is a nice example. The judge went 
to great lengths to make sure that Woodward approved of the daring 
gamble that was going to take place. He brought in an additional 
attorney to make sure that she was fully informed of the risks of the 
decision not to instruct on manslaughter.\45\ After meeting with the 
additional attorney, Woodward told the court that she agreed with the 
decision only to put murder or an acquittal to the jury.
---------------------------------------------------------------------------
    \45\ Id.
---------------------------------------------------------------------------
    What this judge, a judge with an excellent reputation,\46\ was 
saying to the world watching this trial is that trials in the United 
States are more about winning and losing than they are about accurate 
verdicts.
---------------------------------------------------------------------------
    \46\ See David Nyhan, But can he make the case for attorney 
general?, Boston Globe, October 26, 1997, E4 (Zobel is a ``savvy trial 
judge''); Don Aucoin, While millions watch, Trial of Woodward in 
infant's death is touchstone for US, British television, Boston Globe, 
October 9, 1997 (Judge Zobel ``runs a tight ship''). Judge Hiller 
Zobel, the judge in the Woodward case, is also an amateur historian. 
See Hiller B. Zobel, The Jury on Trial, American Heritage, July/August 
1995 at 42.
---------------------------------------------------------------------------
    Obviously, if the defense had won there would have been high praise 
for the brilliance of the defense advocates and their bold strategy. 
But we all know what happened. The prosecutor gave a tremendous 
summation, and the defendant ``lost,'' receiving a life sentence as she 
knew she would if she were to be convicted. When a system emphasizes 
winning and losing so heavily and openly permits such an audacious 
gamble, losing is possible.
    But it is at this point that our supposedly ``adversary system'' 
took a different turn. A few days later, the same judge entered the 
courtroom now concerned about the injustice of the result.\47\ But 
where does this judge come from in an ``adversary system'' and where 
was a judge with these concerns at trial? Having permitted the defense 
to gamble and having made sure that the defendant was fully informed of 
the consequences of the gamble, where in an adversary system does this 
judge get the authority to question the second degree murder 
conviction? The judge substituted a manslaughter verdict and dropped 
Woodward's sentence from life (meaning a fifteen year minimum) to time 
served, permitting her immediate release.\48\ (Massachusetts sentencing 
guidelines had suggested a prison sentence of from three to five 
years.\49\)
---------------------------------------------------------------------------
    \47\ Tom Mashberg, Judge rules manslaughter in nanny case, Boston 
Herald, November 10, 1997, 004.
    \48\ See Associated Press, Au pair freed after judge reduces 
verdict, Chicago Tribune, November 10, 1997, Zone C, 1.
    \49\ Davi Usborne, Ordinary girl who put justice on trial; The 
Independent, June 17, 1998, 3.
---------------------------------------------------------------------------
    What you see in the Woodward case is a trial system that doesn't 
know what its goal is. I don't dispute the justice of the manslaughter 
verdict in the Woodward case or even the sentence that was imposed. But 
the way the system got there raises serious questions about the 
premises of our trial system. In a trial system where judges are 
supposed to be ``relatively passive arbiters,'' a single judge rejects 
the verdict of a jury and imposes the verdict he feels is correct. He 
then goes on to impose a very lenient sentence, based on a view of the 
facts that some jurors plainly did not accept.\50\
---------------------------------------------------------------------------
    \50\ See Joe Ryan and Anne E. Kornblut, Juror `appalled' at 
sentence Boston Globe, November 11, 1997, B1.
---------------------------------------------------------------------------
    I think it is time to put aside the convenient labels and cliches 
that dominate our descriptions of our trial system--that ``we have an 
adversary system,'' that ``we don't trust judges,'' ``that we believe 
in jurors of 'our peers,' '' and so on--and look at what we really 
have. When I do this I see a trial system that doesn't know what it 
wants to happen at trial and doesn't know itself very well. It swings 
from extremely adversarial to extremely inquisitorial, from vesting 
incredible power injuries to permitting judges to undo or effectively 
overrule jury verdicts with which they disagree, from incredibly weak 
judges at times to judges vested with tremendous power over the liberty 
of citizens at other times. I don't think any of these extremes are 
healthy for victims, or for defendants.
             vi. victims in other common law trial systems
    I want to return to Gerald Lefcourt's worry that victims might have 
a seat at counsel table to make one more point about trial systems, 
this time about other common law trial systems. I have to confess that 
I don't know of any common law country that would permit the victim to 
sit in the front of the courtroom at counsel table which is the worry 
Lefcourt expresses. This might seem to support Mr. Lefcourt's 
assumption that pennitting a victim to sit in the front of the 
courtroom ought to be unthinkable.
    But the problem is that in the common law countries I have visited, 
the defendant also doesn't sit in the front of the courtroom at counsel 
table. The defendant sits in a small box, usually next to a uniformed 
guard, at the very back or at one side of the courtroom.\51\ Enter any 
Crown Court in London and it is easy to tell who is on trial and I mean 
that on more than one level.\52\
---------------------------------------------------------------------------
    \51\ See Michael H. Graham, Tightening the Reins of Justice in 
America, 69-70 (1983).
    \52\ See William T. Pizzi, Discovering Who We Are: An English 
Perspective on the Simpson Trial, 67 U. Colo. L. Rev. 1027, 1028-29 
(1996).
---------------------------------------------------------------------------
    Imagine how Mr. Lefcourt would feel if it was proposed that 
defendants at serious criminal trials had to sit in a small box at the 
very back of the courtroom, far removed from their attorneys and often 
even farther from the proceedings than some members of the public. 
American defense lawyers sometimes complain about the difficulty 
``personalizing the defendant'' to the jury.\53\ They are quite 
fortunate compared to defense banisters in England who must work at 
considerable distance from the defendant.\54\ The barrister cannot 
personalize the defendant to the jury by putting an arm on the shoulder 
of a defendant or chatting quietly with him.
---------------------------------------------------------------------------
    \53\ Id.
    \54\ See Michael H. Graham, supra note at 69.
---------------------------------------------------------------------------
    Now I am not advocating that we build docks in American courtrooms 
or that we make defendants sit outside the bar in our courtrooms and 
only permit lawyers inside the bar. But the Victims' Rights Amendment 
has to be understood against a background in which defendants have many 
advantages in our trial system that they don't have in other trial 
systems and conversely victims have many disadvantages at trial that 
they don't have in other trial systems. It is against this background 
that the limited ``right'' provided victims at trial in the Victims' 
Rights Amendment--a right ``not to be excluded'' from at trial should 
be seen as completely appropriate for our trial system.
   vii. a final observation on victims' rights ``versus'' defendants 
                                 rights
    One attack on the Victims' Rights Amendment is try to set victims' 
rights against defendants' rights. Consider again Gerald Lefcourt's 
attack on the Victims' Rights Amendment. He states that ``the amendment 
establishes rights that would, by definition, overwhelm protections the 
Constitution affords defendants including the presumption of 
innocence.'' \55\ This is complete hyperbole. The amendment has been 
carefully crafted so that its provisions do not conflict with any of 
the constitutional rights of defendants. Basically, the amendment 
tracks the law that has been put into effect in the majority of states 
through state constitutional amendments.
---------------------------------------------------------------------------
    \55\ See Gerald B. Lefcourt, supra note at 5.
---------------------------------------------------------------------------
    But having argued that our trial system doesn't treat victims well 
at trial, one might think that this means that our present system 
treats defendants well. But this is a complicated issue. I think this 
is not a good system for the vast majority of defendants and they have 
little to fear from the Victims' Rights Amendment.
    Sure, comparatists often say that if a defendant is really guilty, 
that defendant would prefer to be tried in the United States,\56\ and 
they don't mean that as a compliment. What they mean is that no matter 
how strong the evidence, with a good lawyer, who knows what might 
happen at trial?
---------------------------------------------------------------------------
    \56\ See John H. Merryman, supra note at ?.
---------------------------------------------------------------------------
    But the dark side is that the system doesn't want defendants to 
exercise their constitutional rights and it has evolved very effective 
means of coercing defendants to waive their constitutional rights. What 
the system does is threaten defendants with very high punishments if 
they have the temerity to try to exercise their constitutional 
rights.\57\ What we have seen over the last twenty years has been a 
tremendous increase in habitual offender statutes, statutes with high 
mandatory punishments, very high sentencing ranges, and other 
sentencing statutes that put tremendous pressure on defendants to waive 
their rights and avoid trial.\58\ The result is a system that works to 
the advantage of wealthy and sophisticated defendants but is not a good 
system for the vast majority of defendants who are neither wealthy nor 
sophisticated.
---------------------------------------------------------------------------
    \57\ See William T. Pizzi, Punishment and Procedure: A Different 
View of the American Criminal Justice System, 13 Const. Comm. 55 
(1996).
    \58\ The growing harshness of American sentencing laws and the 
political pressure that have encouraged this development have been the 
subject of book length studies. See, e.g., Michael Tonry, Sentencing 
Matters (1996); Katharine Beckett, Making Crime Pay (1997).
---------------------------------------------------------------------------
    A great deal of sentencing power has been shifted from judges to 
prosecutors and they use it to pressure defendants to plead guilty or 
face some very unattractive alternatives.\59\ In many states, the 
number of cases going to trial is shrinking. The system is completely 
given over to plea bargaining. Why would any sane prosecutor want to go 
to trial if a trial is a crapshoot? And it is pretty tough for a 
defendant to turn down a one year offer if knows he will get a five or 
ten year minimum if convicted at trial.
---------------------------------------------------------------------------
    \59\ A shocking example of prosecutorial sentencing power and the 
risks to a defendant of trying to withstand that power is Bordenkircher 
v. Hayes, 434 U.S. 357 (1978). Hayes turned down a plea bargain offer 
of a five year sentence to go to trial. He was convicted and received a 
mandatory life sentence.
---------------------------------------------------------------------------
    This is not a criticism of plea bargaining per se. Every western 
system has some mechanism for the expedited disposition of a large 
percentage of its criminal cases that offer defendants some discount 
for avoiding trial or at least avoiding a prolonged trial.\60\ But 
there is good plea bargaining and bad plea bargaining and United States 
draws no distinction between the two. Today one should worry less about 
false convictions at trial than about defendants with credible defenses 
who go to prison because the pressure on them to plead guilty often 
from their own lawyers is intense.\61\
---------------------------------------------------------------------------
    \60\ See William T. Pizzi and Luca Marafioti, supra note at 35-37 
(describing plea bargaining analogs in Denmark, Spain, France and 
Germany).
    \61\ In a recent article, William Stuntz has warned that a highly 
complicated legal system like the American system encourages defense 
lawyers to work hard at procedural issues and puts pressure on them to 
avoid factual lines of inquiry that require much more time to develop. 
See William J. Stuntz, The Uneasy Relationship Between Criminal 
Procedure and Criminal Justice, 107 Yale L. J. 1, 35-47 (1997).
---------------------------------------------------------------------------
                            viii. conclusion
    What the Victims' Rights Amendment does in terms of expanding the 
law for victims is very minimal. Many of the provisions of the 
amendment, such as the right to file a victim impact statement or the 
right to be informed and heard on the merits of proposed plea bargain 
agreements, are already embodied in the law of many states. In fact, 
because the amendment is limited to crimes of violence, the provisions 
of the amendment are significantly less extensive than the existing law 
in many jurisdictions.
    But the symbolism of recognizing victims in our Constitution is 
tremendously important and this article has tried to show why. There is 
nothing inconsistent in having a strong and reliable trial system that, 
at the same time, acknowledges that victims have an interest in the 
prosecution of a criminal case, including the trial.
    Victims are very angry at the treatment they receive in our 
criminal justice system and I have tried to show that they have a right 
to be angry. Unfortunately, anger is not a good basis on which to make 
important public policy decisions and it contributes to the increasing 
harshness we see in our system. Crime is a serious problem in all 
western countries and politicians have to get elected in these 
countries as well. But we need to ask ourselves why judges and lawyers 
in these other countries have been more successful in fending off calls 
for the death penalty, for harsh mandatory minimums, tough habitual 
offender statutes, and the like. Part of the answer is that the judges 
in those systems have greater credibility with the public and, in some 
of the countries at least, the trial system commands greater respect 
and public confidence. I think we need the balance that a 
Victims'Rights Amendment offers to restore some of the public 
confidence our system has lost. I think victims need it, but so do 
defendants.

       Article Prepared by William T. Pizzi* and Walter Perron**

   Crime Victims in German Courtrooms: A Comparative Perspective on 
                          American Problems***

 Introduction: The Victims' Movement in the United States and the Need 
                     for a Comparative Perspective

    The victims' movement in the United States is a powerful political 
force that has achieved some significant victories in its fight to 
improve the treatment of victims within the American criminal justice 
system. In 1982, for example, Congress passed the Victim and Witness 
Protection Act.\1\ This legislation encouraged sentencing judges to 
impose requirements of restitution on convicted defendants\2\ and 
required the filing of victim impact statements as part of any 
presentence report supplied by the Department of Probation to a 
sentencing judge.\3\ While the Act is applicable only in federal 
courts, it has served as a model for similar reform legislation that 
has since been passed in most states.\4\
---------------------------------------------------------------------------
    * Professor of Law, University of Colorado School of Law. The 
author is grateful to the University of Colorado Council on Research 
and Creative Work, and to the Max-Planck-Institut fur Auslandisches und 
Internationales Strafrecht, for the funding that supported the research 
for this article. The author also wishes to acknowledge the valuable 
contribution that Beate Weik, a law graduate in Freiburg, Germany, made 
to the research that went into this article.
    **Professor of Law, Johannes Gutenberg-Universitat Mainz, 
Fachbereich Rechts- und Wirt-schaftswissenschaften, Germany. The author 
is also grateful to Beate Weik and to Roland Grimm, a law student at 
the Universitat Konstanz, for their valuable help.
    *** The authors wish to express their appreciation for the generous 
cooperation of three experienced members of the legal community in 
Freiburg, Germany: Regina Schaaber, a lawyer who frequently represents 
rape victims in criminal cases; Ulf Kopcke, a lawyer who does a 
significant amount of defense work, but has also represented victims at 
criminal trials; and Silvia Fodor, a state's attorney, who has 
represented the state at many rape trials. They provided background 
information on criminal trials in Germany and were especially helpful 
with information on how victim participation at German trials works in 
practice.
    \1\ Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 
96 Stat. 1248 (codified as amended in scattered sections of 18 U.S.C.).
    \2\ Id. Sec. 5 (codified as 18 U.S.C. Sec. 3579). Few offenders, 
except in white collar criminal cases, have the skills earning power, 
and employment opportunities to make meaningful restitution. 
Consequently, it has been argued that tough language mandating 
restitution in the Victim and Witness Protection Act, and those state 
statutes modeled on it, raise false expectations in the minds of crime 
victims. See Emilio Viano, Victim's Rights and the Constitution: 
Reflections on a Bicentennial, 33 Crime and Delinq. 438, 446 (1987).
    \3\ Fed. R. Crim. P. 32(c)(2)(C).
    \4\ In 1989, 48 states had authorized consideration of victim 
impact statements at sentencing, Dina R. Hellerstein, The Victim Impact 
Statement: Reform or Reprisal, 27 Am. Cri. Rev. 391, 399 (1989). 
Victims do not use their statutory rights with frequency. In 
California, where victims have the right of allocution at sentencing, 
victims exercise this right in less than three percent of felony cases. 
Id. at 399-400 (citing to Edwin Villmoare & Virginia V. Neto, Victim 
Appearances at Sentencing Hearings Under the California Victims' Bill 
of Rights 42 (National Institute of justice Executive Summary, 1987)). 
See also Lynn Weisberg, Victim Appearances at Sentencing in California, 
71 Judicature 166, 166 (1987).
---------------------------------------------------------------------------
    Just two years later, Congress passed another major piece of 
legislation aimed at improving the treatment of victims in the criminal 
justice system. The Victims of Crime Act of 1984 \5\ established a 
Crime Victims Fund that disburses monies (collected from fines, 
penalties, and bond forfeitures) to state victim compensation funds and 
to victim assistance projects throughout the country.\6\ As a result of 
this legislation and the funding it provided, as well as similar 
legislation at the state level, victim service programs are now almost 
universal in sizable communities throughout the United States. These 
programs provide services to victims such as emergency care, crisis 
intervention, counseling, help with victim compensation and 
restitution, and victim advocacy.\7\
---------------------------------------------------------------------------
    \5\ Pub. L. 98-473, 98 Stat. 2170 (1984).
    \6\ Id. Sec. Sec. 1402-04. See Robert C. Davis & Madeline Henley, 
Victim Service Programs, in Victims of Crime: Problems, Policies, and 
Programs 157, 161 (Arthur J. Lurigio et al. eds., 1990).
    \7\ As of 1992, 47 states and the District of Columbia had passed 
legislation setting up victim compensation programs. Christopher R. 
Goddu, Victims' ``Rights'' or a Fair Trial Wronged?, 41 Buff L. Rev. 
245, 250 (1993). See also John R. Anderson & Paul L. Woodard, Victim 
and Witness Assistance: New State Laws and the System's Response, 68 
Judicature 221, 222 (1985).
---------------------------------------------------------------------------
    Over the last several years, however, the victims' movement in the 
United States has been trying to achieve something much more 
controversial: recognition of a victim's right to participate at each 
stage of the criminal process, including the trial. The drive to 
establish such a right began with the 1982 report of the President's 
Task Force on Victims of Crime, which proposed adding to the Sixth 
Amendment a sentence guaranteeing victims ``the right to be present and 
to be heard at all critical stages of judicial proceedings.'' \8\ While 
this seems a radical proposal, the Task Force report concluded that no 
alternative short of amending the Sixth Amendment would secure to 
victims proper treatment and respect in the criminal justice system.\9\
---------------------------------------------------------------------------
    \8\ See President's Task Force on Victims of Crime, Final Report 
114 (1982).
    \9\ Id. at 114-15.
---------------------------------------------------------------------------
    Rather than try initially to amend the U.S. Constitution, which 
would be controversial and difficult, the victims' rights movement 
decided that it was politically wiser to push first for the passage of 
state laws or constitutional amendments that would establish a right 
for victims to participate at some level in the criminal process.\10\ 
While focusing on amending a majority of state constitutions, the 
movement remained committed to the ultimate goal of seeking a federal 
constitutional amendment guaranteeing rights for victims.\11\ Having 
achieved the adoption of victims' rights amendments in twenty states 
since 1986,\12\ the National Victims' Constitutional Amendment Network, 
an umbrella group representing all major victims' rights organizations, 
unanimously adopted on September 15, 1995 the specific language that it 
will seek to have added to the Sixth Amendment.\13\ The existing state 
constitutional amendments \14\ and those statutes enacted pursuant to 
them vary considerably in their language and content, but they are 
generally consistent in providing that a victim: (1) be kept informed 
of the progress of the case as it moves from step to step, (2) receive 
notice about any hearings in the case, and (3) have the right to be 
heard on certain issues when the victim has relevant testimony to 
provide.\15\
---------------------------------------------------------------------------
    \10\ See LeRoy L. Lamborn, Victim Participation in the Criminal 
Justice Process: The Proposals for a Constitutional Amendment, 34 Wayne 
L. Rev. 115, 132 (1987).
    \11\ See id. at 131-33.
    \12\ See Paul G. Cassell, Balancing the Scales of Justice: The Case 
for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah L. 
Rev. 1373, 1382 (noting that Alabama, Alaska, Arizona, California, 
Colorado, Florida, Idaho, Illinois, Kansas, Maryland, Michigan, 
Missouri, New Jersey, New Mexico, Ohio, Rhode Island, Texas, Utah, 
Washington, and Wisconsin have all passed victims' rights amendments). 
Professor Cassell also reports that at least eight other states are 
actively considering victims' rights amendments. Id. at 1383.
    \13\ The National Victims' Constitutional Amendment Network 
proposes that the following paragraph be added to the Sixth Amendment:

      Moreover, to establish, preserve, and protect the rights of 
      the people to liberty, justice and due process, a victim of 
      a serious crime shall be informed of and enjoy the 
      following fundamental rights throughout the criminal 
      justice process: to be treated with fairness, respect, and 
      dignity; to timely notice of and, unless incarcerated, to 
      be present at all proceedings where the accused has the 
      right to be present; to be heard at any proceeding 
      concerning post-arrest release, a negotiated disposition, a 
      sentence, post-conviction release, and any other matter 
      where victim participation will serve the ends of justice; 
      to confer with the appropriate officials regarding post-
      charging disposition of a case, sentencing recommendations, 
      and post-conviction supervision decisions posing a 
      significant threat to the safety of the victim; to a speedy 
      trial and final disposition free from unreasonable delay; 
      to receive prompt and full restitution from the convicted 
      offender, to be free from an unwarranted release of 
      confidential information; to be reasonably protected from 
      the accused or convicted offender; and to be informed, upon 
      request, when the accused of convinced offender is given 
      any release from secure custody, or has escaped. The 
      exercise of denial of any right granted under this 
      paragraph shall not entitle the accused or convicted 
---------------------------------------------------------------------------
      offender to any relief.

Letter from Mary McGhee, co-chair of the National Victims' 
Constitutional Amendment Network, to William T. Pizzi (Nov. 11, 1995) 
(on file with the Stanford Journal of International Law).
---------------------------------------------------------------------------
    \14\ See Ala. Const. amend. 557; Alaska Const. art. I, Sec. 24; 
Ariz. Const. art. II, Sec. 2.1; Cal. Const. art. I, Sec. 28; Colo. 
Const. art II, Sec. 16a; Fla. Const. art. I, Sec. 16(b); Idaho Const. 
art. I, Sec. 22; Ill. Const. art I, Sec. 8.1; Kan. Const. art. XV, 
Sec. 15; Md. Decl. of Rights art. XLVII; Mich. Const. art. I, Sec. 24; 
Md. Const. art. I, Sec. 32; N.J. Const. art. I, para. 22; 
N.M. Const. art. II, Sec. 24; Ohio Const. art. I, Sec. 10a; R.I. Const. 
art. I, Sec. 23; Tex. Const. art. I, Sec. 30; Utah Const. art. I, 
Sec. 28; Wash. Const. art. I, Sec. 35; Wis. Const. art. I, Sec. 9m.
    \15\ For an excellent overview of the range of ``rights'' granted 
to victims under various state amendments and accompanying legislation, 
see generally Lamborn, supra note 10, at 143-72.
---------------------------------------------------------------------------
    Some aspects of these state amendments ought not to be 
controversial. It seems entirely proper for a victim to be kept 
informed about the progress of the case and to have a right to be heard 
on matters that may directly affect her, such as a reduction of bail or 
a trial continuance. But what does it mean in these amendments for the 
victim to be granted the right to be present and to be heard at the 
trial itself?.
    These amendments may give victims no more rights to participate at 
the trial than what they already have: the ``right'' to observe the 
trial, like any member of the public, subject to normal sequestration 
rules; and the ``right'' to be heard at trial, if the victim is called 
by either the prosecution or the defense. Clearly, if victims' rights 
amendments turn out in fact to be much more symbolism than substance, 
this will provoke the ire of the victims' movement. But what exactly 
are the problems with the American criminal justice system from the 
victims' point of view, and how will a right to participate somehow 
solve these problems?
    Unfortunately, the issue of victims' rights in the United States is 
one on which there is very poor communication between those outside the 
system--victims and their families; and those inside the system--
judges, lawyers, and scholars. While victims are quite articulate in 
communicating their frustration and anger with the system,\16\ their 
complaints are often expressed at a level of generality that does not 
indicate the specific structural problems they would like to see 
remedied. For example, victims complain of being made to feel like ``an 
outsider to the criminal justice system,'' \17\ or like ``another piece 
of evidence.'' \18\ But such complaints, though powerful, communicate 
very little about any specific changes in the structure of American 
trials that would make victims feel more included in the process.
---------------------------------------------------------------------------
    \16\ ``My life has been permanently changed. I will never forget 
being raped, kidnapped, and robbed at gunpoint. However, my sense of 
disillusionment with the judicial system is many times more painful. I 
could not, in good faith, urge anyone to participate in this hellish 
process.'' Anne M. Morgan, Criminal Law Rights: Remembering the 
``Forgotten Person'' in the Criminal justice System, 70 Marq. L. Rev 
572, 572 (1987) (quoting a crime victim's statement at a Senate 
subcommittee hearing on the Victim and Witness Protection Act of 1982).
    \17\ A good deal of my frustration stemmed from the feeling that, 
as a crime victim, I was an outsider to the criminal justice system. * 
* * Like other family members of murder victims, I found myself 
excluded from the system, unable to participate in the formal 
proceedings. The criminal justice equation does not include the 
relatives and friends of victims. Steve Baker, Justice Not Revenge: A 
Crime Victims Perspective on Capital Punishment, 40 U.C.L.A. L. Rev 
339, 340 (1992).
    \18\ Betty Jane Spencer, A Crime Victims Views on a Constitutional 
Amendment for Victims, 34 Wayne L. Rev. 1, 2 (1987).
---------------------------------------------------------------------------
    At the same time, those within the system who are accustomed to 
viewing criminal trials as two-sided battles between the state and the 
defendant, have a great deal of difficulty seeing how a criminal trial 
can be altered in any significant way to give victims more comfort and 
visibility in the courtroom without depriving the defendant of a fair 
trial.\19\ So poor is the level of communication that those within the 
system often seem genuinely bewildered by the victims' rights movement, 
even to the point of suggesting rather condescendingly that victims are 
seeking a solace from the criminal justice system that they ought to be 
seeking elsewhere,\20\ or that it might even be harmful to victims to 
participate in the process.\21\
---------------------------------------------------------------------------
    \19\ See M. Dolliver, Victims' Rights Constitutional Amendment: A 
Bad Idea Whose Time Should Not Come, 34 Wayne L. Rev. 87, 90 (1987) 
(``Any attempt to use the Constitution to enhance a victim's rights by 
placing the victim in direct conflict with the accused in court reverts 
to a process that history has shown is less than fully civilized.''); 
Goddu, supra note 7, at 271-72 (``To avoid any chance of a miscarriage 
of justice, victim participation, at the trial level, should be limited 
to spectator access to the courtroom and nothing more.'').
    \20\ See Vivian Berger, Payne and Suffering--A Personal Reflection 
and a Victim-Centered Critique, 20 Fla. St. U. L Rev. 21, 59 (1992) 
(``The system is not equipped to nurture victims or their 
representatives.''); id. at 65 (``Private forums will better serve to 
mend hearts and honor the dead.'').
    \21\ Justice James M, Dolliver of the Washington Supreme Court 
suggests that increased participation in the process by the victim 
might have a negative psychological and economic effect on victims. See 
Dolliver, supra note 19, at 90.
---------------------------------------------------------------------------
    This Article offers no solutions to any of the structural and 
constitutional questions that seem certain to arise in the years ahead 
as victims' rights groups push for some level of participation at 
trial. It may, however, offer American readers something that is 
noticeably lacking in the American literature; perspective on the 
problems that victims face in American courtrooms. The authors hope to 
bridge the communication gap that exists between those outside and 
those working within the American system by leaving it entirely and 
examining how victims are treated at criminal trials in Germany. For a 
number of reasons, the authors believe that victims of serious crimes 
fare better in the German trial system than they do in American 
courtrooms, and this Article will explain why the authors have reached 
that conclusion.
    This Article, however, is not reformist in nature. Germany, like 
most western countries other than the United States and England, is a 
civil law country, and many aspects of the treatment of victims at 
German trials reflect a trial structure grounded in the civil law 
tradition. For example, because civil law trials in Germany are 
directed and controlled by trial judges and are not structured as 
adversarial contests, it is easier to accommodate the interests of 
victims at trial without disturbing the adversarial balance that is 
central to American criminal trials. Thus, there are no easy solutions 
to the difficult problems that lie ahead for the American legal system 
as it tries to address the concerns of victims within the confines of a 
rigorously adversarial trial structure.
    But the debate over the right of victims to some level of 
participation at trial will continue to be emotional and unproductive 
until those within the system acknowledge and better understand the 
sources of victims' frustration in their encounters with the American 
criminal justice system. It is toward that understanding that the 
authors hope to contribute.
    This Article is divided into two parts. Part I explains why certain 
central features of the German trial system, most of which are common 
to other countries that share the civil law tradition, offer definite 
advantages to victims when compared to criminal trials that take place 
in the American legal system. Part II deals with the right granted 
victims of certain serious crimes to participate directly in the German 
criminal trial as Nebenklager, which translates roughly as permitting 
the victim to act as a ``secondary accuser.'' We describe the major 
reforms made to the Nebenklage procedure in 1986 and show how it works 
in practice, using as an illustration a rape prosecution in which the 
victim has chosen to take advantage of the procedure.
    The authors have chosen to discuss the Nebenklage procedure in 
detail partly because it does not provide all crime victims with a 
general right of participation at trial. Rather, the procedure is 
available only for the most serious crimes, and its major impact, as we 
shall explain, is on victims of sexual assault. Thus, while the 
Nebenklage procedure is important and its impact is significant in 
sexual assault cases, it needs to be kept in perspective: it is only 
one aspect of a trial tradition that offers victims a number of 
advantages, both direct and indirect, in comparison to the American 
adversarial system and the difficulties that victims face in American 
courtrooms.
                   i. victims in the civil law system
A. The German trial system prefers narrative testimony
    One of the biggest differences between German trials and American 
trials is the way that witnesses--victims, defendants, police officers, 
experts, etc.--are questioned in court. After the presiding judge has 
informed the witness of her obligation to testify truthfully and 
completely about the matter at hand, and has obtained a few pieces of 
background information from the witness, such as her name and address, 
the presiding judge will always ask the witness to explain fully and 
completely what happened. In short, the witness is invited to tell all 
she knows about the crime and its surrounding circumstances in a 
narrative fashion.
    This preference for narrative testimony, which is embodied in 
section 69 of the German Criminal Procedure Code 
(Strafprozeordnung),\22\ reflects an important epistemological 
premise, common in civil law countries,\23\ that evidence should be 
presented to the court in as near to its original form as possible. 
This means that the presiding judge will never try to ``control'' the 
examination of a witness who has important evidence to present at trial 
by using a series of questions to take the witness through the events 
in question step by step, as is customarily done by attorneys on direct 
examination in an American criminal trial.
---------------------------------------------------------------------------
    \22\ See Strafprozeordnung [StPO] Sec. 69(1) (F.R.G.).
    \23\ See Mirjan Damasika, Evidentiary Barriers to Conviction and 
Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. 
Rev. 506, 517-18 (1973).
---------------------------------------------------------------------------
    While the presiding judge will ask the witness questions, this will 
not occur until the witness has had an opportunity to give a detailed 
narrative of the events in question, in her own words. It is not 
unusual for the victim of a serious crime, such as a rape or a serious 
assault, to testify uninterrupted for thirty to forty minutes or 
longer, as she explains how the crime occurred, what steps she took 
after the crime occurred, and what happened to her subsequently. Only 
after the witness has finished giving her account will the judge begin 
to ask her questions.\24\
---------------------------------------------------------------------------
    \24\ It needs to be emphasized that this preference for narrative 
testimony applies to all witnesses, and thus a defendant will also be 
permitted to give his account of the events in a detailed narrative 
form.
---------------------------------------------------------------------------
    Because the German system prefers to let witnesses testify 
relatively freely about the events in question, it is not unusual for a 
witness at a German criminal trial to mention something that would 
bring an immediate objection in an American courtroom--perhaps because 
it is hearsay, contains an opinion, or is not directly relevant to the 
matter at hand, and may even be prejudicial to the defendant. The 
German system is less worried about evidentiary problems of this nature 
than is the American system. Chiefly this is because trials in Germany, 
as in most civil law countries, take place in front of professional 
judges when the offense is minor, or in front of ``mixed'' panels of 
professional and lay judges when the crime is more serious.\25\ Perhaps 
because there will always be professional judges among the factfinders, 
the German system is more optimistic that the factfinders will be able 
to separate the more probative from the irrelevant evidence.\26\ 
Moreover, continental systems tend to be skeptical about the entire 
intellectual enterprise of erecting elaborate evidentiary structures to 
distinguish relevant from irrelevant evidence.\27\ For these reasons, 
there is no direct analog in Germany to the technical set of rules that 
tightly controls the production of evidence at trial in most American 
jurisdictions.\28\
---------------------------------------------------------------------------
    \25\ See Richard S. Frase & Thomas Weigend, German Criminal Justice 
as a Guide to American Law Reform: Similar Problems, Better Solutions?, 
18 B.C. Int'l. & Comp. L. Rev. 317, 321-22 (1995). Lay Judges in 
Germany serve for a period of four years and sit twelve days a year. 
There is no procedure for challenging lay judges as there is for 
challenging jurors in the United States, and the only grounds for 
removing a lay judge are those that would require recusal for a 
professional judge. See generally John H. Langbein, Comparative 
Criminal Procedure: Germany 141-44 (1977).
    \26\ See Damaska, supra note 23, at 514-15.
    \27\ Id.
    \28\ It is not correct to say that there are no evidentiary rules 
at German trials. German law embodies a rough analog of the common law 
hearsay rule, namely, the principle of orality and immediacy which 
requires that the judges examine in court a witness who has information 
about a matter of fact rather than simply admitting a prior statement 
of the witness into evidence. See StPO Sec. 250. StPO Sec. 244(2) 
obliges the judges to examine and take into consideration all evidence 
that is relevant to the issue. This requires that the judges 
investigate and hear the best possible version of evidence. See 
Damaska, supra note 23, at 516-17. Thus, judges can admit hearsay, but 
if it relates to an important issue, they would also have to hear 
direct testimony, if available. Because the judges are under a duty to 
examine all of the relevant evidence about the matter at hand, the law 
of evidence is of rather minor importance in Germany compared to the 
central role it plays in the American trial system. See Mirjan Damaska, 
Structures of Authority and Comparative Criminal Prodecure, 84 Yale 
L.J. 480, 526 (1975).
---------------------------------------------------------------------------
    The German system's preference for narrative testimony also 
reflects a desire that judges hear testimony that has not been 
``shaped'' by lawyers' preparation. While witness preparation is 
considered ethically proper and even necessary in an important criminal 
case in the United States, in Germany it is unethical to influence a 
witness; the shaping of testimony in which both prosecution and defense 
routinely engage in the United States would be improper.\29\ The German 
system would prefer to hear witnesses testify in their own words rather 
than hear from witnesses who have been coached and rehearsed. The 
result is a trial that is less technical and less influenced by lawyers 
than is typical in the American legal system.
---------------------------------------------------------------------------
    \29\ See Gerhard Jungfer, Eigene Ermittlungstatigkeit des 
Strafverteidigers--Strfprozessuale und standesrechtliche Grenzen in Die 
Eigene Ermittlungstatigkett des Strafverteidigers, Strafprozessuale und 
Standesrechtliche Moglichkeiten und Grenzen 7, 11 (1981); Elmar Muller, 
Strafverteidigung im Uberblick, 67 n.32 (1989).
---------------------------------------------------------------------------
    In part, of course, this difference reflects the fact that the 
German system is not an adversarial system in which the prosecution and 
defense present witnesses to the court. Rather, it is an inquisitorial 
system in which the judges have an obligation at trial to examine, 
evaluate, and weigh all relevant evidence in order to reach an accurate 
determination of the issues. Because the judges have an affirmative 
obligation to inquire into the charges, it is the judges, not the 
parties, who have the primary responsibility for deciding which 
witnesses will be heard at trial, and it is the judges, not the 
parties, who usually conduct the bulk of the examination of those 
witnesses.\30\ If the judges investigate in an incomplete manner and 
refuse to seek out and examine all available and potentially relevant 
evidence, an appellate court will be likely to reverse.\31\
---------------------------------------------------------------------------
    \30\ For an excellent overview of criminal trials in Germany, see 
Langbein, supra note 25, at 3-60.
    \31\ See StPOSec. Sec. 244(2)-(5), 337.
---------------------------------------------------------------------------
    These differences point to the apparent ambivalence in the American 
legal system about what exactly it seeks to elicit from victims and 
other witnesses. Witnesses are sworn to tell ``the whole truth,'' but 
the system does not seem to want to hear what the victim considers to 
be the whole truth about the event in question. Certain aspects of the 
crime that may be important to the victim will be inadmissible at 
trial. And the testimony of the victim has to be shaped so that it not 
only comports with our rules of evidence but also has the effect the 
lawyer is seeking.
    Clearly, the United States lies at one extreme in the way that 
lawyers are free to manipulate evidence for presentation at trial. Even 
in England, which also has an adversarial trial structure, the sort of 
pretrial witness preparation that is standard practice in serious 
American criminal cases would be considered improper.\32\ The American 
system fosters an extreme form of advocacy, and it is important to 
fully understand the impact of this approach on victims. If a primary 
goal of a criminal trial is to provide a cathartic and beneficial 
effect for victims, it seems that such benefits will more likely accrue 
to victims in a system that not only permits them to tell everything 
they know about the crime in their own words, but actually prefers such 
testimony to that which has been shaped and prepared. In short, a trial 
system that encourages a witness to be herself in the courtroom and 
that demonstrates a willingness to listen to what she has to say offers 
an advantage to victims that should not be underrated.
---------------------------------------------------------------------------
    \32\ Paragraph 6.1 of the General Standards, Code of Conduct of the 
Bar of England and Wales (1990) provides:

      Generally a barrister should not discuss a case or the 
      evidence to be given in a case with any potential witness 
      other than the lay client, a character witness or an expert 
      witness. * * * A barrister should not rehearse, practise or 
      coach any witness, in relation either to the evidence 
---------------------------------------------------------------------------
      itself or to the way in which to give it.

