[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
ON
H.J. Res. 106
----------
APRIL 26, 2012
----------
Serial No. 112-113
----------
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
----------
U.S. GOVERNMENT PRINTING OFFICE
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Washington, DC 20402-0001
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
TO PROTECT THE RIGHTS OF CRIME VICTIMS
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO
PROTECT THE RIGHTS OF CRIME VICTIMS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
ON
H.J. Res. 106
__________
APRIL 26, 2012
__________
Serial No. 112-113
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on the Constitution
TRENT FRANKS, Arizona, Chairman
MIKE PENCE, Indiana, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia MIKE QUIGLEY, Illinois
STEVE KING, Iowa JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio ROBERT C. ``BOBBY'' SCOTT,
Virginia
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
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APRIL 26, 2012
Page
THE RESOLUTION
H.J. Res. 106, Proposing an amendment to the Constitution of the
United States to protect the rights of crime victims........... 2
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution................................................... 1
The Honorable Mike Quigley, a Representative in Congress from the
State of Illinois, and Member, Subcommittee on the Constitution 54
WITNESSES
Brooks Douglass, Carrollton, TX
Oral Testimony................................................. 56
Prepared Statement............................................. 58
Jesselyn McCurdy, Senior Legislative Counsel, American Civil
Liberties Union
Oral Testimony................................................. 66
Prepared Statement............................................. 68
Paul G. Cassell, Ronald N. Boyce Presidential Professor of
Criminal Law, S.J. Quinney College of Law at the University of
Utah
Oral Testimony................................................. 77
Prepared Statement............................................. 80
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution
Letter from Jan Scully, President, National District
Attorneys Association...................................... 7
Letters from crime victims' organizations and families of
crime victims.............................................. 8
APPENDIX
Material Submitted for the Hearing Record
Supplement to the Testimony of Paul G. Cassell, Ronald N. Boyce
Presidential Professor of Criminal Law, S.J. Quinney College of
Law at the University of Utah.................................. 202
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution..................... 207
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO
PROTECT THE RIGHTS OF CRIME VICTIMS
----------
THURSDAY, APRIL 26, 2012
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 2:30 p.m., in
room 2141, Rayburn House Office Building, the Honorable Trent
Franks (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Scott and Quigley.
Staff Present: (Majority) Jacki Pick, Counsel; Sarah Vance,
Clerk; (Minority) David Lachmann, Subcommittee Staff Director;
and Veronica Eligan, Professional Staff Member.
Mr. Franks. First, let me just say thank you to all of you
for your patience. We had to vote on the floor, which slowed us
down. It has been the proverbial train wreck in slow motion. So
thank you for your patience.
Today the Subcommittee on the Constitution examines H.J.
Res. 106, the bipartisan victims' rights amendment to the
Constitution, also sometimes called the VRA.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. Without objection, the Chair is authorized to
declare a recess of the Committee at any time and he may have
to do that in this case for a few moments.
Victims' rights legislation and amendments have enjoyed
broad support at the State and Federal levels, passing by 80
percent margins in the States and securing influential
bipartisan support at the highest levels of the Federal
Government. Senators Kyl and Feinstein have championed victims'
rights in the Senate, and multiple House and Senate hearings
have been devoted to advancing victims' rights.
Despite the best efforts of the State and Federal level to
bring balance through statutes or State constitutional
amendments, these efforts have been proven to be inadequate
whenever they come into conflict with bureaucratic habit,
traditional indifference, sheer inertia, or the mere mention of
accused's rights, even when those rights are not genuinely
threatened.
As the U.S. Justice Department concluded after careful
review of the issue, the existing, quote, ``haphazard patchwork
of rules'' is, quote, ``not sufficiently consistent,
comprehensive, or authoritative to safeguard victims' rights.''
The VRA would specifically enumerate rights for crime victims,
including the right to fairness, respect, and dignity; the
right to reasonable notice of and not to be excluded from
public proceedings related to the offense; the right to be
heard at any release, plea, sentencing, or other such
proceeding involving any right established in the amendment;
the right to proceedings free from unreasonable delay; the
right to reasonable notice of the release or escape of the
accused; the right to due consideration of the crime victim's
safety; and the right to restitution. Moreover, the amendment
expressly provides standing for the victim to enforce
enumerated rights.
Supporters of a victims' rights amendment have included
President George W. Bush, President Bill Clinton, and President
H.W. Bush, George H.W. Bush; Attorneys General Janet Reno, John
Ashcroft, and Alberto Gonzales; Professor Larry Tribe of the
Harvard Law School; the National Governors' Association; 50
State attorneys general; Mothers Against Drunk Driving; the
National Association of Parents of Murdered Children; the
National Organization for Victims' Assistance; and finally, the
National District Attorneys Association, the voice of the
Nation's prosecutors.
And on this point I find it ironic that the Democratic-
invited witness from the ACLU claims to speak on behalf of
Nation's prosecutors when she writes in her testimony that
prosecutorial discretion would be compromised by this
amendment, and that prosecutors would become less able to
convict criminals; that their right to be heard hurts the
effort of prosecutors and the cause of victims. In fact, the
National District Attorneys Association sent us letters just
this week saying just the opposite. And I will quote their
letter.
Quote: The National District Attorneys Association,
representing America's prosecutors, wishes to express strong
support for H.J.Res. 106, the victims' rights amendment.
Inclusion of victims' rights in our U.S. Constitution will
ensure that victims' rights and crime victims will be treated
with fairness, dignity, and respect within our criminal justice
system, and if within that system, they will be afforded needed
and meaningful rights, including the opportunity to participate
at all critical stages of their cases. Inasmuch as America's
prosecutors are the staunchest advocates for victims within our
criminal justice system, we are proud to advocate on their
behalf within the halls of Congress. We call upon this Congress
to pass the amendment and the States to ratify it, unquote.
