[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]






                       VICTIMS' RIGHTS AMENDMENT

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION 
                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                                   ON

                              H.J. Res. 40

                               __________

                             APRIL 25, 2013

                               __________

                           Serial No. 113-18

                               __________

         Printed for the use of the Committee on the Judiciary




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      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
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                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

           Subcommittee on the Constitution and Civil Justice

                    TRENT FRANKS, Arizona, Chairman

                    JIM JORDAN, Ohio, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa                     ROBERT C. ``BOBBY'' SCOTT, 
LOUIE GOHMERT, Texas                 Virginia
RON DeSANTIS, Florida                STEVE COHEN, Tennessee
[Vacant]                             TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel

                David Lachmann, Minority Staff Director














                            C O N T E N T S

                              ----------                              

                             APRIL 25, 2013

                                                                   Page

                                THE BILL

H.J. Res. 40, the ``Victims' Rights Amendment''..................     4

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution and Civil Justice.................................     7

                               WITNESSES

William G. Montgomery, Maricopa County Attorney
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
John W. Gillis, Maricopa County Attorney's Office's Victim 
  Services Division
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Robert P. Mosteller, Professor, University of North Carolina 
  School of Law
  Oral Testimony.................................................    31
  Prepared Statement.............................................    34
Douglas E. Beloof, Lewis & Clark Law School
  Oral Testimony.................................................    40
  Prepared Statement.............................................    42

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, Ranking 
  Member, Committee on the Judiciary, and Member, Subcommittee on 
  the Constitution and Civil Justice.............................     7

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Chairman, Subcommittee on the Constitution and Civil Justice...    60
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................   213
Supplement to the Testimony of William G. Montgomery, Maricopa 
  County Attorney................................................   214

 
                       VICTIMS' RIGHTS AMENDMENT

                              ----------                              


                        THURSDAY, APRIL 25, 2013

                        House of Representatives

                   Subcommittee on the Constitution 
                           and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 11:34 a.m., in 
room 2237, Rayburn Office Building, the Honorable Trent Franks, 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Chabot, DeSantis, Nadler, 
and Scott.
    Staff present: (Majority), John Coleman, Counsel; Sarah 
Vance, Clerk: (Minority) David Lachmann, Subcommittee Staff 
Director; and Veronica Eligan, Professional Staff Member.
    Mr. Franks. The Subcommittee on the Constitution and Civil 
Justice will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    Today's Subcommittee on the Constitution and Civil Justice 
examines H.J. Res. 40, the bipartisan ``Victims' Rights 
Amendment'' to the Constitution, also known as the VRA.
    An amendment to the Constitution for the rights of victims 
was first proposed by President Ronald Reagan's Task Force on 
Victims of Crime in 1982. The task force wrote, in part--do we 
have some feedback here? I didn't want you all to miss this 
quote. It is really a cool quote. [Laughter.]
    The task force wrote, in part, ``We do not make this 
recommendation lightly. The Constitution is the foundation of 
national freedom, the source of national spirit. But the 
combined experience brought to this inquiry and everything 
learned during its process affirmed that an essential change 
must be undertaken. The fundamental rights of innocent citizens 
cannot adequately be preserved by any less decisive action.''
    Victims' rights legislation 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 at the state and Federal level to 
bring balance through statutes or state constitutional 
amendments, these efforts have proven inadequate whenever they 
come into conflict with bureaucratic habit or traditional 
indifference or sheer inertia or the mere mention of an 
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 ``haphazard patchwork of 
rules is not sufficiently consistent, comprehensive or 
authoritative to safeguard victims' rights.'' In light of the 
inadequacies of our current laws, it is time we amended the 
United States Constitution to include rights of victims of 
crime, and it is time for Americans who become victims of crime 
to have the same rights anywhere in the United States, 
regardless of the state in which that crime occurs.
    The VRA would specifically enumerate rights for crime 
victims, including the right to fairness, respect and dignity; 
the right to reasonable notice of and the right not to be 
excluded from public proceedings related to the offense; the 
right to be heard at any release, plea, sentencing, or any 
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 the 
escape of the accused; the right to due consideration of the 
crime victim's safety and privacy; and the right to 
restitution. Moreover, the amendment expressly provides 
standing for the victim to enforce the enumerated rights.
    Supporters of a victims' rights amendment have included 
presidents George H. W. Bush, Bill Clinton, George 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 of 
Victims' Assistance; and finally, the National District 
Attorneys Association, the voice of the Nation's prosecutors.
    Last year, the Phoenix Law Review, at the Phoenix School of 
Law, published a special issue containing articles and authors' 
statements regarding the Victims' Rights Amendment. I would 
like to ask unanimous consent to put it into the record.
    Hearing no objection, so ordered.*
---------------------------------------------------------------------------
    *The material submitted for the record is not reprinted in this 
hearing record but is on file with the Subcommittee.
---------------------------------------------------------------------------
    The issue is entitled, ``A Proposed Victims' Rights 
Amendment to the Constitution,'' and it is dated April 19, 
2012.
    In addition, my office has received several law review 
articles, additional written testimony, a proclamation by 
Governor Brewer of Arizona recognizing this week as Arizona 
Crime Victims' Rights Week, and letters from victims' rights 
organizations, including the National District Attorneys 
Association, the National Organization for Victim Assistance, 
the National Center for Victims of Crime, and the Justice 
Fellowship, which we will add to the hearing record as well.**
---------------------------------------------------------------------------
    **The information referred to is available in the Appendix.
---------------------------------------------------------------------------
    I look forward to hearing from the witnesses today on this 
critical issue, and I will now yield to the Ranking Member, Mr. 
Nadler, for his opening statement.
    [The resolution, H.J. Res. 40, follows:]