See also Michael M. Graham, Tightening the Reins of Justice in America 
66-67 (1983).
B. German trials determine the sentence as well as the issue of guilt
    Another major difference between German and American criminal 
trials is that the factfinders at a German trial will determine the 
defendant's sentence should they find the defendant guilty.\33\ There 
is no separate sentencing procedure.\34\
---------------------------------------------------------------------------
    \33\ See Langbein, supra note 25, at 36-38; Damaska, supra note 23, 
at 517-18.
    \34\ This dual inquiry at trial into guilt and possible sentence is 
not unusual among civil law countries. See Comparative Law 479 (Rudolph 
B. Schlesinger et al. eds., 5th ed. 1988). However, the system of dual 
inquiry is not without its critics. In fact, German academics have 
suggested that the issues of guilt and sentencing should be decided 
separately. See Arbeitskreis deutscher und schweizerischer 
Strafrechtslehrer (Arbeitskreis AE), Alternativ-Entwurf, Novelle zur 
Strafprozeordnung, Reform der Hauptverhandlung 4 ff., 53 ff. 
(Tubingen 1985). However, such calls for reform have not yet resulted 
in any changes to the German trial structure.
---------------------------------------------------------------------------
    This has direct and indirect implications for the victim. The 
direct implication is that the court will always inquire into the 
impact the crime has had on the victim. In fact, such information is 
always relevant because it is a sentencing factor under the German 
Penal Code.\35\ Thus, crime victims not only have more freedom to 
describe the crime in question, as explained in the previous 
subsection, but also have the ability to complete the picture by 
explaining the impact that the crime has had on them in the period 
since it occurred. The result is testimony that, from the victim's 
perspective, is a coherent whole: ``here is where I was and what I was 
doing when the crime occurred; here is what happened to me during the 
crime; here is what I did following the crime; and here is how the 
crime has affected me.''
---------------------------------------------------------------------------
    \35\ Strafgesetzbuch (StGB) Sec. 46(2).
---------------------------------------------------------------------------
    There are also at least two indirect benefits for victims that 
result from addressing sentencing at a German criminal trial. First, 
the stress on the victim and the victim's family is reduced to the 
extent that the whole criminal matter is resolved in a single trial. By 
contrast, in the United States the trial and sentencing are very 
different in tone and function, and often are separated by a 
significant amount of time to permit a presentence investigation to 
take place. Because in the United States the victim frequently is an 
important prosecution witness at trial, the victim's credibility, and 
sometimes also the victim's character, may come under sustained attack. 
But it would be considered not only irrelevant but prejudicial for the 
victim to dwell on the impact of the crime at trial.\36\ It is only at 
the sentencing hearing, if the defendant is convicted, that the victim 
will have the opportunity to explain the crime's impact on her and her 
family.\37\ Sentencing hearings, also differ from trials in that they 
are usually inquisitorial in format, with the judge, armed with the 
presentence report, controlling the proceeding.\38\
---------------------------------------------------------------------------
    \36\ It is frequently urged that even permitting victims an 
oppportunity to speak at sentencing, where such remarks will often be 
directed only to the judge, is also overly prejudicial. See, e.g, 
Andrew Blu, Impact of Crimes Shakes Sentencing, Nat'l L.J., June 26, 
1995, at A1; Robert C. Black, Forgotten Penological Purposes: A 
Critique of Victim Participation in Sentencing, 39 Am. J. Juris. 225 
(1994); Lynne Henderson, The Wrongs of Victim's Rights, 37 Stan. L. 
Rev. 937, 999-1001 (1985).
    \37\ Sometimes the victim is only allowed to do this in writing and 
not in person. See Lamborn, supra note 10, at 151-52.
    \38\ See William T Pizzi, Lessons from Reforming Inquisitorial 
Systems, 8 Fed. Sent. Rep. 42 (1995).
---------------------------------------------------------------------------
    A second indirect consequence of resolving guilt and possible 
sentencing in one proceeding is that it tends to make trials in the 
civil law system somewhat less adversarial in tone. In the United 
States, because the defendant will get another opportunity to present 
mitigating evidence prior to sentencing, he has more freedom to deny 
responsibility for the crime and to attack the credibility of 
prosecution witnesses in an effort to gain acquittal or a hung jury. 
For example, the defense can insist at trial that the victim brought 
the charges against the defendant out of spite or anger. If that 
defense fails, at the sentencing hearing the defense can offer as 
mitigating evidence an entirely different theory, such as alcohol-
induced poor judgment, or genuine remorse on the defendant's part. At 
German trials, in order for the court to consider mitigating evidence 
in sentencing, the defense must present it at trial, which makes 
arguing two such disparate approaches very difficult. Thus, in Germany 
the defense must make some hard choices about the arguments that it 
will raise. It should also be noted that German factfinders will be 
aware of the defendant's prior convictions and his character to the 
extent that they bear on sentencing. As a result, the defense strategy 
of attacking the victim's character while keeping the defendant's prior 
record away from the jury, used in certain cases in the United States, 
is simply not available in Germany.
    Another aspect of continental criminal procedure worth mentioning 
in connection with the dual inquiry of German trials is the opportunity 
given the defendant to respond to the charges at the very beginning of 
the case, a right which is almost universally exercised.\39\ This 
allows the defendant to give her version of the events before any 
witnesses have been called to give evidence.\40\ This initial step, 
coupled with the dual nature of the trial inquiry, makes it very clear 
at the outset what the defense will and will not contest, both of which 
are important to the judges and the other witnesses. Once the defendant 
has addressed the charges, and the issues are more focused, the victim 
may find it somewhat less stressful to testify.
---------------------------------------------------------------------------
    \39\ Almost all continental defendants choose to respond to the 
charges when asked to do so, the only refusals occurring in political 
trials where they are used to signify defiance of the legal system as a 
form of political protest. See Damaska, supra note 23, at 527 n.42.
    \40\ See id. at 528-29.
---------------------------------------------------------------------------
    The dual inquiry of the German trial, as well as the timing of the 
defendant's evidence,\41\ offer definite advantages for victims 
compared to the American system, in which defendants are somewhat more 
free to concede nothing and attack all elements of the prosecution's 
case. This is certainly not to say that the credibility of victims is 
never attacked at German trials. Indeed, sometimes the credibility of a 
crime victim is viciously attacked. Still, the risks to the defense of 
an abusive examination strategy coupled with the relevance of the 
defendant's character and background at trial make the entire 
proceeding less stressful for the victim in comparison to the American 
system.
---------------------------------------------------------------------------
    \41\ The defendant is permitted to respond to the charges, but is 
not a witness at the trial in that he is not put under oath. It is 
considered unfair in continental systems to force a defendant to give 
testimony at a trial charging him with a crime and yet threatening him 
with perjury. See Damaska, supra note 23, at 516 n.13.
---------------------------------------------------------------------------
C. Trials are controlled by the professional judges
    As mentioned earlier, Germany, like most civil law countries, uses 
``mixed'' panels of judges, composed of both professional and lay 
judges.\42\ In the case of a serious crime, such as murder or sexual 
assault, the trial will take place in front of three \43\ professional 
judges and two lay judges. Though lay judges are considered an 
important safeguard in the system, control over the trial rests as a 
practical matter in the hands of the professional judges. In 
preparation for trial, two of the professional judges carefully study 
the entire investigative file and take the lead in deciding what 
evidence they need to examine at trial. and who they should call to 
testify.\44\ This power is not absolute, as both the state's attorney 
and the defense attorney may suggest to the judges that additional 
evidence be examined or that other witnesses be called to testify. 
Because these requests are rarely rejected, they serve as an important 
check on the power of judges.\45\ In most criminal cases, however, 
there are few or no such motions because the issues in the case are 
clear, and the judges will have done a thorough job of reviewing the 
files to see which witnesses should be called.
---------------------------------------------------------------------------
    \42\ See text accompanying note 25, supra.
    \43\ See Gerichtsverfassungsgesetz [GVG] Sec. 76(l)-(2) (1974).
    \44\ Langbein, supra note 25, at 62-63. Lay judges are not 
permitted to read the dossier. Id. at 67.
    \45\ The power that the state's attorney and the defense attorney 
can wield by filing motions for additional evidence or to request that 
additional witnesses be called is considerable because the judges can 
reject these motions only in very limited circumstances. See StPO 
Sec. Sec. 244(3)-(5), 245 (1974). There is high risk of reversal on 
appeal if such a motion is denied. This has considerable importance in 
white-collar criminal cases where motions for additional evidence filed 
by the defense can prolong the trial significantly. Thus this power is 
considered not only a check on the system, but also a powerful defense 
weapon. See Walter Perron, Das Bewwisantragsrecht des Beschuldigten im 
Deutschen Strafproze, 314-42, 380-81, 477 (1995). See, e.g., 
Heinrich Kintzi, Moglichketen der Vereinfachung und Beschleunigung von 
Strafverfahren de lege ferenda Deutscher Richterbund 325 (1994); Walter 
Perron, Beschleunigung des Strafverfahrens mit rechtsstaalichen 
Mitteln, Juristen Zeitung, 823 (1994). Helmut Frister, Beschleunigung 
der Hauptverhandlung durch Einschrankung von Verteidigungsrechten?, 
Strafverteidiger 445 (1994).
---------------------------------------------------------------------------
    The judges' primary control over witness selection and the 
production of evidence at trial extends to the questioning of witnesses 
as well. While the lay judges, state's attorney, defense attorney, and 
even the defendant will each have an opportunity to ask questions of 
any witness, that opportunity will arise only after the presiding judge 
and the second professional judge have finished examining the witness. 
However, because the professional judges are usually very well prepared 
and very thorough in their questioning, it is normally the case that 
the bulk of the testimony given by a witness is elicited by the 
presiding judge or the second professional judge.\46\
---------------------------------------------------------------------------
    \46\ See Damaska, supra note 28, at 525; Langbein, supra note 25, 
at 64.
---------------------------------------------------------------------------
    This procedure presents certain advantages to victims in comparison 
to the more partisan examination and cross-examination that takes place 
in American courtrooms. It is often easier for victims to answer 
questions concerning painful, distasteful, or embarrassing events when 
these questions come from professional judges who are expected to be 
both impartial and fair. Yet, this advantage should not be overvalued, 
as defense attorneys in Germany will eventually have the opportunity to 
question the victim and may be quite aggressive in attacking the 
victim's credibility or character in appropriate cases. Nevertheless, 
because the system relies to a considerable extent on professional 
factfinders at trial, certain arguments or attacks on the victim made 
by defense lawyers in front of American juries are less likely to be 
made at a corresponding German trial. In the United States, a defense 
attorney may find it advantageous to attempt to shift the jury's 
attention to issues that may be peripheral or even irrelevant to the 
alleged crime. For example, an American defense lawyer at a rape trial 
may feel compelled to argue to the jury that the victim put herself at 
risk by being out alone at night or dressing provocatively. In 
contrast, such arguments are unlikely to be raised at a German rape 
trial because the professional judges know well what issues are 
relevant to the case at hand.\47\
---------------------------------------------------------------------------
    \47\ There is also perhaps a bit more freedom on the part of German 
judges to intervene to restrict certain irrelevant or unfair questions. 
StPO Sec. 241 (2) gives judges the authority to reject questions which 
are clearly irrelevant or which are unlikely to produce relevant 
evidence from witness. See Lutz Meyer-Goner, in Kleinknecht/
Meyer/Meyer-Goner, Strafprozeordnung, 
Gerichtsverfassungsgesetz, Nebengesetze und Erganzende Bestimmungen, 
42. Auflage, Sec. 241 Nr. 6-15 (1995). In addition, StPO Sec. 68a 
prohibits questions which could do harm to the witness' honor, unless 
they are absolutely necessary.
    But because the German system is nonadversarial in conception, to a 
large extent the system requires a consensus among the lawyers and the 
judges as to how a trial should properly be conducted and when a lawyer 
does not conform to the expectations of the system, judges are not 
well-equipped to control such behavior. For that reason there is now 
discussion in Germany about whether certain broad procedural rights 
accorded to the defendant should be limited to prevent the abuse of 
those rights. See, e.g., Heinrich Kintzi, Moglichkeiten der 
Vereinfachung und Beschleunigung von Strafverfahren de lege ferenda, 
Deutscher Richterbund 325 (1994); Walter Perron, Beschleunigung des 
Strafverfahrens mit rechtsstaalichen Mitteln, Juristen Zeitung, 823 
(1994). Helmut Frister, Beschleunigung der Hauptverhandlung durch 
Einschrankung von Verteidigungsrechten?, strafverteidiger 445 (1994).
---------------------------------------------------------------------------
    This discussion of the factfinding role of German judges 
illuminates systemic differences between the German and American 
systems. European countries believe that factfinding is an art, and 
that having professional factfinders among those who will decide the 
defendant's fate is important because professionals will generally do a 
better job of sorting and evaluating the evidence.\48\ Obviously, 
vesting strong power in the judiciary entails risks of abuse, but 
European systems try to protect against such abuse through a variety of 
means: (1) spreading factfinding authority among more than one 
judge,\49\ (2) giving the defense and the state's attorney the right to 
participate actively in all evidentiary proceedings, including the 
right to request the examination of additional witnesses,\50\ (3) 
requiring that verdicts be fully explained and justified by the law and 
the evidence, and (4) providing for far broader appellate review of the 
trial judgment than is permitted in the United States.\51\
---------------------------------------------------------------------------
    \48\ See Damaska, supra note 28, at 507-08.
    \49\ Except for the most minor cases, continental trial systems are 
always multi-judge panels. See Damaska, supra note 23, at 510.
    \50\ See text accompanying note 45, supra.
    \51\ Continental systems view appellate review as simply an 
extension of the trial process and not an additional step, so that 
reconsideration of what happened at trial is considered a normal part 
of the process. See Damaska, supra note 28, at 490-91.
---------------------------------------------------------------------------
    In contrast, the American criminal justice tradition places less 
emphasis on official power and thus American judges play a more passive 
role at criminal trials. Even commenting on the evidence by the judge 
at the end of the case--a practice that is viewed as desirable and 
necessary in other common law countries \52\--is disfavored in most 
American jurisdictions.\53\ The notable exception is the federal 
system, where comment on the evidence is permitted, but even there most 
federal judges choose not to exercise the right to comment.\54\ The 
American legal system places the issue of guilt before a body of 
nonexperts, who come entirely from outside the system and are expected 
to draw conclusions based only on what they hear at trial, with no 
additional review of the investigative file. As a result, the system is 
open to a broader range of arguments and more aggressive treatment of 
witnesses than is the case in German criminal trials, making the 
procedure more emotionally trying for victims of serious crimes.
---------------------------------------------------------------------------
    \52\ See Graham, supra note 32, at 94-95.
    \53\ See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 
Sec. 23.6(c), at 889 (Student ed. 1985). Scholars view the state 
restrictions on judicial comment as a manifestation of American 
populism. See Fleming James et al., Civil Procedure Sec. 7.22, at 372-
73 (4th ed. 1992).
    \54\ See Jack B. Weinstein, The Power and Duty of Federal Judges to 
Marshall and Comment on the Evidence in Jury Trials and Some 
Suggestions on Charging Juries, 118 F.R.D. 161, 169 (1988) (citing 
statistics showing that federal judges summarize the evidence in only 
27 percent of their cases and comment on the evidence in only 18 
percent of their cases).
---------------------------------------------------------------------------
D. Verdicts must be explained and justified at German trials
    At any trial--whether in the United States or in Europe--the 
rendering of the decision is often a tense and dramatic moment. But the 
conclusion of criminal trials in the United States is fundamentally 
different from the conclusion of criminal trials in Germany and other 
continental countries. In the United States, the verdict for each count 
of the charging document is limited to one or two words: guilty or not 
guilty. While the trial may have taken a substantial period of time, 
the conclusion is swift. The jury is never required to provide any 
formal explanation of how or why it reached the verdict in 
question.\55\
---------------------------------------------------------------------------
    \55\ While special verdicts that include the jury's answers to a 
series of questions are possible in civil trials in the United States, 
they are generally frowned upon and rarely used in criminal trials. See 
Heald v. Mullaney, 505 F.2d 1241, 1245 (1st Cir. 1974); United States 
v. Spock, 416 F.2d 165, 181-82 (1st Cir. 1969).
---------------------------------------------------------------------------
    Trials in Germany conclude in a similarly dramatic fashion: the 
panel of judges enters the courtroom and the presiding judge announces 
the judgment, which will also indicate the sentence, if the defendant 
has been found guilty. However, the presiding judge also gives an oral 
explanation of how the judges reached their verdict, as well as how 
they decided upon the particular sentence.\56\ The judges' reasoning 
will later be incorporated into a formal written account of the verdict 
that reviews the evidence at trial and, depending on the nature of the 
trial, explains: (1) which legal issues were raised by the evidence and 
how each was decided by the judges, (2) what the factual evidence was 
and how the judges resolved any issues of credibility, and (3) how the 
judges determined the sentence, if appropriate.\57\
---------------------------------------------------------------------------
    \56\ A criminal judgment (Urteil) at a German trial contains both 
(1) a dispositive judgment (Urteilsformel), which explains what action 
the court took, and (2) a statement of the reasons for the judgment 
(Grunde, Urteilsgrunde). Langbein, supra note 25, at 56.
    \57\ The court is required to disclose the grounds of its decision 
in a general way when it announces the dispositive judgment in court 
within four days after the close of trial. See StPO Sec. 268(2). The 
court must file a written judgment thereafter. See StPO Sec. 275(1). 
See Ellen Schluchter, in Systematischer Kommentar zur 
Strafprozeordnung und Zum Gerightsverfassungsgesetz, Sec. 260 
Nr. 38 (Neuwied, Kriftel, Berlin 1994); Langbein, supra note 25, at 56.
---------------------------------------------------------------------------
    Depending on the complexity of the case, the judges usually draft 
this document within a few weeks of the conclusion of the trial. Once 
completed, it serves as the basis for an appeal. Such a document, which 
may take ten or fifteen pages in even a fairly straightforward criminal 
case, is possible only because the factfinding panel includes 
professional judges, who understand the requirements of the law and 
have the legal sophistication to draft it.\58\ The judgment is drafted 
to conform with the statement of the trial decision announced in court, 
and it is then signed by the professional judges.\59\
---------------------------------------------------------------------------
    \58\ See Langbein, supra note 25, at 56-57.
    \59\ Id. at 57.
---------------------------------------------------------------------------
    A trial that results in a written verdict with well-articulated 
reasons for the judges' decision offers victims (and defendants) 
important advantages. First, it is easier to accept a verdict as fair 
and just when there is a written document demonstrating that the judges 
have done their job fairly, conscientiously, and in conformity with the 
law. One can be disappointed with a verdict, yet conclude after 
listening to the reasoning behind it that it is, nonetheless, 
understandable or even justifiable.
    No better example contrasts an unexplained and an explained verdict 
than the acquittal of a defendant. Such a verdict, in the American 
criminal justice system, is often highly ambiguous. For example, in an 
acquaintance-rape trial, did the jury acquit because it found the 
victim's testimony not worthy of belief, thus concluding there was no 
crime, or did the jury find that although the evidence was very strong, 
it was not sufficient to establish guilt beyond a reasonable doubt?
    When such a trial takes place in a civil law system it is possible 
for the factfinders to say some things that might be of considerable 
consolation to the victim, but which would remain hidden behind a two-
word verdict at an American trial. For example, the judges might 
explain that they found the testimony of the victim to be entirely 
credible but, because the issue was the defendant's mens rea, they 
concluded that there was not enough evidence to convict. Or the judges 
might explain that it was not possible to resolve a conflict of 
credibility between the victim and the defendant and, for that reason, 
they had no choice but to return a verdict acquitting the defendant of 
the crime.
    An American criminal trial seems more and more to be about winning 
and losing, and verdicts absent justification or explanation seem to 
say that if you are not the winner, you must be the loser. Because it 
is very difficult to prove a defendant guilty beyond a reasonable 
doubt, we have to expect that in any credible criminal justice system 
there will be cases where the evidence is very strong, but still 
insufficient to support a conviction. In such a case, an explanation 
that sums up the evidence fairly and accurately, and explains why the 
evidence was strong, yet insufficient, is much more likely to be 
accepted as just by the victim and the defendant as well as the public. 
It also prevents the press from claiming, as sometimes happens in the 
United States after a verdict of not guilty, that the jury ``found the 
defendant innocent,'' when that is not what the jury had intended by 
its verdict.
E. German judges have the duty to seek the truth
    Because the structure of criminal trials in civil law systems 
differs from that in adversarial systems, the issues to be determined 
at trial are different as well. At a European trial, the factfinders 
must determine whether or not the defendant committed the crime in 
question and, if so, what sentence is appropriate for that defendant 
for that crime. A German criminal trial is structured as a search for 
the truth; the system believes that the best way to reach the truth is 
to place responsibility on a panel of judges to examine and weigh all 
relevant evidence in order to determine whether the defendant is guilty 
of the alleged crime.\60\
---------------------------------------------------------------------------
    \60\ Professor Mirjan Damaska connects the reluctance of 
continental systems to embrace exclusionary rules of various sorts to 
the higher commitment such systems make to the search for truth. See 
Damaska, supra note 23, at 578-87.
---------------------------------------------------------------------------
    An American trial operates on different epistemological assumptions 
and has a completely different structure. The issue at an American 
criminal trial is whether or not the state can prove the defendant's 
guilt beyond a reasonable doubt. Neither the judge nor the jury in an 
American courtroom has the duty to seek out the truth about the charges 
against the defendant. Instead, the trial is a testing of the state's 
case to see if the state has sufficient evidence and sufficient skill 
to prove the defendant guilty beyond a reasonable doubt. In this trial 
structure, the professional judge's role is to be a neutral referee 
between the opposing parties, and the judge, consequently, is not 
expected to play an active role in the production of evidence. The jury 
also has a passive role: questions from the jury are discouraged by the 
trial setting, and it is practically unheard of for the jury to ask to 
hear additional witnesses or to call for the production of additional 
evidence.
    The American criminal justice system is also more ambitious in 
terms of what it attempts to accomplish from within. It is much more 
willing than the German system to suppress reliable evidence at trial 
in order to punish police for violating the rules of search and 
seizure, even at the cost of a false acquittal.\61\ In addition, the 
United States is also proud of its tradition of jury nullification 
which permits a jury to nullify the law and acquit a defendant if it 
believes that the law or the prosecution is unfair.\62\ The concept of 
a group of factfinders--lay factfinders at that rejecting the law in 
order to follow its own conception of what is fair and just would never 
find a home in the German system, which places much greater emphasis on 
accurate fact finding and on the uniform application of the law.\63\
---------------------------------------------------------------------------
    \61\ While Germany has a constitutionally based exclusionary rule, 
it is considerably narrower than the American version and the idea of 
excluding all the fruits of an illegal search for the purpose of 
deterrence has never been accepted in Germany. Claus Roxin, 
Strafverfahrensrecht Sec. 24, at 155-65 (1993). On the philosophical 
difficulty that exclusion of reliable and probative evidence presents 
to continental lawyers and judges because it conflicts with the duty to 
find the truth, see Damaska, supra note 23, at 522-24.
    \62\ Rather than requiring that a verdict be justified and 
explained, the American system goes in the other direction, permitting 
juries to temper the law in a particular case to fit their own 
conception of fairness and justice. In Duncan v. Louisiana, in which 
the Supreme Court held that the Sixth Amendment right to a jury trial 
applied to the states, Justice White referred to the power that juries 
have to disagree with the law and to nullify it in appropriate cases. 
Duncan v. Louisiana, 391 U.S. 145, 156-58 (1968). But the American 
system is clearly ambivalent about jury nullification. Most courts 
refuse to instruct juries on their power to nullify the law. See United 
States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).
    \63\ See Damaska, supra note 28, at 491-92.
---------------------------------------------------------------------------
    The American political tradition is much more distrustful of 
governmental power generally,\64\ and public officials in particular, 
than is the German system,\65\ and thus would find it difficult to 
accept the dominant trial role that is accorded professional judges in 
the civil law tradition. Some of that distrust is evident in the fact 
that many of our judges are elected to their position, and attempts to 
move states away from the partisan election of judges are usually 
soundly defeated.\66\ American distrust of public officials is also 
evident in the reluctance to permit judges to comment on the evidence 
at trial, even though such comment was permitted at common law.\67\ 
Instead of vesting control of the trial in judges, the American trial 
tries to balance control among the prosecutor, the defense attorney, 
the judge, and even the jury. This system of shared power over the 
trial naturally requires a much more complicated set of procedures if 
the balance is to be maintained and truth is to be discovered. Yet at 
the same time, these procedures often need to be subtle and indirect 
precisely because power in the system is shared and must be balanced 
carefully. Thus, even procedures that are independent of the production 
and examination of evidence at trial, such as discovery,\68\ or the 
selection of the jury,\69\ have adversarial aspects and can be time 
consuming and quite complicated.
---------------------------------------------------------------------------
    \64\ See Alexis De Tocqueville, 1 Democracy in America 346-47 
(Henry Reeve trans., New York, Century Co. 1898) (1835). This aversion 
to strong centralized governmental power runs deep in the American 
political tradition. See Grant McConnell, Private Power and American 
Democracy 5 (1966).
    \65\ Professor Mirjan Damaska describes the relationship between 
the state and the individual in continental systems as one that borders 
on the ``mutual love'' that a parent has for a child. Damaska, supra 
note 28, at 530. Professor Damaska believes that the continental 
tolerance of strong centralized authority has its roots in the feudal 
period, when the emergence of a strong centralized governmental 
authority provided relief to citizens from the constant strife among 
local fedual lords that had preceded that period, and which had been a 
barrier to stability and economic development. See id. at 539-41.
    \66\ In Ohio there have been four attempts to reform its judicial 
system by moving away from the partisan election of judges. See John D. 
Felice & John C. Kilsein, Strike One, Strike Two * * *: The History of 
and Prospect for Judicial Reform in Ohio, 75 Judicature 193, 194 
(1992). The latest attempt lost by a two to one margin despite 
endorsement of the reform by the Ohio Bar Association and the Ohio 
League of Women Voters. Id. at 193.
    In Texas, the partisan election of judges has directly affected the 
development of tort law in that state. See Christi Harlan, Texas 
Supreme Court Race Pits Lawyers Against Business Interests, Wall St. 
J., Nov. 2, 1992, at B4. Proposals for reform have gone nowhere in 
Texas, despite campaign contributions totaling over four and one-half 
million dollars spent in the 1986 elections for four seats on the state 
supreme court. See Anthony Champagne, Judicial Reform in Texas, 72 
Judicature 146, 149, 158-59 (1988).
    \67\ See Weinstein, supra note 54, at 163-64. Weinstein suggests 
that American restrictions on judicial comment began as a result of the 
low regard for judges that existed in colonial times because such 
judges were often appointed not for their legal skills but because they 
could be relied upon to be loyal to the crown. Id.
    \68\ In federal court, for example, the defense does not have a 
right to examine witness statements prior to trial nor does the defense 
even have a right to a list of the prosecution's witnesses in advance 
of trial. See Fed. R. Crim. P. 16(a)(2). But under due process the 
Court has ruled that a prosecutor must turn over to the defense 
exculpatory material. See Brady v. Maryland, 379 U.S. 83 (1963). But 
what exactly constitutes exculpatory evidence is not always clear. See 
Weatherford v. Bursey, 429 U.S. 545 (1977). In turn, the defense does 
not have to indicate the nature of its defense or any of its witnesses 
to the government, unless the defense is that of alibi, insanity or 
mental condition, or public authority. However, these enumerated 
defenses trigger a responsibility on the part of the government to then 
turn over possible rebuttal evidence to the defense, which then has the 
option of not putting on such a defense at all. See Fed. R. Crim. P. 
12.1-12.3.
    \69\ See William T. Pizzi, Batson v. Kentucky: Curing the Disease 
But Killing the Patient, 1987 Sup. Gt. Rev. 97, 139-42 (describing a 
survey which found that jury selection in New York state took forty 
percent of the trial time and often tool longer than the trial itself). 
Because the selection of the jury is thought to be nearly as important 
as the evidence that is presented, the are books that aim at helping 
lawyers pick juries. See e.g., Walter E. Jordan & James J. Gobert, Jury 
Selection: The Law, Art and Science of Selecting a Jury (2d ed. 1990). 
For wealthy defendants there are consultants available to assist 
lawyers in the selection itself by conducting surveys of the community 
in advance of trial or by assisting in the courtroom in the courtroom 
during the selection process. See Stephen J. Adler, Consultants Dope 
Out the mysteries of Jurors for Clients Being Sued, Wall St. J., Oct. 
24, 1989, at A1.
---------------------------------------------------------------------------
    The problem with a system as complicated as the American trial 
system is that, at some point, the complexity can itself become a 
weakness. Breaking up testimony too often with sidebar conferences, or 
shuttling juries in and out of the courtroom so lawyers can argue 
evidentiary points of law, can easily distract juries from the task at 
hand. It can also be alienating to victims (and other witnesses) when 
they feel they are in a system in which the lawyers and judges seem to 
be talking among themselves, rather than to the victim or the public at 
large. Because the German system vests so much power in the judges to 
control the trial, it is less likely to get mired in technical 
evidentiary issues than the American system, increasing the likelihood 
that victims will feel comfortable within the system. Trials are 
generally stressful events, but the American system exacerbates the 
situation by placing victims in the middle of heated battles between 
the prosecution and the defense that victims may not fully understand.
    There is another aspect of the American trial system that underlies 
the matters discussed in this subsection but needs to be discussed 
directly: that is, it appears to be somewhat easier to convict the 
guilty in continental systems than in the American criminal justice 
system. One can argue this on several levels--that lay factfinders tend 
to be more inclined to acquit than professionals; \70\ that continental 
systems admit more evidence than the American system;\71\ that European 
systems tend not to have broad exclusionary rules on the model of the 
Fourth Amendment exclusionary rule in the United States; \72\ that 
decisionmakers in the complex American system have more freedom to make 
decisions than their European counterparts whose findings of fact can 
be directly reviewed on appeal; \73\ and, finally, that continental 
decisionmakers need not be unanimous.\74\ To the extent that trials are 
more certain propositions in the German system and conviction of the 
guilty is easier, victims are certainly favored--especially in those 
cases pitting the victim's testimony against that of the defendant.
---------------------------------------------------------------------------
    \70\ See Damaska, supra note 23, at 538-39.
    \71\ See William T. Pizzi, Understanding Prosecutorial Discretion 
in the United States: The Limits of Comparative Criminal Procedure as 
an Instrument of Reform, 54 Ohio St. L.J. 1325, 1359 (1993); Damaska, 
supra note 23, at 513-25.
    \72\ See Damaska, supra note 23, at 522-24.
    \73\ See Id. at 528-29.
    \74\ See Id. at 537.
---------------------------------------------------------------------------
  ii. the right of the victim to participate as secondary accuser at 
                       criminal trials in germany
A. The Nebenklage procedure in perspective
    The German Nebenklage procedure permits victims to participate 
through counsel at trial on nearly equal footing with the state's 
attorney and the defense. Since the purpose of this Article is to 
provide perspective on current efforts of the victims' rights movement 
in the United States to secure a right to participate and to be heard 
at critical stages of the criminal process, one might ask why the 
authors did not begin with an examination of the Nebenklage procedure. 
There are several reasons for which the authors believe that discussion 
of the Nebenklage procedure should follow a more general and thorough 
discussion of the treatment of victims at German criminal trials.
    In the first place, the Nebenklage procedure has to be understood 
as only one difference, among several, in the way victims are treated 
in the German criminal justice system. Second, the Nebenklage procedure 
is limited in its availability. It is not a general right of victims to 
participate in all criminal trials, but rather is available only in the 
case of serious crimes that have a very personal impact on the victim 
(or the victim's family), including murder, assault, kidnapping, and 
sexual assault.\75\ Third, even where the Nebenklage procedure is 
available, victims do not frequently choose to participate at criminal 
trials as Nebenklager, with the exception of sexual assault victims 
whose participation as Nebenklager is much more common.\76\
---------------------------------------------------------------------------
    \75\ See StPO Sec. 395.
    \76\ In 1989 in the district of Baden-Wuurttemberg there was 
participation by a Nebenklager in only 3.21 percent of the criminal 
trials, and in only 19.2 percent of the cases in which a Nebenklage was 
possible did the victim actually choose to participate. See Michael 
Kaiser, Die Stellung des Verletzten im Strafverfahren 224, 251 (1992).
    In an empirical study by Dr. Staiger-Allroggren of the years 1988-
1990, about 20 percent of the victims having the legal option of 
participating in the trial as a Nebenklager did actually choose to 
participate. See Peony Staiger-Allroggen, Auswirkungen des 
Opferschutzgesetzes auf die Stellung des Verletzten im Strafverfahren 
99-100 (1992) (unpublished dissertation, Gottingen University). But in 
sexual assault cases the numbers are much higher. The study by Staiger-
Allroggen found that 67 percent of the victims of sexual assault chose 
to use the Nebenklage procedure. Id. at 99. Today that number appears 
to be even higher. In the Freiburg area for example, it is estimated 
that close to 100 percent of the victims of sexual assault participate 
at as Nebenklager, due in part to a well-known rape crisis center, 
contacted in all cases by the police, which makes sure that victims 
have information about the Nebenklage procedure. Interview with Silvia 
Fodor, State's Attorney, in Freiburg, Germany (June 23, 1993) (on file 
with the Stanford Journal of International Law).
---------------------------------------------------------------------------
    Finally, the Nebenklage procedure can only be understood against 
the background of a trial system that is structured very differently 
from that of the American adversarial tradition, as was explained in 
Part I. Where a criminal trial is conceived of as a battle between the 
prosecution and the defense in front of a neutral judge, and where the 
victim will often be the prosecution's ``key witness,'' it is harder 
from a structural perspective to understand how the victim's 
independent interests fit into what will usually be a pitched, two-
sided battle.\77\ By contrast, in German criminal trials, where the 
judges are obligated to examine all the relevant evidence in the case, 
and where judges play the central role in both the production and 
examination of witnesses,\78\ no such structural problem exists. 
Evidence is not divided into ``the prosecution's case'' to be followed 
by ``the defense case,'' and the examination of a witness in a German 
trial is not broken down into a direct examination to be followed by a 
cross-examination as it is in American trials. In short, the 
nonadversarial structure of civil law trials makes it easier to 
accommodate questions from the victim as Nebenklager without seeming to 
create an imbalance at trial.
---------------------------------------------------------------------------
    \77\ There is considerable force in the argument that, unless the 
American system is prepared to accept major structural changes, 
victims' rights cannot be grafted onto the existing system without 
remaining largely cosmetic. See Deborah P. Kelly, Victim Participation 
in the Criminal Justice System, in Victims of Crime: Problems, Policies 
and Programs, supra note 6, at 172, 183-84.
    \78\ See supra text accompanying notes 43-47.
---------------------------------------------------------------------------
    Given this background, it is not surprising that a willingness to 
grant victims a right to intervene and participate at various stages of 
the criminal process is common today among countries that share the 
civil law tradition.\79\
---------------------------------------------------------------------------
    \79\ For an overview of a victim's right in France to participate 
at a criminal trial as ``partie civile,'' see R.L. Jones, Victims of 
Crime in France, 158 Just. Peace & Loc. Gov't Law 795 (1994).
    Recent Italian efforts to modify its criminal procedure illustrate 
how deep the notion of victim participation runs in civil law 
countries. In 1989, Italy attempted to reform its civil law system of 
criminal procedure by instituting an adversarial trial system which 
shifted responsibility for the production of evidence from the judges 
to the parties and thus restricted the powers of the judges. See 
generally, William Pizzi & Luca Marafioti, The New Italian Code of 
Criminal Procedure: The Difficulties of Building an Adversarial Trial 
System on a Civil Law Foundation, 17 Yale J. Int'l L. 1, 14 (1992). But 
the new Code of Criminal Procedure did not touch the tradition of 
permitting victim participation at trial, so that a victim's attorney 
participates on an equal basis with the pubblico ministero (the 
equivalent of the state's attorney in Germany) and the defense 
attorney. Codice di Procedura Penale [C.P.P.] arts. 410, 493, 496, 498, 
523, 493 para. 2.
---------------------------------------------------------------------------
B. The Nebenklage procedure today
    Although the Nebenklage procedure has been a part of German 
criminal procedure since 1877,\80\ a major reform of the Nebenklage 
procedure took place in 1986. It had become clear by the early 1980's 
that the procedure needed reform, and there was considerable discussion 
and debate at that time over possible changes.\81\ Part of the impetus 
for reform came from the unsatisfactory way in which the Nebenklage 
procedure was working in practice. For example, the category of crimes 
that permitted victim participation seemed at the same time to be too 
broad and too narrow. It was too broad in that it allowed injured 
traffic accident victims to intervene as Nebenklager, which they 
frequently did. In such cases, victim participation was driven by the 
desires of the insurance companies, rather than the wishes of the 
victims, because the Nebenklage procedure permitted insurance companies 
to obtain discovery about the accident more efficiently and without the 
costs that would be involved if the insurance company had to use the 
civil process to obtain such information.\82\ The use of the Nebenklage 
procedure to further the private interests of insurance companies was 
certainly not the objective of the procedure, and it was generally 
recognized that the Code needed reform to prevent this.
---------------------------------------------------------------------------
    \80\ The origins of the Nebenklage procedure in Germany go back to 
Germany's creation of a code of criminal procedure in 1877. See Thomas 
Weigend, Deliktsopfer und Strafverfahren, 131-34 (1989). There was 
apparently no historical precedent for the Nebenklage concept, and it 
is unknown from where the drafters of the German code developed it. Up 
until the adoption of the code the victim had been excluded from the 
trial process in Germany. Id.
    \81\ See generally Peter Rie, Die Rechtsstellung des 
Verletzten im Strafverfahren, Gutachten C fur den 55. Deutschen 
Juristentag, C 28-C 33 (1984); Peter Rie & Hans Hilger, Das 
neue Strafverfahrensrecht, 1987 Neue Zeitschrift fur Strafrecht 145, 
153 nn. 184-85.
    \82\ See Jan Schulz, Beitrage zur Nebenklage 102-03, 166 (1982); 
Verhandlungen des Deutschen Bundestages, 10. Wahlperiode, Drucksache 
10/5305, 12 (1986).
---------------------------------------------------------------------------
    At the same time, the category of crimes for which victims were 
permitted to participate as secondary accusers at trial was too narrow 
in that sexual assault was not specifically included. Sexual assault 
victims had been able to use the Nebenklage procedure on the theory 
that sexual assault involved an assault (which was a listed crime) and 
also had the sort of personal impact on the victim that justified the 
use of the procedure.\83\ Nonetheless, women's groups argued that the 
Nebenklage procedure needed to be improved to give victims of sexual 
assault greater rights to participate at trial; without these rights, 
such victims arguably were being victimized a second time by the 
system.\84\ Opposition to broadening the Nebenklage procedure came 
primarily from the defense bar, which argued that adding a secondary 
accuser, who would stress the victim's point of view at trial, would 
strengthen the position of the state's attorney in a dispute over 
procedure or evidence, making it more difficult for the defense 
attorney to prevail in such confrontations.\85\
---------------------------------------------------------------------------
    \83\ See Reinhard Bottcher, Das neue Opferschutzgesetz, 1987 
Juristische Rundschau 133, 135.
    \84\ See Felicitas Selig, Qpferschutzgesetz-Verbesserung fur 
Geschadigte in Sexualstrafverfahren?, Strafverteidiger 1988, 498, 499.
    \85\ See Eberhard Kempf, Opferschutzgesetz und 
Strafverfahrensanderungsgesetz 1987, Gegenreform durch Teilgesetze, 
Strafverteidiger 1987, 215, 216-20; Bernd Schunemann, Zur Stellung des 
Opfers im System der Strafrechtspflege, Neue Zeitschrift fur Strafrecht 
1986, 193, 196-99; Hans-Joachim Weider, Pflichtverteidigerbestellung im 
Ermittlungsverfahren und Opferschutzgesetz, Strafverteidiger 1987, 317-
18.
---------------------------------------------------------------------------
    The upshot of the debate was a number of important changes to the 
Nebenklage procedure.\86\ First, in order to stop abuse of the 
Nebenklage procedure by insurance companies interested only in 
obtaining discovery for civil purposes, assault victims must now allege 
serious physical injury, or some other damage to themselves or their 
reputation,\87\ in order to join the trial as Nebenklager. A second 
important change was the addition of sexual assault to the list of 
Nebenklage-eligible crimes. This means that sexual assault victims no 
longer have to justify their participation indirectly using the theory 
that sexual assaults involve assaults,\88\ but now can participate 
based on the sexual assault itself. Because sexual assault is the 
category of crime in which victims overwhelmingly elect to participate 
in the trial, the decision to list sexual assault specifically among 
the crimes in the Nebenklage statute was an important recognition of 
the special problems that rape victims face in court.
---------------------------------------------------------------------------
    \86\ See Opferschutzgesetz (BGBl.I 1986, 2496).
    \87\ For example, if it were alleged that the victim had 
contributed to a traffic accident through his own unlawful or negligent 
behavior, and the judges needed to inquire into such contributory 
negligence in order to pronounce a just sentence, then the victim would 
have a sufficient interest to permit participation at trial. See Lutz 
Meyer-Goner, supra note 47, Sec. 395 Nr. 11.
    \88\ Nevertheless, prior to the 1986 reform, in most rape cases the 
victim could also participate as a Nebenklager because the German 
courts saw in every sexual assault a personal insult and, frequently, a 
physical assault as well (which both qualified for the Nebenklage). See 
text accompanying note 83, supra.
---------------------------------------------------------------------------
    The third change was to broaden the Nebenklage procedure to permit 
a lawyer representing the victim to participate at pretrial proceedings 
as well as at trial.\89\ This extension has given the victim's lawyer 
the opportunity to examine the investigative file in advance of trial 
and to suggest further factual investigations to the state's attorney 
if the file appears incomplete from the victim's point of view. 
Psychologically, it has placed the victim's attorney on a more even 
footing with both the state's attorney and the defense attorney 
throughout the criminal process.\90\
---------------------------------------------------------------------------
    \89\ See StPO Sec. Sec. 406g(1)-(2), 406e (1988).
    \90\ One difference between the defendant and the victim--and one 
restriction on the rights of Nebenklager enacted in 1986--is that the 
victim is not permitted to appeal in order to seek a harsher sentence 
for the defendant. See StPO Sec. 400(1). But given the fact that 
victims and their attorneys usually do not see it as their function to 
get too involved in the specifics of sentencing--since it is more a 
matter for the state's attorney (see text accompanying note 121, 
infra)--this restriction is not significant. See Dirk Fabricius, Die 
Stellung des Nebenklagevertreters, Neue Zeitschrift fur Strafrecht 1994 
257, 260.
---------------------------------------------------------------------------
    A fourth major change in the Nebenklage procedure has made it 
easier for indigent victims to receive legal advice by providing for 
the payment of their legal fees, including those for pretrial 
consultation between the victim and an attorney. Such fees will be paid 
even if the victim ultimately decides not to participate at trial as 
Nebenklager.\91\ This encourages victims to explore their legal options 
by assuring them that their indigence will not stand in the way of 
obtaining legal representation.\92\ In fact, the extension of legal 
fees to cover a victim's pretrial consultations with counsel gives an 
indigent victim some advantages over even an indigent defendant: 
because the defendant will be responsible for the victim's legal fees 
should she be convicted, the defendant's financial burden could be 
considerably greater than the victim's.\93\
---------------------------------------------------------------------------
    \91\ See StPO Sec. 406g(3)-(4) (1988). For more details, see 
Bottcher, supra note 83, at 137; Georg Kaster, 
Prozekostenhilfe fur Verletzte und andere Berechtigte im 
Strafverfahren, Monatsschrift Fur Deutsches Recht 1994 1073-1077.
    \92\ While a victim's indigency will usually be determined quickly, 
no victim will be responsible for those legal fees incurred prior to 
the determination of indigency in the event that the victim is later 
determined not to be indigent. See StPO Sec. 406g(4) (1988).
    \93\ See Weider, supra note 85, at 318.
---------------------------------------------------------------------------
    This last reform might seem to threaten the German system with a 
heavy financial burden. However, the provision of legal counsel to 
indigent victims so that they can participate at trial as Nebenklager 
is not as costly as it may appear for two reasons. The primary reason 
is that, as explained earlier,\94\ most victims do not choose to 
participate in the process as Nebenklager, with the important exception 
of those who have been victims of sexual assault. A second reason is 
that legal fees for Nebenklager are not nearly as high as they would be 
in the United States.\95\ Because professional judges have the main 
burden of preparing the case for trial in the German system, pretrial 
preparation on the part of lawyers is much more limited than it would 
be for a similar case in the United States. It is not the function of 
the victim's lawyer (or the defense lawyer or even the state's attorney 
\96\) to seek out witnesses and to interview such witnesses prior to 
trial; indeed, the system prefers that lawyers not conduct such 
interviews.\97\ If the victim (or the defendant) tells her lawyer that 
a certain witness can corroborate her story, the attorney's function is 
to bring the name of that witness to the attention of the state's 
attorney, who will then see that the witness is interviewed by the 
police and that the interview is made a part of the file.\98\ Thus, 
pretrial preparation by the victim's attorney usually entails a careful 
review of the file, and a discussion of its contents with the victim to 
make sure that it is complete from her point of view; not much more is 
required in the way of preparation for trial.\99\
---------------------------------------------------------------------------
    \94\ See text accompanying note 76, supra.
    \95\ This is true of fees both for victims' attorneys and for 
defense attorneys. For a typical rape case, the minimum fee set by the 
bar association in 1993 was DM 1000 or approximately $650. Interview 
with Regina Schaaber, Rechtsanwaltin, in Freiburg, Germany June 15, 
1993) (on file with the Stanford Journal of International Law). This is 
the same for both the victim's lawyer and the defense lawyer in such a 
case. Id. A defendant could, of course, choose to pay more for an 
attorney.
    \96\ Even the state's attorney does not prepare witnesses to 
testify at trial as would an American prosecutor. The state's attorney 
is more of a judicial figure. Also, a state's attorney who interviewed 
such a witness might well be recused from the case on the ground that 
he or she had become biased. Interview with Silvia Fodor, supra note 
76.
    \97\ See Part I.A supra (describing the German system's strong 
preference for narrative testimony).
    \98\ In Germany, there is a highly professional police force that 
has specialized units for crimes such as murder and tape. It is the job 
of the police to handle the investigation. This includes making sure 
that any laboratory or crime scene tests are undertaken, that all 
witnesses who may have relevant evidence have been interviewed, and 
that these interviews have been reduced to detailed statements that 
have been read and signed by the witnesses. Interview with Silvia 
Fodor, supra note 76.
    \99\ Interview with Regina Schaaber, supra note 95.
---------------------------------------------------------------------------
C. The Nebenklage procedure and sexual assault cases
    As stated earlier, it is only in a relatively small percentage of 
those cases in which the victim is eligible to participate through the 
Nebenklage procedure that she chooses to do so.\100\ Presumably, most 
crime victims in Germany do not think their participation at trial is 
likely to benefit them directly; instead, they may be content to leave 
the investigation and the adjudication of the criminal case in the 
hands of the judges. The exception to this is the category of sexual 
assault crimes, where there has been a considerable increase in the 
percentage of victims who wish to participate in the criminal process 
as secondary accusers.\101\ In the area around Freiburg, for example, 
virtually all adult victims of sexual assault choose to exercise their 
right to participate at trial using the Nebenklage procedure because 
they feel a personal stake in the trial and want their own lawyer 
present.\102\ Sexual assault victims' desire for legal representation 
may be due to the highly personal and demeaning nature of the crime, as 
well as the nature of such trials, where it is not unusual for the 
character or reputation of the victim to come under attack.
---------------------------------------------------------------------------
    \100\ See supra text accompanying note 76.
    \101\ Id.
    \102\ Interview with Regina Schaaber, supra note 95; interview with 
Silvia Fodor supra note 76. With respect to children who have been 
sexually assaulted or abused, in some cases by a family member, the 
percentage of those choosing to participate at trial is much lower, but 
is estimated to be slightly more than half. Interview with Regina 
Schaaber, supra.
---------------------------------------------------------------------------
    Because sexual assault cases have become so closely linked with the 
Nebenklage procedure, this part of the article will use the crime of 
sexual assault as an example to show how the procedure works in 
practice.
    There are two main avenues whereby a sexual assault victim will 
learn about the Nebenklage procedure. The first is through the German 
police, for whom it is now standard practice to inform rape victims 
about their right to participate at the trial as Nebenklager.\103\ The 
other avenue by which victims learn of this right is through rape 
crisis centers, to which rape victims will often obtain referrals. Such 
centers will inform victims of their rights under the Nebenklage 
statute, and will usually be able to provide a list of lawyers who 
customarily represent victims in such cases.\104\ In a typical case, 
where counsel is contacted by the victim or the victim's family shortly 
after the crime was reported to the police, the attorney will meet with 
the victim soon thereafter to discuss what will follow 
procedurally.\105\ After the investigation of the case is complete and 
trial has been set, the attorney for the victim will examine the 
investigative file to make sure that it is complete from the victim's 
perspective. The inspection of the investigative file is an important 
step in the process because it provides an idea of what evidence will 
be presented at the trial and how the trial may affect the victim.\106\ 
Usually counsel for the victim will meet with her briefly prior to 
trial, unless the case is very straightforward, to explain the trial 
procedures and to give her some idea of what is likely to happen.\107\
---------------------------------------------------------------------------
    \103\ Interview with Silvia Fodor, supra note 76; see also Staiger-
Allroggen, supra note 76, at 81. A copy of the standard notice provided 
by the German police to crime victims informing them of their right to 
avail themselves of the Nebenklage procedure is on file with the 
Stanford Journal of International Law.
    \104\ Interview with Silvia Fodor, supra note 76; interview with 
Regina Schaaber, supra note 95.
    \105\ Interview with Regina Schaaber, supra note 95.
    \106\ Id.
    \107\ Id.
---------------------------------------------------------------------------
    A victim who chooses to participate at trial as a secondary accuser 
becomes, in essence, a party at the criminal trial and receives 
treatment equal to that afforded the defendant in the courtroom. What 
this means as an initial matter is that the victim is entitled to 
remain in the courtroom throughout the proceedings and can participate 
through counsel much like the defendant. The majority of rape victims 
choose to remain in the courtroom because they view the trial as 
``their'' trial.\108\ If a victim wishes to remain in the courtroom 
throughout the trial, she will sit next to her attorney at one of the 
tables in the front of the courtroom, just as the defendant sits next 
to his attorney. But it is not necessary for the victim to remain in 
the courtroom in order to use the Nebenklage procedure, For those 
victims who find it too painful and stressful to remain in the 
courtroom throughout the trial, the Nebenklage procedure ensures that 
they will nonetheless have an attorney present to represent their 
interests and to keep them informed of the progress of the trial.\109\
---------------------------------------------------------------------------
    \108\ Id.
    \109\ Id.
---------------------------------------------------------------------------
    The primary function of the victim's attorney is to represent her 
interests at trial. Generally, this means that the victim's attorney 
functions rather like the attorney for the state or the defense. All 
three will be consulted on any scheduling matters and each, in turn, 
will have an opportunity to question witnesses, bring appropriate 
motions, and present a closing argument at the end of the trial.\110\
---------------------------------------------------------------------------
    \110\ See StPO Sec. 397(1).
---------------------------------------------------------------------------
    Victims of sexual assault in Germany have certain testimonial 
protections-protections which are somewhat broader than those granted 
rape victims in the United States\111\--that would normally be asserted 
by the victim's attorney at the appropriate point in the trial. A rape 
victim at a German trial can seek to have the public removed from the 
courtroom when she is testifying, and this motion will be granted 
unless the judges determine that the public interest in hearing the 
victim's testimony outweighs the interest of the victim.\112\ Such 
motions are generally granted and thus provide some privacy for the 
victim by permitting her to testify with the public gallery cleared of 
spectators.\113\
---------------------------------------------------------------------------
    \111\ Exclusion of the public at an American trial would require a 
hearing and showing that injury to the victim would be likely. See 
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-09 (1982). 
There is no parallel to the removal of the defendant from the courtroom 
during the examination of the victim. The furthest the Court has gone 
has been to uphold a conviction where a rape victim who was six at the 
time was permitted to testify from outside the courtroom but the 
victim's testimony was broadcast into the courtroom so that the 
defendant could see the witness as the witness testified. See Maryland 
v. Craig, 497 U.S. 836 (1990).
    \112\ See GVG Sec. 171b.
    \113\ See Bottcher, supra note 83, at 139-40; Regina Schaaber, 
Strafpozessuale Probleme bei Verfahren wegen seuellen 
Miorauchs, Streit 1993, 143, 151-52; Staiger-Allrogen, supra 
note 76, at 90-93.
---------------------------------------------------------------------------
    The victim may also move to have the defendant removed from the 
courtroom while she testifies. Such a motion may be granted if the 
victim is under the age of sixteen, and the judges fear that she will 
suffer additional damage from having to testify in the presence of the 
defendant.\114\ If the defendant is removed from the courtroom during 
the victim's testimony, his defense attorney will remain in the 
courtroom and will be able to question the witness. After the victim 
has finished giving her account of the crime and answering questions, 
she will then leave the courtroom. At that point, the defendant will be 
brought back in and the presiding judge will relate to the defendant 
the substance of the victim's testimony. If the defendant has questions 
for the victim, the presiding judge will again remove the defendant 
from the courtroom, recall the victim, and put those questions to 
her.\115\ This process will continue until the defendant has no more 
questions for the victim.
---------------------------------------------------------------------------
    \114\ See StPO Sec. 247. If the victim of the sexual assault is 
under 16, the court has discretion to remove the defendant from the 
courtroom where there is reason to fear substantial damage to the 
victim's general welfare from the confrontation. Id. Such motions will 
usually be granted. If the victim is 16 or older, there is also the 
possibility, of removing the defendant if there is reason to fear that 
the victim might not tell the truth or if there is a high risk of 
severe damage to the victim's health, such as a situation where the 
victim is receiving psychotherapy as a consequence of the crime. See 
Bottcher, supra note 83, at 138-39; Schaaber, supra note 113, at 150-
53. As a statistical matter, it is not often that courts remove the 
defendant while the victim is testifying. See Kaiser, supra note 76, at 
193; Staiger-Allroggen, supra note 76, at 90-93.
    \115\ See Schaaber, supra note 113, at 151.
---------------------------------------------------------------------------
    German trials reverse the order in which the defendant and victim 
give their testimony from that in which they give it in the United 
States. At an American criminal trial, the defendant does not testify 
until the state's case has been completed; thus the defendant, who 
cannot be sequestered, will give his version of the events after the 
victim has testified and after all the state's evidence has been 
presented. The opposite is true in Germany: the defendant will 
typically respond to the charges at the start of the trial before any 
witnesses have testified, so that the victim's testimony will follow 
the defendant's response to the charges.\116\ Since the victim who 
participates at the trial as Nebenklager has a right to remain in the 
courtroom and is not subject to sequestration before she testifies, she 
will have heard the defendant's account of the events in question 
before giving her evidence.
---------------------------------------------------------------------------
    \116\ See Damaska, supra note 23, at 527-29.
---------------------------------------------------------------------------
    A primary concern about victim participation in criminal trials in 
the United States is that it might destroy the adversarial balance and 
force the defendant to respond to pressure from both the prosecutor and 
the victim's attorney.\117\ This appears not to be a problem in the 
less adversarial German trials because the judges do the bulk of the 
questioning of the witnesses, and lawyers play more of a supplemental 
role. In addition, as mentioned earlier, it is easier to accommodate 
questions from the victim's attorney when others who have a certain 
perspective on the evidence are also permitted to ask witnesses 
questions.\118\ For example, a forensic or psychiatric expert who gives 
testimony during the trial will usually remain in the courtroom to ask 
a witness questions if the testimony touches on her area of expertise.
---------------------------------------------------------------------------
    \117\ It has been argued that even permitting the victim to sit at 
the prosecution table during trial is ``inherently prejudicial'' 
because it poses ``an unacceptable risk'' that the defendant's right to 
a fair trial will be compromised. See Goddu, supra note 7 at 266-67. 
Even the participation of victims at sentencing, which all states now 
permit, has been strongly attacked as inappropriate and prejudicial. 
See, e.g., Henderson, supra note 36, at 996, 1002; Abraham Abramovsky, 
Victim Impact Statements: Adversely Impacting upon judicial Fairness, 8 
St. John's J. Legal Comment, 21 (1992).
    \118\ See StPO Sec. Sec. 240, 80(1), 243(4); Meyer-Goner, 
supra note 47, at 240 Nr 3.
---------------------------------------------------------------------------
    There remains, of course, the possibility that a victim's attorney 
will be overly aggressive at the trial, pursuing a line of questioning 
that the defendant believes to be very unfair and overly hostile. In 
such a situation, however, the defendant and his attorney have an easy 
solution: the defense attorney can advise her client to stop answering 
questions from the victim's attorney.\119\ Unlike in the United States 
where, having testified on direct examination at trial, a defendant 
must answer relevant questions on cross-examination, the defendant at a 
German trial always has a right to refuse to answer any questions and 
would be likely to do so if he believes that the victim's attorney is 
being unfair.\120\
---------------------------------------------------------------------------
    \119\ Interview with Ulf Kopcke, Rechtsanwalt, in Freiburg, Germany 
June 18, 1993) (on file with the Stanford Journal of International 
Law); interview with Regina Schaaber, supra note 95.
    \120\ There is an important difference between the defendant and 
others who give evidence at a criminal trial: the defendant is never 
considered to be a witness. See StPO Sec. 80(2). While the defendant is 
asked to respond to the charges at the start of the trial, and usually 
does give his version of the facts, the defendant may refuse to answer 
any question precisely because he is not a witness. See Damaska, supra 
note 23, at 526-30. Thus, unlike other witnesses, who may be put under 
oath and who are required to answer relevant questions (assuming no 
privilege exists), the defendant in civil law systems is never required 
to take an oath and is always free to exercise his right to remain 
silent. Id.
---------------------------------------------------------------------------
    While the victim's attorney participates at the trial on rather an 
equal basis with the state's attorney in questioning the witnesses and 
addressing the judges, their roles remain distinct and the function of 
the victim's attorney is limited to representing the victim. For 
example, there is an almost unwritten rule that victims' attorneys do 
not request or recommend a specific length of sentence in their closing 
argument to the court.\121\ That is considered a matter more properly 
the responsibility of the state's attorney.\122\ In the United States, 
by contrast, the role of the victim seems to center on the sentencing 
phase.\123\
---------------------------------------------------------------------------
    \121\ Interview with Ulf Kopcke, supra note 119; interview with 
Regina Schaaber, supra note 95.
    \122\ Interview with Ulf Kopcke, supra note 119; interview with 
Regina Schaaber, supra note 95.
    \123\ The statutory right of victims in the United States to file 
victims' impact statements is a subject of heated controversy. See 
supra text accompanying notes 3-4; Berger, supra note 20.
---------------------------------------------------------------------------
D. Victims of sexual assault in the courtroom: a final caveat
    The danger that readers may get a misimpression of the nature of 
sexual assault trials in Germany based upon the above account warrants 
a final caution. While victims of sexual assault in German courtrooms 
have a number of advantages over their counterparts in American 
courtrooms--such as the ability to give testimony in narrative form, 
the fact that the professional judges will usually conduct the bulk of 
the questioning, and the option of participating at trial through their 
own counsel--one should not conclude that trials in Germany are 
necessarily ``easy'' on the victim. Although the system is not 
structured as an adversarial trial system, trials in Germany do have 
adversarial features and safeguards. This means that in cases involving 
a battle of credibility between the defendant and the victim over what 
occurred at the time of the alleged crime, as is common in 
``acquaintance rape'' cases, there will often be demanding and 
sustained questioning of the victim by the defense attorney. Where 
directly relevant to issues in the trial, aspects of the victim's 
character may also be called into question and attacked 
aggressively.\124\
---------------------------------------------------------------------------
    \124\ In June of 1993 the authors watched a trial in the 
Groe Strafkammer (the highest state trial court) in Freiburg, 
Germany, in which two defendants stood charged with rape. Both the 
victim and the defendants admitted that they drove out of town and 
injected themselves with heroin. The victim claimed that she was then 
raped by both defendants, while the defendants maintained that the 
victim had wanted to have sex with both of them and had expected them 
in return to try to procure more drugs for them to share the following 
day. The defendants insisted that the victim prostituted herself for 
drugs regularly to support her drug addiction, and some of their 
friends testified that she was even doing so during the trial. Each 
time that a witness came forward and alleged that he had seen the 
victim acting as a prostitute, the victim was recalled to give 
testimony about the incident (always denying either that the incident 
took place or that she was prostituting herself). This meant that 
during the three-week trial, the victim had to give testimony on 
several different occasions, A copy of the judgment in this case is on 
file with the Stanford Journal of International Law.
---------------------------------------------------------------------------
    In short, while the structure of German trials offers rape victims 
many procedural advantages over the more highly adversarial trial 
system in the United States, there are adversarial aspects to the 
German system that must not be overlooked in evaluating the treatment 
of victims in that system.
                               conclusion
    This Article concludes that victims of serious crimes have a number 
of advantages in the German system, due to the nature of civil law 
criminal proceedings, and the availability of the Nebenklage procedure. 
However, this does not mean that the German criminal justice system is 
preferable to or stronger than the American one; how a criminal justice 
system treats victims is only one of many important measures by which 
it can be evaluated. This Article is limited in scope to the victim's 
perspective within the German system. Any system that treats, or 
strives to treat, victims with dignity and respect must not risk 
tolerating false convictions or the abuse of citizens by the police. 
Thus, a thorough examination of the German system and a blueprint for 
specific reforms of the American one would have to take these broader 
concerns into account. Moreover, victims' rights in the German system 
may not be directly translated into the American adversarial system due 
to the different political and epistemological assumptions on which the 
two systems are based.
    Nevertheless, this Article's examination of the differences in the 
ways that victims are treated in the two trial systems should further 
the goal of encouraging productive discussion between victims of crime 
and those within the American criminal justice system over the 
frustrations that victims feel. Such discussion has been painfully 
lacking in this country for a long time. While it is often difficult 
for victims to explain exactly what it is about the system that makes 
them feel excluded or mistreated,\125\ and those educated in the 
American adversarial tradition seem equally at a loss to understand 
what can be done for victims beyond the state constitutional amendments 
now in place,\126\ bridging this communication gap becomes increasingly 
important as the victims' rights movement continues to grow. It is the 
authors' hope that this Article's comparative perspective will add 
depth and understanding to the debate.
---------------------------------------------------------------------------
    \125\ See text accompanying notes 17-18, supra.
    \126\ See text accompanying notes 19-21, supra.
---------------------------------------------------------------------------