Now I would ask unanimous consent to enter this letter from
the NDAA into the record. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. In addition, my office has received more than
30 letters from crime victims' organizations and the families
of crime victims, which we will add to the hearing as well--the
record as well.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. I would look forward to hearing from the
witnesses today on this critical issue, and I thank you all for
coming.
I now yield to the Ranking Member, in this case Mr.
Quigley, for his opening statement.
Mr. Quigley. Thank you, Mr. Chairman. I would like to thank
the Chairman for putting this together and all of our panelists
for being here today.
I need to apologize in advance. There is a markup next door
in which I will go vote and come back, so don't take it as any
sort of insult or slight.
Today we consider a subject of great importance to every
Member of this House, our responsibility to ensure that victims
of crime have their rights respected, their needs met, and that
everyone in the criminal justice system plays their part in
assisting people who have suffered great harm.
It is especially suitable that we are discussing these
vital issues during National Crime Victims' Week. There was a
time in this country when victims of crime were not treated
respectfully. At times crime victims felt, not without
justification, that they were considered almost extraneous to
the process.
With great awareness and legal protections enacted at the
State and Federal levels, victims receive all kinds of
assistance, including counseling, financial assistance,
notification, and the respect to which anyone who has suffered
harm is entitled. We offer both financial and technical
assistance to States to help them provide services to crime
victims.
So while we have made great progress, we can and should do
much more. We could provide adequate funding for crime victim
programs. We could provide proper training and resources to
Federal, State, and local law enforcement to ensure that our
existing laws, which require notice and assistance to crime
victims, are fully enforced.
One thing we can do immediately is to reauthorize and fully
fund the Violence Against Women Act, a landmark piece of
legislation that provides invaluable resources to victims of
some of the most heinous crimes. This vital legislation has not
been reexamined in 7 years, and it is in need of some updates
to ensure full protection of victims. For instance, the bill
needs to be updated to include language that protects gay,
lesbian, bisexual, and transgender individuals from
discrimination at domestic violence shelters. It also needs to
be amended to ensure undocumented workers who are victims of
abuse feel safe reporting that abuse to authorities. And
finally, the bill must be expanded to give American Indian
authorities jurisdiction over non-Indians who have abused
Indian women.
As we discuss protecting victims today, I can think of no
better way of safeguarding their rights than updating, fully
funding, and reauthorizing the Violence Against Women Act to
ensure protection of the rights of all victims of abuse.
Crime victims also need to see the guilty parties punished
and to be reassured that neither they nor anyone else will have
to fear further victimization by that individual. In that
regard, I have concerns about this proposed constitutional
amendment.
We have heard from law enforcement professionals that it
will do more to obstruct the wheels of justice than to provide
victims with the assistance they need to put their lives back
together. For instance, under most versions of the amendment,
victims would have a constitutional right to call for a faster
disposition of a matter in their case. While certainly we want
to see quick resolution of such cases, allowing the victim to
demand a faster trial may infringe on the right of the accused
person to adequately prepare. It may also impede the ability of
a prosecutor to prepare. Similarly, giving victims the right to
attend the entire criminal trial, even if hearing the testimony
of other victims, could compromise the victim's testimony,
could jeopardize the fairness of the trial.
We have a law, the crime victims' right law, that achieves
all the objectives sought by the proposed amendment. Let's look
at improving and fully funding that law before we jump to amend
the Constitution.
As Mr. Cassell points out in his testimony, congressional
funding for the National Crime Victims Law Institute clinics
has been diminished. As a result, six clinics have stopped
providing rights, enforcement, legal representation. The CVRA
vision of an extensive network of clinics supporting crime
victims' rights clearly has not been achieved.
The Crime Victims' Right Act could also be improved by, for
example, more clearly defining what is meant to be reasonably
heard in court. Offering symbolic gestures to crime victims and
weakening legislation that would provide assistance to them is
not the best way to help victims of crime. Debating yet another
constitutional amendment that we know from long experience is
going nowhere will certainly not help victims of crime.
I want to thank the Chairman and welcome our panel today,
and I look forward to their testimony. I yield back.
Mr. Franks. And I thank the gentleman.
And without objection, other Members' opening statements
will be made part of the record.
I will now introduce our witnesses. Brooks Douglass is a
lawyer, a former State senator in Oklahoma, and a film producer
and actor. Mr. Douglass' 2010 film, Heaven's Rain, is the true
story of the 1979 tragic murder of his parents, Dr. and Pastor
R. Douglass and Marilyn Douglass, and the attempted murders of
his younger sister and himself.
Two criminals entered the Douglass home, bound the family,
raped the 12-year-old daughter, and shot all four members of
the family. Only the two children survived.
Mr. Douglass went on to earn his M.B.A., J.D. and an M.P.A.
At Harvard's Kennedy School of Government. He now devotes his
life to working for victims' rights.
Jesselyn McCurdy is a senior legislative counsel for the
American Civil Liberties Union, the ACLU, with a focus on civil
liberties in the areas of criminal justice. Prior, she was a
counsel for the U.S. House of Representatives Committee on the
Judiciary, Subcommittee on Crime, Terrorism, and Homeland
Security. Ms. McCurdy has also worked as the assistant section
director of the American Bar Association Section of Individual
Rights and Responsibilities. She was a staff attorney for the
American Prosecutors Research Institute, affiliated with the
National District Attorneys Association. Ms. McCurdy received
her J.D. from Catholic University of America and the Columbus
School of Law.