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                               __________
    Mr. Nadler. Thank you, Mr. Chairman. I apologize for being 
a little late and I thank you for holding the hearing.
    First of all, I ask unanimous consent that the statement of 
the distinguished Ranking Member, Mr. Conyers, be placed in the 
record.
    Mr. Franks. Without objection, so ordered.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    Thank you, Mr. Chairman.
    Today, we examine the proposed Victims' Rights Amendment to the 
Constitution, an issue that has come before this Committee many times 
since the 104th Congress.
    The timing of this hearing is especially appropriate as it 
coincides with the National Crime Victims Rights Week.
    This hearing, therefore, provides an excellent opportunity to 
reflect not just on what has been accomplished, but what more we can do 
to aid victims of crime.
    I continue to have serious reservations about amending the 
Constitution in order to aid victims or crime. I do not believe a 
constitutional amendment is necessary, and I am deeply concerned that 
it will undermine both the rights of defendants, and the ability of law 
enforcement to do its job.
    As we consider the Victims' Rights Amendment, I would like us to 
keep the following issues in mind.
    First, would a constitutional amendment actually provide any 
benefit to a victim of crime?
    As demonstrated by prior Congresses, there has never been any 
action on this undertaking because of the cumbersome nature of amending 
the Constitution.
    However, Congress has passed various measures that continue to 
provide meaningful assistance to victims and that protect their rights.
    The Federal Crime Victims Assistance Fund--managed by the FBI and 
various Justice Department Divisions--provides critical assistance to 
victims and survivors immediately after the crime.
    The Treasury Offset Program is a centralized debt collection 
program that helps agencies collect delinquent debts owed by criminals 
and to ensure that they pay restitution to crime victims. To date, 
these efforts have resulted in more than $24 million in restitution 
payments.
    The Office for Victims of Crime funds programs to enhance and 
provide comprehensive services for victims of human trafficking.
    The Drug Endangered Children Program is a collaboration among 
federal, state, and local nonprofit entities and the public to develop 
best practices to help educate law enforcement, justice system 
personnel, and service providers about children put in harm's way by 
family members involved in drugs.
    There are also programs funded under the Children's Justice Act and 
federal funding for victim-witness coordinators in U.S. Attorneys's 
Offices and the FBI. In addition, federal funds support the Federal 
Victim Notification System, and state victim assistance formula grants.
    These are just a few of the efforts to provide assistance to crime 
victims.
    In contrast, the Victims' Rights Amendment is utterly silent about 
how it would provide any meaningful counseling, funding, or other 
assistance that experience has shown is so helpful in the wake of a 
crime.
    The services now being provided to crime victims are invaluable, 
and it would make sense to augment them.
    Yet, while we are wasting time on this Amendment, budget cuts, 
including the sequester, have reduced the resources available to help 
victims and law enforcement. We should build on our successes, not 
undermine them.
    Second, we should consider how would this Amendment affect other 
rights under the Constitution.
    In particular, I am very concerned that the Amendment would 
interfere with the right to a fair trial notwithstanding its broad 
declaration that the ``rights of a crime victim to fairness, respect, 
and dignity, [are] capable of protection without denying the 
constitutional rights of the accused.''
    Just because we say it doesn't make it true.
    Most troubling, it drastically changes the contours of a criminal 
trial from one in which the guilt or innocence of a defendant must be 
determined, instead requiring courts to behave in ways that assume 
guilt prior to trial.
    But other aspects of this Amendment, including actions that would 
prejudice the jury, or allow a third party to demand that a trial move 
ahead when the prosecution or the defense are trying to assemble a 
case, could wreak havoc.
    Finally, we should consider what would be the impact of a 
constitutional amendment on the administration of justice, particularly 
the effective and expeditious prosecution of criminals.
    The Amendment would create numerous opportunities for litigation to 
interfere with the judicial process.
    We have heard in the past from prosecutors and some victims rights 
advocates about the danger of giving so wide a group of individuals the 
right to sue.
    For example, a person who had abused a woman for 20 years, and who 
was ultimately stabbed by her, would enjoy the full range of newly 
created constitutional rights under this Amendment.
    A victim who objected to the prosecution's strategy, or the 
decision by a prosecutor to wait for additional evidence, for example, 
could sue and assert that his or her constitutional rights had been 
violated under this Amendment.
    There are many reasons why, over the years, we have never advanced 
this constitutional amendment, and that we have sought legislative and 
administrative means of protecting the rights of victims, and assisting 
them in the aftermath of crime.
    I want to thank the witnesses for attending. I look forward to 
their testimony.
    Thank you, Mr. Chairman. I yield back.
                               __________