Prepared Statement of Roberta Roper on Behalf of the National Victim's 
                    Constitutional Amendment Network

    On behalf of the National Victims' Constitutional Amendment Network 
(NVCAN), I am honored to speak in, support of Joint Resolution 3, a 
Constitutional Amendment for crime victims' rights. In addition to co-
chairing NVCAN, I am director of the Stephanie Roper Committee and 
Foundation, Inc., a Maryland crime victims' group bearing the name of 
our slain daughter.
    I believe that the experiences of victims and families like my own 
clearly demonstrate the need to alter our constitution to protect crime 
victims' rights for all time. While great progress has been made to 
improve the treatment of America's victims of violent crime, it is 
abundantly clear that these efforts are insufficient. Our nation's 
fundamental charter must include protected rights for victims as well 
as offenders.
    The experiences of countless victims reflect the failure of our 
criminal justice system to acknowledge the reality of crime. While the 
state is the legal victim, the reality is that the state is not raped 
or robbed * * * does not bleed or die * * * individual citizens suffer 
the physical, financial and emotional consequences of crime. 
Acknowledging this reality means that crime victims should never be 
treated as pieces of evidence or shut out of proceedings that are the 
most important events in their lives. Seventeen years ago, our oldest 
child, our daughter Stephanie, was kidnaped, raped and murdered. Our 
family learned first hand, that unlike the men who chose to take our 
daughter's life, we had no right to be informed, to be present or to be 
heard at criminal justice proceedings. To our horror, we were not kept 
informed of proceedings, we were excluded from observing the trial, and 
were denied the right to provide an impact statement at sentencing. 
Stephanie became another statistic, a faceless stranger whose voice was 
silenced.
    As parents, my husband and I struggled to preserve our family of 
four surviving children. For them, the American dream was shattered. 
Everything our children were taught to respect and believe in was 
challenged and all but destroyed. Over the succeeding years, advocating 
for and assisting other victims and families has been a major part of 
our efforts to preserve our family and become survivors.
    Since 1982, we have led a Maryland advocacy and assistance 
organization that is considered one of the most effective voices for 
victims in our nation. We have seen great progress in our state, and 
across the nation. Our efforts in Maryland have resulted in the passage 
of more than fifty laws including a state constitutional amendment for 
crime victims' rights passed in 1994. Yet sadly today, those rights 
largely remain ``paper promises''. For too many victims and families, 
the criminal justice system remains more criminal than just when it 
comes to protecting their rights. Consequently, the proposed federal 
amendment, is for them, an issue whose time has come.
    As you have heard, this issue was first identified by the 
President's Task Force on Victims of Crime who recommended a 
constitutional amendment in its final report in December, 1982. The 
Task Force concluded that the American criminal justice system's 
treatment of victims was a national disgrace * * * victims too often 
were treated like ``pieces of evidence'' * * * used and then thrown 
away. The Task Force recognized that in order to restore an essential 
balance to this system, the United State's Constitution would have to 
be amended to identify and protect certain rights of crime victims. 
These rights would not diminish those of an accused or convicted 
person, but would share equal protection under the law.
    The United State's Constitution is the supreme law of the land. It 
surrounds an accused person with numerous protected rights, and rightly 
so. However, it is silent in regard to victims. Until a federal 
constitutional amendment is passed that balances the rights of a victim 
with those of an accused person, victims will remain second class 
citizens.
    I am proud to say that the Maryland State Constitutional Amendment 
for victims' rights has vastly improved the treatment of victims. 
Nevertheless, many victims' rights are ignored or denied because unlike 
the defendant's rights, they are not rooted in the Constitution of the 
United States. And unlike a criminal defendant, a victim of criminal 
violence has no legal standing under the Constitution to assert their 
rights.
    Everyday, my work as an advocate brings me in contact with victims 
and survivors in my state. Contacts include individuals like Teresa 
Baker, whose only son was murdered. When her son's killer pled guilty 
to 2nd degree murder and was sentenced to thirty years, no one 
explained that under the terms of the plea agreement the offender would 
have a sentencing reconsideration and be released in less than three 
years! And while Mrs. Baker fulfilled the victim's requirement to 
request notification, she was not notified and came upon this 
information by chance. As painful as that discovery was, her primary 
question was, ``why didn't someone tell me the truth?''
    In another recent Maryland case, parents, whose infant son was 
killed, had good reason to question the effectiveness of victims' 
rights laws. Despite a statutory and constitutional right to attend the 
trial, the judge ruled to exclude them. They believe that their right 
to learn the painful truths of the case was unfairly denied.
    The late Justice of the Supreme Court William Brennan, whenever 
asked for his definition of the Constitution answered: It is ``the 
protection of the dignity of the human being and the recognition that 
every individual has fundamental rights which government cannot deny 
him.'' Sadly, that is why this amendment is needed for victims. When 
our founding fathers drafted the Constitution, they were very careful 
to protect persons who were accused of or convicted of crime from the 
abuses of government. They never envisioned a time when millions of 
innocent American citizens would suffer abuses of government, and be 
denied the protection of basic human rights because they were made 
victims of crime Clearly, if we are to preserve a criminal justice 
system that protects all of us, we should not re-injure those for whom 
the system is most dependent upon!
    Critics may tell you that we must not ``tinker'' with the 
constitution. And we agree that constitutions should not be amended 
except for the most serious reasons. We must remember and respect the 
wisdom of our founding fathers. They were creating a ``more perfect 
union,'' not a perfect one. They recognized that laws and institutions 
would require the ability to change to meet the needs of an evolving 
society. If that were not so, black American citizens would still be 
someone's property, and women would not be able to vote! The whole 
history of our country had taught us that basic human rights must be 
protected in our fundamental law * * * our constitution.
    Some opponents will argue that we need not amend our Constitution, 
but only strengthen federal statutes for victims' rights. Our nation's 
tragedy in the Oklahoma City bombing case demonstrates the inadequacy 
of such an argument. In addition to their personal sufferings and 
losses, victim survivors not only bore the financial burdens of going 
to another state for a trial, but were forced to choose either to 
observe the trial or to submit victim impact statements at sentencing. 
As a result, most survivors sacrificed the right to be heard so that 
they could better learn the truths that might emerge from the trial. As 
you know, Congress passed the Victim Allocution Clarification Act of 
1997, in the hope of remedying this problem. Still the court denied 
victims their statutory rights, and ruled that the defendant's 
Constitutional rights would prevail.
    Other critics argue that an amendment will create an overwhelming 
burden on the states. The truth is that there is no evidence that the 
cost of a phone call or letter, or applying a victim's rights has 
created financial burdens or delays. The truth is that our nation 
spends millions of dollars for criminal needs and pennies for victims! 
The reality is that many states and the federal government have created 
crime victim funds based on convicted offenders' fees and fines to 
provide for the delivery of victim services.
    The cruelest and most undeserved opposition however, is voiced by 
those who say that allowing victims or survivors to be heard at 
sentencing will inject irrelevant emotion and create classes of 
victims. To the contrary, this is not about the character of the 
victim, but about the consequences of the crime that a convicted 
offender chose to inflict! If my daughter had been a homeless person or 
a prostitute, she had the right not to be violated. The information 
brought by victims to sentencing courts or at post-sentencing 
proceedings is not a mandate or a veto, but a voice. The court retains 
the discretion to decide the value of that information, recognizing 
that every crime's consequences are unique.
    I urge all of you to listen to the law-abiding citizens of our 
land. Ask the people of America how they would wish to be treated if 
they were victims of crime. In 1994, the people of Maryland responded 
with an astounding 92.5 percent vote of approval for our amendment. I 
am confident that your constituents will tell you that it is time to 
protect victims' rights for all time in the U.S. Constitution. Never 
before has there been a proposed law, bipartisan in support, that could 
make such a significant and positive difference in the lives of so many 
Americans every year. We must remember that the Constitution belongs to 
the people. As part of our social contract with government, the people 
not only expect protection, but when that protection fails, deserve 
fairness and justice * * * even for crime victims. Joint Resolution 3 
is the only amendment that advances the rights of citizens to protect 
them from abuses of government. It is also the only amendment that 
expands rights of individual citizens to participate in government. 
America supports a victims' rights amendment. Victims' rights and this 
amendment are right for America!
    Roberta Roper is the director of the Stephanie Roper Committee and 
Foundation, Inc. Following the brutal murder of their oldest child, 
Stephanie, in April, 1982, Roberta and Vince Roper founded the 
Committee and Foundation, a non-profit, volunteer advocacy and 
assistance organization that is nationally recognized as an effective 
voice for victims of criminal violence. The Committee advocates for 
victims' rights and services in Maryland, and the Foundation provides 
information, assistance, court accompaniment, and free peer support 
groups for families and friends of homicide and drunk driving victims.
    Since 1982, Roberta has actively participated in a wide variety of 
victims' services, assistance and advisory groups. She currently chairs 
Maryland's State Board of Victim Services, is co-chair of the National 
Victims' Constitutional Amendment Network, and co-chaired the Maryland 
Coalition for a Constitutional Amendment for Crime Victims' Rights from 
1988-1994. Roberta has been a member and technical resource for the 
National Organization for Victim Assistance and the National Center for 
Victims of Crime, and recently served on the Maryland Commission on 
Criminal Sentencing Policy. She has been recognized by Presidents 
Reagan (1988) and Clinton (1994) and received their awards for 
outstanding service to victims of crime.

       Prepared Statement of Joe Sikes on Behalf of the Mothers 
                         Against Drunk Driving

    My fifteen-year-old daughter was killed in April 1992 by a drunk 
driver. My experience with the justice system taught me, first hand, 
how badly skewed the scales of that justice, system have become. No 
amount of victim's rights would have eased the pain and grief I felt 
following Alisa's death. I don't expect that. But I also don't expect 
to be treated as a non-entity in the most wrenching experience of my 
life. And I do expect the opportunity to present my dear Alisa as a 
beautiful, vivacious girl whose life was stolen by a seventeen year old 
boy who pled guilty to vehicular manslaughter. I was denied that 
opportunity because a clever defense attorney was able to manipulate 
his guilty client's rights, so that his sentence was determined without 
our presence.
    I spent 30 years in the Navy defending the rights guaranteed by our 
Constitution. I am not seeking to reduce the rights of the accused. I 
am only seeking balance. First of all victims deserve to be kept 
informed during the most painful, intense experience of their lives. 
But the legal system has no incentive to deal with victims and their 
pain. Victims are at the mercy of good intentions of prosecutors, 
unless they have rights of their own. Secondly, once guilt has been 
determined, defense attorneys paint their clients in as favorable light 
as possible. They put a real person in front of judge or jury, in hopes 
of gaining some leniency. My Alisa was a real person too, but she was 
not there when the sentence was passed. And I was denied the 
opportunity to represent her.
    I have met and helped many victims since Alisa was killed. I have 
seen their pain increased by poor treatment by our justice system. It 
is absolutely clear that victims need constitutional rights to protect 
them in this system Before Maryland had a constitutional amendment, our 
state statute guaranteeing victim's rights was easily ignored both by 
lawyers and judges. While abuses still occur our scales are now more 
balanced here. But I can't be content to wait for each state to act 
individually. I have family living in Arizona, Connecticut, Alabama, 
and California. And, in today's mobile society, they all travel 
regularly between states. Without federal constitutional protection I 
fear the same shoddy treatment I faced following Alisa's death should 
anything happen in the future.
    I believe the founding fathers allowed for our constitution to be 
amended when rights became unbalanced. And I believe this amendment 
will go far towards balancing our woefully unbalanced scales of 
justice. Please support this amendment for me and for Alisa.

   Prepared Statement of Virginia E. Sloan on Behalf of the Citizens 
                          for the Constitution

     Great and Extraordinary Occasions: Developing Guidelines for 
                         Constitutional Change

                              introduction
    When the Constitution's framers met in Philadelphia, they decided 
to steer a middle course between establishing a constitution that was 
so fluid as to provide no protection against the vicissitudes of 
ordinary politics, and one that was so rigid as to provide no mechanism 
for orderly change. An important part of the compromise they fashioned 
was embodied in Article V.
    The old Articles of Confederation could not be amended without the 
consent of every state--a system that was widely recognized as 
impractical, producing stalemate and division. Accordingly, Article V 
provided for somewhat greater flexibility: The new Constitution could 
be amended by a proposal adopted by two thirds of both Houses of 
Congress or by a convention called by two thirds of the states, 
followed in each case by approval of three fourths of the states.\1\
---------------------------------------------------------------------------
    \1\ Article V provides:

      The Congress, whenever two thirds of both Houses shall deem 
      it necessary, shall propose Amendments to this 
      Constitution, or, on the Application of the Legislatures of 
      two thirds of the several States, shall call a Convention 
      for proposing Amendments, which, in either Case, shall be 
      valid to all Intents and Purposes, as Part of this 
      Constitution, when ratified by the Legislatures of three 
      fourths of the several States, or by Conventions in three 
      fourths thereof, as the one or the other Mode of 
      Ratification may be proposed by the Congress; Provided that 
      no Amendment which may be made prior to the Year One 
      thousand eight hundred and eight shall in any Manner affect 
      the first and fourth Clauses in the Ninth Section of the 
      first Article; and that no State, without its Consent, 
      shall be deprived of its equal Suffrage in the Senate.
    In the ratification debate that ensued, Article V played an 
important role. The new, more flexible amendment process served to 
reassure potential opponents who favored adding a bill of rights, or 
who worried more generally that the document might ultimately prove 
deficient in unanticipated ways. It also reassured the Constitution's 
supporters by making it more unlikely that a second constitutional 
convention would be called to undo the work of the first.
    Precisely because the legal constraints on the amendment process 
had been loosened somewhat from those contained in the old Articles, 
many of the framers also believed that the legal constraints should be 
supplemented by self-restraint. Although the new system made it legally 
possible to change our foundational document even when there was 
opposition, the framers believed that even dominant majorities should 
hesitate before using this power. As James Madison, a principal author 
of both the Constitution and the Bill of Rights, argued in Federalist 
49, the constitutional road to amendment should be ``marked out and 
kept open,'' but should be used only ``for certain great and 
extraordinary occasions.''
    For the first two centuries of our history, this reliance on self-
restraint has functioned well. Although over 11,000 proposed 
constitutional amendments have been introduced in Congress, only 
thirty-three of these have received the requisite congressional 
supermajorities, and only twenty-seven have been ratified by the 
states. The most significant of these amendments, accounting for half 
of the total, were proposed during two extraordinary periods in 
American history--the period of the original framing, which produced 
the Bill of Rights,\2\ and the Civil War period, which produced the 
Reconstruction amendments. Aside from these amendments, the 
Constitution has been changed only thirteen times.
---------------------------------------------------------------------------
    \2\ The Twenty-seventh Amendment, relating to changes in 
congressional compensation, was part of the original package of 
amendments proposed by the first Congress, but was not ratified by the 
states until 1992.
---------------------------------------------------------------------------
    Most of these thirteen amendments either expanded the franchise or 
addressed issues relating to presidential tenure. Only four amendments 
have ever overturned decisions of the Supreme Court, and the only 
amendments not failing within these categories--the Prohibition 
Amendments--also provide the only example of the repeal of a previously 
enacted amendment.\3\
---------------------------------------------------------------------------
    \3\ A list and brief description of all twenty-seven ratified 
amendments, grouped according to category, is attached as an appendix.
---------------------------------------------------------------------------
    In recent years, however, there have been troubling indications 
that this system of self-restraint may be breaking down. To be sure, no 
newly-proposed amendment has been adopted since 1971. Nonetheless, 
there has been a sudden rash of proposed amendments that have moved 
further along in the process than ever before and that, if enacted, 
would revise fundamental principles of governance such as free speech 
and religious liberty, the criminal justice protections contained in 
the Bill of Rights, and the methods by which Congress exercises the 
power of the purse. Within the last few years, six proposed 
constitutional amendments--concerning a balanced budget, term limits, 
flag desecration, campaign finance, religious freedom, and procedures 
for imposing new taxes--have reached the floor of the Senate, the 
House, or both bodies. Two of these--the balanced budget amendment and 
the flag desecration amendment--passed the House, and a version of the 
balanced budget amendment twice failed to win Senate passage by a 
single vote. Still other sweeping new amendments--including a 
``victim's rights'' amendment, an amendment redefining United States 
citizenship, and even an amendment to ease the requirements for future 
amendments--have considerable political support.
    There are many explanations for this new interest in amending the 
Constitution. Some Republicans, in control of both Houses of Congress 
for the first time in several generations, want to seize the 
opportunity to implement changes that many of them have long favored. 
Some Democrats, frustrated by a political system they view as 
fundamentally corrupted by large campaign contributions, want to 
revisit the relationship between money and speech. Some members of both 
parties have blamed what they consider to be the Supreme Court's 
judicial activism for effectively revising the Constitution, thereby 
necessitating resort to the amendment process to restore the document's 
original meaning.\4\ There may well be merit to each of these views. 
Unfortunately, however, very little attention has been devoted to the 
wisdom of engaging in constitutional change, even to advance popular 
and legitimate policy outcomes. We believe that the plethora of 
proposed amendments strongly suggests that the principle of self-
restraint that has marked our amending practices for the past two 
centuries may be in danger of being forgotten.
---------------------------------------------------------------------------
    \4\ Issues concerning the appropriate techniques of constitutional 
interpretation are beyond the scope of this project. Some, but by no 
means all, of our members believe that, in some cases, the Supreme 
Court has inappropriately ``amended'' the Constitution through a 
strained reading of its text. We believe that it is entirely 
appropriate for Congress to respond to what it perceives as erroneous 
constitutional interpretation by passing corrective amendments. 
However, we also believe that, even in the face of perceived judicial 
overreaching, Congress should not compound the problem by responding 
with poorly drafted or ill-considered amendments.
---------------------------------------------------------------------------
    There are several good reasons for attempting to reaffirm this 
self-restraint.