Paul Cassell is an endowed chair at the University of Utah
College of Law. Professor Cassell received a J.D. from Stanford
University, where he was president of the Stanford Law Review.
He clerked for then-Judge Antonin Scalia, D.C. circuit at the
time, and for Chief Justice Warren Burger. He then served as an
Associate Deputy Attorney General; an assistant U.S. attorney,
EDVA in Virginia; and a U.S. district court judge in Utah.
Professor Cassell resigned his Federal judgeship to teach and
litigate issues to advance victims' rights.
And I would thank all the witnesses for appearing today. We
appreciate you taking the time to come out and speak to us on
this very important issue.
Each of the witnesses' written statements will be entered
into the record in its entirety. And I would ask each of the
witnesses to summarize his or her testimony in 5 minutes or
less. To help you stay within that time, there is a timing
light on your table. When the light switches from green to
yellow, you will have 1 minute to conclude your testimony. When
the light turns red, it signals that the witness' 5 minutes
have expired.
Before I recognize the witnesses, it is the tradition of
the Subcommittee that they be sworn. So if you would please
stand.
[Witnesses sworn.]
Mr. Franks. Thank you. Please be seated.
Also, to the witnesses, please turn on your microphone
before speaking. That nearly gets about half of the witnesses.
And I would recognize our first witness for 5 minutes. Mr.
Douglass, thank you for being here, sir.
TESTIMONY OF BROOKS DOUGLASS, CARROLLTON, TX
Mr. Douglass. First, thank you, Chairman Franks, for
considering this issue and for giving me the honor to come
before this Committee and testify. As you said, it is an
incredibly important issue. And really what I wanted to do was
tell a little bit about my story, and you eloquently presented
most of it, or a lot of it, for me.
But as you said, in 1979, Glen Ake and Steven Hatch came to
my front door. I let them in to use the phone. They over the
next few hours, hog-tied us all face down on our living room
floor in our home, took turns raping my 12-year-old sister
Leslie, and then sat down and ate the dinner that my mother had
been fixing, and then shot us all in the back and left us for
dead. My mother and father both died there in front of me. And
Leslie and I were able to get out of the house, get to--drive
to a doctor's house and get medical help.
That began our experience with the criminal justice system,
beginning right at the start of speaking to the Oklahoma
Highway Patrol, even when we didn't know if we were going to
survive or not.
About 6 weeks later Glen Ake and Steven Hatch were caught.
They had also killed two people in south Texas. That time they
shot them with a shotgun so they made sure they finished them
off. I went on to college. Well, they were both tried within a
year and given the death sentence.
Over the next few years, I went on to college, was called
back three times in the course of those 4\1/2\ years that I was
in college to testify again against Steven Hatch in particular.
In my senior year the Glen Ake case was heard by the U.S.
Supreme Court. It was reversed and remanded for a new trial,
which was held 7 years after the original trial--after the
murders, and he was given life sentences at that time with
possibility of parole because there was no life without parole
in Oklahoma.
So all told--we went back and testified then. All told, my
sister and I testified nine different times against these guys
that committed the crime. Seventeen years later, in 1996,
Steven Hatch was finally executed.
There were things that happened within the system, like the
day we got out of the hospital, when we were discharged, we
were handed a bill for over $500 that included the rape exam
kit that was used on my sister Leslie to collect evidence of
the rape. There was no provision in the law to reimburse us for
that. I paid $117 to get my car back that had been impounded as
evidence, and there was no provision in the law to reimburse
us.
In 1990, I was elected to the State senate, and as I said
in my statement, I would love to say it is for lots of noble
reasons, but the fact is I just needed a job, and there was an
opening. So I ran at 26 and was elected, and was 27 when I took
office and, you know, had the chance to--or I went on the
judiciary committee about a year later or the appropriations
committee. And I was on the subcommittee that funded the
judiciary. Just then I got a call from a reporter saying--and I
was avoiding victims' rights. I just wanted to pretend it
wasn't an issue, I think, and didn't want to look like a
crusader. So I didn't take that up until I got this call saying
that the Hatch case was now the slowest-moving case on death
row in Oklahoma. After 13 years it was on the third step of a
nine-step appellate process, and a lot of it was because for 2
years the Oklahoma Court of Criminal Appeals had lost the file
in the case.
So going on the appropriations committee right then, I had
a chance to discuss this with the chief judge and, you know,
keeping it as impersonal as I could, but at the end of the day,
I couldn't help myself. I finally said, you know, until you
guys find that file, get a decision handed down, and I really
don't care what the decision is, you had better learn how to do
your job with a number 2 pencil and a big cheap writing tablet
because that is all you are going to have. And fortunately the
other Members of the Subcommittee agreed with me. But
miraculously they got the decision handed down within about 30
days.
Our experiences, you know, in dealing with the criminal
justice system, there are a lot of things that I did as a
senator. There were 28 pieces of legislation that I initiated,
I sponsored, that got signed into law in Oklahoma, including
one of them being a constitutional amendment, as you mentioned.
The problem is that they are routinely ignored when it is
not convenient for the court and even the prosecution. The
prosecution does the best that they can. They have victim-
witness coordinators. They try to do what we have asked them to
do in the statute. But, yeah, there have been multiple times,
one as recently as a few months ago, where I got a call from a
victim who was not allowed to give a victim impact statement.
So I see that my time is up, and I will take whatever
questions you have.
[The prepared statement of Mr. Douglass follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Franks. Well, thank you, Mr. Douglass, very much. And
your testimony that you ran at 26 and elected at 27 also
happens to be my own testimony in the legislature, and I would
just caution you that that can lead to some pretty frightening
ends. So you might want to be careful there.