    Mr. Nadler. Thank you. Thank you, Mr. Chairman.
    Mr. Chairman, 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 the role that everyone in the criminal justice 
system must play in assisting victims 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, and not 
without justification, that they were considered almost 
extraneous to the process. With greater awareness and legal 
protections enacted at the state and Federal levels, victims 
now 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 
more. We could provide more funding for crime victims' 
programs. We could provide the training and resources necessary 
to ensure that our existing laws, which require notice and 
assistance to crime victims, are fully enforced.
    One thing we did recently that will help crime victims was 
to put an end to the delays and obstructionism that held back 
the reauthorization of the Violence Against Women Act. The 
resources that that act provides to victims of some of the most 
heinous crimes is invaluable.
    Crime victims also need to see the guilty party is 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 serious 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. It will certainly spark 
extensive litigation in our already over-burdened criminal 
justice system, and it may provide an opportunity for people 
who do not have the best of motives to cause terrible trouble 
in prosecutions.
    Our first obligation to crime victims is to provide 
assistance, but we must do the job right. Constitutional 
amendments may make for great headlines, but they are no 
substitute for the resources victims and law enforcement need. 
Offering symbolic gestures to crime victims and stonewalling 
legislation that would provide assistance to them is not the 
way to help victims of crime.
    Cutting funding for victim assistance programs, as the 
sequester legislation has done in the name of fiscal austerity, 
is certainly not the way, and I hope that my colleagues will 
remember that when we take up the Balanced Budget 
Constitutional Amendment later this year. For example, the 
Crime Victims Fund was established by the Victims of Crime Act 
to provide funding for state victim compensation and assistance 
programs. The CVF, the Crime Victims Fund, provides funding for 
discretionary grants for private organizations' assistance, the 
Federal Victim Notification System, funding for victim 
assistance staff within the FBI and the executive office of the 
U.S. Attorney, funding for the Children's Justice Act Program, 
and compensation for victims of terrorism. It is funded through 
criminal fines, forfeited appearance bonds, penalties and 
special assessments collected by the U.S. Attorney's Office, 
Federal courts, and the Federal Bureau of Prisons.
    Since 2002, Congress has allowed gifts, bequests and 
donations from private entities to be deposited into the CVF. 
For fiscal year 2012, Congress set the CVF distribution cap at 
$705 million. For fiscal year 2013, the Obama Administration 
requested an increase in the CVF cap by $365 million, to a 
total of $1.07 billion, but Congress limited funding to $705 
million. According to OMB, the sequester resulted in the loss 
of approximately $36 million to that reduced number. This means 
real less services to victims of crimes.
    So if we are to measure Congress' commitment to crime 
victims in terms of providing them with actual assistance 
instead of by rhetoric, then this Congress and the reckless 
budget cutters simply don't measure up.
    Amending the Constitution is also difficult, as it should 
be. We have only had, since the Bill of Rights was added in 
1791, 17 amendments to the Constitution, three of them in the 
aftermath of the Civil War. So since the Civil War, only about 
a dozen.
    In the case of this proposed amendment, this Committee, 
much less this House, has not even acted on it. We do hold 
hearings every Congress, but that is the end of it. Debating 
yet another constitutional amendment that we know from long 
experience is going nowhere will certainly not help victims of 
crime. We will hold a hearing, we will talk about it today, and 
that will probably be the end of it. Judging from past 
experience, Republican congresses will hold this hearing, we 
will never mark up a bill, we will never pass it, and certainly 
the Senate won't look at it. That will help no one. Certainly 
it won't help victims of crime. Legislation that protects 
victims' rights and improves services would help victims of 
crime. I hope that we can work together to improve and expand 
those services in the future.
    I want to join the Chairman in welcoming our panel today, 
and I look forward to their testimony. I thank the Chairman and 
the witnesses, and I yield back the balance of my time.
    Mr. Franks. I thank the gentleman.
    We would now yield to the Chairman of the Committee, Mr. 
Goodlatte from Virginia. However, Mr. Goodlatte is not here at 
the moment. So without objection, if he arrives, we will allow 
him to make his statement at that time. Otherwise, we will 
place his statement in the record.
    I would now yield--let's see, I think Mr. Conyers' 
amendment or his opening statement will be placed in the record 
as well.
    Let me now introduce our witnesses.
    Bill Montgomery is the County Attorney for Maricopa County, 
Arizona. Mr. Montgomery is a West Point graduate, decorated 
Gulf War veteran, former Deputy County Attorney, and a 
professional prosecutor. Mr. Montgomery earned his J.D. from 
Arizona State University College of Law, graduating magna cum 
laude and receiving the Order of the Coif. As a prosecutor with 
the Maricopa County Attorney's Office, he quickly gained a 
reputation as an aggressive prosecutor. Mr. Montgomery has 
helped shape legislation designed to protect victims of crime 
and reform child protective services, resulting in the creation 
of the Office of Child Welfare Investigations, and he continues 
to be a passionate advocate for crime victims' rights in 
Arizona.
    Glad you are here, Bill.
    John W. Gillis is a former veteran, Los Angeles police 
officer, a former National Director of the Office of Victims of 
Crime in the U.S. Department of Justice, and a champion for the 
rights of crime victims. Following the 1979 murder of his 
daughter, Louarna, Mr. Gillis became a founding member of 
Justice for Homicide Victims, JHV, and the Coalition of 
Victims' Equal Rights. Mr. Gillis was nominated by President 
George W. Bush and confirmed by the U.S. Senate in September, 
2001, as the National Director, Office for Victims of Crime, 
U.S. Department of Justice. In addition to a Master of Science 
degree in public administration, University of Southern 
California, he holds a B.A. degree in political science from 
California State University at Los Angeles. He has studied law 
at Glendale College School of Law, and Mr. Gillis serves as 
Chief of the Maricopa County Attorney's Office Victims Services 
Division, and on the Board of Directors at the National Crime 
Victim Law Institute.
    Thank you for being here, sir.
    Professor Robert Mosteller--is that Mosteller? I know no 
one has ever gotten that wrong before. Professor Robert 
Mosteller is an Associate Dean for Academic Affairs at the J. 
Dixon Phillips Distinguished Professor of Law at the University 
of North Carolina School of Law. Professor Mosteller holds a 
B.A. in history from the University of North Carolina, where he 
was President of the Phi Beta Kappa, a Master's in public 
policy from Harvard, and a J.D. degree from Yale. After 
clerking on the United States Court of Appeals for the Fourth 
Circuit with Judge J. Braxton Craven, he worked for 7 years 
with the Washington, D.C. Public Defenders Service, where he 
was Director of Training and Chief of the Trial Division.
    Professor Doug Beloof is a law professor at Lewis and Clark 
School of Law. Professor Beloof is a graduate of the University 
of California at Berkeley and received his J.D. from 
Northwestern School of Law of Lewis and Clark College. 
Professor Beloof began his law career clerking for Justice 
Thomas H. Tongue of the Oregon Supreme Court. As Director of 
the Multnomah County Victims' Assistance Program, he worked on 
establishing procedures to assist victims of crime. He has been 
a prosecutor and a criminal defense attorney, as well as 
practicing tort law as a plaintiffs and defense attorney. 
Professor Beloof has published a casebook, Victims and Criminal 
Procedure, which won a national award for writing in 
victimology and the law. He has published numerous articles 
about civil liberties for crime victims and also the book 
Victims' Rights, a Documentary and Reference Guide.
    Thank you, Professor, for being here.
    Each of the witness' written statements will be entered 
into the record in their entirety, so I would ask that each 
witness summarize his or her testimony in 5 minutes or less. To 
help you stay within that time, there is a timing light in 
front of you. The light will switch from green to yellow, 
indicating that you have 1 minute to conclude your testimony. 
When the light turns red, it indicates that the witness' 5 
minutes have expired.
    Before I recognize the witness, it is the tradition of the 
Subcommittee that they be sworn, so if you would please stand 
to be sworn.
    [Witnesses sworn.]
    Mr. Franks. Let the record reflect that the witnesses 
answered in the affirmative.
    I would now recognize our first witness, and please turn 
the microphone on before you start speaking.
    Mr. Montgomery?