   Restraint is important because constitutional amendments 
        bind not only our own generation, but future generations as 
        well. Constitutional amendments may entrench policies or 
        practices that seem wise now, but that end up not working in 
        practice or that reflect values that become no longer widely 
        shared. Contested policy questions should generally be subject 
        to reexamination in light of the experience and knowledge 
        available to future generations. Enshrining a particular answer 
        to these questions in the Constitution obstructs that 
        opportunity. Our experience with three previously proposed 
        amendments, one that was adopted and later repealed, and two 
        others that moved far along in the process, but were not 
        adopted, serve to illustrate these points:

    First, when the Prohibition Amendment was adopted in 1919, many 
Americans thought that it embodied sensible social policy. Yet within a 
short time, there was broad agreement that the experiment had failed, 
in part because enforcing it proved enormously expensive in dollars and 
social cost. Had prohibition advocates been content to implement their 
policy by legislation, those laws could have been readily modified or 
repealed when the problems became apparent. Instead, the country had to 
undergo the arduous and time-consuming process of amending the 
Constitution to undo the first change. This is an experience we should 
be eager not to repeat.
    The second example might have had far more serious consequences. On 
the eve of the Civil War, both Houses of Congress adopted an amendment 
that would have guaranteed the property interest of slave-holders in 
their slaves and would have forever prohibited repeal of the amendment. 
Fortunately, the proposed amendment was overtaken by events and never 
ratified by the states. Had it become law, the result would have been a 
constitutional calamity.
    Finally, in our own time, there is the failed effort to add to the 
Constitution an equal rights amendment, prohibiting denial or 
abridgment of rights on account of sex. Within three months of 
congressional passage in 1972, twenty states had ratified the 
amendment. Thereafter, the process slowed, and even though Congress 
extended the deadline, supporters ultimately fell short of the three-
fourths of the states necessary for ratification. The struggle for and 
against ratification produced much dissension and consumed a great deal 
of political energy. Yet today, even some of the amendment's former 
supporters would concede that the amendment may not have been 
necessary. Moreover, the amendment would have added to the Constitution 
a controversial and broadly worded provision of uncertain and contested 
meaning, with the Supreme Court given the unenviable job of providing 
it content. Instead of years of judicial wrangling concerning its 
application, we have seen Congress pass ordinary legislation, and the 
Court engage in the familiar process of explicating existing 
constitutional and statutory text, to achieve many of the goals of the 
amendment's proponents. This process has been more sensitive and 
flexible, while also less contentious and divisive, than what we could 
have expected had the amendment become law.

   Restraint is also important in order to preserve the 
        Constitution as a symbol of our nation's democratic system and 
        of its cherished diversity. In a pluralistic democracy, where 
        people have many different religious faiths and divergent 
        political views, maintaining this symbol is of central 
        importance. The Constitution's unifying force would be 
        destroyed if it came to be seen as embodying the views of any 
        temporarily dominant group. It would be a cardinal mistake to 
        amend the Constitution so as to effectively ``read out'' of our 
        foundational charter any segment of our society.
   The Constitution's symbolic significance might also be 
        damaged if it were changed to add the detailed specificity of 
        an ordinary statute in order to control political outcomes. The 
        Constitution's brevity and generality serve to differentiate it 
        from ordinary law and, so, allow groups that disagree about 
        what ordinary law should be to coalesce around the broad 
        principles it embodies.
   Finally, restraint is necessary because proposed amendments 
        to the Constitution often put on the table fundamental issues 
        about our character as a nation, thereby bringing to the fore 
        the most divisive questions on the political agenda. Two 
        centuries ago, James Madison warned of the ``danger of 
        disturbing the public tranquility by interesting too strongly 
        the public passions'' through proposed constitutional change. 
        It is not only wrong to trivialize the Constitution by 
        cluttering it with measures embodying no more than ordinary 
        policy; it is also a mistake to reopen basic questions of 
        governance lightly. Occasional debates about fundamental 
        matters can be cleansing and edifying, but no country can 
        afford to argue about these issues continuously. Our ability to 
        function as a pluralistic democracy depends upon putting 
        ultimate issues to one side for much of the time, so as to 
        focus on the quotidian questions of ordinary politics. As 
        Madison argued shortly after the Constitution's drafting, 
        changes in basic constitutional structure are ``experiments * * 
        * of too ticklish a nature to be unnecessarily multiplied.''

    None of this is to suggest that the Constitution should never be 
amended or that its basic structural outlines are above criticism. 
There have been times in our history when arguments for restraint have 
been counterbalanced by the compelling need for reform. Some 
individuals may believe that this is such a time, at least with regard 
to particular issues, and if they do, there is nothing illegitimate 
about urging constitutional change.
    Some constitutional amendments are designed to remedy perceived 
judicial misinterpretations of the Constitution. Some earlier 
constitutional amendments--for example, the Eleventh Amendment 
establishing state sovereign immunity and the Sixteenth Amendment 
authorizing an income tax--fall into this category. There is nothing 
per se illegitimate about amendments of this sort, although here, as 
elsewhere, their supporters need to think carefully about the precise 
legal effect of the amendment in question and about how the amendment 
will interact with other, well-established principles of constitutional 
law.
    More generally, advocates of amendments of any kind should focus 
not only on the desirability of the proposed change, but also on the 
costs imposed by attempts to achieve that change through the amendment 
process as contrasted with other alternatives. In the Guidelines that 
follow, we propose some general questions that, we hope, participants 
in debates about constitutional change will ask themselves. We do not 
pretend that the answers to these questions will always be dispositive 
or that the Guidelines can be mechanically applied. If the 
circumstances are extraordinary enough, all of these warnings might be 
overcome. Nor do we imagine that the Guidelines alone are capable of 
resolving all disputes about currently pending proposals for 
constitutional change. We ourselves are divided about some of these 
proposed amendments, and no general Guidelines can determine the 
ultimate trade-offs among the benefits and costs of change in 
individual cases.\5\
---------------------------------------------------------------------------
    \5\ As an organization, we generally take no position on the merits 
of proposed amendments. We have made a single exception in the case of 
an amendment that would, itself, make the amendment process less 
arduous. This proposal runs afoul of our core commitment to restraint, 
and we strongly oppose it.
---------------------------------------------------------------------------
    Instead, our hope is that the Guidelines will draw attention to 
some aspects of the amending process that have been ignored too 
frequently, provoke discussion of when resort to the amending process 
is appropriate, and suggest an approach that will ensure that all 
relevant concerns are fully debated. At the very moment when this 
country was about to embark on the violent overthrow of a prior, unjust 
constitutional order, even Thomas Jefferson, more friendly to 
constitutional amendments than many of the founders, warned that 
``governments long established should not be changed for light and 
transient causes.'' In the calmer times in which we live, there is all 
the more reason to insist on something more before overturning a 
constitutional order that has functioned effectively for the past two 
centuries. The Guidelines that follow attempt to raise questions about 
whether such causes exist and how we should respond to them.
                guidelines for constitutional amendments
          1. Does the proposed amendment address matters that are of 
        more than immediate concern and that are likely to be 
        recognized as of abiding importance by subsequent generations?
          2. Does the proposed amendment make our system more 
        politically responsive or protect individual rights?
          3. Are there significant practical or legal obstacles to the 
        achievement of the objectives of the proposed amendment by 
        other means?
          4. Is the proposed amendment consistent with related 
        constitutional doctrine that the amendment leaves intact?
          5. Does the proposed amendment embody enforceable, and not 
        purely aspirational, standards?
          6. Have proponents of the proposed amendment attempted to 
        think through and articulate the consequences of their 
        proposal, including the ways in which the amendment would 
        interact with other constitutional provisions and principles?
          7. Has there been full and fair debate on the merits of the 
        proposed amendment?
          8. Has Congress provided for a nonextendable deadline for 
        ratification by the states so as to ensure that there is a 
        contemporaneous consensus by Congress and the states that the 
        proposed amendment is desirable?

                      Commentary on the Guidelines

    The following commentary explains each of the Guidelines and 
illustrates how each might be applied in the context of some previous 
and currently pending proposals for constitutional amendment. It is 
significant that the Guidelines are written in the form of questions to 
think about, rather than commands to be obeyed. The Guidelines alone 
cannot determine whether any amendments should be adopted or rejected. 
Instead, most of the Guidelines are designed to raise concerns that 
those considering amendments might want to weigh against the perceived 
desirability of the changes embodied in the amendments. The last three 
Guidelines--concerning the need to articulate consequences, the 
fairness of the procedure, and the requirement of a nonextendable 
deadline--are in a somewhat different category. Although each of the 
other concerns might be overcome if one were sufficiently committed to 
the merits of a proposed amendment, it is hard to imagine the 
circumstances under which adopting an amendment would be appropriate 
without an articulation of its consequences, a full and fair debate, 
and measures designed to assure that it reflects a contemporary 
consensus.
1. Does the proposed amendment address matters that are of more than 
        immediate concern and that are likely to be recognized as of 
        abiding importance by subsequent generations?
    James Madison, one of the principal architects of Article V of the 
Constitution, which contains the procedures for amendment, cautioned 
against making the Constitution ``too mutable'' by making 
constitutional amendment too easy. Hence his insistence that any 
constitutional amendment command not only majority, but supermajority, 
support. Implicit in Madison's caution is the view that stability is a 
key virtue of our Constitution and that excessive ``mutability'' would 
undercut one of the main reasons for having a Constitution in the first 
place. As Chief Justice John Marshall observed in McCulloch v. 
Maryland, the Constitution was ``intended to endure for ages to come.'' 
Similarly, in his prophetic dissent in Lochner v. New York, Justice 
Oliver Wendell Holmes cautioned that the Constitution ought not be read 
to ``embody a particular economic theory'' that might be fashionable in 
a particular generation. It is crucial to our constitutional enterprise 
to preserve public confidence--over succeeding generations--in the 
stability of the basic constitutional structure.
    Thus, the Constitution should not be amended solely on the basis of 
short-term political considerations. Of course, no one can be certain 
whether future generations will come to see a policy as merely 
evanescent or as truly fundamental. Still, legislators have an 
obligation to do their best to avoid amendments that are no more than 
part of a momentary political bargain, likely to become obsolete as the 
social and political premises underlying their passage wither or 
collapse.
    To be enduring, constitutional amendments should usually be cast, 
like the Constitution itself, in general terms. Both powers and rights 
are set forth in our basic document in broad-and open-ended language. 
To quote Marshall in McCulloch again, an enduring Constitution 
``requires that only its great outlines should be marked,'' with its 
``minor ingredients'' determined later through judicial interpretation 
in each succeeding generation. Of course, sometimes specificity will be 
necessary, as in changing the date of the presidential inauguration. 
But in general, the nature of our Constitution is violated if 
amendments are too specific in the sense that they reflect only the 
immediate concerns of one generation, or if they set forth specifics 
more appropriate in an implementing statute.
    To illustrate this point, contrast the experience of the state 
constitutions with our sparse tradition of federal constitutional 
amendments. While the federal Constitution has been amended only 27 
times in over 200 years, the fifty state constitutions have had a total 
of more than 6000 amendments added to them.\1\ Many are the products of 
interest-group politics characteristic of ordinary legislation. State 
constitutions thus suffer from what Marshall called ``the prolixity of 
a legal code''--a vice he praised the federal Constitution for 
avoiding.\2\
---------------------------------------------------------------------------
    \1\ The Council of State Governments, The Book of the States, 1998-
99 Ed.
    \2\ It may be that differences between the state and federal 
governments justify more detailed constitutions on the state level. 
Detailed constitutional structures that might work well at the state 
level might work poorly at the federal level.
---------------------------------------------------------------------------
    Even when amendments are not overly detailed, they may be 
inappropriate because they focus on matters of only short-term concern. 
For example, consider various proposals that seek to carve specific new 
exceptions out of the broad concept of freedom of speech set forth in 
the First Amendment. The proposed flag-desecration amendment would 
rewrite the Constitution to say that while the government generally may 
not prohibit speech based on dislike of its message, it may do so in 
the case of flag desecraters. The proposed campaign finance amendment 
would alter the First Amendment to say that the quantity of speech may 
never be diminished--except in modem election campaigns.
    Each of these amendments is a response to contemporary political 
pressures. Future generations, like Americans today, can easily 
perceive the broad purposes and enduring legacies underlying the 
majestic generalities of our original guarantee of freedom of speech: 
the quest for truth, for self-government, and for individual liberty. 
But future generations may not understand, let alone revere, the 
motivations behind a flag-desecration or campaign finance amendment. 
Such particularized amendments may instead be perceived as the 
political victory of one faction in a particular historical moment. 
Flag-desecration is not an immortal form of political protest; we 
cannot know whether political dissidents will have the slightest 
interest in this gesture generations from now. Similarly, the campaign 
tactics used by todays candidates might change in ways that we cannot 
now imagine as we enter an age of instantaneous global communication 
over new electronic and digital media. Thus, there may be legitimate 
questions about the enduring nature of the perceived problem, as well 
as about the proposed solution.
    In general, we should not embed in the Constitution one 
generation's highly particular response to problems that a later 
generation might view as ephemeral. To add such transient amendments to 
the Constitution trivializes and undermines popular respect for a 
document that was intended to endure for the ages.
2. Does the proposed amendment make our system more politically 
        responsive or protect individual rights?
    Of the twenty-seven amendments to the Constitution, seventeen 
either protect the rights of vulnerable individuals or extend the 
franchise to new groups. With the notable exception of the failed 
Prohibition Amendment, none of the amendments simply entrenches a 
substantive policy favored by a current majority.
    There are good reasons for this overwhelming emphasis either on 
individual rights or on democratic participation. In a constitutional 
democracy, most policy questions should be decided by elected 
officials, responsible to the people who will be affected by the 
policies in question. It follows that the Constitution's main thrust 
should be to ensure that our political system is more, rather than 
less, democratic. Many amendments serve this function. For example, the 
Fifteenth, Seventeenth, Nineteenth, Twenty-third, Twenty-fourth, and 
Twenty-sixth Amendments all broaden the franchise.
    Of course, the Constitution is also designed to protect vulnerable 
individuals from majority domination, whether temporary or permanent. 
Hence, many other Amendments guarantee minority rights. For example, 
the First Amendment protects the rights of religious and political 
minorities; the Fifth Amendment protects the rights of property holders 
whose property might be seized by legislative majorities without 
compensation or due process; the Fourth, Fifth, Sixth, and Eighth 
Amendments all protect the rights of criminal defendants, who were 
deemed especially vulnerable to majority hatred and overreaching; and 
the Thirteenth, Fourteenth and Fifteenth Amendments were all motivated 
by the desire to protect former slaves.
    There is an obvious tension between the twin goals of majority rule 
and protection for individuals, and this Guideline does not seek to 
resolve it. On some occasions, it is important to provide 
constitutional protection for individuals from government overreaching; 
yet on others, it is equally important to allow majorities to have 
their way. Although the protection of individual rights is a central 
aim of the Constitution, it is not the only aim, and it is emphatically 
not true that every group that comprises less than a majority is 
entitled to constitutional protection because of its minority status.
    One need not finally determine when majority rule should trump 
minority rights to see the problem with amendments that do no more than 
entrench majority preferences against future change. Amendments of this 
sort can be justified by neither majoritarianism nor a commitment to 
individual rights. On the one hand, they restrict the scope of 
democratic participation by future generations. On the other, they 
entrench the will of a current majority as against minority dissenters.
    Amendments of this sort should not be confused with power-granting 
amendments. To make possible ordinary legislation, favored by a current 
majority, it is sometimes necessary to enact amendments that eliminate 
constitutional barriers to its passage. For example, the Sixteenth 
Amendment eliminated a constitutional obstacle to the enactment of a 
federal income tax, and the Fourteenth Amendment eliminated federalism 
objections to civil rights legislation. Such amendments may be 
legitimate when they widen the scope of democratic participation, 
although, as noted above, they may also raise difficult issues 
regarding the appropriate tradeoff between majority control and 
minority rights.
    In contrast, amendments that merely entrench majority social or 
economic preferences against future change make the system less rather 
than more democratic. They narrow the space for future democratic 
deliberation and sometimes trammel the rights of vulnerable 
individuals. It is a perversion of the Constitution's great purposes to 
use the amendment process as a substitute for ordinary legislative 
processes that are fully available to groups proposing popular changes 
and equally available to future majorities that may take a different 
view.
    This Guideline raises important questions concerning a number of 
proposed constitutional amendments. Consider first the ``victims' 
rights'' amendment, which would grant a number of rights in the trial 
process to the victims of crime. Congress should ask whether crime 
victims are a ``discrete and insular minority'' requiring 
constitutional protection against overreaching majorities, or whether 
they can be protected through ordinary political means. Congress should 
also ask whether it is appropriate to create rights for them that are 
virtually immune from future revision.
    The balanced budget amendment poses a close question under this 
Guideline. On the one hand, the amendment can be defended as democracy-
enhancing by protecting the interests of future generations, or by 
counterbalancing the power of narrow interest groups that have 
succeeded in gaining a disproportionate share of the public fisc for 
themselves. On the other hand, these gains are achieved at the cost of 
dramatically shrinking the area of democratic participation. 
Discussions of economic theory and the size of the federal budget 
deficit are central to democratic politics. Americans' views concerning 
the propriety of deficit financing have changed dramatically over time, 
and there is no reason to think that this evolutionary process has come 
to a sudden end. Locking in a currently popular position against future 
change, including, perhaps, turning the problem of remedies over to 
unelected federal judges, would significantly alter the democratic 
thrust of the Constitution and obstruct the ability of future 
generations to make their own economic judgments.
    Finally, consider the flag desecration amendment. In form, the 
amendment is power-granting: it opens previously closed space for 
democratic decision-making without requiring any particular result. In 
general, such power-granting amendments pose no problems under this 
Guideline. Yet the flag desecration amendment grants power at the 
behest of an already dominant majority and at the expense of an 
extremely unpopular and utterly powerless minority. True, current 
constitutional doctrine prevents the majority from working its will 
with regard to one particular matter--the criminalization of flag 
desecration. But the majority on this issue has considerable power and 
is hardly disabled from expressing its views in a wide variety of other 
fora. Granting to the majority the power to prohibit an overwhelmingly 
unpopular form of expression may serve to entrench currently popular 
views, at the expense of an unpopular minority, without providing any 
real gains in terms of democratic participation.
3. Are there significant practical or legal obstacles to the 
        achievement of the objectives of the proposed amendment by 
        other means?
    The force of the Constitution depends on our ability to see it as 
something that stands above and outside of day-to-day politics. The 
very idea of a Constitution turns on the separation of the legal and 
the political realms. The Constitution sets up the framework of 
government. It also sets forth fundamental political ideals--equality, 
representation, and individual liberties--that limit the actions of a 
short-term majority. This is our higher law. All the rest is left to 
day-to-day politics. Those who lose in the short run of ordinary 
politics obey the winners out of respect for the long-run rules and 
boundaries set forth in the Constitution. Without such respect for the 
constitutional framework, the peaceful operation of ordinary politics 
would degenerate into fractious war.
    Accordingly, the Constitution should not be amended to solve 
problems that can be addressed through other means, including federal 
or state legislation or state constitutional amendments. An amendment 
that is perceived as a surrogate for ordinary legislation or executive 
action breaks down the boundary between law and politics that is so 
important to maintaining broad respect for the Constitution. The more 
the Constitution is filled with specific directives, the more it 
resembles, ordinary legislation. And the more the Constitution looks 
like ordinary legislation, the less it looks like a fundamental charter 
of government, and the less people will respect it.
    A second reason for forgoing constitutional amendments when their 
objectives can be otherwise achieved is the greater flexibility that 
political solutions have to respond to changing circumstances over 
time.\3\ Amendments that embody a specific and perhaps controversial 
social or economic policy allow one generation to tie the hands of 
another, entrenching approaches that ought to be more easily revisable 
by future generations in light of their own circumstances. Such 
amendments convert the Constitution from a framework for governing into 
a statement of contemporary public policy.
---------------------------------------------------------------------------
    \3\ This reason also relates to a separate set of concerns outlined 
in Guideline Two.
---------------------------------------------------------------------------
    For these reasons, advocates of a constitutional amendment should 
consider whether they have exhausted every other means of political 
redress for a problem before they seek to solve it by amending the 
Constitution. If other action under our existing constitutional 
framework is capable of achieving an objective, then writing that 
objective into the Constitution is unnecessary and therefore will 
clutter that basic document, reducing popular respect. One might wonder 
why anyone would resort to the difficult and time-consuming effort to 
secure a constitutional amendment if the same objectives could be 
accomplished by ordinary political means. Unfortunately, some now 
believe that a legislator is not serious about a proposal unless he or 
she is willing to amend the Constitution. Experience has also 
demonstrated that the amendment process (and even the mere sponsorship 
of an amendment, if the amendments sponsor suspects that actual passage 
is unlikely) can be a tempting way to make symbolic or political points 
or to prevent future change in policy even when nonconstitutional means 
are available to achieve current public policy objectives.
    For example, our experience with the failed equal rights amendment 
suggests the virtues of resort to ordinary political means to achieve 
desired, change. Today, many of the objectives of the amendment's 
proponents have been achieved without resort to the divisive and 
unnecessary amendment process.
    The proposed victims' rights amendment raises troubling questions 
under this Guideline. Witnesses testifying in Congress on behalf of the 
federal amendment point to the success of state amendments as reason to 
enact a federal counterpart. But the passage of the state amendments 
arguably cuts just the other way: for the most part, states are capable 
of changing their own law of criminal procedure in order to accommodate 
crime victims, without the necessity of federal constitutional 
intervention. While state amendments cannot affect victims' rights in 
federal courts, Congress has considerable power to furnish such 
protections through ordinary legislation. Indeed, it did so in March 
1997 in Public Law 105-6 (codified as 18 U.S.C. Sec. 3510), which 
allowed the victims of the Oklahoma City bombing to attend trial 
proceedings. If this generation's political process is capable of 
solving a problem one way, then future generations' political processes 
should be free to adjust that solution over time without the rigid 
constraints of a constitutional amendment.
    This Guideline does not caution against resort to constitutional 
change when there are significant legal or practical obstacles to 
ordinary legislation. Consider in this regard the proposed flag 
desecration amendment. After the Supreme Court invalidated a state 
statute prohibiting flag desecration, Congress responded by attempting 
to draft a federal statute that prohibited desecration without 
violating the Court's interpretation of the First Amendment. This 
effort to exhaust nonconstitutional means is precisely the course of 
conduct this Guideline recommends. Now that the Supreme Court has also 
invalidated the federal statute, use of the amendment process in this 
context would fully comport with this Guideline unless a different 
statute could be devised that would pass constitutional muster.
    Closer questions arise when there are practical, rather than legal, 
obstacles to ordinary legislation. The balanced budget amendment 
provides an interesting example. On the one hand, experience prior to 
1997 suggested that there might have been insurmountable practical 
difficulties in dealing with budgetary problems through ordinary 
legislation, that interest group politics would inevitably stymie 
efforts to cut expenditures through the ordinary budget process, and 
that perhaps interest group politics could be transcended only by use 
of a general, constitutional standard. To the extent that this was 
true, utilization of the constitutional amendment process might well 
have been justified under this Guideline.
    On the other hand, a constitutional amendment is a far cruder 
instrument than is congressional or presidential action to address the 
issue of federal spending, for it lacks the flexibility to permit 
tailoring fiscal policy to the nation's changing economic needs. There 
are no formal legal barriers to solving the problem through existing 
legislative and executive means, and recent success in achieving 
budgetary balance suggests that it is sometimes a mistake to 
overestimate the practical obstacles to change. This example counsels 
caution before resort to the amendment process in any context.
    In any event, advocates of constitutional change should be certain 
that they have exhausted other means before resorting to the amendment 
process. Our history counsels that the federal Constitution should 
continue to be altered sparingly and only as a last resort. Only 
amendments that are absolutely necessary should be proposed and 
enacted. And amendments are not necessary when there are no legal or 
practical barriers to pursuing solutions to problems through existing 
political means.
4. Is the proposed amendment consistent with related constitutional 
        doctrine that the amendment leaves intact?
    Because the Constitution gains much of its force from its 
cohesiveness as a whole, it is vital to ask whether an amendment would 
be consistent with constitutional doctrine that it would leave 
untouched. Does the amendment create an anomaly in the law? Such an 
anomaly is especially likely to occur when the proposed amendment is 
offered to overrule a Supreme Court decision, although the danger 
exists in other circumstances as well.
    To be sure, every amendment changes constitutional doctrine. That 
is, after all, the function amendments serve. A difficulty occurs only 
when the change has the unintended consequence of failing to mesh with 
aspects of constitutional doctrine that remain unchanged. This problem 
does not arise when whole areas of constitutional law are reformulated. 
For example, the Sixteenth Amendment, permitting Congress to enact an 
income tax, was necessitated by the Court's ruling in Pollock v. 
Farmers Loan & Trust Co. that a specific limitation on the taxing power 
in the Constitution precluded a tax on income. That provision was 
grounded in our history as colonies and in concerns among slave-holding 
states that the federal government would impose a ``direct tax'' on 
slaves. With passage of the Thirteenth Amendment, ending slavery, the 
tax limitation itself became anomalous and a constitutional amendment 
was necessary to remove the anomaly. The Sixteenth Amendment reflected 
a repudiation of the original decision of the framers in light of 
changed circumstances, which is precisely the kind of broad change in 
policy for which the amendment process was designed.
    It does not follow, however, that an amendment must always overrule 
an entire body of law in order to comport with this Guideline. Although 
the Dred Scott decision was embedded in the law of property, Congress 
did not revisit all of property law when it enacted the Thirteenth 
Amendment, and its failure to do so in no way damaged the coherence of 
constitutional doctrine.
    In contrast, some proposed amendments make changes that are 
difficult to reconcile with underlying legal doctrine that the 
amendments leave undisturbed. This problem arises most often when 
framers of amendments focus narrowly on specific outcomes, without also 
thinking more broadly about general legal principles.
    The proposed flag desecration and campaign finance amendments 
illustrate this difficulty. The Supreme Court's flag desecration 
decisions, although commanding only 5-4 majorities, were consistent 
with several lines of the Court's well-established First Amendment 
decisions. In those cases, the Court had recognized both that some 
forms of conduct are primarily symbolic speech, and hence are entitled 
to full First Amendment protection, and that laws designed to suppress 
a particular point of view are almost never permissible, especially 
when the speech is a form of protest against the very government that 
is seeking to prohibit the activity.
    If an amendment were enacted to permit the government to 
criminalize flag desecration, it would create the first exception to 
the First Amendment by specifically allowing government to censor only 
one type of message--one that expressed an anti-government point of 
view.\4\ This result is difficult to reconcile with other principles 
that the amendment's drafters would apparently leave intact. One 
wonders, for example, whether the amendment would permit legislation 
outlawing only those flag burnings intended as a protest against 
incumbent office holders.
---------------------------------------------------------------------------
    \4\ It might also create exceptions to other First Amendment 
doctrines, such as the prohibitions on prior restraint, overbreadth and 
vagueness. Whether it would in fact have this effect is far from clear, 
however, because there has been remarkably little substantive 
discussion of the ramifications of the amendment. This problem is 
addressed more fully in the commentary to Guideline Six.
---------------------------------------------------------------------------
    Similarly, the campaign finance amendment presents at least two 
sets of anomalies in First Amendment jurisprudence. The amendment would 
overrule that portion of Buckley v. Valeo that struck down a limitation 
on the amount of money that candidates for elected office can spend, 
either from lawfully raised contributions or from their own personal 
funds. The theory of the decision is that money is the means by which 
candidates amplify their messages to the electorate and that placing 
limits on spending is equivalent to a limit on speech, which violates 
the First Amendment, particularly in the context of an election.
    The proposed amendment would allow Congress and the states to set 
limits on the amount a candidate could spend on elections, but would 
not alter the law regarding governmental attempts to control the 
amounts spent on other types of speech. If the amendment were narrowly 
construed to apply only to express advocacy for or against a candidate, 
it would have the effect of shifting money to issue advocacy, which is 
often not-so-subtly designed to achieve the same ends--election of a 
particular candidate. For example, the advertisements against cuts in 
Medicare and social security in the 1996 campaign were plainly efforts 
to aid Democratic candidates, and those against certain abortion 
procedures were intended to aid Republican candidates. On the other 
hand, if the amendment were broadly construed, it would have the 
anomalous effect of placing a greater limit on speech in the context of 
elections than in the context of commercial products or cultural 
matters, a result that is difficult to square with the core notion of 
what the First Amendment is intended to protect.
    One of the underlying reasons for the result in Buckley is the fear 
that statutory spending limits would be set by incumbents, who would 
make these limits so low that challengers would, as a practical matter, 
be unable to succeed. But the amendment would allow legislatures to set 
``reasonable'' spending limits. The Court would therefore find itself 
in the anomalous and unenviable position of deciding whether the 
amounts chosen by incumbents, or perhaps by state ballot initiatives, 
met the new constitutional standard, instead of doing what it does in 
all other First Amendment cases: forbidding the government from setting 
any limits on the amount of speech, whether reasonable or not.
5. Does the proposed amendment embody enforceable, and not purely 
        aspirational, standards?
    The United States Constitution is not a theoretical enterprise. It 
is a legal document that spells out a coherent approach to government 
power and processes while also guaranteeing our most fundamental 
rights. More than two centuries of experience underscore the wisdom of 
continuing that approach. The addition of purely aspirational 
statements, designed solely for symbolic effect, would lead interest 
groups to attempt to write their own special concerns into the 
Constitution.
    It follows that advocates of amendments should think carefully 
about how the amendments will be enforced. In his seminal Common Sense, 
Thomas Paine expressed the revolutionary notion that was the founding 
wisdom of our nation: in America, ``the law is King.'' Everyone, 
regardless of social station or political rank, must follow the law. A 
provision susceptible of being ignored because no one can require its 
observance permits the kind of executive or legislative lawlessness 
that our founders wished to prevent. A provision that may be willfully 
ignored when those charged with observing it find the result 
inconvenient or undesirable undermines the rule of law, the governments 
own legitimacy, and the Constitution's special stature in our society.
    The proposals for a balanced budget amendment illustrate the need 
to think carefully about means of enforcement. The amendment itself 
does not specifically set forth the means by which it would be 
enforced. A Congress that has had difficulty reaching a balanced budget 
without a constitutional amendment might have similar difficulties if 
it was not subject to a judicial or presidential check. Without such a 
check, a balanced budget amendment might be nothing more than an 
aspirational standard.
    Of course, most existing constitutional amendments are also silent 
regarding the means of enforcement. Since Marbury v. Madison, however, 
there has been a presumption that judicial enforcement will generally 
be available. If its proponents intend and the courts find the balanced 
budget amendment to be similarly enforceable, it raises no issues under 
this Guideline. But it is not clear that the proponents so intend. 
Granting to courts the right to determine when outlays exceed receipts 
and to devise the appropriate remedy for such a constitutional 
violation would arguably constitute an unprecedented expansion of 
judicial power, If proponents of the amendment do not intend these 
consequences, there is a risk that the amendment will be purely 
aspirational or that it will be enforced in ways they might find 
objectionable.
    Questions also arise about other means of enforcement. Could the 
President refuse to spend money in order to remedy a looming 
unconstitutional deficit? The practice, known as impoundment, is 
generally thought to be unavailable to the President unless 
specifically authorized by Congress. However, an official from the 
Department of Justice testified in hearings before the Senate Judiciary 
Committee that, if the amendment were enacted, the President would be 
duty-bound to impound money or take other appropriate action to prevent 
an unbalanced budget.\5\ Moreover, in such event, and absent some 
controlling statute, the choice of which programs to cut and in which 
amounts would be entirely up to the President.
---------------------------------------------------------------------------
    \5\ Hearing before the Senate Judiciary Committee on S.J. Res. 1, 
104th Cong., 1st Sess., Jan. 5, 1995 (testimony of Assistant Attorney 
General Walter Dellinger).
---------------------------------------------------------------------------
6. Have proponents of the proposed amendment attempted to think through 
        and articulate the consequences of their proposal, including 
        the ways in which the amendment would interact with other 
        constitutional provisions and principles?
    When the original Constitution was drafted, the delegates to the 
Constitutional Convention regarded the new document as a unified 
package. Much energy was directed to considering how the various parts 
of the Constitution would interact with each other and to the political 
philosophy expressed by the document as a whole. The amendment process 
is necessarily much more ad hoc. Consequently, proponents of new 
amendments need to be especially careful to think through the legal 
ramifications of their proposals, considering, for example, how their 
proposals might shift the balance of shared and separated powers 
between the branches of the federal government, or affect the 
distribution of responsibilities between the federal and state 
governments. They should also explore how their proposals mesh with the 
Constitution's fundamental commitment to popular sovereignty and to the 
guarantees of liberty, justice and equality.
    Consider an example: a proposed textual limitation on some forms of 
free speech might provide a rationale for limiting other speech. The 
campaign finance proposal would authorize Congress and the states to 
place limits on political campaign spending. While purportedly aimed at 
limiting the influence of wealthy donors, the amendment might establish 
as constitutional law that the government could ration core political 
speech to serve a variety of legitimate government interests. If the 
amendment were broadly construed, not only could a legislature then act 
to equalize participation in political debate by limiting spending, but 
it could also limit spending relevant to a particular issue in order to 
secure greater equality in the discussion of that issue.
    Moreover, even though its sponsors do not intend to impose 
financial limits on the press, the proposed amendment itself contains 
no such restriction. Certainly the value of a newspaper endorsement, at 
least equivalent to the cost of a similarly-sized and placed 
advertisement, could easily violate an expenditures limit. Traditional 
jurisprudence treats freedom of the press no more expansively than 
freedom of speech. Rather than maintain the uninhibited, robust and 
wide-open dialogue that the Constitution presently guarantees, the 
proposed amendment arguably permits the rationing of speech in amounts 
that satisfy the most frequent targets of campaign criticism--current 
officeholders, who would have a self-interest in limiting the speech of 
those who disagree with them. It is also not unreasonable to anticipate 
that officeholders would attempt to apply such restrictions to a wide 
range of press commentary, or to other areas where wealth or access 
enhance the speech opportunities of their political opponents--on the 
theory of equalizing speech opportunities. The result would be yet 
another advantage for incumbents, who already enjoy advantages due to 
higher name recognition, greater free media opportunities as 
officeholders, and a well-developed fundraising network.\6\
---------------------------------------------------------------------------
    \6\ The difficulties discussed here overlap with those set forth in 
Guideline Four.
---------------------------------------------------------------------------
    The failed attempt to add an amendment to the Constitution 
expressly prohibiting gender discrimination provides another example. 
Proponents of the equal rights amendment were never able to satisfy 
some who questioned the specific legal effects of the amendment. 
Questions were raised, for example, about whether the amendment would 
completely prohibit the government from making gender distinctions in 
assigning troops to combat or individuals to military missions. This 
failure to explain its legal implications caused many to doubt the 
wisdom of the amendment.
7. Has there been full and fair debate on the merits of the proposed 
        amendment?
    The requirement that amendments must be approved by supermajorities 
makes it more difficult to amend the Constitution than to enact an 
ordinary law. In theory, this requirement should produce a more 
deliberate process, which, in turn, should mean that the issues are 
more fully ventilated in Congress. Unfortunately, reality does not 
always comport with theory. The result is that the process becomes more 
like voting to approve a symbol than deciding whether to enact a 
binding amendment to our basic charter. Congress should thus adopt 
procedures to ensure that full consideration is given to all proposals 
to amend the Constitution before votes are taken either in committee or 
on the floor.
    For most amendments, there are two types of questions: (a) the 
policy questions, which include whether the basic idea is sound, and 
whether the amendment is the type of change that belongs in the 
Constitution, and (b) the operational questions, including whether 
there are problems in the way that the amendment will work in practice. 
If the answer to either part of the policy inquiry is ``no,'' then the 
operational set of questions need not be asked. Even when there is a 
tentative ``yes'' answer to the policy questions, the answer may become 
``no'' when the operational problems are recognized. Thus, in general, 
it is appropriate that Congress hold at least two sets of hearings, one 
for each set of issues. At each set of hearings, both the prime hearing 
time (normally at the start of the day) and overall hearing time should 
be equally divided between proponents and opponents.
    The balanced budget amendment illustrates this need for dual-track 
consideration. Proponents and opponents of the amendment have debated 
the policy questions at length. These include whether the existing 
statutory avenues have failed, whether social security and perhaps 
other programs should be excluded, and whether minorities of one House 
should be given the absolute power to block both tax increases and 
increases in the debt ceiling.
    Unfortunately, there has been less consideration of operational 
questions. These include how the amendment is to be enforced, how the 
exception for declarations of war would be triggered, and whether the 
use of cash receipts and disbursements would both be subject to evasion 
and lead to uneconomical decisions, such as to enter into leases rather 
than purchases for federal property in order to bring the budget into 
balance for the current year.
    Similarly, campaign finance proposals illustrate the need for a 
two-track approach. Most of the debate in Congress concerning 
constitutional reform of our campaign finance practices has centered 
around the ``big picture'' issues. Members of Congress deserve praise 
for their efforts to come to grips with these issues. They have debated 
whether First Amendment rights are necessarily in tension with the 
integrity of our political campaigns, whether the First Amendment 
should be amended at all, and whether spending large amounts of money 
in campaigns is bad. However, members have spent relatively little time 
considering operational problems created by ambiguity in the language 
of a proposed amendment. For example, what are ``reasonable'' limits 
and who would determine this? What effect does the amendment have on 
issue advocacy and on educational and ``get out the vote'' efforts of 
parties and civic groups?
    These examples demonstrate that careful deliberation by 
congressional committees is essential. Committees should not move 
proposed amendments too quickly, and they should ensure that 
modifications to proposed amendments receive full consideration and a 
vote before they reach the floor, with a committee report explaining 
the options considered and the reasons for their adoption or rejection. 
Perhaps a two-thirds committee vote should be required to send a 
proposed constitutional amendment to the floor, thereby mirroring the 
requirement for final passage. If two-thirds of those who are most 
knowledgeable about a proposed constitutional amendment do not support 
it, the amendment probably should never be considered by the full House 
or Senate.
    Although the relevant committees may have the greatest expertise 
regarding a proposed constitutional amendment, its enactment will have 
far-reaching impact. Thus, floor debates should not be cut short even 
if there has been previous floor debate on an amendment in this or a 
previous Congress, and there should be opportunities for full 
discussion and votes on additions, deletions, and modifications to the 
reported language. The flag desecration amendment highlights this 
issue. At the end of the 105th Congress, the Senate Majority Leader 
sought unanimous consent for consideration of the amendment, with a two 
hour limit on debate equally divided between proponents and opponents 
and with no amendments or motions in order.
    To ensure that floor votes are taken only on language that has been 
previously scrutinized, each House should adopt rules requiring that 
only changes to a proposed constitutional amendment that have been 
specifically considered in committee be eligible for adoption on the 
floor, with one exception: votes on clarifying language should be 
permitted with the consent of the committee chair and ranking member, 
or by a waiver of the rules passed by a supermajority vote. Otherwise, 
substantive changes not previously considered, but approved by a 
majority vote on the floor, should be referred back to committee for 
such further proceedings, consideration, and possible modification as 
needed to ensure that they have been thoroughly evaluated, followed by 
a second vote on the floor.
8. Has Congress provided for a nonextendable deadline for ratification 
        by the states so as to ensure that there is a contemporaneous 
        consensus by Congress and the states that the proposed 
        amendment is desirable?
    The Constitution should be amended only when there is a 
contemporaneous consensus to do so. If the ratification process is 
lengthy, ultimate approval by three-quarters of the states may no 
longer reflect such a consensus. Accordingly, there should be a non-
extendable time limit for the ratification of all amendments, similar 
to the seven-year period that has been included in most recent proposed 
amendments.
    If extensions are permitted at all, they should be adopted by the 
same two-thirds vote that approved the amendment originally. Moreover, 
states that ratified the amendment during the initial time period 
should be allowed to rescind their approvals, thereby assuring a 
continuing consensus. Congress's decision to extend the ratification 
period for the equal rights amendment on the eve of the expiration of 
the allotted time illustrates the problems that this Guideline 
addresses. Although many states ratified the amendment in the period 
immediately after initial congressional approval, there had been a 
shift in public opinion by the time that Congress extended the 
deadline. It was therefore far from clear that the legislatures in all 
the ratifying states would have approved the amendment if it had been 
presented to them again after the ratification extension. The 
perception that the amendment might be adopted despite the absence of a 
contemporary consensus supporting it contributed to the divisiveness 
that surrounded the struggle over its adoption.
          appendix: a compendium of constitutional amendments

                       I. The Original Amendments

    Amendment I (1791). Prohibits establishment of religion; guarantees 
freedom of religion, speech, press, and assembly.
    Amendment II (1791). Prohibits infringement of the right of the 
people to keep and bear arms.
    Amendment III (1791). Prohibits the quartering of soldiers in any 
house during times of peace without consent of owner or during time of 
war in manner not prescribed by law.
    Amendment IV (1791). Guarantees security against unreasonable 
searches and seizures; requires that warrants be particular and be 
issued only on probable cause supported by oath or affirmation.
    Amendment V (1791). Requires presentment to grand jury for infamous 
crimes; prohibits double jeopardy; prohibits compelled self-
incrimination; guarantees due process of law; requires that property be 
taken only for public use and that owner be justly compensated when 
taken.
    Amendment VI (1791). Guarantees right to speedy and public trial by 
impartial jury, compulsory process, and counsel in criminal 
prosecutions.
    Amendment VII (1791). Guarantees right to jury trial in suits at 
common law where value in controversy exceeds twenty dollars.
    Amendment VIII (1791). Prohibits excessive bail or fines; prohibits 
cruel and unusual punishment.
    Amendment IX (1791). Guarantees unenumerated rights which are 
retained by the people.
    Amendment X (1791). Reserves to the states or the people rights not 
delegated to the United States by the Constitution.
    Amendment XXVII (1992).\1\ Provides that no law changing 
compensation for members of Congress shall take effect until after next 
House election.
---------------------------------------------------------------------------
    \1\ Although this amendment was part of the original package sent 
to the states by the first Congress in 1791, it was not ratified until 
1992.
---------------------------------------------------------------------------

                     II. Reconstruction Amendments

    Amendment XIII (1865). Prohibits slavery; authorizes Congressional 
enforcement of Amendment's provisions.
    Amendment XIV (1868). Defines U.S. and state citizenship and 
prohibits state abridgment of privileges and immunities of U.S. 
citizens; guarantees due process of law and equal protection of law 
against state infringement; requires reduction of representation in 
Congress when right to vote infringed; prohibits public officers who 
participated in rebellion from holding public office; prohibits 
questioning of public debt; makes void any debt incurred in aid of 
rebellion against U.S.; authorizes Congressional enforcement of 
Amendment's provisions.
    Amendment XV (1870). Prohibits abridgment of the right to vote on 
account of race; authorizes Congressional enforcement of Amendment's 
provisions.