Mr. Douglass. They just told us where the bathroom was for
about a year.
Mr. Franks. Ms. McCurdy, I would now recognize you, ma'am,
for 5 minutes.
TESTIMONY OF JESSELYN McCURDY, SENIOR LEGISLATIVE COUNSEL,
AMERICAN CIVIL LIBERTIES UNION
Mr. McCurdy. Thank you, Mr. Chairman.
I would like to thank----
Mr. Franks. Ms. McCurdy, could you pull that microphone a
little closer to you?
Mr. McCurdy. Thank you.
I would like to thank Chairman Franks, Ranking Member
Nadler, and also acknowledge my former boss Representative
Scott for inviting the American Civil Liberties Union to
testify at today's hearing on the victims' rights amendment.
The victims' rights constitutional amendment introduced by
the Chairman would extend various rights to all crime victims.
This amendment would profoundly alter the Nation's founding
charter. It would fundamentally compromise the Bill of Rights
protections for accused persons in every Federal, State, and
local criminal case.
While the proposed amendment would attempt to codify a role
for criminal victims in the criminal justice process, the ACLU
is concerned that it will be difficult to provide the rights of
victims while preserving the constitutional rights of people
accused of crimes whose fundamental liberty interest is
directly at stake.
The Framers created a two-party adversarial criminal
justice system with the public prosecutor, a criminal
defendant, and a neutral judge. The Framers were aware of the
enormous power of the government to deprive a person of life,
liberty, and property. The VRA will jeopardize the basic
safeguards put in place to protect criminal defendants by
infringing on their presumption of innocence and right to a
fair trial.
In the past 220 years, the Federal Constitution has been
amended only 17 times. Amending the Constitution is a serious
matter and should be reserved for those issues where there are
no other alternatives available. Many of the provisions of the
victims' rights amendment reflect laudable goals, but it is
unnecessary to pass a constitutional amendment to achieve them.
On October 30, 2004, Congress enacted the Crime Victims'
Rights Act of 2004, legislation that enumerates eight statutory
rights for victims of crime. In addition, every State has
either a State constitutional amendment or statute protecting
victims' rights.
The constitutional protections afforded the accused in
criminal proceedings are among the most precious and essential
liberties provided in the Constitution. The VRA undermines the
presumption of innocence by conferring rights to an accuser at
the time in a criminal case when the accuser is still presumed
innocent. Not every person accused of a crime is actually
guilty of committing a crime, but giving the accuser the
constitutional status of victim could impact the judge and
jury, making it extraordinarily difficult for fact-finders to
remain unbiased when the victim is present at every court
proceeding, and potentially prejudicing those who will
determine guilt or innocence.
The VRA makes the accuser a third party in a criminal case
even before a judge or jury has determined the accused is
actually a victim.
The VRA would give crime victims a constitutional right to
attend the entire criminal trial, even if the victim is going
to be a witness in the case. In many instances, the testimony
of a prosecution witness will be compromised if the person has
heard the testimony of other witnesses. Typically trial
witnesses are barred from the proceedings prior to their
testimony for this very reason. Despite the possibility of
tainting his or her testimony, the VRA gives the victim a
constitutional right to be present, even over the objections of
the defense or prosecution.
The crime victims' rights was established in October of
2004, establishing eight rights for Federal crime victims and
two mechanisms to enforce those rights. Congress enacted CVRA
after another version of the victims' rights constitutional
amendment failed. In passing the CVRA instead of a
constitutional amendment, Congress intended to preserve the
system the Framers created, with the public prosecutor charged
with acting in the public interest, and a criminal defendant
with a full panoply of constitutional rights, and a neutral
judge.
The CVRA also directed the General Accounting Office to
conduct an evaluation of limitations of the CVRA. GAO found
that there were very few victims having asserted their CVRA
rights in court.
According to the GAO, several key issues have developed
since the implementation of the CVRA that require the courts to
interpret provisions of the law. For example, it is unclear
whether the CVRA applies to victims of local offenses
prosecuted in the District of Columbia. It is also unclear what
stage of the criminal justice process the CVRA rights begin to
apply and what standard of appellate review should be used for
writs of mandamus. These should all be noncontroversial changes
that Congress could make to the legislation in order to
facilitate and exercise the victims' rights without passing a
constitutional amendment.
The VRA would give victims rights at least equal the
defendants' constitutional rights; however, some of these same
rights are given in the statute.
The ACLU opposes any effort to enact a victims' rights
constitutional amendment because it would undermine the
presumption of innocence and the right to a fair trial for the
accused.
Mr. Franks. Thank you, Ms. McCurdy.
[The prepared statement of Ms. McCurdy follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Franks. And I would now recognize Professor Cassell for
5 minutes.
TESTIMONY OF PAUL G. CASSELL, RONALD N. BOYCE PRESIDENTIAL
PROFESSOR OF CRIMINAL LAW, S.J. QUINNEY COLLEGE OF LAW AT THE
UNIVERSITY OF UTAH
Mr. Cassell. Thank you, Mr. Chairman and distinguished
Members of the Committee. I am pleased to be here today----
Mr. Franks. Professor Cassell, let us try to pull that a
little closer. I know it is always----
Mr. Cassell. Is that better there?
Mr. Franks. Not much. Is the microphone on?
Mr. Cassell. Is the microphone on? Is it on now? Is that
working?
Mr. Franks. Not very well, sir. Let us try to pull it even
closer.
Mr. Cassell. All the way up here. Is that better?
Mr. Franks. I guess it will have to work. Yes, sir.