              TESTIMONY OF WILLIAM G. MONTGOMERY, 
                    MARICOPA COUNTY ATTORNEY

    Mr. Montgomery. Thank you, Mr. Chairman. Dear Mr. Chairman 
and Members of the Committee, thank you for the opportunity to 
appear in support of House Joint Resolution 40, the Victims' 
Rights Amendment, and let me also offer my gratitude to the 
Chairman and to Congressman Jim Costa for their continuing work 
on behalf of victims of crime.
    For the criticism regarding partisanship in our Nation's 
capital, this legislation offers a ready antidote, a bipartisan 
approach to protecting our fellow citizens when they are harmed 
by crime, and this is truly a bipartisan cause. In the 
thousands of police reports I have read over the years as a 
prosecutor, I have never read of an instance in which a 
perpetrator checked the party affiliation of someone before 
victimizing them.
    In addition to serving as a prosecutor, I have also worked 
as a victim rights attorney, advocating for crime victims in 
state and Federal courts. Currently, I am the elected county 
attorney, called a district attorney in other jurisdictions, 
and lead an office serving 4 million people in Maricopa County, 
Arizona. I am authorized over 300 prosecutors and have another 
40 to 50 civil litigation attorneys on staff. Annually, we 
prosecute roughly 35,000 felonies.
    Accordingly, my observations of the status of victim rights 
is based on firsthand experience in a courtroom and in working 
directly with victims of crime. When I tell you that 
patronizing arguments in opposition to the Victims' Rights 
Amendment are based on false assumptions and disingenuous 
hypotheticals, I am speaking from that firsthand experience.
    As for concerns over acknowledging the victim of a crime as 
a victim in the courtroom, let me simply state they are 
unfounded. It does not shift the government's burden of proof 
or relieve the jury of their duty to find the facts in any 
given case to determine whether this victim was harmed by this 
particular defendant in the manner as alleged by the 
government. The argument that a victim's right to proceedings 
free from unreasonable delay ignorantly claims that trials will 
proceed in violation of a defendant's due process rights. This 
is an example of rights that can work in parallel without 
offense to either a defendant or a victim. A defendant has a 
right to a speedy trial but will not move faster than their 
attorney can prepare, and neither will the prosecution. Delays 
due to the needs of discovery or witness availability are not 
impacted.
    Those are reasonable delays. In my experience, victims 
understand that. They do not seek to push trials where the 
danger of a retrial can affect a just outcome.
    As for the argument that a constitutional right for a 
victim to be present throughout a trial would affect the 
defendant's right to a fair trial, I can only say that this 
argument is as false and disingenuous as the hypotheticals 
offered in support in written testimony presented to this 
Committee.
    For the record, Abner Louima was never prosecuted for an 
offense stemming from his initial contact with police. The 
charges were dropped in his case, and the police officers who 
harmed him were sent to prison.
    As for Rodney King, he was never charged for his high-speed 
flight from police, and the two officers involved in beating 
him were imprisoned.
    But, as we have seen, ever since the cause of 
constitutional rights for victims of crime began, opponents 
will go to great lengths to scare lawmakers away from justice 
for all.
    Why is a victims' rights amendment necessary? Because the 
inconsistent approaches to crime victim rights across our 
country is unacceptable for a Nation that pledges justice for 
all and not justice for some or justice only for the accused. 
What rights would a victim of the Boston Marathon bombing have 
if the case went to trial in a Massachusetts state court? They 
would have no constitutional rights to assert whatsoever, and 
the Supreme Judicial Court of Massachusetts has stated that a 
crime victim has no judicially cognizable interest in the 
prosecution of another.
    What about the parents of children lost in the tragedy of 
Newtown? What if the perpetrator had been tried in state court? 
There, they would be able to assert state constitutional 
rights, unlike in Boston, just 149 miles away in an adjoining 
state. However, the Supreme Court of Connecticut, in reviewing 
their Constitution, noted a review of the language of the 
Victims' Rights Amendment discloses that the amendment, while 
establishing many substantive rights for crime victims, does 
not include a right to appeal.
    As for the loss of life in Tucson, Arizona from a shooting 
that also affected a former Member of this House, had the 
perpetrator gone to trial in Federal court, the crime victims 
would have had fewer guaranteed rights than if the case had 
been tried in one of our state courts following our Victims' 
Bill of Rights. Nevertheless, any contest between state 
statutory or constitutional rights and Federal constitutional 
rights, or Federal statutory rights and Federal constitutional 
rights, the result is the same. Victims lose.
    To those who hesitate or shy away from amending our 
Constitution to protect victims, I would say, with all due 
respect, it is a good thing they were not in the first Congress 
that provided us with a Bill of Rights. It is good they were 
not in the 38th Congress that ended slavery, or the 39th 
Congress that asserted rights to equal protection and due 
process. It is good they were not in the 66th Congress that 
extended the right to vote to women, and it is good that they 
were not in the 87th Congress that ended the poll tax. You see, 
through the long course of our history, the great injustices in 
America have ended with constitutional justice.
    In closing, let me note that Sir Winston Churchill once 
observed that Americans can always be counted on to do the 
right thing after we have tried everything else. We have tried 
everything else. I encourage your support for the Victims' 
Rights Amendment.
    [The prepared statement of Mr. Montgomery follows:]


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                               __________

    Mr. Franks. Well, thank you, sir, very much.
    And now, Mr. Gillis, we would recognize you, sir, for 5 
minutes.