                         III. Other Amendments

A. Extensions of the Franchise
    Amendment XVII (1913). Provides for popular election of Senators.
    Amendment XIX (1920). Prohibits denial of right to vote on account 
of sex; authorizes Congressional enforcement of the Amendment's 
provisions.
    Amendment XXIII (1961). Grants right to vote in presidential 
elections to citizens of the District of Columbia; authorizes 
Congressional enforcement of the Amendment's provisions.
    Amendment XXIV (1964). Prohibits poll taxes for federal electiions; 
authorizes Congressional enforcement of the Amendments provisions.
    Amendment XXVI (1971). Prohibits denying right to vote on account 
of age to citizens over eighteen; authorizes Congressional enforcement 
of the Amendment's provisions.

    [Note: two reconstruction amendments also relate to the franchise:

    Amendment XIV (1868). Requires reduction in representation in 
Congress for states that deny the right to vote to male citizens over 
the age of twenty-one.
    Amendment XV (1870). Prohibits denying the right to vote on account 
of race, color, or previous condition of servitude.]
B. Regulation of Election and Tenure of President
    Amendment XII (1804). Provides for separate electoral college 
voting for President and Vice-President.
    Amendment XX (1933). Provides that presidential term ends on 
January 20; provides rules covering situations where President-elect or 
Vice President-elect dies before inauguration.
    Amendment XXII (1951). Prohibits President from serving more than 
two terms.
    Amendment XXV (1967). Provides that in case of removal or death of 
President, Vice President shall become President; provides mechanism 
for filling vacancies in office of Vice President; provides mechanism 
for dealing with Presidential disability.
C. Amendments Overruling Supreme Court Decisions
    Amendment XI (1798). Prohibits suits in U.S. courts against state 
by citizen of another state (overruling Chisholm v. Georgia, 2 U.S. (2 
Dall.) 419 (1793)).
    Amendment XVI (1913). Authorizes income tax (overruling Pollock v. 
Farmers Loan & Trust Co., 157 U.S. 429 (1895)).

    [Note: two other amendments, one a Reconstruction amendment and one 
dealing with the right of 18 year olds to vote--listed above under 
extending the franchise--also overruled Supreme Court decisions:

    Amendment XIV (1868). Grants U.S. citizenship to all persons born 
or naturalized in U.S. (overruling Dred Scott v. Sandford, 60 U.S. (19 
How.) 393 (1857)).
    Amendment XXVI (1971). Prohibits abridgment of right to vote on 
account of age for citizens who are eighteen and over (overruling 
Oregon v. Mitchell, 400 U.S. 112 (1971)).]
D. The Prohibition Amendments
    Amendment XVIII (1919). Establishes Prohibition; grants to Congress 
and the states concurrent power to enforce the Amendment's provisions.
    Amendment XXI (1933). Repeals Prohibition; prohibits importation of 
intoxicating liquors into a state in violation of the laws of that 
state.

   Prepared Statement of Debra A. Tall on Behalf of the Anne Arundel 
                   County, Maryland Police Department

    As the Program Director for a victim assistance unit in a police 
department for the past 16 years, I would like to urge you to pass 
Joint Resolution 3. While I am fortunate to be from the State of 
Maryland where we do have a State Constitutional Amendment for Victims' 
Rights, which a little over half of the states have at the present 
time, we still need a Federal Constitutional Amendment for victims' 
rights to give more coverage to victims who come under military Federal 
jurisdiction and other areas not covered by the State amendments. The 
basic rights listed for victims of crimes of violence are really mostly 
courtesies rather than rights. Anyone would want to be a part of public 
proceedings which pertain to them and their family. People should be 
able to submit a written or oral statement at the proceedings to reveal 
the impact and losses that they have endured as a result of the crime. 
Safety of the victim should be considered when an offender is released 
from or escapes from a placement. Restitution from the convicted 
offender should be ordered to repay the victim for his/her financial 
losses as a result of the offense.
    None of the fisted rights impose on the rights of the offender or 
accused. A federal amendment on victims' rights would ensure that all 
victims of violent crime would receive the same treatment and the same 
rights despite where the offense occurred and what jurisdiction it fell 
under. A federal amendment gives rights to victims in the states that 
have not passed state constitutional amendments on victims' rights and 
gives more assurance to the states who do have state amendments that 
action can be taken if the victims' lights are denied. No rightful 
conclusion, decision, or judgement can be reached in any matter without 
having all parties involved being able to express information about the 
effects of the offense or crime. Once everyone has provided the facts 
and impact of the crime, then a better decision can be made because 
more of a complete or total picture has been provided.
    Please strongly consider passing Joint Resolution 3.

      Prepared Statement of Laurence H. Tribe, Tyler Professor of 
         Constitutional Law, Harvard University Law School \1\
---------------------------------------------------------------------------

    \1\ For identification purposes only.
---------------------------------------------------------------------------
    I regret that I was unable to accept the invitation to testify in 
person at the hearing of March 24, 1999, on the proposed Victims' 
Rights Constitutional Amendment. Other commitments--including a final 
push to complete a quite massive book that constitutes the first of two 
volumes of my treatise, American Constitutional Law (3d. edition, 
1999), which I must get to the publisher by early April--limit me to 
making a brief written statement. As luck would have it, part of the 
volume that I am now completing (sections 1-18 through 1-21) deals with 
the topic of constitutional amendments--how they differ from changes in 
constitutional interpretation; when changes in interpretation, coupled 
with new legislation, are inherently insufficient; what processes must 
be followed in amending the Constitution; what to make of the 
suggestions by some scholars that the Constitution can be informally 
``amended'' outside the parameters of Article V; how to assess the 
suggestions of others that some properly ratified amendments may be 
substantivally unconstitutional; and what criteria should be used in 
evaluating the necessity and propriety of a proposed amendment. Because 
my expertise is focused primarily on this kind of issue, it seems 
appropriate to leave to others the detailed discussion of specific 
questions posed by the drafting of the Victims' Rights Amendment and to 
concentrate my own attention on the broader questions of whether this 
proposed amendment addresses a problem that cannot be satisfactorily 
resolved by anything less than a change in the text of the 
Constitution, and whether this proposed amendment is consistent with 
basic rights and principles elsewhere protected by the Constitution.
    Beginning with the premise that the Constitution should not be 
amended lightly and should never be amended to achieve short-term, 
partisan, or purely policy objectives, I would argue that a 
constitutional amendment is appropriate only when the goal involves (1) 
a needed change in government structure, or (2) a needed recognition of 
a basic human right, where (a) the right is one that people widely 
agree deserves serious and permanent respect, (b) the right is one that 
is insufficiently protected under existing law, (c) the right is one 
that cannot be adequately protected through purely, political action 
such as state or federal legislation and/or regulation, (d) the right 
is one whose inclusion in the U.S. Constitution would not distort or 
endanger basic principles of the separation of powers among the federal 
branches, the division of powers between the national and state 
governments, or the constitutional rights of the accused or other 
individuals, and (e) the right would be judicially enforceable without 
creating open-ended or otherwise unacceptable funding obligations.
    I believe that S.J. Res. 3 meets these criteria. The rights in 
question--rights of crime victims not to be victimized yet again 
through the processes by which government bodies and officials 2 
prosecute, punish, and/or release the accused or convicted offender--
are indisputably basic human rights against government, rights that any 
civilized system of justice would aspire to protect and strive never to 
violate. To protect these rights of victims does not entail 
constitutionalizing the rights of private citizens against other 
private citizens; for it is not the private citizen accused of crime by 
state or federal authorities who is the source of the violations that 
victims' rights advocates hope to address with a constitutional 
amendment in this area. Rather, it is the government authorities 
themselves, those who pursue (or release) the accused or convicted 
criminal with insufficient attention to the concerns of the victim, who 
are sometimes guilty of the kinds of violations that a properly drawn 
amendment would prohibit.
    Pursuing and punishing criminals makes little sense unless society 
does so in a manner that fully respects the rights of their victims to 
be accorded dignity and respect, to be treated fairly in all relevant 
proceedings, and to be assured a meaningful opportunity to observe, and 
take part in, all such proceedings. These are the very kinds of rights 
with which our Constitution is typically and properly concerned. 
Specifically, our Constitution's central concerns involve protecting 
the rights of individuals to participate in all those government 
processes that directly and immediately involve those individuals and 
affect their lives in some focused and particular way. Such rights 
include the right to vote on an equal basis whenever an issue is put to 
the electorate for resolution by voting; the right to be heard as a 
matter of procedural due process when government deprives one of life, 
liberty, or property; and various rights of the criminally accused to a 
speedy and public trial, with the assistance of counsel, and with 
various other participatory safeguards including the right to 
compulsory process and to confrontation of adverse witnesses. The 
parallel rights of victims to participate in these proceedings are no 
less basic, even though they find no parallel recognition in the 
explicit text of the U.S. Constitution.
    Because I will not be able to participate personally in the hearing 
scheduled for March 24, 1999, and will be closeted away between that 
time and mid-April finishing the book I have been writing, I thought I 
should take this opportunity to respond to what I believe are likely to 
be the basic objections to the proposed amendment from those law 
professors who do not share my views of this proposal. I suspect that 
those objections will be essentially the same as the objections set 
forth in the letter written by a group of law professors to Senator 
Orrin Hatch, Senator Joseph Biden, Congressman Henry Hyde, and 
Congressman John Conyers on April 4, 1997, attacking the proposed 
Victims' Rights Constitutional Amendment. Although I share many of the 
broad views set forth in the letter--including the views that the 
Constitution should not be amended without a strong need and that the 
constitutional rights of persons accused of crime should not be 
sacrificed in order to serve other values--I do not believe the letter 
makes a convincing case for its ultimate conclusions. The case for the 
proposed amendment need not rest on some nebulous notion that the 
playing field must be balanced as between criminal defendants and crime 
victims. It rests on the twin propositions (1) that victims have 
important human rights that can and should be guaranteed protection 
without endangering the genuine rights of those accused or convicted, 
but (2) that attempts to protect these rights of victims at the state 
level, or through congressional legislation, have proven insufficient 
(although helpful) in light of the concern--recurring even if 
misguided--that taking victims' rights seriously, even when state or 
federal statutes or state constitutions appear to require doing so, 
will somehow be unfair to the accused or to others even when no actual 
constitutional rights of the accused or of anyone else would be 
violated by respecting the rights of victims in the manner requested. 
The proposed amendment would, in essence, counteract this problem.
    Courts have sometimes recognized that the Constitution's failure to 
say anything explicit about the right of the victim or the victim's 
family to observe the trial of the accused should not be construed to 
deny the existence of such a right--provided, of course, that it can be 
respected consistent with the fair-trial rights of the accused. In 
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), for example--a 
case that I should confess I argued on behalf of the press--the 
plurality opinion, written by Chief Justice Burger, noted the way in 
which protecting the right of the press and the public to attend a 
criminal trial--even where, as in that case, the accused and the 
prosecution and the trial judge all preferred a closed proceeding--
serves to protect not only random members of the public but those with 
a more specific interest in observing, and right to observe--namely, 
the dead victim's close relatives. See 448 U.S. at 571 (``Civilized 
societies withdraw both from the victim and the vigilante the 
enforcement of criminal laws, but they cannot erase from people's 
consciousness the fundamental, natural yearning to see justice done--or 
even the urge for retribution.''). Although the Sixth Amendment right 
to a public trial was held inapplicable in Richmond Newspapers on the 
basis that the Sixth Amendment secures that right only to the accused, 
and although the First Amendment right to free speech was thought by 
some (see, e.g., 448 U.S. at 604-06 (Rehnquist, J., dissenting)) to 
have no direct bearing in the absence of anything like government 
censorship, the plurality took note of the Ninth Amendment, whose 
reminder that the Constitution's enumeration of explicit rights is not 
to be deemed exclusive furnished an additional ground for the Court's 
holding that the Constitution presupposed, even though it nowhere 
enumerated, a presumptive right of openness and participation in trial 
proceedings. See 448 U.S. at 579-80 & n.15 (``Madison's efforts, 
culminating in the Ninth Amendment, served to allay the fears of those 
who were concerned that expressing certain guarantees could be read as 
excluding others.'').
    I discuss Richmond Newspapers in some detail here because it 
illustrates so forcefully the way in which victims' rights to observe 
and to participate, subject only to such exclusions and regulations as 
are genuinely essential to the protection of the rights of the accused, 
may be trampled upon in the course of law enforcement simply out of a 
concern with administrative convenience or out of an unthinking 
assumption that, because the Constitution nowhere refers to the rights 
of victims in so many words, such rights may and perhaps even should be 
ignored or at least downgraded. The happy coincidence that the rights 
of the victims in the Richmond Newspapers case overlapped with the 
First Amendment rights of the press prevented the victims in that 
case--the relatives of a hotel manager who had been found stabbed to 
death--from being altogether ignored on that occasion. But many victims 
have no such luck, and there appears to be a considerable body of 
evidence showing that, even where statutory or regulatory or judge-made 
rules exist to protect the participatory rights of victims, such rights 
often tend to be honored in the breach, not on the entirely 
understandable basis of a particularized determination that affording 
the victim the specific right claimed would demonstrably violate some 
constitutional right of the accused or convicted offender, but on the 
very different basis of a barely-considered reflex that protecting a 
victim's rights would represent either a luxury we cannot afford or a 
compromise with an ignoble desire for vengeance.
    As long as we do so in a manner that respects the separation and 
division of powers and does not invite judges to interfere with law 
enforcement resource allocation decisions properly belonging to the 
political branches, we should not hesitate to make explicit in our 
Constitution the premise that I believe is implicit in that document 
but that is unlikely to receive full and effective recognition unless 
it is brought to the fore and chiseled in constitutional stone--the 
premise that the processes for enforcing state and federal criminal law 
must, to the extent possible, be conducted in a manner that respects 
not only the rights of those accused of having committed a crime but 
also the rights of those they are accused of having victimized.
    The fact that the States and Congress, within their respective 
jurisdictions, already have ample affirmative authority to enact rules 
protecting these rights is not a reason for opposing this amendment. 
For the problem with rules enacted in the absence of such a 
constitutional amendment is not that such rules, assuming they are 
enacted with care, would be struck down as falling outside the 
affirmative authority of the relevant jurisdiction. The problem, 
rather, is that such rules are likely, as experience to date sadly 
shows, to provide too little real protection whenever they come into 
conflict with bureaucratic habit, traditional indifference, sheer 
inertia, or any mention of an accused's rights regardless of whether 
those rights are genuinely threatened.
    Of course any new constitutional language in this area must be 
drafted so that the rights of victims will not become an excuse for 
running roughshod over the rights of the accused. This amendment has 
been written so that courts will retain ultimate responsibility for 
harmonizing, or balancing, the potentially conflicting rights of all 
participants in any given case. Assuring that this fine-tuning of 
conflicting rights remains a task for the judiciary is not too 
difficult. What is difficult, and perhaps impossible, is assuring that, 
under the existing system of rights and rules, the constitutional 
rights of victims--rights that the Framers of the Constitution 
undoubtedly assumed would receive fuller protection than has proven to 
be the case--will not instead receive short shrift.
    To redress this imbalance, and to do so without distorting the 
Constitution's essential design, it may well be necessary to add a 
corrective amendment on this subject. Doing so would neither extend the 
Constitution to a purely policy issue, nor provide special benefits to 
a particular interest group, nor use the heavy artillery of 
constitutional amendment where a less radical solution is available. 
Nor would it put the Constitution to a merely symbolic use, or enlist 
it for some narrow or partisan purpose. It would instead, help solve a 
distinct and significant gap in our existing legal system's 
arrangements for the protection of basic human rights against an 
important category of governmental abuse.

         Prepared Statement of David L. Voth on Behalf of the 
                         Crime Victim Services

    I believe the United States Constitution must be amended to protect 
the rights of victims of violent crime. Only a Constitutional provision 
can provide this nation the fundamental human right to be informed and 
involved through the justice process.
    The definition and implementation of ``justice'' in America must 
include crime victims. The Preamble to the Constitution introduces the 
principals of ``domestic tranquility,'' which was stolen from victims 
of violent crime, and the goal to ``establish justice,'' which 
generations later excludes victims. Our pledge of allegiance concludes 
with, ``* * * justice for all.'' However, no ``due process'' rights 
have been presumed for victims participation in our government 
controlled justice system because those rights have not been 
articulated in the Constitution. Crime victims often report they feel, 
``treated like the criminal.'' In reality, victims need to be treated 
with the same respect in our constitution as those accused or convicted 
of crime. Victims deserve to be accorded a meaningful role, neither 
ignored by the justice process nor in control of decisions.
    Without a Constitutional foundation there are inadequate grounds to 
correct violations of victims rights passed in the states, or to 
provide the same floor of rights across all states. Only the U.S. 
Constitution is the repository of our nation's core beliefs and 
protections. During the era of our Founding Fathers, a victim of 
violence could hire a prosecutor to initiate, prosecute and conclude a 
criminal case, The Constitution did not alter this arrangement which 
was an acknowledgment of the right of victims to participate, However, 
those earlier rights of victims have evaporated, and now must be 
reestablished with the wisdom that nearly 250 years of experience have 
taught our nation.
    The information, participation, and protection rights for victims 
of violent crime in the proposed constitutional amendment are critical 
to restoring victims, offenders, and the community to healthy, 
accountable, and fair relationships. Having worked with thousands of 
crime victims, I have found no reason that a stalking or domestic 
violence victim should not be informed their perpetrator has been 
arrested. I can conceive of no justification that family members of a 
murdered loved one need to be excluded from a trial to which 
constitutional guarantees exist for the accused, the public, and the 
media. I have found no variation of justice in human relations that 
alters my belief that offenders have an obligation to attempt repayment 
for victim losses, and that the safety of the accuser from the accused 
must be a consideration in determining the least restrictive control 
and best rehabilitation method for a defendant. Only harm can come to 
human relations and societal respect for public order when crime 
victims are not treated with fairness, dignity, and respect.
    I support the passage of the Senate Joint Resolution 3, The Victims 
Rights Constitutional Amendment in order that we might have a more 
perfect union.

  Prepared Statement of Jan Withers on Behalf of the Stephanie Roper 
              Foundation and Mothers Against Drunk Driving

    I have been active in the victims' movement since 1992, when our 
daughter was killed by a drunk driver. Like most law-abiding citizens, 
I believed that the American judicial system was in place to protect 
the rights of our citizens. I believed that the defendant's 
constitutional rights should be upheld. I still do. What came as a 
horrific shock, was that I had no constitutional rights in the criminal 
justice proceeding. The defendant pleaded guilty to vehicular 
manslaughter, with the sentencing scheduled for a later date. The 
defense attorney changed the sentencing date, we were not informed, and 
so we were not present. We were kept away from the most important 
proceeding of our lives relating to our daughter's brutal death. The 
defendant had a constitutional right to be present and to be heard at 
his own sentencing. I still adamantly support that. However, because 
there was no constitutional support of my rights--what I consider just 
basic rights--to be notified, to be present and to be heard--I was 
denied the choice to be at that hearing.
    I have subsequently listened to opponents of a federal 
constitutional amendment for victims' rights say that we must not 
tinker with the Constitution. I heard one legislator state two years 
ago, that there were over 100 proposed amendments that year. I believe 
that only where basic human rights of our American people are being 
denied--and those rights cannot be upheld by state laws or 
constitutions--should any amendment be considered. I submit to you that 
this is the case regarding a large population of American people--
innocent people who have been victims of criminal acts. We go to court 
believing that the judicial system will treat us fairly, with the same 
dignity and respect afforded the accused. We quickly feel revictimized, 
because we are treated as outsiders. This happens because there is no 
constitutional support of our rights.
    I was taken by a quotation of Franklin Roosevelt's engraved in 
stone at his memorial. It reads, ``We must scrupulously guard the civil 
rights and civil liberties of all citizens, whatever their background. 
We must remember that any oppression, any injustice, any hatred, is a 
wedge designed to attack our civilization.''
    Victims do not ask for rights protected by our Constitution of the 
United States at the expense of rights for the accused. This is not an 
``either-or'' issue. This is not a surprising new concept--to have 
equal rights in America.
    As a victim services provider for the past five years, I have 
accompanied hundreds of victims and their families to court 
proceedings. Today, in Maryland, we have strong statutes and a 
constitutional amendment supporting victims' rights, and still I watch 
those laws be overlooked and rights denied. Victims are vulnerable and 
fragile during these times, so even if they could afford to stand up 
and fight for their ``statutory rights'', they seldom have the stamina.
    I submit to you that if those statutes were upheld by the 
Constitution of the United States, there would be little, if any, 
disregard for victims' basic rights to be notified and present at the 
proceedings. Is that not treating them fairly, with the dignity and 
respect that our founding fathers intended when creating this sacred 
document? Furthermore, did they not foresee that they could not foresee 
all things, and that is why they were brilliant enough to allow for 
amendments? Without these important additions, I would not be able to 
voice my opinion at the polls as a woman, nor would my African American 
friends. Little did I know, however, that as a law-abiding citizen I 
would not be permitted to be present at the sentencing and to speak for 
my daughter, who's basic right to live had been stolen from her.
    I urge you to balance the scales of justice and support SJR 3, the 
proposed constitutional amendment for victims' rights. Allow all your 
citizens in the judicial setting to be afforded basic constitutional 
rights that were intended by our forefathers and is fundamental to our 
nation's integrity.

   Prepared Statement of Marlene A. Young on Behalf of the National 
                   Organization for Victim Assistance

    Chairman Hatch and Members of the Committee, I appreciate the 
opportunity to write on behalf of the National Organization for Victim 
Assistance to support Senate Joint Resolution 3, a proposed 
Constitutional amendment for victim rights.
    I am proud to do so as a representative of the 4,500 agencies and 
individuals from all across the United States who are our members, and 
the Board of Directors whom they have elected to serve as trustees of 
the victims' movement.
    Most of what follows is adapted from my April 28, 1988, testimony 
before the Committee on an identical bill. Obviously, our basic views 
on the issue have not changed, although this statement does reflect 
additional ideas that have developed over the past year.
                i. nova's place in the victims' movement
    Founded in 1975, NOVA is the oldest and most far-reaching organized 
champion of victim rights and services in what has become a worldwide 
movement to bring healing and justice to crime victims. Historically, 
those elected to our Board represent the true strength and diversity of 
the victims' movement in America:

   Among our past Presidents are two clergy members and 
        university professors, the Executive Director of the 
        International Association of Chiefs of Police, the founder and 
        operator of a battered women's shelter, the founder and 
        administrator of a rape crisis center, a state corrections 
        administrator, three elected prosecutors, a state victim 
        services administrator, and a county-based victim assistance 
        director.
   Of the current Board members, two are founders of the sexual 
        assault treatment programs in their counties, and another 
        founded her county's domestic violence program;
   Two have turned their own victimizations into a life of 
        activism in behalf of fellow survivors of a life-threatening 
        explosion and homicide, respectively;
   One is a noted pioneer in bringing crisis intervention 
        services to victims right at the crime scene;
   Several have been part of volunteer teams to bring such 
        skills to whole communities traumatized by crime--including 
        Oklahoma City and Jonesboro, Arkansas;
   One heads her state's crime victim compensation program, and 
        one administers his state's victim assistance grants program;
   A number are leaders in providing victim services within the 
        institutions of law enforcement, prosecution, and corrections;
   Several hold office within the justice system--in law 
        enforcement, prosecution, and the judiciary--where they work 
        for improved treatment of victims within their professions;
   Others do so within the mental health professions;
   One is a preeminent leader in improving the institutions of 
        justice--including justice for victims--in Indian Country;
   One is the author--literally--of his state's constitutional 
        amendment for victim rights.
   And a few, while retired from direct involvement with 
        victims, cannot and will not retire from the victims' movement.

    There is another measure of the diversity of NOVA's board: like the 
victims' movement it leads, our Board membership is a ``coalition of 
bleeding-heart conservatives and hard-nosed liberals,'' in the apt 
phrase of one of our past Presidents. This represents more than an 
ideological spectrum; it also describes the active engagement of many 
of them in electoral politics.
    I stress this point because our diverse and sophisticated Board was 
the first national organization in the victims' movement to endorse the 
adoption of a victim rights amendment to the U.S. Constitution, and in 
recent years has considered with great care the changes in the draft 
language that its lead sponsors have made. Twice it has acted on 
motions to treat these changes as an honorable, productive step forward 
in our quest to see victims obtain their Constitutional rights, and 
twice it has voted, without abstention or dissent, to support the 
leadership of Senators Kyl and Feinstein in moving us to our ultimate 
goal.
    I hope, Mr. Chairman, that the NOVA Board's unanimous endorsement 
of S. J. Res. 3 is treated with great weight by the United States 
Congress. I am honored to report that it is so treated by the victims' 
movement as a whole.
            ii. the victim's interest in seeing justice done
    Proud as I am to speak for an institution I admire, I am also 
privileged to be here to represent the millions of Americans who fall 
victim of crime each year. Like so many in this room, I too have known 
the fury, the terror, and the pain of victimization.
    I cannot tell you how stunned I was to enter my dream home in rural 
Oregon in 1980 to find it had been virtually wiped clean of all my 
belongings. Nor can I fully express my fear, two weeks later, when 
alone in my partly-refurbished house, I observed two people, one with a 
handgun in his pocket, go to the side of my house and hear them break 
the same basement window that the earlier burglars had used to gain 
entry. Though I quietly dialed the state law enforcement agency, I knew 
it might take them an hour or more to get to me, so I slipped outside 
and banged a ladder on the wall to scare the intruders away. I was 
successful in my efforts, but simply to recall that event brings back 
tremors to my body.
    I cannot convey the pain that my husband and his family endured, 
and I with them, after the partial, butchered remains of his cousin 
were discovered buried in her Indiana garden.
    I cannot fairly describe my rage at having my car broken into, not 
once or twice, but three times, and each time finding its stereo ripped 
out of it. It was, I should say, the first new car I had ever owned, a 
special possession. I often raise these three violations of my property 
in my training courses, always often remembering my pledge at the time 
to lead a nationwide campaign to seek the death penalty for car stereo 
thieves.
    That joke usually gets a chuckle. The outrage behind it was, and 
remains, no laughing matter.
    And I cannot express the horror, shame, and terror I experienced 
when a university professor I respected sexually assaulted me in his 
office. The police officer I approached just after I fled the building 
knew of no way to investigate this one-on-one crime--this was before 
there were DNA tests to identify the semen on my body--so he merely 
drove me home. When I later confronted my professor with his crime, he 
coldly told me my grades would suffer if I reported it to the 
university. I didn't, they didn't, and the next year, I chose to 
continue my studies 3,000 miles away.
    This is only the second time I have publicly referred to this 
crime--the first was at the 1979 hearings of the Victims Committee of 
the American Bar Association on witness intimidation--and I repeat it 
now not because the proposed amendment before you would have brought 
justice to my case. In truth, only one of the crimes my family and I 
have endured over the years ever resulted in an arrest and prosecution, 
and, in that case, we were very gratified with the treatment we 
received before and after the conviction of Robert Lee for the murder 
of Ellen Marks, my husband's cousin.
    I can report that some of the patrol officers I encountered after 
reporting the crimes against me treated me very well, and some very 
poorly. None of them, however, read me my rights--because I had none.
    That much will change when victims have the Constitutional right to 
be told of their Constitutional rights.
    My main purpose in reviewing my own distresses endured at the hand 
of criminals is to underscore as strongly as I can the alliance I feel 
with the thousands of crime victims I have come to know in my two 
decades of work in the victims' movement. Far too many of those friends 
and acquaintances have been made to feel contaminated, not vindicated, 
by the justice system. And I take personally the injustices inflicted 
on them. They are good people, all of them, who deserved better. They 
include:

   Sharon Christian, 20 years old, a young victim of rape who 
        reported the crime and whose offender was arrested. She was 
        doubly victimized when, two weeks later, she was walking down 
        the street in her neighborhood and saw the young man hanging 
        out on the corner. He had been released on personal 
        recognizance with no notice to her, and she had been given no 
        opportunity to ask for a restraining order or for the court to 
        consider the possibility of bond.
   Nancy Slaven Peters, mother and survivor of Cassie Slaven, 
        age 2\1/2\, when she was murdered by drowning in 1981 by two 
        boys, ages 6 and 10, in Greene County, Ohio. To this day she 
        has no idea what happened to the boys. As she said to me, ``For 
        all I know, they have raped and murdered others * * * but I 
        didn't get any information at the time and I haven't had any 
        since.''
   Roberta Roper, the extraordinary advocate who is now co-
        chair of the National Victims Constitutional Amendment Network, 
        and who has worked tirelessly for victim rights in Maryland and 
        across the nation. Among the many outrages in her case, she was 
        denied the right to sit in the courtroom at the trial of her 
        daughter's murderer because she might, by her presence, 
        influence the outcome.
   Virginia Bell, a retired civil servant, who was accosted and 
        robbed some five blocks from the U.S. Capitol, suffering a 
        broken hip. Her medical expenses were over $11,000 and the 
        resulting debilitation sent her to live with her daughter in 
        Texas. While her assailant pled guilty, she was not informed, 
        and the impact of her victimization was never heard by the 
        court. I know her anger when the judge did order restitution 
        but in the random, insulting amount of $387.
   Harley Wilson, a gentleman in his early sixties when he was 
        shot in the back by a robber of a convenience store. He was 
        there to buy powdered sugar for his wife's baking--in the wrong 
        place at the wrong time. The crime occurred before there was no 
        compensation or rights for victims in that state. The crime 
        cost him over $550,000 in medical expenses, his home, his 
        business, and his health. He and I have been friends over the 
        years, and I wept over his letter which said he was ready to 
        die because life was so hard.
   Ross and Betty Parks, parents of a murdered daughter Betsy. 
        The Parks waited seven years for a murder trial. As Betty Parks 
        explained, ``It was * * * six and one half years after Betsy 
        died when Gary Coleman was extradited from a prison in Georgia 
        to North Carolina and charged with her murder. For the next 
        fourteen months he was able to delay going to trial with motion 
        after motion--thirty-one of them at one point.''

    I have become friends with every one of these doubly-wronged 
victims of violent crime, and the kind of maltreatment they received 
has been repeated to me hundreds of times by victims I have met in my 
travels. The problems addressed by the resolution before you are 
painful, persistent, and pervasive.
               iii. the merits of the proposed amendment
    From the evening of April 13, 1985, to this day, there has been a 
nationwide coalition of victim advocates committed to the passage and 
ratification of a U.S. Constitutional rights for victims. In many 
respects, S. J. Res. 3 goes farther than the proposal we originally 
backed, that recommended by 1982 Presidential Task Force on Victims of 
Crime.
    In some respects, that coalition--the National Victims 
Constitutional Amendment Network (NVCAN)--is responsible for expanding 
the breadth of the earlier proposal. Our members held several retreats 
to examine anew the core values deemed worthy of constitutional 
protection, and we ended up going beyond our old formula of giving 
victims the right to be informed of, present, and heard at every 
critical proceeding. That more expansive list of values--including a 
right to know their rights, standing to assert them (at least 
prospectively), a right to know of one's offender's release or escape, 
to something like a speedy trial, to restitution, and to strong 
authority to craft legislation to enforce the rights--remains intact in 
Section 1 of the proposed amendment.
    One may say of the changes in the language after it came under the 
wise patronage of its Senate sponsors, after considerable consultation 
with representatives of the Justice Department, the criminal justice 
community, and others, that it is now infected with a ``rule of 
reason.'' So instead of a right to restitution, it offers a right to 
the order of restitution--the former a ``promise'' on which government 
could not guarantee delivery, the latter one it can. The right to 
notice is now required to be ``reasonable,'' a ``speedy trial'' becomes 
one ``without unreasonable delay.'' This is not the watering down of 
our handiwork, but the perfection of it, for at no time did we seek to 
be the agents of draconian, unintended consequences. The watch-word of 
all our campaigns for victims' rights is ``a voice, not a veto.'' And 
we are grateful to Senators Kyl and Feinstein for holding to that 
spirit of reasonableness in the recrafting of the resolution.
    We are also very supportive of the ``exceptions'' provision--
authorized to achieve ``a compelling interest''--so that, for example, 
the victim will not be notified of an inmate's release when that victim 
had been the primary abuser in a violent domestic relationship. True, 
Congress and the states will have act affirmatively to insure such an 
exception is put on the books, but we have no doubt that they will do 
so.
    Now, added to the reasonableness of the draft before you are two 
elements of pragmatism, both designed to reduce the disruptiveness of 
the new amendment upon ratification. One would limit the scope of 
coverage to victims of violent crime, and the other would expand the 
scope of actions for which victims could not get retrospective relief 
to include sentencing already rendered and pleas already accepted.
    As a basic policy matter, NOVA strongly preferred to leave these 
items out of the resolution. But at higher policy level--seeking the 
adoption of the rights we most care about, for the people we work for 
the most--we were completely persuaded that the additions greatly 
served that higher cause, and we embrace them--trusting to the proven 
good faith and legislative acumen of their principle proponent, Senator 
Joseph Biden.
    We thank him for his contributions--the medicine was hard to 
swallow, but now that it is digested, we feel far more optimistic about 
the prospects of achieving our mission.
    And we feel far less pessimistic about the consequences of the two 
revisions.
    First, as to the need to act statutorily to bring victim rights to 
property crime victims, that was already a requirement of the last 
version we supported. Furthermore, after Congress and the states enact 
statutes implementing the rights for violent crime victims, and the 
culture of our justice system grows accustomed to the new rules, it 
seems to us inevitable that legislators and justice officials who are 
now wary of too much change too fast will enthusiastically extend the 
same procedural decencies to the victims of theft, and fraud, and other 
property crimes--and this time, in a completely new Constitutional 
environment, the broadened statutes will be honored.
    Second, while judges reading just the words of the amended 
Constitution will have few opportunities to give retroactive redress to 
victims whose rights were violated, they will clearly have the 
authority to order those who commit such violations to never do so 
again. More, when they read the provisions of future implementing 
statutes, judges will be empowered to act more forcibly, even to 
correct past misdeeds. For again, in time, it seems to us certain that 
Congress and the states will devise remedies that buttress the rights 
we hope you will place in our charter of ordered liberty.
                          iv. justice for all
    I would like to conclude with some thoughts expressed by my 
husband, John Stein, some five years after he attended the trial of the 
man who killed his cousin, a trial in which his family asked him to 
speak for them at the sentencing hearing. Some of his concerns were 
written as follows:

          ``I am * * *''
          ``I am * * *''
          ``* * * somebody!''
          ``* * * somebody!''
          Anyone who has seen the Reverend Jesse Jackson preach his 
        interactive, secular sermons with African-American youth has 
        been witness to hand-to-hand combat with despair. If anyone 
        doubts that these young people feel themselves relegated to the 
        fetid backwaters of society, let that skeptic try to explain 
        the fervor with which they merely assert their human existence.
          The sense of alienation Reverend Jackson seeks to lift from 
        the shoulders of his young parishioners is one which millions 
        of crime victims have come to experience. Of all the losses 
        victims bear, perhaps none is more lasting or harmful to more 
        victims than the felt loss of autonomy, of control over their 
        lives, of connection to the social order.
          Crime victims have ample reason to feel a certain kinship 
        with racial minorities--particularly African-American youth of 
        the inner city--partly because of a shared sense of 
        powerlessness, and sometimes--often, in fact--they are African-
        American youth of the inner city. We often lament that they 
        have the highest arrest rates for violent crime among our 
        various subpopulations, but rarely remember that their 
        victimization rates are also the highest.
          Some people like me have a passion for victim rights because 
        they were fully accorded to me when I needed them--and they 
        made a positive difference in my family's reconstruction. But 
        the victim rights revolution is a spotty one. It is not 
        reaching everyone, whatever the laws on the books may say. 
        Those most likely to be left behind are lower income Americans 
        and racial minorities.
          These are the findings of extensive research conducted by the 
        National Victim Center (NVC) in four states, two with 
        relatively weak statutory protections for victims, two with 
        strong ones, backed up by state victim rights amendments. The 
        overall disparities between the two groups of states are 
        telling. Thus, for example, only 42 percent of the victims in 
        the ``weak'' states were informed of their right to submit a 
        victim impact statement at sentencing, whereas 75 percent of 
        the victims in ``strong'' were so informed. This suggests that 
        state constitutional amendments make a very significant 
        difference--but not big enough--not by a wide margin.
          And especially not to non-whites. Even the ``strong'' states 
        displayed weaknesses in honoring certain rights to minority 
        victims. While 80 percent of white victims whose offenders were 
        up for parole were told of their right to speak at the parole 
        hearing, only 41 percent of the non-white victims were so 
        informed. Sixty-three percent of white victims were informed of 
        a possible plea agreement; only 43 percent of non-whites were. 
        The figures for information about a suspect's bail release were 
        63 and 43 percent respectively.
          Not surprisingly, the levels of dissatisfaction with the 
        justice process had a pronounced racial characteristic, most 
        notably in the weak states, where only 38 percent of white 
        victims were dissatisfied with the opportunities to be heard at 
        pleas and dismissals, a rate that rose to 62 percent among 
        racial minorities. Comparable dissatisfaction rates over 
        sentencing were 48 and 70 percent respectively.
          We have long had a saying in the victims' movement: ``Justice 
        for all--even the victim.'' We are slowly achieving that ideal, 
        at least for people whose demographic characteristics match 
        mine. For those of us who care about all victims, especially 
        those most likely to become victims by virtue of their 
        demographics, our ``progress'' is bittersweet indeed.