Mr. Cassell. All right. Mr. Chairman and distinguished
Members of the Subcommittee, I am pleased to be here today to
testify in support of House Joint Resolution 106, the victims'
rights amendment.
The victims' rights amendment would expand civil liberties
by adding a bill of rights for crime victims to our Federal
Constitution. In doing so, the victims' rights amendment would
build on the experience of more than 30 States who have all
amended their constitutions to add protections for victims'
rights.
Now, while these efforts have been valuable, they have not
been fully successful in protecting crime victims. As Attorney
General Janet Reno reported after a comprehensive review by the
Justice Department, these significant State efforts simply are
not sufficiently consistent, comprehensive, or authoritative to
safeguard victims' rights.
Research has shown that the crime victims most likely to be
deprived of their rights under the current patchwork regime are
racial minorities, residents of inner cities, and the poor.
Only an unequivocal constitutional mandate will translate paper
promises into real guarantees for crime victims.
The victims' rights amendment builds on the fact that there
is a national consensus that crime victims deserve respect in
our criminal justice process. It would protect basic rights,
like the right to be notified about court hearings, the right
to attend those hearings, and the right to be heard at relevant
points in the process, like bail hearings, plea hearings and
sentencing. These are the kinds of rights that our Constitution
is typically and properly concerned about, the rights of
individuals to participate in governmental processes that
seriously affect their lives. As President Clinton explained in
endorsing the victims' rights amendment, participation in all
forms of government is the essence of democracy.
Criticisms of the amendment are often based on uninformed
speculation about how the language might be misinterpreted or
misapplied by courts. But as I detail at greater length in my
written testimony, the victims' rights amendment draws on the
experience in the various States and Federal legislation that
is out there. For example, the victims' rights amendment begins
by promising all victims that their rights to, quote, fairness,
respect, and dignity shall not be denied or abridged by the
United States or any State. Similar provisions are found in the
Crime Victims' Rights Act and in the State constitutions of
Arizona, Idaho, Illinois, Maryland, New Jersey, Texas,
Wisconsin, and my home State of Utah. State and Federal courts
have taken that language and applied it without the kinds of
difficulties that have been speculated by the ACLU or other
opponents. I have never heard any serious argument about
giving--against giving victims the right to be treated with
fairness, dignity, and respect in the process, and these rights
should be enshrined in our Constitution.
Now, sometimes it is argued, as it has been this afternoon,
that crime victims' rights will come at the expense of
defendants' rights. But House Joint Resolution 106 is a very
carefully crafted measure that adds victims' rights that would
coexist alongside with defendants' rights. For example,
paralleling a defendant's Sixth Amendment right to a speedy
trial, House Joint Resolution 106 gives victims the right to
proceedings free from unreasonable delay. According to Harvard
law professor Larry Tribe, who has endorsed a version of the
amendment, these rights cannot collide since, by definition,
they are both designed to bring matters to a close within a
reasonable period of time.
Now Mr. Quigley was wondering whether or not this right
would be used to force prosecutors to go to trial before they
were ready or defense attorneys to go before they were fully
prepared. It would not. The victims' rights amendment simply
extends to victims the right to proceedings free from
unreasonable delay. If a prosecutor or defense attorney needs
additional time, they certainly would be entitled to receive it
under the amendment.
Now, the amendment specifically addresses the concern about
protecting the legitimate interests of criminal defendants by
identifying crime victims' rights as those, quote, capable of
protection without denying the constitutional rights of the
accused. This language was included in the amendment at the
suggestion of Harvard law professor Larry Tribe. And I noticed
that in neither Ms. McCurdy's prepared remarks or her testimony
this afternoon does she even mention this direct language, let
alone explain how courts could somehow ignore it and deny
rights to criminal defendants. It is hard to understand how the
amendment could be used to deny defendants their rights when
the explicit text provides exactly the opposite.
While the amendment would not in any way interfere with the
legitimate interests of criminal defendants, it would protect
vital interests of crime victims. It would protect victims from
being excluded from court proceedings, proceedings that they
desperately want to attend to learn all they can about crimes
that have been committed against them. It would guarantee
victims the right to be heard at bail, plea, and sentencing
hearings not to veto the decisions that judges would make in
those hearings, but simply to have a voice in the process. And
it would mandate that victims receive reasonable notice of the
release or escape of accused persons or defendants, which can
sometimes be literally a matter of life or death for victims
who need to take appropriate steps to protect themselves
against criminals on the street.
These rights are not controversial. They command broad
bipartisan support, which is why President Clinton first
proposed a victims' rights amendment and later saw it endorsed
by President George Bush. Public opinion polls consistently
show overwhelming majorities of Americans want constitutional
protection for crime victims' rights.
Now, I understand that in Washington today, delay has
occurred on some issues because of partisan disagreement on how
to proceed, but I hope there will be no delay in moving forward
with the victims' rights amendment. The Framers of the
Constitution undoubtedly believed that victims of crime would
receive adequate respect in our criminal justice system.
Because experience has not vindicated that expectation, it is
now necessary to add a corrective amendment to our
Constitution, the victims' rights amendment.
Mr. Franks. Thank you Professor Cassell.
[The prepared statement of Mr. Cassell follows:]
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Mr. Franks. And I will now begin the questioning time by
recognizing myself for 5 minutes. I again appreciate all of you
for your testimony.
Mr. Douglass, I will begin with you. I have had the
opportunity to hear many different witnesses express very
moving testimony, but I will say to you, sir, that your
testimony here today was one of the most moving and compelling
that I have heard as the Chairman of this Committee. And I will
suggest to you that your parents would be and are quite proud
of you for your performance and presence here today.