    TESTIMONY OF JOHN W. GILLIS, MARICOPA COUNTY ATTORNEY'S 
               OFFICE'S VICTIM SERVICES DIVISION

    Mr. Gillis. Thank you, Mr. Chairman. Mr. Chairman and 
distinguished Members of the Committee, thank you for the 
opportunity to address you on the very important issue of 
rights for crime victims. As we hear so often, becoming a crime 
victim is not something one aspires to achieve through training 
and education. Although many people become unintended victims 
of crime each day, our United States Constitution fails to 
specifically provide basic rights to those individuals who are 
victimized.
    The victims are young and old. They are rich and poor. They 
are people of all ethnicities and colors. But our Constitution 
treats them all the same. It completely ignores them.
    In 1979, my 22-year-old daughter, Louarna, was murdered by 
a gang member who wanted to move up in the gang hierarchy. 
Getting into the upper echelon was a long, tough climb for an 
ambitious gang member. The shortcut was an assault on a police 
officer or a member of the officer's family. He took the 
shortcut and murdered my daughter. He drove her to an alley 
where he shot her in the back of the head execution style, and 
then emptied the revolver in her back as she laid on the 
ground. He knew who she was because he had attended school with 
her, and he knew I was a police officer.
    But within a few months after the murder, he was in 
custody, and a few months thereafter the trial began. During 
the course of the trial, my wife and I were not allowed in the 
courtroom for any testimony. We were relegated to sitting on 
the bench in the hallway while the defendant's family, friends 
and others were seated in the courtroom. We had to endure the 
sneers and jeers each time they walked past.
    There are still jurisdictions within the United States 
where victims of crime wait in hallways, back rooms, and 
outside the courthouses because they are not welcome by our 
criminal justice system.
    Over one-third of the United States have not amended their 
constitutions in order to provide victims in their state the 
right to be present in court proceedings. These states don't 
see the need for victims to have the right to be heard or the 
right to be treated with fairness and dignity. Over one-third 
of the states still treat victims as second-class citizens who 
are not deserving of constitutional rights.
    The murderer of my daughter was tried for first-degree 
murder, and that made him eligible for the death penalty. 
Eleven jurors voted for first-degree and one juror voted not 
guilty. As we prepared for the second trial, the defendant pled 
guilty to second-degree murder, and that allowed him to avoid 
the death penalty. I was not present for the plea, I was not 
present for the defendant's sentencing, nor was I allowed to 
make an impact statement. These events were important to me and 
my family, and I know these events are important to the 
majority of America's crime victims.
    Every crime victim in the United States should be 
guaranteed the right to be present, the right to be treated 
with dignity and respect, and the right to be heard should be a 
basic right under the Constitution. My experience as a crime 
victim in the criminal justice system is not unique and it is 
experienced by tens of thousands of crime victims across 
America. Like most victims, I tell my story not for sympathy or 
pity. I tell my story to let others know I speak from 
experience when I say the system needs a fix.
    Two days after the September 11, 2001 terrorist attack, I 
was confirmed by the Senate as Director of the Office for 
Victims of Crime. During my first days as director, I was 
completely immersed in the nuances of working with many states 
that had victims and next-of-kin from the terrorist attack. 
Each state had different variations and protocol for working 
with victims and next-of-kin, and those variations still exist. 
Mass victimization events such as 9/11 and the shootings at 
Virginia Tech and Northern Illinois University and Delaware 
State University and the Boston Marathon bombing involved 
victims from multiple states and highlight the need for a U.S. 
constitutional amendment.
    There are literally tens of thousands of individuals who 
are victimized outside their states of residence. With the 
expanding use of the Internet, including social media, there 
are no geographic boundaries. Child sexual predators reach 
across state lines in search of their victims. Rapists and 
pedophiles use social media to reach across state lines to find 
their victims. The pool for identity theft victims is 
nationwide.
    Our best hope for protecting the victims' rights is a 
constitutional amendment, and I am optimistic that the bill 
will move from this Committee. My optimism is based on the fact 
that Members of this Committee have steadfastly supported the 
rights of women, the rights of children, and the rights of 
minorities. So I am optimistic that this Committee will support 
rights for victims.
    This constitutional amendment would be the capstone for the 
individuals and groups you have fought so hard to protect. This 
amendment is for people who do not have the power. This 
amendment is for people who do not have the funds, the people 
who do not have the will, and the people who do not have the 
wherewithal to individually fight for their rights. Thank you.
    [The prepared statement of Mr. Gillis follows:]


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                               __________

    Mr. Franks. Thank you, Mr. Gillis.
    I would now recognize Professor Mosteller for 5 minutes.