    John's discouragement is felt by most of us in the victims' 
movement. As a nation, we will not provide equal protection of the 
law--at least, not of victim rights law--until we make its application 
an American birthright. Until that happens, it will not just be racial 
and economic minorities whose claims to be treated to dignity will be 
unheeded in the justice system, for we see the systemic indifference 
imposed on victims who are also people with disabilities, or who are 
elderly.
    So the resolution before you, when favorably acted on by the 
Congress and the states, will finally let every crime victim proclaim 
within the halls of justice, ``I am somebody.''
    Thank you for this opportunity to write to you in behalf of NOVA, 
of the victims it represents, and of justice.

Prepared Statement of Bruce Fein on Behalf of the Citizens for the Fair 
                          Treatment of Victims

    WASHINGTON--Saying it would offer crime victims theoretical rights 
rather than concrete assistance, a national coalition today urged the 
United States Senate to reject a so-called victims' rights amendment to 
the United States Constitution.
    The coalition, Citizens for Fair Treatment of Victims, said that 
the proposed amendment fails to meet the real needs of crime victims. 
It neglects concrete assistance--which can be secured by statute--such 
as victim-witness advocates, training for prosecutors and judges, 
funding for shelters, safe havens and counseling services that would 
more effectively improve the treatment of victims as they come in 
contact with the criminal justice system.
    ``Although we commend and share the desire to help crime victims, 
amending the Constitution to do so is both unnecessary and dangerous,'' 
said Bruce Fein, a constitutional scholar who served in the Justice 
Department during the Reagan Administration. ``Ultimately the amendment 
would likely be counter-productive, hindering effective prosecution and 
putting an enormous burden on state and federal law enforcement 
agencies.''
    Fein noted that more than 25 states have already amended their 
state constitutions to protect victims' rights and most of the others 
have adopted legislation to achieve the same result. ``Crime victims 
are not forgotten stepchildren in the political process,'' Fein added. 
``Indeed, they command virtually universal sympathy. In other words, 
crime victims occupy the political catbird seat; no amendment is 
necessary to rescue them from obscurity.''
    Fein underscored that the varied and evolving state approaches to 
victims' rights reflected federalism at its best, and was sympathetic 
to an array of recent congressional action restoring state options in 
areas from welfare and education reform to health care for the 
indigent. The proposed constitutional amendment would obstruct the 
state victims' rights learning process and ability to correct initial 
errors or misjudgments.
    Sue Osthoff, Executive Director of the National Clearinghouse for 
the Defense of Battered Women, said that the proposed amendment could 
actually harm battered women. ``All too frequently, women who have been 
battered and have not received protection from the police or legal 
system, are forced to resort to violence to defend their lives and 
those of their children,'' Osthoff said. ``Sadly, these women, who are 
victims, then become the accused. Under this amendment, their batterers 
could perversely gain new rights.''
    Citizens for Fair Treatment of Victims is a coalition of advocates 
for victims, women and scholars. Its members include the National 
Clearinghouse for the Defense of Battered Women, the National Coalition 
Against Sexual Assault, the National Network to End Domestic Violence, 
the Arizona Coalition Against Domestic Violence and the National 
Association for the Advancement of Colored People.
    Other groups that have spoken out against the proposed amendment 
include the National Sheriffs Association, the Federal Public and 
Community Defenders, NOW Legal Defense and Education Fund and more than 
450 law professors from around the country.
                               __________
                                                    March 10, 1999.
To: Senate Committee Hearings Concerning National Crime Victims Bill of 
Rights Amendment.

From: Helene Cantrell, Talisheek, LA.

    On September 8, 1996 my daughter, Rachel Prejean, was in labor and 
on her way to the hospital to deliver her baby when she was hit head on 
by a drunk driver. Sadly, my beautiful granddaughter, Abby Danielle, 
died and my daughter was severely injured. The drunk driver plea 
bargained his sentence and only served one year in the parish jail. He 
was released from jail in November 1998 the same month that Louisiana's 
crime victims bill of rights went into effect. After his release he 
applied for his driver's license to be reinstated. Thanks to our newly 
imposed bill, we were notified that he was to go before the judge to 
get his license back and were able to be in that court room to make 
sure he didn't. He withdrew the motion when he knew the judge was not 
going to give him back his license.
    We can not even begin to convey how we feel about this crime 
victims bill of rights. Had it not been for this, I'm quite sure he 
would have gotten his license back and we would not have even known. We 
feel it is very important for this crime victims bill of rights to 
become national so that every victim has the right to be informed and 
protected.
                               __________
                            Victim Services Advisory Board,
                             Montgomery County, MD, March 10, 1999.
Senator Barbara Mikulski,
U.S. Senate,
Washington, DC.
    Dear Senator Mikulski: The Montgomery County Victim Services 
Advisory Board (VSAB) commits itself to working with victims of every 
type of crime. Part of our Board's responsibility is to ensure the 
existence of victims' rights and fairness to victims.
    All Victims deserve to be present at trials and other judicial 
hearings involving their assailant and receive plea agreement 
notifications. Of course, family members should be included as victims 
in a case involving a homicide victim. Attendance at various types of 
judicial hearings has helped many victims with their recovery from a 
crime. In many cases, witnessing their assailant being sentenced gives 
victims a small amount of closure to their or their family member's 
tragic experience.
    While our legal system can't make the crime ``go away,'' the right 
to attend public proceedings relating to the crime and to be heard, if 
present, or be able to submit impact statements offer victims a sense 
of control after a crime experience that has rendered them powerless. 
Some victims may choose not to attend court proceedings but this should 
always be their option. After all, while the State is the legal victim, 
we must never forget that behind it are the real victims, the ones who 
are raped, robbed and murdered. They are the ones who suffer the 
emotional, physical and financial devastation because they become 
victims of crime. The State does not bleed or die, individual victims 
do!
    Foreseeing the positive impact that Joint Resolution 3 could have 
on the lives of victims, the Victim Services Advisory Board strongly 
support the proposed amendment to the Constitution of the United States 
to protect the rights of crime victims.
    Just as the rights of the criminals and defendants are protected by 
the Constitution, so must the rights of crime victims be also protected 
in the name of equal justice! The VSAB urges you to balance the scale 
of justice by passing Joint Resolution 3.
    We thank you for your concern about fairness to victims.
            Sincerely,
                                               Kay Cummins,
                                                    Co-Chair, VSAB.
                               __________
                                State of Wisconsin,
                      Governor's Council on Domestic Abuse,
                                       Madison, WI, March 11, 1999.
Representative Paul Ryan,
Longworth House Office Building,
Washington, DC.
    Dear Representative Ryan: The Governor's Council on Domestic Abuse 
supports Joint Resolution 3, which proposes an amendment to the 
Constitution of the United States to protect the rights of crime 
victims. A victims rights amendment will be an important starting point 
for greater rights for crime victims and for the empowerment of victims 
of domestic abuse. We believe that as more victims of domestic abuse 
are actively engaged in the criminal justice process, a stronger 
message will be sent to batterers that their violence will not be 
tolerated.
    We ask your support in securing the passage of this bill. Thank 
you.
            Sincerely,
                                   Senator Joanne Huelsman,
                                           Co-Chair.

                                   Eileen Connolly-Keesler,
                                           Co-Chair.
                               __________
                   Department of Health and Human Services,
                              Montgomery County, MD, March 8, 1999.
    Dear Senator Kyl: I am writing in support of SJR 3, The National 
Victims' Constitutional Amendment. I am the father of two girls who 
disappeared on March 25, 1975 from a shopping mall in Wheaton, 
Maryland. I now work as a victim assistant for Montgomery County, 
Maryland. Since the crime we have had no word on the whereabouts of the 
girls, Sheila and Kate. They were 12 and 10 at the time. As we approach 
the 24th anniversary of their disappearance, no more is known to us now 
than it was then. I realize that our situation is a bit unique from 
other crime survivors but working with victims brings it home everyday. 
Crime victims need insulation from a world that has gone wrong for 
them. If it takes protection in the form of legislation, all the 
better. Maryland passed the victims rights amendment a few years ago 
and now we are hearing from victims and survivors in the courtroom 
feeling better about having the opportunity to tell their story, being 
advised of hearings concerning their cases feeling that they are 
finally included, however slightly, in the judicial process. A small 
thing to ask when one has lost a loved one to a violent crime.
    I guess I could relate these feelings on behalf of my coworkers 
here at the Montgomery County Victim Assistance and Sexual Assault 
Program in Rockville, Maryland. I am just one voice however, as are 
you, but together perhaps we can form a chorus on behalf of victims 
across the county.
            Sincerely,
                                                 John Lyon,
                                                  Victim Assistant.
  National Clearinghouse for the Defense of Battered Women,
                                  Philadelphia, PA, March 22, 1999.

Hon. Orrin Hatch,                   Hon. Patrick Leahy,
Chairman, Judiciary Committee,      Ranking Member, Judiciary 
                                    Committee,
U.S. Senate,                        U.S. Senate,
Dirksen Senate Office Building,     Dirksen Senate Office Building,
Washington, DC.                     Washington, DC.

    Dear Chairman Hatch and Senator Leahy: Last year, the National 
Clearinghouse for the Defense of Battered Women sent in a position 
paper outlining our opposition to S.J. Res. 6, the proposed Victims' 
Rights Amendment to the United States Constitution.
    After reviewing S.J. Res. 3, the newly proposed amendment to the 
Constitution of the United States to protect the rights of crime 
victims, the National Clearinghouse for the Defense of Battered Women 
stands firm in our opposition. Although the proposed amendment 
addresses some of the issues we raised last year, we continue to have 
grave concerns about the new proposal and continue to oppose it.
    We have enclosed the position paper of the National Clearinghouse 
for the Defense of Battered Women opposing S.J. Res. 3. We believe that 
our arguments remain compelling and relevant to the newly proposed 
amendment.
    We would appreciate it if this paper could be placed in the hearing 
record.
    We look forward to assisting the Committee in its deliberations on 
this important subject.
            Sincerely,
                                               Sue Osthoff,
                                                          Director.
                                 ______
                                 

          Position Paper On Proposed Victims' Rights Amendment

                       introduction and overview
    The National Clearinghouse for the Defense of Battered Women 
strongly opposes the proposed Victims' Rights Amendment to the United 
States Constitution.\1\ Our opposition to the proposed amendment does 
not reflect a lack of support for, or empathy with, victims of crime. 
We, like the proponents of the amendment, are extremely disturbed by 
the way in which crime victims are treated by our criminal justice 
system. As an organization that assists battered women, we know only 
too well the paucity of services and supports afforded to victims, and 
we see firsthand the tragic consequences that result from society's and 
the criminal justice system's devaluing and misunderstanding of the 
experiences of victimization.
---------------------------------------------------------------------------
    \1\ Legislators have drafted numerous versions of the Amendment, 
the most recent of which (S.J. Res. 3) was introduced by Senators Kyl 
and Feinstein on January 19, 1999.
---------------------------------------------------------------------------
    The National Clearinghouse is a unique victims' advocacy 
organization; we assist battered women who, in response to their 
victimization, end up in conflict with the law. All too frequently, 
women who have been battered and have not received the protection of 
society's institutions, including the police and the legal system, 
resort to violence or other illegal acts to defend their lives and 
those of their children against on-going abuse. Sadly, these women, who 
are victims, then become the accused; they become defendants in 
criminal prosecutions. Our mission, since we opened our doors in 1987, 
has been to advocate for these victims of violence who continue to fill 
our nation's courtrooms as defendants and continue to fill our nation's 
prisons.
    The National Clearinghouse for the Defense of Battered Women 
opposes the amendment for the many reasons outlined below.

   Too many victims of domestic violence become the accused. We 
        work with battered women who, as a result of responding to the 
        abuse they experienced, are accused of a crime. Do these women 
        lose their ``victim'' status once they have defended their 
        lives and become defendants? And, once battered women defend 
        themselves against their abusers' violence, do these batterers 
        who terrorized and victimized their partners deserve the 
        exalted constitutional status as ``victims''? The Amendment 
        refers to victims and criminal defendants as though they were 
        mutually exclusive and designates someone a victim solely by 
        virtue of the fact that another person has been charged with a 
        crime. The basic error in this absolutist position--that the 
        defendant is the perpetrator and the complaining witness is the 
        victim--is revealed in the cases of battered women charged with 
        crimes. It would, for example, permit a husband who has 
        repeatedly beaten his wife to stand before a judge and object 
        to her release on bail, even when she is the only parent who 
        has cared for their minor children. Or, if the battered woman 
        ended up getting convicted of a crime against her batterer, the 
        Amendment would require her to pay restitution to her abuser 
        because he is considered the ``victim.''
   The federal constitution is the wrong place to try to 
        ``fix'' the complex problems facing victims of crimes; 
        statutory alternatives and state remedies are more suitable. 
        Our nation's constitution should not be amended unless there is 
        a compelling need to do so and there are no remedies available 
        at the state level. Instead of altering the US Constitution, we 
        urge policy makers to consider statutory alternatives and 
        statewide initiatives that would include the enforcement of 
        already existing statutes, and practices that can truly assist 
        victims of crimes, as well as increased direct services to 
        crime victims.
      Much of the impetus for the proposed amendment has been the 
        shameful realization that crime victims are often neglected, if 
        not ignored, in the criminal process. We understand and 
        sympathize with the fact that closure of the criminal case can 
        be an important component of healing for some victims of crime. 
        We fully believe that the victim of a crime should be kept 
        thoroughly apprised of all scheduling, hearings and 
        developments in the case, and that s/he should be provided the 
        right of access as long as it does not interfere with the 
        defendant's fair trial rights. We fully support prosecutors' 
        paying greater attention to, being more sensitive to, and more 
        respectful of the needs of their victims/witnesses, and, where 
        appropriate, we support the provision of advocates for victims.
      However, all of these things can and should be accomplished 
        within the present system, through legislation on the state 
        level or through federal statutes. The healing that may happen 
        when victims are heard, informed and respected during the 
        criminal legal process is extremely important. But, as we have 
        found in working with victims of domestic violence, the 
        criminal system is often a particularly poor forum in which to 
        try to solve the complex of social and other problems inherent 
        in victimization. Unfortunately, the grave injustices of being 
        victimized probably cannot be fully addressed or remedied in 
        the criminal justice system. We urge, instead, that additional 
        time, money and energy go into providing the support and 
        services that many victims of crime very much need and 
        certainly deserve.
   The proposed amendment's real benefit to crime victims is 
        speculative at best and, in fact, may end up hindering, rather 
        than helping, victims. It is entirely unclear how the proposed 
        amendment would increase basic courtesies and respect for 
        victims (particularly in light of the amendment's explicit 
        provision for governmental immunity from civil actions). In 
        addition, there are particular problems with the mandatory 
        restitution clause. By forcing restitution to a constitutional 
        level, restitution payments will be given priority over the 
        payment of federal fines. This will certainly end up seriously 
        undercutting payments to the Victims of Crime Act Fund (VOCA) 
        in cases where defendants lack the resources to fully satisfy 
        both. VOCA currently provides funds to more than 3,000 local 
        victims' services organizations, including many domestic 
        violence and sexual assault programs. If this Amendment passes 
        there will ironically be less money available for victims' 
        services.
   While the amendment promises much to victims, it provides 
        virtually no remedies for victims whose rights are violated. As 
        is inherently the case with federal constitutional amendments, 
        the proposed amendment is broadly worded and suggests many 
        rights without corresponding remedies (or methods for enforcing 
        these lights). In fact, the amendment specifically prevents 
        victims from receiving monetary damages.
   If passed, the enforcement of the amendment will divert 
        critically needed resources from already underfunded victim 
        assistance programs and from all key branches of the criminal 
        justice system. The National Clearinghouse is persuaded that 
        the constitutional financial mandate this amendment imposes 
        upon the states would require their already overburdened 
        governments to divert funds from agencies that provide 
        meaningful assistance to battered women, and that the 
        implementation of the amendment would create numerous 
        practical, administrative and financial burdens for courts, 
        prosecutors, law enforcement personnel, and corrections 
        officials. Congress has a responsibility to investigate 
        thoroughly the cost of the proposed amendment to the 50 states, 
        and the drastic shift in resources that would result if the 
        amendment were ratified. Congress has not undertaken this 
        analysis and the passage of the resolution before completion of 
        this analysis does a disservice to the public.
   This Amendment will not reduce the number of battered women 
        being charged with crimes. Some proponents of the Amendment 
        have been arguing that passage of the Amendment will reduce the 
        numbers of battered women who end up as defendants because, if 
        the Amendment were passed, battered women would be much more 
        likely to turn to the criminal justice system for assistance 
        before they get arrested. While we acknowledge that criminal 
        justice reform is essential in helping to reduce violence 
        against women and is a very effective tool for some battered 
        women, for others, however, it fails to offer any real 
        protection. We also know that many women will never turn to the 
        criminal justice system and will not do so even if the 
        Amendment were able to provide all the support and services it 
        promises to victims (which is highly unlikely). Unfortunately, 
        for many battered women, the first time the system ``pays 
        attention'' to them is when they enter it as defendants. The 
        same system that failed to protect them or couldn't seem to 
        find any resources to assist them before they get arrested, 
        suddenly finds all sorts of resources to prosecute them 
        vigorously. In fact, one of the unintended consequences of many 
        mandatory and pro-arrest policies has been a massive increase 
        in the numbers of battered women being arrested in many 
        communities. Until all women are safe, battered women will 
        continue to become defendants. This Amendment will not change 
        that reality.
   Defendants are facing loss of liberty and life at the hands 
        of the state, and their rights must not be eroded. Much has 
        been made of the need for this amendment in order to 
        ``balance'' the rights of victims with the fights of 
        defendants. We agree that, if the playing field were level and 
        the consequences of the ``imbalance'' equal, the goal of 
        ``balance'' would be a germane one. But such an argument is 
        completely inappropriate when talking about balancing the 
        rights of victims and the rights of defendants. In this 
        instance, the playing field is far from level; the power of the 
        state far outstrips that of the defendant and his or her 
        attorney, and the consequences at trial are dramatically 
        different for victims and defendants. For example, a defendant 
        may lose her liberty or even her life as result of the trial; 
        the harsh reality is that the victim has very little to lose as 
        a result of the trial--the victim's losses occurred long before 
        the trial. We understand that victims have experienced (often) 
        tragic consequences as a result of being victimized; and we 
        take their experiences and losses extremely seriously.
      We also understand that victims can gain a sense of control and a 
        host of other important psychological and emotional results 
        when they are kept informed, are actively listened to, and are 
        respected throughout the trial process. But the role of the 
        criminal justice system is to determine whether or not the 
        defendant committed the offense he or she is charged with, not 
        to restore the victim. We believe that victims should be 
        restored and should be informed, heard and respected throughout 
        the proceedings, but this cannot and should not be achieved by 
        eroding the rights of defendants.
   If passed, the Amendment is sure to wreak havoc on the Bill 
        of Rights, and will inevitably erode the basic constitutional 
        guarantees that are designed to protect all of us--including 
        victims of violence who are criminal defendants--from wrongful 
        convictions. There is no question that the primary constituents 
        of the National Clearinghouse--battered women who have been 
        victimized and then have become defendants--will be hurt by 
        this Amendment. For example, depriving the trial courts of 
        their historic authority to sequester witnesses--including 
        alleged victims--from the courtroom until they testify would 
        permit victim-witnesses to be influenced because they would 
        hear the testimony and cross-examination of other witnesses. As 
        a result, jurors will be far less likely to receive 
        independent, truthful testimony and the possibility of a fair, 
        reliable and just verdict will be diminished. In cases 
        involving battered women charged with crimes, the abuser and/or 
        his family become the ``victims;'' if not sequestered, they 
        would have the right to be present and heard at all stages of 
        the process. We know that batterers' families often collude in 
        keeping the violence secret for many reasons (denial, their own 
        experiences of abuse, d/or fear of retribution if they speak 
        out against the abuser). If passed, the Amendment would make it 
        possible for batterers and their families to listen to one 
        another's testimony and to tailor their own testimony so as to 
        avoid effective cross-examination when called as a witness. 
        Additionally, passage of the Amendment would make it much more 
        difficult for judges to limit testimony of ``victims'' at all 
        stages of the proceeding, even if their testimony is not 
        relevant or is so inflammatory that justice would be 
        undermined.
   Justice rushed is justice denied--for all, including victims 
        of crimes. The proposed Amendment says victims have the right 
        to ``a final disposition of the proceedings * * * free from 
        unreasonable delay.'' In our work at the National 
        Clearinghouse, we see the tragic results that occur when 
        attorneys rush to trial without proper investigation and 
        preparation. Many battered women are unable to discuss their 
        experiences of abuse candidly until they have established a 
        relationship of trust and confidence with their defense 
        counsel, a process which can take considerable time. The 
        amendment would allow batterers to force cases to trial before 
        the battered woman's attorney has adequately investigated or 
        prepared for the case, thereby substantially affecting reliable 
        determinations of guilt and creating an intolerable risk of 
        wrongful conviction.
   Victims should be restored and should be informed, heard and 
        respected throughout the proceedings, but this cannot and 
        should not be achieved by eroding the rights of defendants. All 
        of us who work within the criminal legal system and are 
        committed to justice need to be concerned about due process and 
        the fights of defendants. One of the purposes of the 
        constitution is to protect individuals from government abuses 
        and to preserve liberty, not to ``get a conviction at any 
        cost,'' or to provide victim advocacy. None of us who are 
        committed to justice (including many victims of crime) has an 
        interest in diluting rights intended to prevent wrongful 
        deprivation of liberty and unreliable determinations of guilt. 
        As victim advocates, we need to be in the forefront of 
        advocating for justice--which includes supporting the right of 
        defendants to get fair trials and this Amendment will erode 
        this light.
   The proposed amendment would radically alter and jeopardize 
        basic constitutional principles that protect us all. The 
        proposed amendment would mark a radical and unprecedented 
        change in our system of criminal justice and to the foundation 
        of our Bill of Rights, a change which would jeopardize those 
        rights and undermine the truth-seeking function of the criminal 
        justice process. Our system of justice is built on the concept 
        of public, rather than private, prosecutions. The accuser is 
        the government, not the aggrieved individual. The structural 
        integrity of our entire justice system depends on this 
        equation--between the accused and the government, not the 
        accused and the individual victim of crime.
      The very purpose of the Bill of Rights is to curtail the power of 
        the government against the rights of the accused. It arms the 
        accused with basic guarantees, such as the presumption of 
        innocence and the need of proof beyond a reasonable doubt. 
        These fundamental guarantees are necessary to ensure that the 
        government's power is not abused; that the innocent do not fall 
        prey to the weight and power of the government; and that only 
        the guilty are convicted.
      To elevate victim participation in the criminal process to the 
        level of a federal constitutional amendment would jeopardize 
        the critical balance between accuser and accused, as reflected 
        in the Bill of Rights, and threatens to diminish those rights. 
        None of us, including victims of crime, has an interest in 
        diluting rights intended to prevent wrongful deprivation of 
        liberty, and unreliable determinations of guilt.
   The criminal justice system does not overprotect; rather it 
        re-victimizes battered women defendants. Much support for the 
        proposed amendment is grounded on the assumption that criminal 
        defendants have too many rights, and that victims have none. 
        While we agree that victims should have greater support, 
        advocacy and respect, it is a fallacy that the criminal justice 
        system overprotects the rights of the defendants, especially 
        the rights of indigent defendants and defendants of color. On a 
        daily basis, we assist countless battered women defendants who 
        have been denied basic due process. We assist women who did not 
        receive fair trials and were wrongfully convicted because, for 
        example, their attorneys did not investigate, understand, or 
        properly present vital defense evidence. Many of these women 
        were denied funds for expert testimony that would have enabled 
        the jury to hear and understand the basis of their defense. 
        Thus, in our experience, the criminal justice system does not 
        overprotect; rather, it often re-victimizes battered women 
        defendants, as can be attested to by the thousands of 
        wrongfully convicted and incarcerated battered women defendants 
        who fill jails and prisons across this country.
                               conclusion
    In conclusion, the National Clearinghouse for the Defense of 
Battered Women agrees that crime victims have much to gain when they 
are kept informed, actively listened to, and respected throughout the 
adjudication of a criminal case, but passage of a Constitutional 
Amendment is the wrong way to achieve these goals. Enhanced victim 
participation in the justice system can be, and largely has been, made 
by statutory enactments at the state level. At the federal level, 
Congress has ample authority to enact new laws, as well as to expand 
and amend the laws it has already passed, to improve the treatment of 
crime victims without jeopardizing our cherished constitutional 
protections.
                               __________
                                           Victim Services,
                                      New York, NY, March 23, 1999.
Senator Orrin G. Hatch,
Chairman.
Senator Patrick Leahy,
Ranking Minority Member,
U.S. Senate Committee on the Judiciary,
Dirksen Senate Office Building,
Washington, DC.
    Dear Senators Hatch and Leahy: I write to set out Victim Services' 
opposition to S.J. Res. 3, which proposes a Constitutional amendment 
for victims' rights.
    Victim Services is the nation's largest victim assistance agency. 
Our mission is to heal the wounds of violence and prevent 
victimization. We started out in 1978 as a small project in the 
Criminal Court in Brooklyn, New York, helping to give victims a 
stronger voice and role in the criminal justice system. In the 20 years 
since then, we have pioneered victim assistance programs in criminal 
and civil courts, schools, police precincts, and communities throughout 
the City of New York and beyond. We also work on policy and legislative 
initiatives to expand victims' rights and choices through research and 
analysis that is also informed by experience with our clients.
    Victim Services assists over 200,000 clients each year. One of the 
core tasks of Victim Services' staff is to advocate for victims' 
meaningful participation in the criminal justice system. Every day, in 
our family and criminal court offices, in police programs, domestic 
violence legal services program, domestic violence shelters and 
community offices, our staff inform victims about their rights, support 
them with counseling and practical assistance, and intervene when 
necessary to ensure that their rights and choices are respected. The 
positions we take on policy and law are grounded in the lives of these 
victims. We listen to their voices and strive to advocate in ways that 
are meaningful to them. Thus, our opposition on S.J. Res. 3, outlined 
in the points set out below, is informed by the urban victims we serve 
who are, most often, poor people of color living in economically 
depressed neighborhoods who find it harder than others to effectively 
assert their rights.

   Victims rights are critical but not the same as defendants' 
        rights: It goes without saying that we believe participatory 
        rights for victims are essential. However, our clients' 
        experiences teach us that, although victims of violent crime 
        suffer in numerous and often devastating ways, unlike 
        defendants, they do not face the loss of fundamental rights or 
        liberty at the hand of the government. The risk of unwarranted 
        state power being used against the individual was historically, 
        and still is at the core of the constitutional safeguards for 
        criminal defendants. These remain essential protections in a 
        society where it is easy for someone to become a criminal 
        defendant, especially when, like many of our clients, they 
        suffer race, gender, and other forms of discrimination and are 
        voiceless and powerless. For them, above all, it is critical to 
        guard the rights of the accused.
   Constitutional rights of victims and defendants will 
        inevitably clash: Our concerns about S.J. Res. 3 are not 
        allayed by the argument that it merely accords victims equal 
        status with defendants. The proposed new Constitutional rights 
        have serious practical implications. For example, in York State 
        (as in other states) potential witnesses are routinely excluded 
        from the courtroom so that their testimony will not be tainted 
        by the testimony of other witnesses and thereby unfairly 
        prejudice the defendant. The proposed amendment creates a 
        victim's right not to be excluded from the proceedings. These 
        interests inevitably must conflict, and a judge faced with this 
        scenario would be forced to weigh a defendant's rights to a 
        fair trial against a victim's new Constitutional right not to 
        be excluded from the proceedings.
   Some domestic violence victims are especially at risk: We 
        are also concerned about the potential impact of S.J. Res. 3 on 
        domestic violence victims. Victim Services helps about 75,000 
        domestic violence victims each year, who provide compelling 
        examples of why we cannot support S.J. Res. 3. Batterers 
        frequently make false claims of criminal conduct against their 
        victims. This is yet another weapon in the batterer's arsenal, 
        and can result in an arrest even where a long, documented 
        history of abuse against the true victim exists. These cases 
        result in profound injustice; the victims are jailed, often 
        their children are removed from their care, and the victims 
        risks ending up with a criminal conviction. Nevertheless, under 
        S.J. Res. 3, it appears that the batterer would initially be 
        accorded ``victim'' status and benefit from all of the new 
        Constitutional rights. The same would be true in cases where 
        domestic violence victims strike back at their batterers in 
        self-defense.

    Proponents of the amendment state that the power to create 
exceptions to the new rights in section 3 of S.J. Res. 3 would protect 
domestic violence victims in the domestic violence scenarios to which 
we refer. However, it remains totally unclear how these exceptions 
would be made, by whom, and according to what criteria. Numerous 
questions arise. Does the provision allow or require the creation of 
exceptions? At what point in the trial process would there be a ruling 
about this? How and when would domestic violence victims assert their 
status? Would they be able to do so without compromising their Fifth 
Amendment rights? What evidence would be sufficient to persuade a court 
that the defendant is a victim of domestic violence--particularly if 
there are no police records or orders of protection, as is often the 
case. These unanswered questions illustrate the difficulty of knowing, 
from the brief, general wording of S.J. Res. 3, whether the proposed 
rights would be meaningful and practicable or whether they would result 
in harm to some victims.
    In conclusion, S.J. Res. 3 may be well intentioned, but good 
intentions do not guarantee just results. Victim Services remains 
wholeheartedly committed to advancing the interests and addressing the 
needs of victims. We believe much progress has been made in New York 
and other states, and that information about the implementation of 
victims' rights has only recently begun to emerge. Federal intervention 
is usually reserved for situations where the states need to be pulled 
along--but almost everywhere legislative frameworks of rights now exist 
and 33 states have passed state constitutional amendments. We have 
difficulty justifying the extensive resources needed to pass a 
Constitutional amendment when so much remains to be done in terms of 
enforcing existing victims' rights and providing the vital support 
services victims deserve. We believe that the amendment would at best 
be merely symbolic, at worst harmful to some of the most vulnerable 
victims, and meaningless for the majority of victims whose cases are 
not prosecuted.
    Thank you for considering the concerns expressed in this letter and 
the points previously raised in our letter to you of June 9, 1998.
            Sincerely,
                                        Gordon J. Campbell,
                                                Executive Director.
                               __________
                 National Network to End Domestic Violence,
                                    Washington, DC, March 23, 1999.
Hon. Orrin Hatch,
Chairman, Judiciary Committee,
U.S. Senate,
Dirksen Office Building,
Washington, DC.
    Dear Chairman Hatch: I write to apprise you of our continued 
opposition to the proposed constitutional amendment to protect the 
rights of crime victims. After careful review and consideration of S.J. 
Res. 6, we find that despite some minor changes since the 105th 
Congress our concerns with this proposed constitutional amendment have 
not changed.
    The National Network to End Domestic Violence is a membership 
organization of state domestic violence coalitions from around the 
country, representing nearly 2,000 domestic violence programs 
nationwide. As you may be aware, many of our member coalitions and 
programs have supported the various state constitutional amendments and 
statutory enactments similar to the proposed federal constitutional 
amendment. And yet, we view the proposed federal constitutional 
amendment as a different proposition, both in kind and in process.
    For a victim of domestic violence, the prospect of participating in 
a protracted criminal proceeding against an abusive husband or father 
of her children is difficult enough without the added burden of an 
unforgiving system. Prosecutors, police, judges, prison officials and 
others in the criminal justice system may not understand her fear, may 
not have provided for her safety, and may be unwilling to hear fully 
the story of the violence she's experienced and the potential impact on 
the impending criminal proceeding, sentencing and release of the 
defendant. Each of these potential failures in the system underscore 
the need for the criminal justice system to pay closer attention to the 
needs of victims. Unfortunately, S.J. Res. 6 promises much for victims, 
but guarantees little on which victims can count to address these 
practicalities.
    Let me outline some of our concerns.
    First, if a constitutional right is to mean anything at all, it 
must be enforceable fully by those whose rights are violated. The 
proposed amendment expressly precludes any such enforcement rights 
during a proceeding or against any of those who are charged with 
securing the constitutional rights. The lack of such an enforcement 
mechanism is a fatal flaw--a mere gift at the leisure of federal, state 
and local authorities.
    Second, the majority of the existing similar state statutes and 
constitutional amendments have been on the books fewer than 10 years. 
Thus, given our very limited experience with their implementation, it 
will be many years before we have sufficient knowledge to craft a 
federal amendment that will maintain the delicate balance of 
constitutional rights that ensure fairness in our judicial process. 
Without benefiting from the state experience, we run the risk of 
harming victims. We must explore adequately the effectiveness of such 
laws and the nuances of the various provisions before changing the 
federal constitution. State constitutions are different--they are more 
fluid, more amenable to adjustments if we need to ``fix'' things. A 
change in the federal constitution would allow no such flexibility, 
thus potentially harming victims by leaving no way to turn back.
    And, lastly preserving constitutional protections for defendants, 
ultimately protects victims. This is especially true for domestic 
violence victims. The distinctions between defendant and victim are 
sometimes blurred by circumstance. For a battered woman who finds 
herself thrust into the criminal justice system for defending herself 
or having been coerced into crime by her abuser, a justice system that 
fairly guarantees rights for a defendant may be the only protection she 
has. Her ultimate safety may be jeopardized in a system of inadequate 
or uneven protections for criminal defendants, as is likely with the 
enactment of S.J. Res. 6.
    Chairman Hatch, these are concerns that compel us to exercise 
restraint before proceeding with a constitutional amendment. As you 
know, in this country each year, too many fall victim to violent crime. 
These crimes cause death and bodily injury, leaving countless victims--
women, men, boys and girls--to pick up the pieces. Tragically, the 
criminal justice system is less a partner and more an obstacle to the 
crime victim's ability to attain justice. A constitutional amendment is 
not the answer for this problem. But, improving policies, practices, 
procedures and training in the system would help tremendously.
    Like you, we are committed to ensuring safety for domestic violence 
victims through strong criminal justice system enforcement and critical 
services for victims. However, the resources that must be invested into 
the process of passing such an amendment and getting it ratified by the 
states could be better invested in training and education of our 
judiciary, prosecutors, police, parole boards and others who encounter 
victims and in changing the regulations and procedures that most 
adversely impact victims. For those of us working in the field of 
domestic violence, we know the harm that can be caused directly to 
victims when policies are pushed without some experience to know 
whether they will work. And, while this may seem an inconsequential 
concern, for a battered woman whose safety may be jeopardized by such 
swift but uncertain action, the difference may be her life.
    Please understand that our opposition to S.J. Res. 6 is not 
opposition to working through the traditional legislative channels to 
deliberate these issues and to support legislative changes that will 
allow us to explore various ways in which we can provide victims the 
voice they deserve in the criminal justice system.
    Thank you for your consideration. If you have additional questions, 
please do not hesitate to be in touch with me at 202-543-5566. We have 
appreciated your leadership on issues concerning domestic violence over 
the years and look forward to continuing to work with you.
            Sincerely,
                                          Donna F. Edwards,
                                                Executive Director.
                               __________
                             Duke University School of Law,
                                        Durham, NC, March 23, 1999.
Senator Patrick J. Leahy,
Senate Judiciary Committee,
Dirksen Senate Office Building.
    Dear Senator Leahy: I appreciated the opportunity to testify before 
the Judiciary Committee in April 1998 in opposition to the proposed 
Victims' Rights Amendment. During the past year, I have examined the 
assertions of supporters of the proposed Victims' Rights Amendment that 
it is necessary to protect the legitimate interests of victims against 
what is sometimes called ``trumping'' by the constitutional rights of 
defendants. I conclude that those claims are clearly unfounded.
    My research will be published later this year in the Utah Law 
Review in a symposium on victims' rights. I have prepared a somewhat 
more succinct version for consideration by the Judiciary Committee as 
it examines the proposed amendment further. I ask that this essay be 
made a part of the record on this amendment.
    Because the proposed amendment is unnecessary, I hope that the 
Judiciary Committee will not support it. Amending the Constitution is 
too momentous an event to take unless such action is required. 
Moreover, if the amendment were to be approved, I fervently hope it 
will be modified by adding the provision offered by Senator Durbin last 
year that ``Nothing in this article shall be construed to deny or 
diminish the rights of an accused as guaranteed by this Constitution.''
            Sincerely,
                                       Robert P. Mosteller,
                                                  Professor of Law.
                                 ______
                                 

  The Unnecessary Victims' Rights Amendment: \1\ Professor Robert P. 
                 Mosteller, Duke University Law School

    Those who advocate amending the United States Constitution should 
bear the burden of persuasion and must be able to justify their 
proposed amendment as necessary. Amending the United States 
Constitution is simply too momentous for any other standard to apply. 
After studying the claims of proponents, I conclude that the proposed 
Victims' Rights Amendment is not necessary, and therefore its 
proponents have failed to make their case.
---------------------------------------------------------------------------
    \1\ A more detailed version of this essay with be published in 1999 
Utah L. Rev.
---------------------------------------------------------------------------
    Proponents make two basic types of claims. First, they argue that, 
regardless of the existence or nonexistence of defendants' rights, 
governmental officials ignore victims' rights found in federal or state 
statutes and state constitutional provisions.\2\ Second, the 
Amendment's backers claim that either through the actual operation of 
defendants' constitutional rights or excessive deference to defendants' 
constitutional claims, victims are denied their established rights 
under statutory law and state constitutional provisions.\3\ They 
sometimes make a third argument, which I want to deal with quickly. It 
is that national uniformity is required with respect to a fundamental 
set of victims, rights.\4\ If absolute, formal uniformity is demanded, 
the argument for a constitutional amendment is valid to that extent. 
However, if some degree of variation is acceptable, then federal 
legislation setting standards for state legislation, buttressed by 
federal financial incentives would serve as an effective way to 
accomplish a type of ``flexible uniformity.'' As demonstrated by 
``Megan's Law'' on community notification, that mechanism can operate 
very effectively and could successfully encourage states to adopt a 
detailed group of victims' rights as well.\5\ Indeed, specific aid and 
guidance in implementing rights is likely more important to their full 
enjoyment than is uniform national recognition of a minimal set of 
rights.\6\
---------------------------------------------------------------------------
    \2\ See Laurence H. Tribe & Paul G. Cassell, Embed the Rights of 
Victims in the Constitution, LA Times, July 6, 1998, at B5.
    \3\ National Victims Constitutional Amendment Network (NVCAN), 
Background Kit, p. 9 (April 1998) .
    \4\ See Paul G. Cassell & Steven J, Twist, Rule of Law: A Bill of 
Rights for Crime Victims, Wall St. J., Apr. 24, 1996, at A15.
    \5\ See 42 U.S.C. Sec. 14071 (1996) & 62 Fed. Reg. 39,009 (1997) 
(DOJ implementation guidelines).
    \6\ In their Op/Ed piece, Professors Tribe and Cassell cite a 
recent study that ``victims' rights are more frequently denied to 
racial minorities and presumably other disfavored groups who are unable 
to assert their interests effectively. Only an unequivocal 
constitutional mandate will translate paper promises into real 
guarantees for all victims.'' Tribe & Cassell, supra note 2, at B1. 
Surely Tribe and Cassell cannot be arguing that when the issue is 
unequal protection of minorities as to state guaranteed rights, which 
is the issue examined in the study, the problem is the lack of 
constitutional protection. Protection against such racial 
discrimination is already explicitly in the Equal Protection Clause of 
the Fourteenth Amendment.
---------------------------------------------------------------------------
    Uniformity is not required or, for that matter, even preferred when 
it comes to establishing a set of victims' rights. Our collective 
thinking on the precise definition of victims' rights is in its 
infancy, and we are hardly ready to embed a set of largely unchangeable 
rights into the Constitution. Rather, patience is particularly 
appropriate because of the extraordinary political popularity of 
victims' rights, which will ensure that the issue will not be ignored.
         a. the asserted need to cure ``official indifference''
    No governmental bureaucracy operates perfectly, and the criminal 
justice system is hardly an exception. Given this context, it is 
preordained that existing victims' rights are not uniformly enforced, 
This is the result in substantial part of various institutional 
failures that may collectively be termed ``official indifference.''
    In a recent commentary, conservative constitutional scholar Bruce 
Fein discussed this official indifference to victims' rights, noting 
that a federal constitutional right both is unnecessary and would 
provide no guarantee of effectiveness:

          * * * Nothing in the Constitution or in any Supreme Court 
        precedent inhibits the enactment of state or federal laws that 
        protect crime victims. Indeed, victims rights legislation is a 
        staple of contemporary political life and seems destined to 
        remain so. The beneficiaries command virtual universal 
        sympathy, a fail-safe formula for legislative success. Crime 
        victims need no constitutional protection from political 
        overreaching.
          It is said by amendment proponents, however, that state 
        judges and prosecutors often short-change the scores of 
        existing victims' rights statutes. If so, they would equally be 
        inclined to flout the amendment. The judicial oath is no less 
        violated in the first case as in the second.\7\
---------------------------------------------------------------------------
    \7\ Bruce Fein, Deforming the Constitution, Wash. Times, July 6, 
1998, at A14.