Mr. Douglass. Thank you.
Mr. Franks. And I would ask you, if you would, to describe
real-life examples that you have discovered in your own life or
experience where existing crime victims statutes or State
constitutional amendments have failed to provide the
protections that they promised to crime victims.
Mr. Douglass. Certainly. Thank you, Mr. Chairman. I will
give one example.
After we passed the initial victims' rights act in
Oklahoma--and that included, actually amended in 1992, the U.S.
Supreme Court handed down a decision saying that victim impact
statements were constitutional. About a year later, after our
statute had passed, I got a call from someone that I knew in
Tulsa, Oklahoma. His mother had been murdered, and they had
held the trial, and the person--someone had just been convicted
of committing that murder.
He called me and said that they were all getting ready to
give their victim impact statements, and the judge literally
said, I am not going to hear it. So the prosecutor went in and
argued the Supreme Court decision and our statutes and said,
you have to hear this testimony. And he just said, I am not
going to do it. So they had called me and asked me to call the
judge and discuss it with him, which I did. And the judge
basically said, I don't think it is constitutional, and I am
not going to hear it. I don't like being told what to do in my
courtroom.
And the upshot was, what are you going to do about it? And
to make a long story short, I wound up bringing in the Court of
Criminal Appeals chief judge. We had a conversation with him,
and I said the same thing to both of them. I said, well, I
understand you have a job to do. You don't want to be told what
to do in your courtroom. And I have a job to do as a State
senator, and now I am going to do mine. I said, I am going to
go down and I am going to get staff. I am going to author a
bill that creates a review committee, and what their job will
be is to review decisions dealing with crime victims' rights,
and if they find that you have wrongfully denied a victim of
one of their rights under the statutes or the Constitution of
Oklahoma, they are going to ultimately have the power to take
away your pension.
Well, you know, pretty quickly he decided then that--I
don't know if it would be constitutional for me to do that or
not, frankly, but I didn't have to file the bill. He wound up
actually deciding it was a good idea to hear the victim impact
testimony.
But there have been countless--even after I left the
senate, just as I think I said in my testimony a few months
ago, a judge, a sitting judge who I went to law school with,
and maybe it wasn't a very good law school, but at the end of
the day, he just said, I don't think it is constitutional. He
doesn't bother looking up Supreme Court decisions. As you
mentioned in your initial statement, just the mention of the
constitutional rights of the accused is enough for them.
Whether it has any basis or not, the victims' rights are
ignored.
As I have said many, many times from the senate floor in
Oklahoma, we have a system that literally steps over the body
of the victim to read the criminal his rights, or the suspect
his rights, and as long as there is not equal footing, as
long--the victims will continue to be second-class citizens in
our system.
Mr. Franks. Well, thank you, Mr. Douglass, very much. And I
again appreciate your presence here today, sir.
Professor Cassell, it seems I have been mispronouncing your
name, and I apologize. But how widespread, in your opinion, is
the problem described by Mr. Douglass; that is, this failure of
State victims' rights laws to protect crime victims? And I
suppose I should add, what reason is there for thinking that if
a Federal constitutional amendment were enacted, that the
protection of crime victims' rights would improve?
Mr. Cassell. Let me address both of those questions. There
was a comprehensive Justice Department review done by Attorney
General Janet Reno, and she found that the State enactments
failed to fully safeguard victims' rights because they were not
sufficiently consistent, comprehensive, or authoritative. She
relied in part on a National Institute of Justice study that
looked at, I think, eight different States to see how the State
amendments were being implemented, and they found significant
problems. For example, fewer than 60 percent of crime victims
were notified of sentencing hearings, and fewer than 40 percent
of victims were notified of pretrial release.
Now, those error rates are simply astounding. I mean, I
wonder what the Committee would do if it found out, for
example, that even 5 percent of criminal defendants were not
getting their right to be represented by counsel or something
along those lines. I am assuming there would be hearings and
immediate steps taken to rectify the situation. But that is the
level of the problem that is out there.
Now, we have heard some discussion, too, about the Federal
system and the new Crime Victims' Rights Act. I wanted to say
just a couple of words about that. Let us remember that the
Federal Crime Victims' Rights Act applies to fewer than 5
percent of the criminal prosecutions in this country. Most of
the prosecutions are done at the State and local level, and
certainly most of the violent crimes or extremely violent
crimes, such as the one Mr. Douglass is talking about, are
handled by State and local prosecutors. So the Federal system,
I think, is a little bit unusual. But even here the General
Accounting Office found significant situations, such as the
fact that less than half of Federal victims were even aware
that they had a right to confer with Federal prosecutors.
So that is the level of the problem that we have out there.
A constitutional amendment would immediately change the
culture. The kinds of examples we have been hearing about today
simply wouldn't happen. You don't see judges ignoring a
defendant's right to counsel, because they are taught that in
law school, they know it is in the Constitution, and they
respect it. The same kind of change would happen if we passed a
victims' rights amendment.
Mr. Franks. Well, thank you, Professor. And related to your
testimony about the Janet Reno study, did I hear it--was it
Janet Reno?
Mr. Cassell. Yes.
Mr. Franks. Okay. From my memory on that part, that she has
been accused of being part of a right-wing conspiracy here.
But with that I would yield to Mr. Quigley for 5 minutes
for questions.
Mr. Quigley. Thank you, Mr. Chairman.
Mr. Douglass, I apologize for being out of the room when
you testified. One of the few absolute responsibilities we have
here is voting, and I was next door doing that. But I read your
testimony. It is quite compelling and very important for us to
appreciate.