  TESTIMONY OF ROBERT P. MOSTELLER, PROFESSOR, UNIVERSITY OF 
                  NORTH CAROLINA SCHOOL OF LAW

    Mr. Mosteller. Chairman Franks and Members of the 
Subcommittee, thank you for this opportunity to testify. I urge 
you not to adopt H.J. Res. 40. Victims of crime deserve 
society's support. My opposition is only to amending the 
Constitution with unnecessary or harmful provisions.
    We have amended the Constitution very rarely and should do 
so only for compelling reasons, which are not present. Indeed, 
there is a mismatch between the legitimate goals of the VRA and 
when a constitutional amendment is needed.
    The VRA has three main goals. The first is participatory 
rights such as notice of hearings. This goal is broadly 
embraced and protected through states' constitutions and 
legislation. When not fully enforced, it is because of lack of 
resources and inertia. These provisions are not trumped by 
defendants' rights. Constitutionalizing them does not 
accomplish full enforcement.
    The second, providing support, has largely disappeared from 
later generations of the VRA. Earlier versions provided victims 
the affirmative right to be protected, for instance, but not 
the VRA. Damage awards against the government have been 
eliminated. Constitutionalizing is either a non-issue or 
unprecedented.
    The third is damage to defendants' rights. Of the three 
purposes, only when a Bill of Right guarantee is denied by a 
victim's right is a constitutional provision required. The 
Crime Victims' Rights Act recognizes a provision of the VRA 
that can deny defendants' rights. Instead of an unequivocal 
right to presence, it authorizes exclusion of victims who were 
witnesses if the court determines their testimony would be 
materially altered. The infamous cases of Abner Louima and 
Rodney King show the danger of unequivocal presence. As I 
clearly stated in my written testimony, but for the clear 
medical evidence and the videotape, Louima and King were on 
their way to being charged with assaulting police officers. The 
true perpetrators would have been beneficiaries of the VRA.
    Imagine the four officers who beat King having the 
constitutional right to be present to coordinate their lies. No 
exception is recognized even when the alleged victims provide 
the only evidence that a defendant is guilty. Louima, King, 
hundreds of DNA exonerations, and the Duke lacrosse case 
demonstrate an essential problem with the amendment. We know at 
the beginning of the case the identity of the accused because 
that status is directly the result of being charged. However, 
we do not know for sure who is the victim, and more frequently 
whether this defendant is responsible. The effect of the 
amendment is to write into the Constitution the error of some 
in the Duke lacrosse case, rushing to judgment. The language in 
the preamble, the rights of a crime victim being capable of 
protection without denying constitutional rights of the 
accused, does not eliminate the problem. It has three plausible 
interpretations.
    First, it may simply declare the drafters' intent that no 
conflict exists between these two rights. That doesn't 
eliminate the damage; it authorizes it.
    Second, it can be read that when conflicting, the rights of 
the victim and the defendant will be balanced. Balance here 
means diminished, another description of denied.
    The third can be read that whenever a conflict is found 
between the two sets of rights, defendant's constitutional 
rights will prevail. Only this interpretation eliminates the 
potential damage, and it should be added to the provision.
    I note two practical problems. First, the definition of the 
VRA is extraordinarily broad with respect to ``victim.'' It 
draws no distinction between felonies and misdemeanors or 
between crimes of violence and crimes that harm property. In 
the Federal system, misdemeanors play only a minor role. But in 
states, prosecutors' offices must handle a huge volume, and 
courts as well, with incredible speed. The North Carolina 
Victims' Rights Act limits covered crimes among low-grade 
felonies and misdemeanors, and in misdemeanors it covers only 
domestic violence. This Federal amendment obliterates those 
fine distinctions. It would add cost and harm efficiency to 
over-worked and under-funded state criminal justice systems 
without offsetting benefits.
    Second, crime victims are given an unqualified right to 
restitution. This is not a right to an order of restitution 
from the convicted offender in an earlier version. It 
guarantees restitution and places no limit on the entity 
subject to paying restitution. A broad definition of ``victim'' 
and an unlimited restitution right would have serious 
consequences. Let me give you one example.
    In North Carolina, many traffic offenses, such as speeding, 
are misdemeanors. A simple traffic offense now with speeding 
involved would become a covered offense with mandatory 
restitution.
    In sum, the VRA would harm cost-effectiveness without 
materially increasing participatory rights and victim support, 
and it would write a rush to judgment into the Constitution.
    [The prepared statement of Mr. Mosteller follows:]


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                               __________
    Mr. Franks. Thank you, Professor.
    Now we will recognize Professor Beloof for 5 minutes.