Feins argument is simple and compelling. Enacting a federal 
constitutional amendment will not cure the failures by judges and 
prosecutors to follow existing laws. Indeed, if such ``bureaucrats'' 
are willing to ignore the requirements of existing, binding law that 
they have sworn to uphold, adding another layer of law supporting the 
same right has no necessary impact.
    Significantly, the vast majority of the provisions in the proposed 
Victims' Rights Amendment fall into this category of correcting 
official indifference. Their enforcement does not conflict with any 
constitutional right of defendants, and therefore, violations occur as 
a consequence of governmental officials' either purposefully or 
inadvertently ignoring their existing legal obligations. The right to 
notice of all proceedings unequivocally falls into this category, as 
does the right of notice of release or escape of the defendant. 
Similarly, the right to be present and to be heard at many types of 
proceedings, such as hearings to determine conditional release from 
custody, acceptance of a negotiated plea, and parole can also receive 
protection either by demanding compliance by state officials with 
established laws or by passing such laws and promulgating appropriate 
administrative procedures, The problem with enforcing these victims' 
rights does not and cannot result from judicial protection of 
defendants' constitutional rights because such rights are nonexistent 
in these areas. Finally, as a matter of legal entitlement, the right to 
restitution may be granted as fully and effectively by statutory or 
state constitutional right as it can be by federal constitutional 
right, and the defendant convicted of an unlawful act against the 
victim has no basis for constitutional challenge to such an order.
    Of course, one cannot know whether enshrining the right in a 
federal constitutional amendment would cause judges and prosecutors to 
take their oaths more seriously. Perhaps, but the impact is almost 
entirely speculative, The necessity of giving the additional dignity to 
these rights that a federal constitutional provision would entail is 
particularly questionable given the extraordinary popularity of 
victims' rights provisions. Normal political processes will, with time, 
effectively punish those administrative officials and even judges, many 
of whom are elected, who ignore the popular mandate to give victims 
greater notice and voice in the process.
    Moreover, the existence of constitutional rights will not 
automatically eliminate official indifference to specific individual 
rights. A recent ABC news report described how thousands of people 
arrested in New York City between 1996 and 1997 for minor offenses, 
such as driving with a suspended license or selling sneakers on the 
street without a vender's permit, were subjected to strip searches that 
federal courts had previously ruled illegal under the Fourth and 
Fourteenth Amendments to the Constitution.\8\ The existence of a 
federal constitutional right did not prevent this huge ``bureaucratic 
snafu,'' which is likely to cost the city millions of dollars.
---------------------------------------------------------------------------
    \8\ See John Miller & Peter Jennings, A Closer Look: Why People 
Were Strip Searched for Minor Crimes, World News Tonight, April 23, 
1998.
---------------------------------------------------------------------------
    This official indifference to the Fourth Amendment rights of 
arrested suspects serves as a good point of departure for evaluating 
the impact of enacting a constitutional amendment for victims. While I 
have used the term ``official indifference'' to describe the failure of 
officials to enforce fully existing victims' rights, that term is 
perhaps too negative in characterizing motivation, Most officials are 
not disdainful of victims or their rights, as is sometimes the case in 
the highly contentious and occasionally combative relationship between 
defendants and those in law enforcement. Indeed, malevolence, or even 
true indifference towards victims' rights is largely unknown. Instead, 
I believe that officials fail to honor victims' rights largely as a 
result of inertia, past learning, insensitivity to the unfamiliar needs 
of victims, lack of training, and inadequate or misdirected 
institutional incentives. However, the most important reason that 
existing victims' rights are not more fully enforced is the lack of 
resources and personnel needed to accomplish this new and additional 
set of tasks.
    Since non-recognition of victims' rights results from the system's 
inability to find the time and personnel necessary to notify, consult, 
and protect, this problem can be overcome by greater resources in most 
instances and by administrative sanctions for failure to comply in 
those rarer cases that approach actual indifference. A commitment of 
resources and administrative will surely will exert a major impact in 
making victims' rights a reality for large numbers of victims; enacting 
a federal constitutional amendment, a largely symbolic act with respect 
to enforcing existing rights, is of speculative value by comparison. 
The proposed constitutional amendment's lack of direct effectiveness is 
particularly clear because the Amendment prohibits damage awards for 
violations of its provisions,\9\ though damages are even available for 
violations of the Fourth Amendment rights of citizens, such as the 
improper strip searches cited earlier.
---------------------------------------------------------------------------
    \9\ See S.J. Res. 3 (1999) at Sec. 2 (stating that ``[n]othing in 
this article shall give rise to or authorize the creation of a claim 
for damages against the United State, a State, a political subdivision, 
or a public officer or employee'').
---------------------------------------------------------------------------
    Although the amendment is not necessary to achieve enforcement of 
victims' participatory rights, such as notice and opportunity to be 
heard, I want to acknowledge that a federal constitutional amendment 
could operate as a helpful mechanism for enforcing victims' rights 
against public officials through federal class action litigation that I 
doubt many of its political supporters would endorse. Damage actions 
are barred by Senate Joint Resolution 3, but suits for declaratory and 
injunctive relief are not. Class actions to enforce participatory 
rights against states also appear available. The Minority Report on 
Senate Joint Resolution 3 indicates that, in response to inquiry, the 
Justice Department acknowledged that federal court orders against 
states, like those in prison reform litigation, would be possible.\10\ 
Indeed, this ``specter of extensive lower federal court surveillance of 
the day to day operations of state law enforcement operations'' has led 
the Conference of Chief Justices to oppose the Amendment.\11\
---------------------------------------------------------------------------
    \10\ See Minority Views of Senators Leahy, Kennedy and Kohl, S. 
Rep. No. 105-409, 105th Cong., 2d Sess. 70 (1998); Minority Views of 
Senator Thompson, S. Rep. No. 105-409, 105th Cong., 2d Sess. 49 (1998).
    \11\ Letter by Joseph R. Weisberger, Chief Justice of the Rhode 
Island Supreme Court and Chairperson of the Task Force on Victim Rights 
of the Conference of Chief Justices to Senator Orrin Hatch on Senate 
Joint Resolution 6, May 16, 1997, at 1-2.
---------------------------------------------------------------------------
    One may imagine various scenarios for how the Victims' Rights 
Amendment, if enacted, might affect activities in the federal and state 
courts. The prospect of the lower federal courts' closely 
superintending the operations of state law enforcement to ensure that 
victims' rights are protected is one that might trouble traditional 
conservatives most. Nevertheless, federal supervision of state criminal 
proceedings is clearly a possible consequence of adopting the proposed 
amendment. Enforcing the Amendment in this fashion likely would have a 
substantial impact upon the effectiveness of victims' rights, but that 
fact does not make enacting the Amendment necessary to effective 
enforcement. Because of the political popularity of victims' rights, 
alternatives are available that less harshly impact federalism 
concerns. By contrast, such alternatives are generally unavailable to 
protect the rights of the politically unpopular.
  b. arguments that the amendment is required to counter defendants' 
 rights that allegedly trump victims' rights or to eliminate excessive 
              judicial deference to defendants' interests
    The second argument advanced by the Amendment's supporters centers 
on the courts' treatment of defendants' rights and takes two forms: 
first, that a federal constitutional provision is required to eliminate 
the ability of defendants to trump legislation and state constitutional 
provisions through invocation of federal constitutional provisions; 
second that the Amendment will eliminate the current excessive judicial 
deference to those constitutional provisions protecting defendants' 
rights. Here, I challenge the factual premise. I assert that victims' 
rights simply have not been thwarted by defendants' claiming 
constitutional protection. If a federal constitutional provision is 
required, those who support it should bear a burden of proof, not 
conjecture, that the problem of defendant ``trumping'' is 
real. However, they cannot produce the evidence.\12\
---------------------------------------------------------------------------
    \12\ In an Op/Ed piece, Professors Tribe and Cassell quote from a 
report ``that today `large numbers of victims are being denied their 
legal rights.' '' Tribe & Cassell, supra note 2, at B1. However, the 
National Victim Center Report that they cite does not show that 
defendants' rights prevented victims' rights from being enjoyed. All 
violations identified result from failures of officials to comply with 
legal requirements. In some instances, the legal structure in the 
states chosen did not even permit a testing of the possibility that 
defendants' constitutional rights were trumping victims' statutory 
rights. In the important area of the right to attend trial, the laws on 
witness sequestration in three of the four states involved in the study 
did not have a specific provision covering victims, and in the fourth 
state, a victim/witness was to be sequestered until after he or she 
testified as the first witness. There is no indication that judges 
failed to comply with the letter of the existing established law 
because of a valid claim by the defendant of constitutional rights or 
excessive deference to an invalid claim. Thus, the claim is only that 
state officials failed to enforce fully provisions in the law according 
to the reports of victims. See National Victim Center, Statutory and 
Constitutional Protection of Victims' Rights: Implementation and Impact 
on Crime Victims 88 (1996).
---------------------------------------------------------------------------
    Let us look at four rights--to be notified, to be present, to be 
heard, and to receive restitution--and ask for the evidence that a 
constitutional provision is required. The first of these rights can be 
eliminated from the search. No one can argue that anything in the 
federal constitution protecting defendants inhibits the right of notice 
regarding any public criminal proceeding. Enforcement of three rights--
to be present, to be heard, and to receive restitution--are thus of 
interest.
    As to these three rights, I shall examine two related but distinct 
types of cases: (1) the reversing of a conviction under the federal 
constitution because a victim had exercised a state or federal right 
and (2) the invalidation of a victims' right under the federal 
constitution without an impact upon a criminal conviction. The first 
task, which one would assume should be easy for the Amendment's 
supporters, is to find ANY currently valid appellate opinion reversing 
a defendant's conviction because of enforcement of a provision of state 
or federal law or state constitution that granted a right to a victim. 
I have challenged supporters of the amendment to produce such a case, 
but they have failed to produce even one.\13\ Obviously, the type of 
significant body of law that would warrant the remedy of a 
constitutional amendment simply does not exist.\14\ Moreover, the 
Amendment's supporters cannot claim that defendants or prosecutors 
would not be motivated or equipped to litigate these cases at the 
appellate level. If the cases cannot be found, and they cannot, the 
reason must be because they do not exist. No failure of motivation or 
explanation that the cases occurred but were not reported would 
logically explain their absence.
---------------------------------------------------------------------------
    \13\ The challenge was issued before I attended a symposium on 
victims' rights organized by Professor Cassell. Other conference 
participants included Steve Twist, member of the Executive Committee of 
the National Victims Constitutional Amendment Network, Professor 
Douglas Beloff, author of a new textbook on victims, and Professor 
William Pizzi, Also, in connection with the 1998 Senate hearings, 
Senator Leahy asked Professor Cassell to provide the appellate cases of 
which he was aware in which defendants successfully overturned their 
convictions based on the victim's presence in the courtroom or other 
state or federal victims' rights provision. Professor Cassell deferred 
response until the completion of a treatise on the subject with 
Professor Beloof and referred the Senator to a collection of cases by 
the National Victim Center. See Questions for the Record from Senator 
Leahy for the Hearing on S.J. Res. 44 on April 28, 1999, at 3. The 
National Victim Center listing contains no cases in this category or 
the one discussed below involving cases where victims' rights, rather 
than defendants' convictions, are ``trumped'' by federal constitutional 
provisions. The challenge was unanswered.
    \14\ The closest case I can find in any of the writings of 
Professor Cassell or the case listings by the National Victim Center/
NVCAN to one that reverses a criminal conviction based on action 
enforcing a victim's right is State v. Guzek, 906 P.2d 272 (Or. 1991). 
In Guzek, a defendant's conviction was reversed because a citizen 
initiative was passed that permitted victim impact evidence to be 
introduced but no change was made in the death penalty statute. The 
state supreme court found the evidence irrelevant and reversed. 
However, the error is not one of federal constitutional stature. 
Indeed, State v. Moore, 827 P.2d 1073 (Or. 1996) decided the next year 
stated that a change in the statute rendered Guzek irrelevant. State v. 
Muhammad, 678 A.2d 164 (N.J. 1996) and Noel v. State, 960 S.W.2d 439 
(Ark. 1998) both recognize that Guzek is a product of the nature of the 
state's own construction of its death penalty statute, not of federal 
constitutional law. The Majority Report on Senate Joint Resolution 44 
indicates that enacting the amendment would not change the Guzek result 
but would leave determinations of relevancy of victim impact evidence 
to state determination. See S. Rep. No. 105-409, 105th Cong., 2d Sess. 
29-30 (1998).
---------------------------------------------------------------------------
    The second category for inquiry consists of cases where no 
conviction was reversed but instead where the victim's statutory or 
state constitutional right to a protection was ruled invalid because of 
a defendant's federal constitutional right. I challenged amendment 
supporters to produce cases in this category and received only one, 
State ex rel. Romley v. Superior Court.\15\
---------------------------------------------------------------------------
    \15\ 836 P.2d 445 (Ariz. Ct. App. 1992).
---------------------------------------------------------------------------
    Romley fits the bill in one sense, but is beside the point in 
another. It fits in that a state constitutional right of victims--here 
Arizona's far-reaching right of victims to be free of discovery by the 
defense--was rendered ineffectively by a federal constitutional 
provision--the due process right to present a defense. However, the 
case is inapposite in that the proposed federal Victims' Right 
Amendment apparently would not affect the results, because in its 
present formulation, the Amendment does not protect victims against 
discovery or release of confidential information.\16\
---------------------------------------------------------------------------
    \16\ The 1995 proposal by the National Victims Constitutional 
Amendment Network contained a right of victims ``to be free from 
unwarranted release of confidential information.'' William T. Pizzi & 
Walter Perron, Crime Victims in German Courtrooms: A Comparative 
Perspective on American Problems, 32 Stanford J. Int. L. 37, 39 (1996). 
That provision did not make its way into S.J. Res. 3.
---------------------------------------------------------------------------
    More significantly, Romley presents one of the most powerful 
arguments against an aggressive form of the victims' rights movement, 
which I label its ``Prosecutorial Benefit/Defendant Damage'' 
dimension.\17\ Romley appears to involve a classic case of a battering 
relationship in which the female spouse uses violence against her 
abusive spouse and is labeled, perhaps erroneously, the defendant. As 
the case recites:
---------------------------------------------------------------------------
    \17\ See Robert P. Mosteller, Victims' Rights and the Constitution: 
Moving from Guaranteeing Participatory Rights to Benefiting the 
Prosecution, 29 St. Mary's L.J. 1053 (1998). Perhaps the more 
appropriate term is ``Defendant Damage'' rather than ``Prosecutorial 
Benefit'' because the changes appear more directed at harming 
defendants' interests than at necessarily benefiting the prosecution.

        The defendant, not the victim, made the ``911'' call to the 
        police at the time of the alleged incident, asking for help. * 
        * * She requested help, according to the transcript of the 
        call, because her husband was beating her and threatening her 
        with a knife. When the police arrived at the home, they found 
        the husband (victim) bleeding from a stomach wound allegedly 
        inflicted by the wife (defendant) with a knife. A police report 
        reveals that the victim has been arrested three times for 
        assaulting the defendant and was convicted in Florida in 1989 
        for assaulting the victim.
        The defendant alleges that the stabbing of her husband was not 
        an unjustifiable attack but an act of self-defense, The 
        defendant claims that she has been the victim of horrendous 
        emotional and physical abuse by her husband during their 
        marriage; that the victim is a mental patient with a multiple 
        personality disorder who, on the date of the alleged aggravated 
        assault, was manifesting one of his violent personalities, a 
        personality who was resisting ``integration'' during treatment 
        by his psychiatrist and a Christian pastor.\18\
---------------------------------------------------------------------------
    \18\ 836 P.2d. at 450.

    What the ``defendant'' sought but what the Arizona Victims' Rights 
Amendment protected was the psychiatric records that could have aided 
her in establishing the truth of her defense. As the Supreme Court of 
Arizona stated in ruling, that federal due process right required 
---------------------------------------------------------------------------
production of the records:

        [The Victim's Bill of Rights] should not be a sword in the 
        hands of victims to thwart a defendant's ability to effectively 
        present a legitimate defense. Nor should the amendment be a 
        fortress behind which prosecutors may isolate themselves from 
        their constitutional duty to afford a criminal defendant a fair 
        trial.

    Romley constitutes the only clear case where the federal 
Constitution ``trumped'' a state victims' right provision. If enactment 
of the proposed Victims' Rights Amendment were to change that result, 
it would constitute a very strong argument against, rather than in 
favor of, enactment. A domestic violence case like Romley shows the 
danger of using the label of victims' rights to deny procedural 
protections important to determining guilt. Here the identity of the 
true victim is profoundly uncertain, and a provision is dangerous and 
unwise that presumes conclusively that the person initially labeled as 
the victim by the prosecution is entitled to protections that would 
help alter outcomes.
    The National Victims Constitutional Amendment Network (NVCAN) 
asserts that the defendant's constitutional right to a fair trial has 
been used to deny victims the right to be present.\19\ This result is 
clearly possible under our present constitutional scheme. The right to 
a fair trial guaranteed under the federal Constitution might be denied 
by a victim's presence. Therefore, a judge would be correct in 
excluding a victim/witness from some part of the trial where that 
result would occur. How frequently does that conflict arise? I believe 
Professor Cassell correctly noted several years ago that ``[s]uch an 
argument seems unlikely in all but the most extreme circumstances.'' 
\20\
---------------------------------------------------------------------------
    \19\ See NVCAN, supra note 3, at 9.
    \20\ Paul G. Cassell, Balancing the Scales of Justice: The Case for 
and the Effect of Utah's Victims' Rights Amendment, 1994 Utah L. Rev. 
1373, 1393.
---------------------------------------------------------------------------
    By allowing the exclusion of witnesses from the courtroom during 
the testimony of others, sequestration rules aim to keep witnesses from 
purposefully or unconsciously shaping their testimony to that of the 
earlier witnesses. Such rules are of ancient and venerable origin.\21\ 
A jurisdiction may, however, decide that allowing victims who are also 
witnesses to be present throughout the proceedings is of greater value 
than the threat of tainting the victim/witness' testimony. To minimize 
the degree to which victims will be excluded, the first step a state 
should take is to make crystal clear that it considers the interests of 
victims in attending all aspects of judicial proceedings to outweigh 
the potential taint to the testimony of victims who are also witnesses. 
This decision is most effectively accomplished through a positive 
statement in the law governing the sequestration of witnesses, 
typically codified in Rule 615 of the jurisdiction's rules of evidence, 
that victims may not be excluded from the courtroom under the rule. A 
number of states have taken this action and excepted victims as a class 
from their sequestration rules.\22\
---------------------------------------------------------------------------
    \21\ Wigmore traces the origin of the rule to the story of Susanna 
in the Apocrypha. See 6 Wigmore, Evidence Sec. 1837 (Chadbourn rev. 
1976). Two elders, who coveted Susanna but were rebuffed by her, 
falsely accused her of adultery with a young man whom they claim 
overpowered them and fled. Those assembled believed the accusation and 
were ready to punish Susanna, but Daniel asked first to examine the two 
accusers separately. They had claimed to have seen Susanna committing 
adultery in the garden. As each came to be examined, Daniel asked where 
in the garden had Susanna and the young man committed the adulterous 
act. The first answered under one tree, but when the other was brought 
in, he testified it happened under an entirely different tree. At that 
point those assembled saw that the accusers had lied and rose against 
them. Id.
    \22\ See Ala. R. Evid. 615(4) (victim or representative of victim 
who cannot attend exempt); Ariz. R. Evid. 615(4) (victim exempt); Ark. 
R. Evid. 616 (adult victim and guardian of minor victim exempt); Or. 
Rev. Stat. Sec. 40.385 (1995) (victim exempt); N.H. R. Evid. 615(1) 
(victim exempt). Other states exempt victims but not through a blanket 
provision. See Fla. Stat. Ann. Sec. 90.616(d) (West Supp. 1998) 
(victim, victim's next of kin, parent or guardian of minor child 
victim, of lawful representative exempt from exclusion ``unless, upon 
motion, the court determines such person's presence to be 
prejudicial''); Okla. Stat Ann. tit. 12 Sec. 2615(5) (West Supp. 1997-
98) (victim, representative, or parent exempt ``upon the motion of the 
state to bar such exclusion, unless the court finds such exclusion to 
be in the interest of justice''); Utah R. Evid. 615(1)(d) (exempting 
adult victims of crime ``where the prosecutor agrees with the victim's 
presence''). Still other states forbid exclusion of the victim/witness 
after giving testimony. See La. Code Evid. art. 615(A)(4) Mich. Comp. 
Laws Ann. Sec. 708.761; Wash. Rev. Code Ann. Sec. 7.69.030(11). 
Presumably, enactment of the Victims' Rights Amendment would render 
unconstitutional all the provisions except those that grant victims a 
blanket exclusion from sequestration.
---------------------------------------------------------------------------
    As one should reasonably expect, these evidentiary provisions have 
effectively allowed victims to sit in the courtroom throughout the 
proceeding. These provisions work because sequestration is generally a 
matter of statutory or common law.\23\ I have found one case, Martinez 
v. State,\24\ that may qualify as limiting victim access allowed under 
a specific rule based on constitutional principles, albeit state rather 
than federal constitutional principles.\25\ In Martinez, the defendant 
challenged the trial court's decision to permit the victim to remain in 
the courtroom during opening statement. The state supreme court ruled 
that, because the facts of the case were hotly disputed, the trial 
judge should have excluded the victim from the opening statement, the 
only part of the trial that the victim would have missed. However, the 
court found that the error was harmless, and thus affirmed the 
conviction.\26\
---------------------------------------------------------------------------
    \23\ The opinion of the Arkansas Supreme Court in Stephens v. 
State, 720 S.W.2d 301 (Ark. 1986) appears sensible and gives an example 
of when reversal might be required under federal constitutional 
principles.

      Inasmuch as the rule permitting the exclusion of witnesses 
      originated with the legislature, we can conceive of no 
      reason why the rule cannot be modified in the same manner, 
      or by court rule if need be. We can suppose that there 
      would be circumstances when the victim's presence 
      throughout the trial could be seen as putting the fairness 
      of the trial in jeopardy, as occurred in Commonwealth v. 
---------------------------------------------------------------------------
      Lavelle, 277 Pa. Super. 518, 419 A.2d 1269 (1980).

    In Lavelle, a failure to sequester witnesses upon defense request 
resulted in a reversal. The record did not reveal whether the witnesses 
had ever identified the defendant through pretrial identification 
procedures. Nevertheless, these witnesses identified the defendant, who 
was in the courtroom throughout, after they had heard police officers 
testify that he was the perpetrator and had been photographed in the 
bank where the crime occurred, and after some witnesses had heard other 
bank tellers identity the defendant. See Lavelle, 419 A.2d 1269, 1273-
74 (1980). Those facts present the type of situation where our system 
of laws should require the sequestration of victims who are 
eyewitnesses. This is one of the rare cases where the defendant's 
constitutional right to a fair trial could and should overcome alleged 
victims' participatory rights interest in being present.
    \24\ 664 So. 2d 1034 (Fla. 1996).
    \25\ The court found the failure to sequester the witness during 
opening statement violated the state rather than the federal 
constitution, relying on Article 1, Sec. 16(b) of the Florida 
Constitution, which gives victims the right to be present ``to the 
extent that these rights do not interfere with the constitutional 
rights of the accused.'' Id. at 1035. See also Gore v. State, 599 So. 
2d 978, 985-86 (Fla. 1992).
    \26\ See Martinez, 664 So. 2d at 1036.
---------------------------------------------------------------------------
    The more typical result is reflected by the experience in Utah 
where, as judged by reported opinions and anecdotal evidence at the 
trial court level,\27\ the rule has been uniformly effective in 
allowing victims to remain in the courtroom throughout the proceeding. 
For example, in State v. Beltran-Felix,\28\ the Utah Court of Appeals 
upheld its version of Rule 615 against constitutional challenge, even 
when the victim appeared as the last witness in the state's case, which 
is significant because the danger that sequestration rules seek to 
avoid only grows the later the witness appears in the trial.\29\
---------------------------------------------------------------------------
    \27\ I can find no evidence that any trial court in Utah has 
violated the rule and excluded a victim from the courtroom. I have 
repeatedly asserted this claim to Professor Cassell, and he has given 
no indication that he is aware a violation has occurred since the rule 
became effective.
    \28\ 922 P.2d 30 (Utah Ct. App. 1996).
    \29\ See id. at 33-35. See also State v. Cosey, 873 P.2d 1177, 1181 
(Utah Ct. App. 1994) (upholding victim's presence without reaching 
constitutional issue); State v. Rangel, 866 P.2d 607, 610-12 (Utah Ct. 
App. 1993) (same).
---------------------------------------------------------------------------
    In the face of these substantial successes of statutory or rule 
provisions, Professor Cassell and NVCAN declare, not victory, but 
defe4at. Referring to Beltran-Felix, NVCAN notes that ``[a]lthough the 
Court of Appeals agreed with the trial court that the victim properly 
attended the trial in this case, it pointedly refused to hold clearly 
that victims always have such rights.'' \30\ Professor Cassell 
characterizes the non-absolute decision as
---------------------------------------------------------------------------
    \30\ NVCAN, supra note 3, at 17. The reference is to Beltran-Felix, 
supra, 922 P.2d at 35 n.6.

        an intolerable burden on crime victims through in future cases 
        [who] * * * will now have to decide whether to exercise their 
        right to attend a trial at the expense of giving the defendant 
        an issue to raise on appeal and to possibly even overturn his 
        conviction. * * *
          * * * The only way to clearly end this dilemma for crime 
        victims is through a federal constitutional amendment.\31\
---------------------------------------------------------------------------
    \31\ A Proposed Constitutional Amendment to Protect Victims of 
Crime: Hearings on S.J. Res. 6 Before the Senate Comm. On the 
Judiciary, 105th Cong. 115 (1997) (prepared statement of Paul G. 
Cassell, Professor, University of Utah Law School). Since the Utah Rule 
615 was modified to allow victims to be present, there is no reported 
opinion in which a court found exclusion required under the 
Constitution. Nevertheless, the possibility that such exclusion would 
occur in the interest of a fair trial is in Professor Cassell's 
judgment intolerable. On the other hand, Utah Rule 615 explicitly 
authorizes the prosecutor to exclude the victim without providing 
justification, which he finds ``a largely theoretical point'' because 
he is ``unaware of any Utah prosecutor seeking to use this authority to 
exclude a victim from attending a proceeding that a victim wished to 
attend.'' Professor Cassell's 1998 Answers, supra note 13, at 3. In an 
earlier article, he defended giving prosecutors the power to deny 
victims the opportunity to be present ``because effective prosecution 
is good for victims.'' Cassell, supra note 20, at 1393. Apparently, 
neither type of exclusion has ever occurred under Utah's present rule. 
I suggest that, with regard to the victim's interest of the victim in 
being present at trial, the possible exclusion by the court to ensure a 
fair trial should be no more intolerable than the possible exclusion by 
the prosecutor to assist with a successful prosecution.

    Professor Cassell also argues that Judge Matsch's treatment of 
victims in the Oklahoma City Bombing Case demonstrates the need for a 
constitutional amendment protecting victims.\32\ The record. however, 
does not support the claim. While Judge Matsch's rulings imposed 
burdens and some uncertainties on the victims in their efforts both to 
attend the proceedings and to offer victim impact statements, three 
points are significant. First, the case does not show that a clear 
statutory entitlement to be present is ineffective. Federal Rule 615, 
in effect at the time of the trial, called for exclusion of witnesses 
upon motion of either party, and unlike a number of states made no 
exception for victims.\33\ Although those opposing the ruling argued 
that authority of the court to exclude victims under Rule 615 was 
eliminated by 42 U.S.C. Sec. 10606(b)(4), that latter provision is 
qualified. It permits victims to be present ``unless the court 
determines that testimony by the victim would be materially affected if 
the victim heard other testimony at trial.\34\ Second, the case 
demonstrates the enormous political power of victims. Twice, while the 
McVeigh case was pending, Congress passed legislation to aid victims to 
attend and view the trial. The ability of victims to secure their 
interests through popular political action could not be clearer.\35\ 
Finally, the court did not ultimately bar any victim who wanted to 
attend the trial from doing so because they were subsequently to be a 
witness, and victims who attended the trial were not prevented from 
testifying as a result of their attendance. Although the court ruled 
that attending the trial might result in exclusion if attending the 
trial was found to affect testimony,\36\ upon holding a hearing, the 
court ruled that the victims who witnessed the trial had not been 
affected and could testify.\37\
---------------------------------------------------------------------------
    \32\ See Professor Cassell's 1997 Statement, supra note 31, at 105-
13.
    \33\ An amendment to Federal Rule 615 that took effect December 1, 
1998 makes explicit that it is to yield to contrary statutory 
authorization, but the change does not create a clear statutory right 
for victims to attend trials. That amendment provides in exception to 
sequestration for ``a person authorized by statute to be present.'' The 
Committee Note to the proposed amendment states: ``The amendment is in 
response to (1) the Victim's Rights and Restitution Act of 1990, 42 
U.S.C. Sec. 10606, which guarantees, within certain limits, the right 
of a crime victim to attend the trial, and (2) the Victim Rights 
Clarification Act of 1997 (18 U.S.C. Sec. 3510)'' (emphasis added).