To all of our panelists, having been in the trenches of the
justice system as a criminal attorney at 26 in California and
Chicago for 10 years, probably 220 trials, I can tell you it
isn't easy. We all speak of a balance, but the balance is
played out every day.
And, Professor, when I talk about my reservations, it comes
from that experience, because after I left that work, I was a
Cook County commissioner on the litigation committee. Our first
act was to deal with a lawsuit of four men, the Ford Heights
Four, who went to jail or on death row. One was lined up on
death row. One was raped in prison. And it was the wrong guys,
right? In Illinois--we talk about the balance, the horrific
unfortunately goes to both sides.
Before they got rid of the death penalty, they exonerated
more people on death row through DNA and so forth than they
executed. So if no one cares about that aspect from the issue
of justice, the county had to settle the Ford Heights case for
$36 million.
So that no one thinks this is just about the alleged
perpetrators' rights being taken away, being put on death row,
we want to get this right because the victims want the right
people punished. So my concern, Professor, is we got to get
this right. And when it comes to speedy trials, you say--you
quoted someone from Harvard saying they can't collide. Well,
they do. And I am telling you, it is not easy to sort out, you
know? We put people on the bench. Some are good, and some are
bad.
But you have to appreciate from a veteran's point of view,
I have seen haste make horrible mistakes. I mean, how do you
balance that out with the language that you are trying to
address here beyond just that word ``unreasonable,'' which
courts struggle with?
Mr. Cassell. Well, I was a Federal prosecutor for 4 years,
and I was a Federal district court judge for 5 years, so I have
been in the trenches as well and have seen a number of the
cases that are out there.
I think I agree with Harvard law professor Laurence Tribe.
He was the law professor that I was quoting. And the idea here
is not to take away rights from criminal defendants, but to
expand rights for crime victims.
So let us talk about the one you have been pointing to, and
the language, I think, is very carefully drafted. It says that
crime victims would have the right to proceedings free from
unreasonable delay. And by definition, and the situation in
which the prosecutor needs to prepare a case or the defendant
needs to collect evidence, that would be reasonable delay. But
we have all seen situations--I am sure you have--where delay is
happening for delay's sake or for no good reason at all. The
amendment would give a victim a right to go in and say, wait a
minute, Judge, we need to get this case moving along.
The other thing I should point out is that there are a
number of States--and my prepared testimony actually lists
them--that already have in their State constitutions a
constitutional right to proceedings free from unreasonable
delay. So the fact that these States have been able to provide
these rights without the kinds of problems that I think some
have been suggesting bodes very well for the Federal
constitutional amendment.
Mr. Quigley. And I appreciate what you are saying. I still
think, though, beyond the simple words of what you are trying
to do, every case is unique, and every case is bound upon that.
And I think to a certain degree you are creating unrealistic
expectations that with the stroke of a pen and the passage of a
constitutional amendment, judges are going to have a much
easier time sorting out that troubling aspect of this right
now, and that is lost witnesses, complicated data, experts'
cost, pending litigation. You know, perhaps much better than I,
a dozen other reasons that this could be held off and could be
extraordinarily complicated, and we get it wrong both ways. You
know, it is something we struggle with.
I just have fears that it is hard to do the most important
thing we do, and that is seek justice, with the language that
has to be so broad as a constitutional amendment, and you want
to be balanced. But I just think it is harder than that, what
you have tried to explain here in just these few minutes, and
there is just so much at stake in our attempts to do so,
because, again, it does the victims no good to have a hearing--
to have a trial take place, and we get the wrong people.
But I will yield back.
Mr. Franks. Thank you, Mr. Quigley.
We will now recognize Mr. Scott for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
I think we all want dignity, respect, and protection for
our witnesses, and the question is whether the constitutional
amendment would create more problems than it solves. Professor
Cassell mentioned the State measures. They are all subservient
to the Federal Constitution.
You also mentioned the right to counsel and how that is not
ignored. Well, a right to counsel, if you violate that, that is
reversible error. That is why the judge has to pay attention to
that. There is nothing in here that creates any remedy that is
apparent. I guess mandamus.
If you really want to provide respect, dignity,
consultation, protection, what we ought to do is have more
victim advocates, more prosecutors so they have actual time. A
lot of State prosecutors come in with a stack of files. They
don't have time to talk to anybody, so of course they are going
to be rude. If you had more prosecutors and more marshals to
provide protection. Unfortunately the budget that we are trying
to work under this year eliminates a lot of the funding for the
victims' advocates, cuts the Department of Justice budget
significantly, and has about a 10 percent cut for the marshal
services. So who is going to be doing the protection?
Let me ask a couple of questions, because some of this is
all in theory, and I just want to know what this kind of looks
like.
If a victim has, in fact, been disrespected and goes in the
court and presents a case--it says any court, so I assume if it
is a State court proceeding, they can go into Federal court to
make the case that they are being disrespected in State court.
What does a judge do? Does a prosecutor get subpoenaed to
testify, no, I didn't disrespect them?
Mr. Cassell. The way the enforcement would work is if there
was a problem in State court, the victim would go into State
court to address that.
Mr. Scott. Well, it says in here any court, enforce those
rights in any court, has a standing to enforce these rights in
any court.
Mr. Cassell. So you would have standing to enforce them in
both State and Federal court.
Mr. Scott. So you would go to Federal court and present to
a judge that you are being disrespected in State court?
Mr. Cassell. You would go initially, though, to the State
court, because the State court is the--you have to exhaust
remedies before you can proceed to some other forum to
vindicate your rights. And the way that this would work--again,
there are real-world examples of a right to be treated with
respect, and my prepared testimony collects specific examples.