                TESTIMONY OF DOUGLAS E. BELOOF, 
                    LEWIS & CLARK LAW SCHOOL

    Mr. Beloof. Thank you, Chairman Franks, honorable Ranking 
Member. Thank you for the opportunity to speak today. I am here 
to support the Crime Victims' Rights Amendment to the United 
States Constitution, House Joint Resolution 40. For my 
framework, I adopt the framework of Professor Laurence Tribe, 
distinguished professor of constitutional law at Harvard, also 
a noted Democrat.
    First, for a constitutional amendment to be appropriate, 
the people must widely agree that victims' rights deserve 
serious and permanent respect. Victims' state constitutional 
rights exist in more than two-thirds of the states, and I only 
need to reference the Chair's introductory remarks to reveal 
how accepted they are across the country. Clearly, there is 
wide agreement that victims' rights deserve serious and 
permanent respect.
    Second, the right is one that is insufficiently protected 
under existing law and cannot be adequately protected through 
political action such as legislation. Fundamentally, the 
objective of victims' rights is to include victims' interests 
in the culture of the criminal justice system. Experience has 
shown that to change the inertia of the system, a 
constitutional amendment is needed. While many laws providing 
for rights exist, enforcement of those rights varies widely, 
and too frequently they are honored in the breach.
    In my written testimony, I provide examples of these 
problems under Federal legislation. Professor Paul Cassell and 
former Federal Judge Paul Cassell has submitted written 
testimony that also provides examples of how victims' rights 
under statute have been honored in the breach. The point of the 
examples is not to deride the Justice Department or the courts. 
Contrary to these examples, there are many fine Federal 
prosecutors who routinely comply with victims' rights, and both 
the Clinton and Bush-era Justice Departments supported a crime 
victim's rights amendment. Rather, these examples reveal how 
statutory rights can be ignored with impunity. Moreover, the 
examples reveal that under the CVRA, often no remedy is 
provided by the courts.
    On the other hand, defendants' constitutional rights are 
far less likely to be ignored simply because the rights are 
constitutional. Prosecutors universally respect defendants' 
rights precisely because defendants' rights are constitutional 
rights safeguarded by the Supreme Court. The same will occur 
when victims' rights are in the Constitution.
    Next, a right must be one whose inclusion in the U.S. 
Constitution would not distort or endanger basic principles of 
the separation of powers among the Federal branches or the 
division of power between national and state governments. 
Separation of powers is, of course, enhanced by the amendment 
as the Bill of Rights is historically the place for important 
rights.
    While Federalism is an important value, this amendment 
poses no threat to it. The Supreme Court dictates the baseline 
of defendants' rights for all the states as a Federal matter. 
Individual rights in criminal procedure is already Federal and 
has been for decades. There is no hint, even in dicta, even by 
the most ardent of Federalists on the Supreme Court, that the 
Supreme Court will ever change this reality. Consistent with 
this constitutional reality, victims' rights are appropriately 
placed in the Federal Constitution because the Federal 
Constitution is the baseline of individual rights in criminal 
procedure in this country. Thus, the ongoing exclusion of 
victims' rights from the Constitution actually reduces the 
importance of victims' rights. Moreover, including victims' 
rights in the Constitution works no new damage to Federalism 
principles. Without a constitutional amendment, there is no 
national baseline for victims' rights.
    Next, the right would be judicially enforceable without 
creating open-ended or otherwise acceptable funding 
obligations. One of the weakest arguments made against victims' 
rights has been that the administrative sky would fall. This 
argument has been made over and over, over the 35 years that 
victims have been trying to secure meaningful rights in this 
Nation. There is enough experience with victims' rights now, 
both in the states and under the Crime Victims' Rights 
Amendment federally, to know that the sky will not fall in the 
administration of justice.
    In the 10 years since the passage of the Crime Victims' 
Rights Act, for example, the sky has remained firmly in its 
heavens. A review of the case law in that 10-year period 
reveals nothing that could credibly be described as 
overwhelming the administration of justice. Quite the contrary, 
the number of appellate and district court opinions is very 
small. To be sure, trial courts more frequently accommodate 
victims' rights than appellate court, but there is no empirical 
evidence that the courts have been clogged by victims' rights.
    Finally, no actual constitutional rights of the accused 
should be violated by the amendment. In terms of conflicts with 
defendants' rights, in the 10 years of cases under the Crime 
Victims' Rights Act, there has been no Federal appellate court 
case that has found a conflict with the defendants' 
constitutional rights. In fact, the period of time Federal 
courts have had to find conflict is far greater than 10 years, 
yet no cases have found conflict with the defendants' rights.
    As to accommodating the defendants' rights, the bill says, 
``Victims' rights, being capable of protection without 
violating the rights of the accused, shall not be denied or 
abridged by the United States or any state.'' This language was 
provided by Professor Tribe.
    I believe that the only way to change an entrenched 
criminal justice process is for there to be a constitutional 
amendment. I urge you to favorably vote this bill out of 
Committee. Thank you, Mr. Chair.
    [The prepared statement of Mr. Beloof follows:]


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                               __________