    Given that the Senate Judiciary Committee is proposing to amend the 
United States Constitution to grant an unfettered right of victims not 
to be excluded, it is remarkable that the Committee did not propose to 
grant that right in federal cases through rule. Could the reason that 
this obvious action was not taken be that enacting the rule might have 
proved effective and undercut the argument that an amendment was 
necessary?
    \34\ 42 U.S.C. Sec. 10606(b)(4). A panel of the Tenth Circuit 
agreed that through this language, ``[i]n essence, the statute 
acknowledges that the policies behind Rule 615 inherently limit the 
victim's right to attend criminal proceedings.'' United States v. 
McVeigh, 106 F.3d 325, 335 (10th Cir. 1996).
    \35\ See Chris Casteel, Law Sets Bomb Victims, Families Free to 
Testify, View Trials, Daily Oklahoman, Mar. 20, 1997, at 15; Jeffrey 
Toobin, Victim Power, The New Yorker, Mar. 24, 1997 at 40, 40-43.
    \36\ See United States McVeigh, No. 96-CR-69-M, 1997 WL 136343 at 
*2-*3 (D. Colo. Mar. 25, 1997 (order amending order under Rule 615) 
(reversing decision to exclude victim impact witnesses from trial but 
in order not to delay trial for litigation of constitutional issues 
raised by newly passed legislation, judge reserved for later individual 
determination whether victim impact witnesses who saw trial were 
prejudicially affected by it).
    \37\ See Penny Owen & Nolan Clay, Judge Questions Victims, Allows 
Four to Testify, Daily Oklahoman, June 5, 1997, at 12 (describing 
judge's rulings to permit victims who witnessed trial to give impact 
evidence).
---------------------------------------------------------------------------
    Perhaps more importantly, the conduct of Judge Matsch and the 
events of the Oklahoma City Bombing Trial simply do not support the 
basic position argued by Cassell that victims were denied their proper 
role. The bombing killed and injured hundreds, but it was also an act 
of domestic terrorism against America. Direct victims had an interest 
in participating, which was honored. As every observer of the trial 
knows, their voice was heard clearly and powerfully both during the 
trial of McVeigh and at his sentencing. For the country, the critical 
issue was whether justice was done under extraordinarily difficult 
circumstances of intense media scrutiny and great emotional tension. 
Judge Matsch performed admirably, if not perfectly, as be balanced his 
duties toward all interests, including society, his judicial duty to 
enforce the laws and the Constitution, and his prudential 
responsibility to avoid needless error.\38\ He gave us all an 
expeditious, orderly, and fair trial. To cite this trial as a failure 
of justice for victims or as a clear illustration of the mistreatment 
of victims is both objectively unreasonable and, I believe, contrary to 
the experience of the American public, who shared with more direct 
victims and survivors a personal stake in the trial, its outcome, and 
its fairness.
---------------------------------------------------------------------------
    \38\ Professor Cassell unfairly criticizes Judge Matsch for failing 
to rule immediately that the Victims Rights Clarification Act, of 1997 
was constitutional, requiring victims to ``make a painful decision.'' 
Cassell, 1997 Statement supra note 31, at 111. A fair examination of 
the record shows that Matsch was reasonably trying to do justice and 
succeeded. See United States McVeigh, No. 96-CR-68-M, 1997 WL 136343 
(D. Colo. Mar. 25, 1997).
    As stated by Judge Matsch in his order, applying the new 
legislation to the McVeigh trial would have raised a novel but 
substantial constitutional issue, not from the Bill of Rights, but 
regarding separation of powers. The issue would have been raised by 
applying a new act of Congress to a specific on-going criminal case, 
Judge Match noting that this constitutional argument was raised in the 
House of Representatives debate. See id. at *2. See also 143 Cong. Rec. 
H1052 (statement of Rep. Delahunt). The legislation was signed on March 
19, 1997. See United States McVeigh, No. 96-CR-68-M, 1997 WL 136343 at 
*2 (D. Colo. Mar. 25, 1997). In his order issued less than a week later 
on March 25, 1997, Matsch noted that in another six days later, the 
``trial of Timothy McVeigh is scheduled to begin,'' and ``[a] debate 
now on the constitutionality of this new legislation would result in a 
delay of that trial.'' Id. at *3. He modified his order, lifting his 
ban on attending trial by victims who were expected to be witnesses in 
the sentencing phase. He then delayed until later resolution through a 
voir dire process whether those who chose to attend the trial had their 
testimony relevant to sentencing affected by witnessing it. Id. If not, 
they would have been able to testify even before the new law was 
passed. Under that circumstance, the new law would be irrelevant, and 
he could avoid the constitutional issue entirely. Id.
    At the end of the guilt phase of the trial, Judge Matsch held a 
voir dire, and as noted earlier, ruled that no witness' testimony had 
been affected, eliminating any further issue as to their testimony. He 
thus avoided delay, which be said in his order was in the ``public 
interest,'' id., and avoided entirely a constitutional issue from the 
case. He did the tough work of being a fair and reasonable judge.
---------------------------------------------------------------------------
    If the Oklahoma City Bombing Case requires enactment of a federal 
constitutional amendment, that is because its proponents find the mere 
existence of uncertainty as to their role intolerable. Neither such 
uncertainty nor putting victims at some minor risk of creating an 
appellate issue for defendants with regard to sequestration provides a 
sufficient justification for a federal constitutional provision.
    The reasonable interpretation of constitutional principles and of 
the caselaw is that in extreme factual situations, the due process 
right to a fair trial may require exclusion of witnesses. Those cases 
are rare and reasonably easy to recognize, but admittedly some 
uncertainty will remain in the few cases that approach the 
constitutional requirement of exclusion. However, the uncertainty is 
hardly intolerable given the limited period of time a victim needs to 
be excluded if sensibly called as the prosecution's first witness and 
given the importance of guaranteeing a fair trial to the defendant 
where the constitutional claim has arguable merit.
    I want to amplify my position on the constitutional basis for 
sequestration, which goes to the lack of wisdom in granting victims a 
blanket right to be present when they could tailor their testimony to 
that of others who testify. Indeed, a byproduct of eliminating the 
possibility of sequestration may be to eliminate other checks on 
contrived testimony. In this discussion, I will concentrate on a group 
of cases where defendants are often innocent.
    The mere fact that multiple alleged victims are also eyewitnesses 
does not mean that failure to sequester the victims/witnesses would be 
a per se constitutional violation of either the Sixth Amendment right 
to effective cross-examination \39\ or the due process right to a fair 
trial. With respect to the right to effective cross-examination, the 
Supreme Court, I believe, would be very unlikely to declare this one 
imperfection in the right to cross-examine to be automatically 
constitutionally deficient. Constitutional violations of fair trial 
rights are understandably rather difficult to show and depend upon the 
precise circumstances of the case, including the impact of the failure 
to sequester on testimony or whether other avenues of defense attack 
and proof are available. Only in the atypical case and in context will 
failure to sequester multiple alleged victims/eyewitnesses result in a 
constitutional violation.
---------------------------------------------------------------------------
    \39\ See Robert P. Mosteller, Victims' Rights and the United States 
Constitution: An Effort to Recast the Battle in Criminal Litigation, 85 
Geo. L. J. 1691, 1699-1701 (1997).
---------------------------------------------------------------------------
    In terms of the innocent defendant, why is a rule allowing alleged 
victims/eyewitnesses to remain in the courtroom a bad policy and why is 
it particularly a bad constitutional rule? I want to concentrate on a 
very troubling class of cases in American criminal law where the 
identity of the true victim is sometimes ambiguous. That is the class 
of cases where either the police used excessive force toward a suspect, 
often the member of a minority group, or the police were the victims of 
an assault by that suspect and rightfully defended themselves with 
force. Two cases--Rodney King in Los Angeles in 1991 \40\ and Abner 
Louima in New York City in 1997 \41\--provide excellent examples to 
examine. In both cases, we know that the police were the perpetrators, 
not the victims. In King's case, we know the truth because a bystander 
made a videotape of the beating; in Louima's case, our knowledge came 
from his punctured intestine, which permitted no pro-police 
explanation. However, in both cases, the true victim was on his way to 
being the defendant and the police officers the victims before the 
irrefutable proof got in the way.\42\
---------------------------------------------------------------------------
    \40\ See, e.g., Tracy Wood & Faye Fiore, Beating Victim Says He 
Obeyed Police, L.A. Times, Mar. 7, 1991, at A1.
    \41\ See Blaine Harden, Angry Giuliani Orders Shake-up at Police 
Station; Alleged Assault on Immigrant ``Reprehensible,'' Mayor Says, 
Wash. Post, Aug. 15, 1997, at A.3.
    \42\ See Wood & Fiore, supra note 40; Harden, supra note 41.
---------------------------------------------------------------------------
    Imagine the alternative scenario under which the proof of police 
brutality did not surface, and Officers Koon and Powell and Louima's 
attackers would be cast as victims/witnesses. Further, recognize that 
there must be a substantial number of cases like King's and Louima's 
where fortuity or physical evidence does not prevent the police from 
covering their excessive violence with a charge against the true 
victim. These were not isolated incidents \43\ or an example of a 
notorious case warping analysis. The literature in the field is replete 
with the seriousness of this problem of police abuse being covered by 
charges of violence by the suspect.\44\
---------------------------------------------------------------------------
    \43\ See Robert P. Mosteller, Moderating Investigative Lies by 
Disclosure and Documentation, 76 Or. L. Rev. 833, 945-46 (1997).
    \44\ See, e.g., Paul Chevigny, Police Power: Police Abuses in New 
York City 51-62 (1969); Charles G. Oglegree, Jr., et al., Beyond the 
Rodney King Story 42-44 (1995).
---------------------------------------------------------------------------
    Now consider the impact of a rule allowing all alleged victims/
witnesses to be present during the testimony of all other alleged 
victims/witnesses and the further impact of a victims' rights 
constitutional amendment. As noted above, that there are multiple 
alleged victims/eyewitnesses does not mean that a rule of evidence or 
statute that guarantees victims' presence violates the Constitution, 
and the fact that the defendant is innocent has no automatic impact on 
this analysis. In providing procedural protection, the Constitution is 
not a precise instrument. Thus, if a domestic rule of evidence were to 
permit all alleged victims/witnesses to remain in the courtroom, the 
rule would typically pass constitutional muster, and in cases of police 
brutality, it would help the perpetrators of violence extend the 
injustice by convicting the true victim.
    The outcome under the proposed constitutional amendment is worse, 
however. Even the rare cases where under our existing Constitution 
sequestration would have been required, the new provision would trump 
justice. Officers Koon and Powell would have the constitutional right 
to be present if preliminarily labeled the victims of Rodney King's 
violence regardless of whether other ways to ensure effective cross-
examination and overall fairness existed. Contrived joint testimony may 
be even more effective if the case is prosecuted in a state where the 
proposed federal Victims' Rights Amendment has been supplemented with 
an aggressive state amendment designed to inhibit defense efforts.
    Let us examine Arizona. Several years after a victims' rights 
amendment was approved there, the legislature attempted by statute 
interpreting the amendment to exclude police officers from the 
discovery protection provision discussed earlier in connection with the 
Romley case. The statute allowed discovery interviews ``if the act that 
would have made him a victim occurs while the peace officer is acting 
in the scope of his official duties.'' \45\ However, that legislation 
was ruled unconstitutional because it was inconsistent with the plain 
language of the amendment.\46\ Thus, in Arizona, a police officer 
cannot be forced to provide, an interview.\47\ Moreover, if the defense 
attorney comments on the victim's refusal to be interviewed, the trial 
judge is required to instruct the jury that the victim had the right of 
refusal under the state constitution.\48\ The state supreme court also 
ruled that, absent a showing that the refusal was done ``for or a 
reason or in a manner bearing on [the witness'] credibility,'' \49\ the 
trial court could properly cut off cross-examination about the refusal 
to be interviewed because the witness would be presumed to have acted 
solely because he or she had a constitutional right to do so.\50\
---------------------------------------------------------------------------
    \45\ Ariz. Rev. Stat. Ann, Sec. 13-4433(G) (West Supp. 1998) 
(formerly subsection (F)).
    \46\ See State v. Roscoe, 912 P.2d 1297 (Ariz. 1996). This is an 
example of a state victims' rights amendment producing unintended 
consequences.
    \47\ See id. at 1302-03.
    \48\ See Ariz. Rev. Stat. Ann. Sec. 13-4433(F) (West Supp. 1998) 
(formerly subsection (E)).
    \49\ State v. Taggart, 942 P.2d 1159, 1163 (Ariz. 1997).
    \50\ See id. at 1161-63.
---------------------------------------------------------------------------
    In the absence of a federal victims' rights amendment that gave 
alleged victims the constitutional right to be present at trial, the 
combination of conditions in an Arizona police brutality case might 
mean that sequestration was constitutionally required to assure a fair 
trial. If the proposed federal victims' rights amendment is adopted, 
police officers who use excessive force and cover that violence with 
charges that they were assaulted will have an important new weapon in 
their arsenal of deception. The federal victims' rights amendment and 
related state constitutional provisions, if enacted, could make the 
dangers even greater in that some presently available alternative 
methods to reveal contrived testimony might disappear. Thus, the 
passage of the amendment would increase the chances that sequestration 
was required for a fair trial and at the same time mean that as to both 
true and contrived victims sequestration could no longer be ordered 
under the Constitution.
    NVCAN also claims that claims that the defendant's right to be free 
from cruel and unusual punishment has been used to deny victims the 
right to be heard at sentencing, and that the criminal's right to equal 
protection has been used to deny victims the rights to be heard at 
parole hearings.\51\ However, the argument that the Eighth Amendment's 
cruel and unusual punishment provision forbids victim impact evidence 
is largely untenable after Payne v. Tennessee,\52\ which held that 
victim impact evidence did not violate this constitutional provision.
---------------------------------------------------------------------------
    \51\ NVCAN, supra note 3, at 9.
    \52\ 501 U.S. 808 (1991).
---------------------------------------------------------------------------
    The Court in Payne did not decide whether ``victim's family members 
characterizations and opinions about the crime, the defendant, and the 
appropriate sentence'' were admissible because those questions were not 
presented.\53\ Thus, Payne did not resolve whether a victim's family 
members could express their opinion regarding the proper 
punishment.\54\ Similarly, the Court refused to eliminate limitations 
on the admissibility of victim impact evidence based, not on Eighth 
Amendment principles, but on relevancy. The relevancy of victim impact 
evidence depends on the structure of the jurisdiction's death penalty 
statute and the role defined for impact evidence in it,\55\ and as a 
result, most relevancy objections likely could be eliminated by 
statutory modifications without any amendment.
---------------------------------------------------------------------------
    \53\ Id. at 830 n.2.
    \54\ In Booth v. Maryland, 482 U.S. 496 (1987), the earlier Supreme 
Court case that Payne largely overruled, the Court had held opinions of 
the proper sentence by victim's family members inadmissible. Since that 
issue was not addressed in Payne, Booth's holding on this point remains 
technically valid. Nevertheless, the Oklahoma Court of Criminal Appeals 
has found that such evidence is admissible and has determined that 
Booth was implicitly overruled on this point. See Ledbetter v. State, 
933 P.2d 880, 890-91 (Okla. Crim. App. 1997).
    \55\ See State v. Moore, 827 P.2d 1073 (Or. 1996).
---------------------------------------------------------------------------
    Enacting the proposed constitutional amendment and giving victims 
the right ``to be heard * * * at all proceedings to determine * * * a 
sentence'' could be read as changing these relevancy rules, and could 
specifically be seen as overriding determinations in some jurisdictions 
that family members of murder victims are forbidden from expressing 
their opinion that the death penalty should not be imposed.\56\ 
However, the drafters of Senate Joint Resolution 44 claimed that this 
constitutional right does not affect the relevance issue. Indeed, these 
drafters claim that the constitutional right to be heard at sentencing 
does not affect the relevance issue. The Majority Report asserts that 
while the victim may not be prevented from providing a statement when 
the sentence is mandatory and therefore the statement is irrelevant to 
the outcome,\57\ the federal and state governments continue to have the 
ability to exclude such evidence by setting limits on what is 
considered relevant impact testimony, including the expression of an 
opinion on the ``desirability or undesirability of a capital 
sentence.'' \58\ Thus, if after Payne, victims' rights advocates 
continued to worry about the scope of permissible impact evidence and 
the possibility that such evidence could be ``trumped'' by state law, 
much the same concern would remain after enactment of Senate Joint 
Resolution 3. In capital cases, the victims' right to be heard would 
continue to be constrained by state and federal law; more generally, 
the right to be heard at sentencing would remain subject to legislative 
relevancy determinations except where, under traditional terminology, 
such testimony was irrelevant to the outcome of the sentencing 
proceedings in that the sentence was mandatory and such statements 
could have no impact on it.\59\
---------------------------------------------------------------------------
    \56\ See Robison v. Maynard, 943 F.2d 1216 (10th Cir. 1991) 
(holding such evidence not proper mitigating evidence and not required 
to be admitted under Court's ruling in Payne).
    \57\ See Majority Report on S.J. Res. 44, S. Rep. No. 105-409, 
105th Cong., 2d Sess. 28 (1998).
    \58\ Id. at 28-29 (citing specifically Robison v. Maynard).
    \59\ Marsha Kight, whose child was killed in the Oklahoma City 
bombing, is a well known advocate for victims' rights and the 
constitutional amendment. She testified at the 1997 Senate hearings on 
the amendment that as a death penalty opponent she supported a 
constitutional amendment so that she could give victim impact evidence. 
In her case, the statement would have included a statement regarding 
that opposition, and she had been told by the prosecution team she 
could not give under existing law. See A Proposed Constitutional 
Amendment to Protect Victims of Crime: Hearings on S.J. Res. 6 Before 
the Senate Comm. On the Judiciary, 105th Cong. 71-72 (1997) (testimony 
of Marsha A. Kight). According to the Majority Report, after the 
amendment, Ms. Kight could not be prevented from testifying as long as 
she was satisfied not to express her opinion about the death penalty 
and thereby to have her statement used in support of the prosecutor's 
effort to secure the death penalty. However, any statement about her 
opposition to capital punishment would be just as inadmissible after 
the amendment as before, see Majority Report on S.J. Res. 44, S. Rep. 
No. 105-409, 105th Cong., 2d Sess. 28-29 (1998), and the government's 
decision to use victim impact evidence to support its goal of securing 
a death penalty would have continued to bar her from testifying. To be 
admissible, the testimony must be authorized by statute, which likely 
would have permitted admissibility under current law without a 
constitutional amendment. The predominant concern appears to be 
insuring that the legislature can protect prosecutorial interests and 
only to guarantee full ``Participatory Rights'' to be heard at 
sentencing where irrelevant to the legislatively determined result.
---------------------------------------------------------------------------
    Finally, NVCAN's claim that equal protection had been used to 
prevent victims from being heard at parole hearings was correct for a 
time under one federal district court opinion. However, that opinion 
was soon vacated. In Johnson v. Texas Department of Criminal 
Justice,\60\ a district court judge held that victim protest letters 
that were kept from the inmate and used to deny parole violated equal 
protection. As is typical for trial court opinions unfavorable to 
victims' rights, the case was reversed.\61\
---------------------------------------------------------------------------
    \60\ 910 F. Supp. 1208, 1226-29 (W.D. Tex. 1995).
    \61\ See Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997). For 
other cases following this pattern, see, e.g., State v. Taggart, 925 
P.2d 710 (Ariz. Ct. App. 1996) (failure to permit cross-examination 
about victim's refusal to be interviewed pretrial as allowed by 
provision of the state's victim's rights amendment violated defendant's 
Confrontation Clause rights but was harmless), rev'd, State v. Riggs, 
942 P.2d 1159, 1165-66 (Ariz. 1997) (en banc) (no violation of 
confrontation right); State v. Muhammad, 678 A.2d 164 (N.J. 1996) 
(reversing trial court ruling finding victim impact evidence statute 
unconstitutional).
---------------------------------------------------------------------------
    In sum, a body of caselaw documenting significant ``trumping'' of 
victims' rights by defendants and court officials using the federal 
Constitution simply does not exist. The best supporters of the proposed 
amendment can do is to suggest arguments why these cases cannot be 
found. However, the extraordinary step of amending the United States 
Constitution should require real documentation rather than conjecture, 
unfounded assertions, and outdated claims. When challenged to produce 
the cases of defendants' rights running rough shod over victims' 
rights, the Amendment's supporters have come up empty. When the 
question is whether to amend the United States Constitution, evidence 
must be produced, not just speculation.
       c. the (intended) damage to defendants' rights from this 
                         unnecessary amendment
    One consequence of using a constitutional amendment rather than 
legislation to guarantee victims' rights is that defendants' 
constitutional rights can be undermined by enactment of an amendment. 
If this is the intended effect of the proposed Victims' Rights 
Amendment, then I must concede that the constitutional form is 
necessary. However, I hope that if this purpose is recognized, it will 
be rejected as substantively illegitimate.
    I have already discussed at some length how the proposed amendment 
may impact witness sequestration issues, by affecting where the balance 
is drawn between defendants' fair trial rights and victims' presence. 
In addition, the Amendment would grant several more rights to victims 
that would alter present protections for the defendant. First, the 
proposed amendment contains the right ``to consideration of the 
interest of the victim that any trial be free from unreasonable 
delay.'' Second, the Amendment establishes the right ``to consideration 
of safety of the victim in determining any conditional release from 
custody relating to the crime.'' These provisions would almost 
inevitably threaten fairness to some defendants.
    Although the defendant has the right to a speedy trial, he or she 
may waive that right explicitly or implicitly and seek a continuance to 
provide more time to prepare a defense or to allow the effects of 
pretrial publicity to dissipate. A victim's right to consideration of 
his or her interest in a speedy trial would, in some cases, alter a 
judge's treatment of the defendant's request for a delay. That denial 
may threaten the defendant's interest in a fair trial.\62\ Similarly, a 
victim's right to consideration of safety in the decision to grant 
conditional release would alter the results in some number of bail 
decisions resulting in denial of release.\63\
---------------------------------------------------------------------------
    \62\ Professors Tribe and Cassell argue that the defendant's 
constitutional rights and victim's rights in the proposed amendment 
would coexist without conflict, using the claim that the two rights 
relating to a speedy trial ``[b]y definition * * * could not collide, 
since they are both designed to bring matters to a close within a 
reasonable time.'' Tribe & Cassell, supra note 2, at B5. The argument 
is a strawman. The conflict is not between defendants' Sixth Amendment 
right to a speedy trial and the similar guarantee in the proposed 
amendment, but is rather between the defendant's fair trial rights when 
they require delay and the proposed victim's right to a speedy 
resolution.
    \63\ Denying release to those charged with crime may appear 
appealing to reduce additional victimization by the accused while 
awaiting trial. However, clearly not all those accused of crime are 
guilty. Scholars have noted the consistent tendency of more restrictive 
release conditions to result in disproportionate denial of release to 
members of minority groups. See Coramae Richey Mann, Unequal Justice: A 
Question of Color 167-71 (1993). Also, pretrial confinement may 
interfere with the defendant's ability to help develop a successful 
defense and thereby increases the prospects of conviction of the 
innocent.
---------------------------------------------------------------------------
    These provisions giving victims' interests consideration in a 
``speedy trial'' and in denying bail to defendants constitute changes 
in a balance of advantage that affect the victim, but also affect 
substantial interests of the defendant and may even alter the outcomes 
of cases. If these specific changes are to be made, they first should 
undergo rigorous debate an their merits, and should not slide in under 
the cover of a campaign largely devoted to giving victims' rights to 
notice and to participate in criminal proceedings.
    However, as I have noted in an earlier article, the most 
significant substantive impact of the proposed amendment in denigrating 
defendants' rights may be in the reconceptualizing of criminal trials 
to be between a defendant and a victim, each with constitutional 
entitlements.\64\ At a recent symposium on victims' rights, probably 
the most significant point was the acknowledgment by Professor William 
Pizzi, who supports the proposed amendment, that he finds such a 
reconceptualization quite possible. He expressed the hope that 
enactment of the Amendment would add a new weight to the balance and 
cause courts to eliminate the exclusionary rule for some Fourth 
Amendment violations:
---------------------------------------------------------------------------
    \64\ See Mosteller, supra note 39, at 1710-11 (noting that the 
ancient statement of preference that it is better that ten guilty 
defendants erroneously escape punishment than that one innocent 
defendant be punished is more difficult to maintain if the state also 
recognizes the constitutional rights of victims against the state).

        [W]here the crime is a serious one and the police have made a 
        good faith mistake or have acted at most carelessly, is it fair 
        to the victim to suppress evidence of the crime? A Victims' 
        Rights Amendment suggests that victims of crimes of violence 
        have an interest in a fair trial and it may cause the Court to 
        rethink the exclusionary rule.\65\
---------------------------------------------------------------------------
    \65\ William T. Pizzi, Rethinking Our System 9 (Rough draft, Sept. 
3, 1998) (on file with Utah Law Review). This view was reiterated 
during the victims' right symposium at the University of Utah. 
Professor Pizzi has reoriented his paper for final publication, but he 
authorized me to quote and cite his initial draft.

    As argued in earlier sections, the proposed amendment is 
unnecessary to accomplish what I consider its legitimate aims with 
respect to ensuring participatory rights of victims. It is, however, 
both specifically and generally dangerous in allowing substantive harm 
to important procedural protections presently accorded to defendants.
     d. giving victims equality with defendants in the constitution
    The Amendment's proponents often claim that since defendants are 
protected in the Constitution, victims should have rights guaranteed 
there as well.\66\ Sometimes the Amendment's supporters highlight the 
apparent imbalance by noting that fifteen rights are enumerated in the 
Constitution to protect the accused and none specifically protect 
victims.\67\
---------------------------------------------------------------------------
    \66\ See Cassell & Twist, supra note 4, at A15.
    \67\ See, e.g., Dianne Feinstein, Senate Judiciary Committee Passes 
Kyl-Feinstein Crime Victims' Rights Constitutional Amendment, Press 
Release, July 7, 1998, available in Westlaw, Allnews file.
---------------------------------------------------------------------------
    The rhetorical argument is: flow could we possibly have federal 
constitutional provisions that protect those charged with crimes--the 
vast majority of whom are guilty and many of whom have committed 
horrible offenses--and not give similar protection to their innocent 
victims? This is a superficially attractive argument that engenders 
great popular political appeal. However, this claim mistakes the 
fundamental reason for embedding a principle in a constitutional 
amendment. Indeed, the enormous political popularity of the argument 
almost by itself refutes its validity as an argument for amending the 
Constitution.
    The major purpose of a constitutional amendment of the type 
considered here is to protect the despised, the politically weak, and 
insular minorities against the whims of the political majority.\68\ 
Victims and victims' rights do not fall into any of these categories; 
they are extremely popular politically. That is not the case with 
criminal defendants. If the protections and the advantages afforded 
criminal defendants in the Constitution are eliminated or ``equalized'' 
by the Victims' Rights Amendment, there will be no political majority 
passing legislation and appropriating money to provide offsetting 
protections for defendants. Without the proposed amendment, the 
political majority can and will protect victims. Thus, the 
``imbalance'' in the Constitution must remain if anything approaching a 
balance is to be achieved at the end of the process, after the 
political forces have had their impact.
---------------------------------------------------------------------------
    \68\ Cf. United States v. Carolene Products Co., 304 U.S. 144, 152 
n.4 (1938).
---------------------------------------------------------------------------
                             e. conclusion
    The above analysis demonstrates that the proposed Victims' Rights 
Amendment is not necessary to achieve the goals of its advocates. My 
position is far from radical. Senator Hatch, who nevertheless last year 
supported the proposed Amendment, has stated a similar view:

          In conclusion, I am strongly in favor of victims' rights, and 
        believe a Federal constitutional amendment to be an appropriate 
        national response. ``Appropriate,'' however, does not, in my 
        view mean ``necessary.'' I believe that many of the objectives 
        of the proposed amendment could in fact be accomplished through 
        a Federal statutes, State statutes, or State constitutional 
        amendments. Indeed, our experience with State constitutional 
        amendments is comparatively young. It may well be better to 
        allow the jurisprudence to develop on these before we take the 
        momentous step of amending the Federal Constitution.
          Finally, I note that a statutory approach would carry less 
        peril of upsetting established State constitutional amendments 
        now taking root to guarantee the rights of crime victims. A 
        statute would also be more readily amendable should experience 
        dictate that changes are needed, and, of course would not 
        preclude the later adoption of a constitutional amendment if 
        the statute indeed proved insufficient or unable to protect the 
        rights of victims. * * * \69\
---------------------------------------------------------------------------
    \69\ Additional Views of Senator Hatch, S. Rep. No. 105-409, 105th 
Cong., 2d Sess. 46 (1998).

Under this set of affairs, the Constitution should not be amended.
                               __________
                                  Diana University,
                                 School of Law Bloomington,
                              Bloomington, Indiana, March 23, 1999.
The Hon.  Patrick J. Leahy,
Ranking Minority Member, Committee on the Judiciary, U.S. Senate 
        Washington, DC.
    Dear Senator Leahy: I have recently completed a new article on the 
problems presented by the proposed crime victim's amendment to the 
Constitution of the United States. The article, Revisiting Victim's 
Rights, will appear in the Utah Law Review's June, 1999 issue.
    I understand that the Committee on the Judiciary is holding 
hearings on the amendment on March 24, 1999. I am sending you a short 
summary of my arguments concerning the role of such an amendment under 
our Constitution, with a request that the summary be placed in the 
record of the Hearings as a statement in opposition to the amendment.
    Thank you for your consideration and all your work in opposing the 
proposed amendment.
            Sincerely,
                                           Lynne Henderson,
                                                  Professor of Law.
                                 ______
                                 

  Summary of Arguments Contained in ``Revisiting Victim's Rights'' by 
           Lynne Henderson Forthcoming, 1999 Utah Law Review

    The proposed victim's rights amendment to the Constitution of the 
United States has undergone numerous revisions since it was first 
introduced, on such continuously shifting ground, it is difficult to 
criticize any one provision, because those provisions keep changing. 
More general criticisms, however, are possible. Indeed, any victim's 
rights amendment holds grave implications for constitutional law, 
practice, and crime victims themselves. Urging caution and painting to 
flaws does not indicate lack of care for crime victims; rather, it is 
essential before we embrace such a major change in our fundamental 
charter of government.
 1. our constitutional system protects individuals against government 
  intrusions; government aid to individuals is left to the political 
                                process
    Constitutional rights for individuals are primarily those that 
limit the states power to interfere with their liberty. The Bill of 
Rights and the Fourteenth Amendment contain restraints on the state's 
power over individuals, with few exceptions.\1\ Our history and 
traditions, as well as Supreme Court decisions, have seldom recognized 
positive entitlements from the government. On those rare occasions 
where a constitutional right obliges the government to do something, it 
is seen as necessary to preserving a negative right against government 
or to ensure fairness in deprivation of statutory or constitutional 
rights. Thus, the Sixth Amendment's right to counsel provision requires 
government to provide counsel for indigent defendants; due process 
requires a hearing before an individual is denied a liberty or property 
interest such as welfare.
---------------------------------------------------------------------------
    \1\ The Seventh Amendment right to a jury trial in civil suits 
could be said to embody a positive claim on the state's resources.
---------------------------------------------------------------------------
    The proposed victim's rights amendment would be unique in requiring 
the government to involve private parties in court proceedings that do 
not involve the government's attempt to deprive these parties of a 
life, liberty or property interest, perhaps with the exception of an 
interest in restitution. In the instance of victims who are not 
witnesses, including the survivors of a homicide victim, the government 
may make no demands whatsoever on these victims, yet the victims would 
have a right to participate in all proceedings related to custody of 
the offender.
 2. victims of crime are neither politically powerless nor in need of 
                    protection from majority tyranny
    If a majority in our democracy support a policy or approach, there 
is nothing to prevent it from acting on that preference beyond certain 
constitutional limitations. Thus, a major reason for protecting 
individual rights in our constitutional system is to ensure political 
participation and to prevent abuses of individuals by majorities who 
disagree with or are prejudiced against them.
    The facts that a majority of states have victim's rights 
amendments, that all states have legislation responding to victim 
concerns, and that the political process is receptive to victims are 
strong indications that victims have been extremely influential in the 
political process. The fact that a majority supports some kind of 
rights for victims means that those rights can he achieved through the 
political process, including legislation and election of prosecutors, 
judges, and legislators responsive to victims' concerns. Indeed, no one 
can argue with a straight face that legislators and government agencies 
have been deaf to victims, concerns about defining crimes, determining 
sentences, limiting probation and parole, or providing notice of the 
release of offenders. Victim access to the process has hardly been 
thwarted by a hostile majority.
    Victims of crime are hardly an insular minority, nor are they the 
victims of prejudice and hostility. Rather, it is those charged with or 
convicted of crimes who are disliked and denied access to the political 
process. They have no organized lobbying group, felons in a number of 
states have no right to vote, and so on. Special treatment of victims 
under the constitution is not necessary to insure that their interests 
be preserved or recognized.
 3. the constitution gives the states and federal government the power 
to enact and enforce criminal law, and a victims rights amendment would 
                          abrogate that power
    Although Prof. Tribe has stated that ``The ultimate concern of the 
criminal justice system ought to be with the victim,'' neither our 
history or our practice would support such a claim. The concern for 
negative liberties against the government contained in the Constitution 
stems in large part from the government's monopoly on the use of force 
and the criminal law. Crimes are legally defined as offenses against 
the community and the state, even though individuals are affected. The 
state and community are negatively affected by crime, and the criminal 
law is the community's response. The community has a strong interest in 
deterring and punishing crime apart from any individual victim's 
interests.
    No serious scholar would advocate a return to reliance on private 
prosecutions and private enforcement of the criminal law for a number 
of reasons. The values of uniformity, certainty, coherence, and equal 
application of the law require that it not be enforced in an ad hoc 
manner, depending on the preferences of individual victims. In criminal 
cases, the state bears the burden of investigating, prosecuting, 
punishing, and executing offenders; individual victims do not bear 
these costs beyond paying their taxes, and perhaps incurring expenses 
for trials. Yet the amendment would give victims special claims on 
these resources.
4. the amendment would lead to confusion and increased litigation about 
           the continuing existence of rights for defendants
    Sponsors of the amendment like to point out all the provisions of 
the Constitution that give rights to the accused and contrast these 
provisions with the absence of provisions for victims. Again, many of 
the provisions of the Fourth, Fifth, Sixth, and Eighth Amendments are 
based on concerns about the abuse of state power over individuals. 
Advocates of the victim's rights amendment are quite clear in their 
opposition to certain Supreme Court rulings aimed at preserving Fourth, 
Fifth, Sixth, Eighth Amendment rights.
    A victim's rights amendment at a minimum would create conflicts 
between the rights of defendants and the rights of individual victims. 
Courts would be faced with ``balancing'' in a number of conflicting 
rights cases. For example, courts would have to balance a defendant's 
right to confrontation against a victim's right to make a statement at 
a custody hearing. ``Balancing'' rights has been widely criticized for 
the ad hoc nature of such decisions and this approach certainly would 
leave important decisions to judges that might better be made by the 
elected branches of state and federal government.
    S.R. 44 states that a victim's rights may only be abridged if there 
is a ``compelling'' reason. Under the compelling interest rationale, 
courts could he expected to decide that victim's rights ``trump'' 
defendant's rights in all cases. At a minimum, the compelling interest 
language puts a thumb on the scales weighing in favor of victims at the 
expense of important Bill of Rights provisions that have protected us 
all against government abuses for over 200 years.
 5. the argument that crime victims should be treated with dignity and 
   respect does not distinguish crime victims from other victims of 
                      private or public wrongdoing
    It should go without saying that all persons who are involved in 
legal processes should be treated with ``equal dignity and respect.'' 
Thus far, victims of racism and private prejudice have no cons--
titutional claims against private parties, despite the injurious 
effects of these practices. Individuals harmed by war, wrongful 
internment, or government malfeasance have no constitutional rights 
against the government in most instances. Providing a special amendment 
for one group of citizens and privileging them above those who have 
been injured by another's negligence or by the government itself is not 
justifiable under the theory of equal concern and respect.
6. the amendment could apply to large numbers of people with plausible 
  claims of victimization while simultaneously excluding many victims
    As self-evident as ``victim of crime'' or ``victim of violent 
crime'' may initially appear, the status of those claiming to be 
victims is not that easy to establish. The amendment may create 
incentives for some to make victim-claims that are plausible and it 
will be difficult to draw lines.
    If harm or trauma are the definitive concerns of victim groups, 
then pressures on legislatures to include a number of people as victims 
for the purposes of the amendment will grow. The expansion of victim 
impact statements in death penalty cases to include family members and 
friends ought to make it clear that lines are not easily drawn.
    In the case of violent crimes such as robbery, rape, assault with a 
deadly weapon, as well as homicide, issues of ``co-victimization'' 
arise.\2\ Family, friends, and coworkers can suffer trauma from 
violence against someone they know; moreover, violent crime can cause 
trauma throughout a community. Witnesses to terrible crimes suffer 
trauma. Children growing up in violent homes suffer trauma. All these 
groups--and more--could make claims to be victims entitled to rights.
---------------------------------------------------------------------------
    \2\ The term is from a book by an advocate for the amendment, 
Deborah Spungen. See Spungen, Homicide: The Hidden Victims 9 (1998).
---------------------------------------------------------------------------
    This line blur further when victims are also offenders: Robert 
Mosteller's article in the Georgetown Law Journal, points out the 
difficulties of sorting through who is a victim at a given time, using 
the Rodney King case as an example. King was beaten brutally, but he 
also was a ``criminal''--he evaded the police, he was driving 
recklessly, etc. He tried to defend himself, so he was guilty of 
assault. King--and Officers Koon and Powell at least--could claim 
rights against each other under this amendment. How would this be 
resolved? Other examples include the battered woman or abused child who 
strikes back at the person who has assaulted her. A batterer would be 
able to obtain important information and to invoke the criminal process 
to maintain control over his partner or child under this amendment.
    Under current versions, the amendment appears not to give crime 
victims rights until there is an arrest. Do these rights remain if the 
prosecution decides it cannot or does not want to proceed?
    Determining if and when someone qualifies as a ``victim'' presents 
other difficulties: Although several proponents of the amendment opine 
that rape victims will be better off because they will have ``rights', 
there is no grounds to believe this claim: What it takes to be a 
``real'' rape victim is affected not at all by this amendment. Given 
the skepticism that exists about the veracity of rape charges even 
today, a woman may not be able to persuade authorities that she is 
indeed a victim, much less see the case got to the point where charges 
are filed and her ``victim's rights'' attach.
7. the argument that the process ``traumatizer'' victims cannot justify 
                             this amendment
    One of the humane impulses behind this amendment is to limit trauma 
to victims and to create a ``therapeutic'' vision of the criminal 
process, to spare victims such trauma. It does seem ``only fair'' that 
the victim be allowed to relate the trauma to officials. But when and 
under what conditions a victim should speak is not at all clear. The 
amendment apparently gives some opportunity to say something at various 
stages of the process, but it does not provide for an unchallenged, 
unexamined, or empathic hearing. Rather, it appears that the amendment 
will necessarily be constrained by what is legally relevant.
    Moreover, the persistence of the theory that all testimony is 
``cathartic'' is unsupported by empirical evidence. The movie version 
of cure after one cathartic moment is a fantasy. For trauma narrative 
to be useful for healing, it must take place at the right time, under 
the right circumstances, with a trained therapist or support group; it 
may require repeated telling under controlled conditions to be 
therapeutic. The essence of law is judgement about facts and normative 
issues, not psychotherapy. A victim's testimony at legal proceedings 
must serve to aid understanding and evaluation of relevant legal 
considerations.
  8. assuming prosecutors could represent victims in enforcing their 
                rights under the amendment is erroneous
    If victims are to have constitutional rights, questions of 
representation are sure to arise. Indigent victims will not be able to 
afford counsel, although they may be in most need of counsel to aid 
them in dealing with a sophisticated legal system. But providing crime 
victims with counsel, as is done for indigent criminal defendants, 
would be expensive. Accordingly, advocates of the amendment, including 
prosecutors, often assume prosecutors can effectively represent 
victims' interests.
    This assumption is erroneous. Although prosecutors and victims have 
some interests in cooperation, their interests can diverge 
dramatically. There is a potential for conflicts of interest between 
the victim and the prosecutor at every stage of the proceedings. If a 
surviving family member of a homicide victim opposes the death penalty, 
and the prosecutor determines that her ethical responsibility is to 
seek the death penalty in a given case, the prosecutor cannot represent 
the survivor's interests in avoiding capital punishment for the 
offender.
    Prosecutors have a duty to see that justice is done and to 
represent the community and state's interests in criminal cases. The 
victim might not share these interests. For example, some jurisdictions 
have adopted mandatory prosecution policies in domestic abuse cases.\3\ 
Many domestic abuse victims do not want the perpetrator prosecuted or 
jailed; they simply want the abuse to end. But the community has an 
interest in punishing batterers in order to send the message that 
battering is a crime and will be punished, in order to gain some 
ability to force batterers to reform, and to prevent future battering 
incidents or even deaths. The community also has interests in lessening 
the effects on children of violence in the home, while the victim may 
have economic and personal reasons other than fear of retaliation to 
decline prosecution. But under a mandatory prosecution system, victims 
could be subpoenaed and jailed for contempt by prosecutors and courts. 
Thus, the prosecutor is not representing the victim's interests or 
wants.
---------------------------------------------------------------------------
    \3\ This discussion is based on Cheryl Hanna, No Right to Choose: 
Mandated Victim Participation in Domestic Violence Prosecutions, 109 
Harv. L. Rev. 1849 (1996).
---------------------------------------------------------------------------
    In instances where the prosecutor believes she cannot prove a case 
beyond a reasonable doubt, she has an ethical obligation not to pursue 
the case. Lest this seem far-fetched, recent revelations of 
prosecutorial failures to honor this obligation in Chicago, San Diego 
and elsewhere should make it clear that the obligation is an important 
one to society, first to make sure the innocent are not wrongly 
convicted and second, to make sure that those who are guilty are 
apprehended and punished. If the victim disagrees, then the prosecutor 
cannot represent the victim.
    The role of counsel for victims of course is unclear at this time, 
but those who would adopt this amendment ought to be explicit about 
representation of victim's interests.
                             9. conclusion
    States and Congress are currently experimenting with statutory and 
state constitutional formulations for victims' rights and entitlements. 
We do not know yet which works best and are most helpful to victims, 
nor do we have enough information about what helps victims recover. It 
is far too early to enact a constitutional amendment without knowing 
anything empirical and without a stronger constitutional case for the 
amendment.
                      Conference of Chief Justices,
                            Office of Government Relations,
                                     Arlington, VA, March 19, 1999.
Re: Senate Joint Resolution 3, ``Proposing an amendment to the 
Constitution of the United States to protect the rights of crime 
victims''

The Hon. John Ashcroft,
Chairman, Subcommittee on the Constitution, Federalization and Property 
        Rights,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
    Dear Chairman Ashcroft: The Conference of Chief Justices (CCJ) has 
an ongoing Task Force on Victims' Rights, which I chair, to consider 
Congressional proposals to protect the rights of crime victims. By 
letter dated May 16, 1997 to Chairman Hatch we commented on S.J. Res. 6 
in the 105th Congress. We recently were informed that the Subcommittee 
on the Constitution, Federalization and Property Rights will hold a 
hearing on S.J. Res. 3 on March 24, 1999. We would hope that you would 
enter this letter in the record of your hearing and consider our views 
as you process this legislation.
    As we stated in 1997, CCJ is in favor of according the victims of 
crime all rights that are consistent with the paramount duty of 
insuring public safety by the prosecution of criminal offenders. CCJ 
applauds the noble goals of S.J. Res. 3 as we did its predecessor, S.J. 
Res. 6. However, we remain concerned with the federalism issues 
presented in S.J. Res. 3.
    The CCJ concurs with the recommendations of the U.S. Judicial 
Conference regarding a statutory alternative to this issue. In its most 
recent official position (statement of U.S. Chief Judge George P. Kazen 
before the Committee on the Judiciary of the House of Representatives, 
June 25, 1997), Chief Judge Kazen stated, `` In the event that Congress 
chooses to affirmatively act on the issue of victims' rights, the 
Judicial Conference would strongly prefer that Congress pursue a 
statutory approach to this issue as opposed to a constitutional 
amendment.'' It is their and our position that a statutory provision 
enacted by Congress would give the federal judiciary a more measured 
opportunity to refine untested legal concepts and rights in order to 
develop a body of precedent that would pave the way for an eventual 
possible constitutional amendment.
    As you know, all states have some type of statutory guarantee for 
the protection of victims' rights, most of which have been enacted 
recently. At least 31 of the states also have constitutional provisions 
and these enactments provide victims with the opportunity to be heard 
at the various stages of criminal litigation, particularly at the point 
of sentencing and in respect to release on bail or on parole. More 
states are considering further constitutional changes. If the sponsors 
of S.J. Res. 3 are searching for a single settled law governing 
victims, the goal will not be achieved through a Federal Constitutional 
Amendment. Preempting each State's existing laws in favor of a broad 
Federal law will create additional complexities and unpredictability 
for litigation in both State and Federal courts for years to come. We 
believe that the existing extensive state efforts provide a 
significantly more prudent and flexible approach for testing and 
refining the evolving legal concepts concerning victims rights.
    The Conference cannot emphasize too strongly our great concern with 
creating the potential for extensive Federal court surveillance of the 
day to day operations of State law enforcement operations in this area. 
It is almost a forgone conclusion that if a Federal victims rights 
constitutional amendment is enacted, then there would be an increase in 
oversight by the lower Federal Courts of such issues as :

   A definition of who is a ``victim'';

   A conflict between the right ``to reasonable notice of, and 
        not to be excluded from, any public proceedings relating to the 
        crime'' and the common law rationale for witness sequestration;

   The implications of the amendment for the numerous States 
        where juvenile proceedings are kept confidential.

    There are also numerous practical questions about the ancillary 
costs of a Federal constitutional amendment for the State court 
systems. For instance, it is not clear which State entity would be 
responsible for the notice requirements proposed by S.J. Res. 3. An 
Amendment also raises resource issues for States handling indigent 
crime victims and their need for court-appointed counsel. All of these 
issues eventually would involve increased conflicts between State and 
Federal judiciaries similar to the habeas corpus litigation of the 
past.
    Another grave concern of the Conference is that since damages 
against state and federal officials are prohibited under S.J. Res. 3, 
an alternative remedy for victims would be to seek injunctive relief 
against state officials in federal courts. This type of litigation is 
reminiscent of federal civil rights cases under 42 U.S.C. 1983 (See 
Pulliam v. Allen, 452 U.S. 522 (1984), which were only recently 
modified by Congress to limit abuses (Sec. 309 of S. 1887, P.L. 104-
317).
    In the event that the Senate is determined to embark upon the 
process of a constitutional amendment, the CCJ would suggest that its 
provisions be applicable only to federal criminal proceedings. In this 
way experience would be gained within the federal judiciary concerning 
the identification of and solution to problems that would invariably 
arise.
    We recognize that the present draft of the amendment pending before 
the Senate would be applicable both to the federal judiciary and to the 
states. Section 3 provides that ``Congress shall have the power to 
enforce this article by appropriate legislation. Exceptions to the 
rights established by this article may be created only when necessary 
to achieve a compelling interest.'' The Conference notes that this is a 
change from S.J. Res. 6 which also allowed state legislative 
implementation of the Amendment. We would urge your Subcommittee to 
review this section and allow the state legislatures to implement this 
article with respect to state proceedings. Such power is more 
appropriately exercised by state legislatures within their respective 
jurisdictions.
    The Conference would further urge your Subcommittee to include 
language that would prohibit federal judicial oversight of the 
implementation of this article save by the Supreme Court of the United 
States through its discretionary review of state courts by writ of 
certiorari.
    To summarize our comments CCJ suggests, alternatively:

  (1) That victims' rights be protected in the federal system by a 
    statutory enactment;

  (2) That if a constitutional amendment be proposed, it be applicable 
    only to federal judicial proceedings;

  (3) If S.J. Res. 3 is to be proposed by Congress that implementation 
    of the article be enforced within the states only by state 
    legislative action; and,

  (4) That federal judicial oversight of interpretation of the article 
    be limited to discretionary review of the state court action by the 
    U.S. Supreme Court by writ of cretiorari.

    On behalf of the Conference of Chief Justices, I thank you for your 
consideration of the suggestions which are set forth in this letter. I 
would further volunteer myself and other members of the Conference of 
Chief Justices to be available to appear and testify at any further 
hearings conducted by your Subcommittee on this pending resolution.
            Very truly yours,
                        Chief Justice Joseph R. Weisberger,
Supreme Court of Rhode Island Chairperson, CCJ Task Force on Victim 
                                                            Rights.

                                