For example, in a child pornography prosecution, if
somebody is showing the pornography around in ways that are not
respectful to the victim, the victim can go to that judge and
say, wait a minute, these materials should be kept under seal,
only disclosed to people that have a need to see that
information. That is the kind of enforcement that becomes
possible if a Federal constitutional amendment----
Mr. Scott. Well----
Mr. Cassell [continuing]. Around the country.
Mr. Scott. Let us get back to disrespect. If you are in
court and approved your case, can you subpoena the prosecutor?
Mr. Cassell. You wouldn't need to subpoena the prosecutor.
The prosecutor would be right there during the proceedings, and
so you would assert----
Mr. Scott. Now, if you are in any court, you can go into
any court and--so let us say the judge is the problem, and you
want to go into another court to show that you are being
disrespected. And you present it to the court: Won't return
phone calls, didn't notify me of this and that. Is that an ex
parte proceeding? Can you go ex parte in Federal court?
Mr. Cassell. No, you don't go ex parte. Again, there are
real-world examples of how these rights are handled, and you
don't go to a different court, you don't subpoena the judge.
Just as you pointed out, if a defense attorney is not appointed
for a defendant, you don't go and subpoena----
Mr. Scott. No. That is reversible error. You don't have to
worry.
If you have shown that you are being disrespected, what is
the remedy?
Mr. Cassell. Well, the remedy is to correct the disrespect.
Mr. Scott. And if they don't do it, what is the remedy?
Mr. Cassell. The remedy then is to go to the appellate
court and say the lower court is not following the directive in
the United States Constitution. Again, there are real-world
examples.
Mr. Scott. Is that an ex parte proceeding?
Mr. Cassell. No. It is a judicial proceeding that is
handled with notice to both sides with service of process on
both sides.
Mr. Scott. And you don't have enough prosecutors to begin
with. So they are sitting up in all these other courts.
Unreasonable delay. How will a judge determine whether or
not the delay is reasonable or not?
Mr. Cassell. Right. There would be typically a four-factor
balancing test. In my prepared remarks, I indicate the four
factors that the judges have used. And remember, defense
attorneys now----
Mr. Scott. I am running out of time. So if the delay is
because the prosecutor's witness has disappeared, and the
defense doesn't know about it, or refuses to testify, or the
prosecution has lost the evidence and is trying to find it,
would that be an open trial with the defendant there listening
to the proceedings as to why they haven't gone forward?
Mr. Cassell. The question would be for the judge whether
the delay was reasonable or not, and a record would be made on
that. In certain situations records can be made in sealed
proceedings. So that is how that issue would be handled.
Mr. Scott. Well, I mean, so the defendant would have the
opportunity to hear that the prosecutor's case has all fallen
apart, and that is why they are asking for a continuance?
Mr. Cassell. That is the way it happens today in many
cases.
Mr. Scott. No, they just--the defendant knows he did it, so
he doesn't want--if the prosecutor wants a continuance, fine
with me.
Now you have got an idea that the witness isn't going to
show up, and the victim says it is unreasonable delay. And the
judge says, this is unreasonable; Mr. Prosecutor, why aren't
you going forward? Then what does the prosecutor say?
Mr. Cassell. All I can say, Congressman, is that that has
not been a problem, for example, in my home State of Utah,
where there is such a right. And that is probably why the
National District Attorneys Association just this week endorsed
the amendment saying it would actually strengthen the
prosecution.
Mr. Scott. Mr. Chairman, can I ask one additional question?
Mr. Franks. Without objection, please.
Mr. Scott. The language in section 1 starts off with the
rights of the crime victim, fairness, respect, and dignity,
being capable of protection without denying the constitutional
rights of the accused. Do you interpret that as being a
priority for rights of the accused or a statement, in fact,
that you can provide fairness, respect, and dignity without
denying the constitutional rights? Is that a question of fact,
a statement of fact, or a statement of priority?
Mr. Cassell. What it is is a statement of coexistence, that
both victims' rights and defendants' rights can coexist without
compromising each other. The language, I should point out, was
drafted by Harvard law professor Laurence Tribe, again who is
frequently cited as one of the leading advocates for civil
liberties in this country. So we think the language would
actually work very well to make sure that both defense
interests and crime victims' interests are----
Mr. Scott. Well, my question is if there is--if somebody
believes there is a conflict, would the right of the accused
trump the rights of the victim? Or is this a statement of--
trying to be a statement of fact that there is, in fact, no
conflict, and that the crime victims' rights will be respected
notwithstanding any denying of constitutional rights to the
accused?
Mr. Cassell. It does not provide a basis for denying
defendants' rights. It does not provide a basis for denying
victims' rights. It says that both rights can coexist. And
again, nobody has provided a real-world example of how the
rights are going to interfere with the defendants' interests.
Mr. Franks. Mr. Scott, I am going to have to ask you to
leave it there, sir. I have got a vote in the Committee next
door that I have got to--and that means I am going to have to
be pretty direct here.
But we have had a good hearing, and I want to thank all of
the witnesses for coming. And, without objection, all Members
will have 5 legislative days to submit to the Chair additional
written questions for the witnesses, which we will forward and
ask the witnesses to respond to as promptly as they can so that
their answers may be made a part of the record.
Without objection, all Members will have 5 legislative days
within which to submit any additional materials for inclusion
into the record.
With that, again, I sincerely thank the witnesses. I thank
the Members and observers. And this hearing is now adjourned.
[Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Supplement to the Testimony of Paul G. Cassell, Ronald N. Boyce
Presidential Professor of Criminal Law, S.J. Quinney College of Law at
the University of Utah
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Material submitted by the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Chairman, Subcommittee on the
Constitution
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]