    Mr. Franks. Thank you, Professor Beloof.
    Thank you all for your testimony.
    We will now proceed under the 5-minute rule with questions, 
and I will begin by recognizing myself for 5 minutes.
    Mr. Gillis, in addition to your personal testimony, I want 
you to know your personal testimony was very powerful to me. 
The presence of you and your wife here today is an inspiration, 
and I am sorry for your loss, and I am grateful that you have 
chosen to try to turn it into something that will help prevent 
others from dealing with the same kind of loss.
    Mr. Gillis. Thank you.
    Mr. Franks. Can you describe real-life examples for 
existing crime victims' statutes or state constitutional 
amendments that have failed to provide the protections that 
they promised to crime victims?
    Mr. Gillis. I think I would have to refer to my case, which 
is still active. Although the defendant was sentenced to life 
in prison, he has filed numerous appeals, and just within the 
past year there was another appeal that has delayed his parole 
hearing. We have no idea what the appeal is about. We only know 
that we had a parole hearing and it has been offset, and we are 
scheduled to do another hearing.
    So this has occurred throughout the time that he has been 
sentenced. It has been a drag financially on both my family and 
other victims who have to attend these hearings. We are not 
notified when a hearing is going to occur. Whenever I am 
notified, we just have to pack up. We are notified for the 
parole hearing, but we are not notified when there are appeals, 
and we are not notified when any other legal actions take 
place. So it is a personal issue also, and it happens to many 
victims across the country.
    Mr. Franks. Yes, sir. Well, thank you.
    Mr. Montgomery, in your written testimony you state that, 
``Too often, the concern as to whether the rights of victims of 
crime should be given the protection of our Constitution has 
been premised on the false calculus that any rights accorded to 
a crime victim must necessarily result in fewer rights for a 
criminal defendant.''
    Why will the protection of victims' rights not infringe on 
the rights of criminal defendants?
    Mr. Montgomery. The very simple answer, Mr. Chairman, is 
that victims have the same interest in a just outcome as an 
accused does. At the end of a particular case, you want to make 
sure that you have the right person who committed the crime. 
You want to make sure that they are sentenced to a just 
sentence. You don't want to have to come back and do that 
again. As Mr. Gillis just told the Committee and told the 
Chair, victims want to be done with a case and know that it was 
handled and the harm that was done has been addressed, and then 
allow them to move on with their lives as best they can.
    Additionally, I had to sit and listen with amusement to the 
speeding ticket restitution example. You don't create a victim 
when you are speeding, unless it is yourself because of the 
fine you have to pay. Restitution is provided to a victim who 
has been harmed by a criminal offense. If someone hurts 
somebody as a result of speeding, they are usually charged with 
aggravated assault. But unfortunately, these are the kinds of 
examples that are offered, not from people who actually have 
experience in advocating in court and dealing with the balance 
between victim's rights and a defendant's rights that prove, 
day in and day out, with the 35,000 felonies my jurisdiction 
deals with, 100,000 misdemeanors on average, we do it every 
day.
    Mr. Franks. Yes, sir. Thank you.
    Professor Mosteller, the right not to be excluded from 
public proceedings relating to the offense is a critical 
component of the Victims' Rights Amendment. Mr. Gillis 
recounted that after a gang member murdered his daughter, he 
and his family were relegated to a bench in the hallway of the 
courtroom during the trial while the defendant's family and 
friends were seated in the courtroom. Mr. Gillis and his family 
endured ``sneers and jeers each time they walked past them.''
    Why should crime victims be barred from having a 
constitutional right to be present at a public trial?
    Mr. Mosteller. Crime victims should not be barred except in 
very, very, very rare cases. With respect to what the amendment 
declares, it has a right to be present with respect to the bail 
hearing----
    Mr. Nadler. Can you turn on your mic, Professor?
    Mr. Mosteller. I'm sorry. It has a right to be present 
which affects public proceedings with respect to plea, 
sentencing, and release. With respect to release, no issue 
whatsoever. With respect to sentencing, other than capital 
cases, no issue whatsoever. With respect to plea, no issue 
whatsoever. The issues come when we are dealing with the trial 
in front of the jury, and it is a situation that only involves 
a problem if the victim is a witness. If there are multiple 
victims and they can be present during the time the testimony 
is being taken by one so that the other can hear, it suggests a 
problem with respect to the fairness of the trial.
    I am not inventing this problem by any means out of thin 
air. We have basically the right with respect to the statute 
that says the victim has a right to be present unless the judge 
finds that there is going to be a material effect on the 
testimony. Then the victim can be excluded. That is a statute 
that the United States Congress passed. So it recognized in 
writing, and it is one of the reasons there isn't a problem 
with respect to the Crime Victims Act. That issue was the one 
that was taken out of the picture.
    With respect to sentencing in death penalty cases, Payne v. 
Tennessee overruled Booth v. Maryland, but it did not overrule 
Booth v. Maryland with respect to whether or not a victim has 
the right to issue a conclusion with respect to the sentence. 
This amendment may well change not only the right to be heard 
but what you can say.
    Mr. Franks. Thank you, sir.
    I now recognize the Ranking Member for questions.
    Mr. Nadler. Thank you, Mr. Chairman.
    Before I begin, I want to thank Mr. Gillis for his 
testimony. I think he expressed in the most eloquent way the 
devastating and lasting impact that crime, especially crimes of 
such unspeakable violence and cruelty, has on its victims. It 
is a reminder of how important it is for all participants in 
the criminal justice system, the courts, prosecutors, law 
enforcement, Congress and state legislatures, to ensure that 
the rights and needs of crime victims are both respected and 
addressed, and I hope that this hearing will help us understand 
how we can best improve these efforts.
    Now, Professor Mosteller, other witnesses today have 
argued, in the language of the amendment, that the rights of a 
crime victim to fairness, respect and dignity, being capable of 
protection without denying constitutional rights of the 
accused, shall not be denied or abridged by the U.S. or any 
state. Do we need to worry about such conflicts between the 
rights of the accused and the rights conferred on victims in 
this amendment despite that language? And if so, could you give 
us some examples?
    Mr. Mosteller. Yes, we do. With respect to two of those 
rights, the right to respect and dignity, there is no conflict 
whatsoever. With respect to matters like notice, there is no 
effect whatsoever. But there is another word in it, and it is a 
general word, and it is ``fairness.'' Fairness can also mean 
due process. It says fairness, and then it says moreover, and 
it lists other rights.
    With respect to those other rights, I have spent some time 
with respect to the presence at the proceeding, the presence at 
the proceeding. In addition to that, the issue with respect to 
a speedy trial, a speedy trial for the victim, against undue 
delay. Most prosecutors, almost all prosecutors are trying to 
move it forward, but there are people who behave badly. Mike 
Nifong in the Duke lacrosse case behaved very badly. He delayed 
discovery. You have an argument. It is unreasonable delay. The 
constitutional amendment does not say unreasonable delay by the 
defendant. It says unreasonable delay and that can compromised 
by the prosecution as well. And I mentioned a third one----
    Mr. Nadler. It could compromise the right of the accused to 
a fair trial is what you are saying?
    Mr. Mosteller. With respect to enough time to prepare 
testimony. You can say this will be limited and it will be 
rare, and I would acknowledge it. But you cannot say that there 
is no danger.
    Mr. Nadler. Thank you. Now, why would a court exclude a 
victim from a courtroom under certain circumstances? Well, you 
said if the victim is a witness, maybe multiple victims, to 
have them in the courtroom might give an opportunity to 
coordinate--alleged victims, because you could be wrong about 
who is a victim. In the Duke case, for instance, you said that 
had they all been present in the courtroom, they could have 
coordinated their testimony?
    Mr. Mosteller. Yes, and that would be the problem. And with 
respect to the normal situation in which a victim is not a 
witness, there should be no exclusion.
    Mr. Nadler. Well, could a victim act in such a way as to 
prejudice the jury other than that situation?
    Mr. Mosteller. Absolutely.
    Mr. Nadler. How so?
    Mr. Mosteller. By excessive emotional outbursts. That is a 
limitation upon the right even of the defendant to be present. 
A defendant can be excluded. So these are common-sense 
limitations.
    Mr. Nadler. Now, a defendant has a constitutional right to 
be present unless the judge chooses to exclude him because of 
his conduct. Under this amendment, would the judge have the 
discretion to exclude a victim or an alleged victim because of 
his conduct?
    Mr. Mosteller. I would hope so. It would suggest that, at 
least as I read Mr. Montgomery's testimony, that that could not 
even be an admonition to----
    Mr. Nadler. I'm sorry. It was suggested it could or could 
not?
    Mr. Mosteller. Couldn't deny, that it shouldn't even be an 
admonition, that you are not supposed to----
    Mr. Nadler. So, in other words, the wording of this 
amendment as it is worded might, in fact, in your judgment, 
preclude the judge from excluding an alleged victim who was 
behaving in a way that might prejudice the trial?
    Mr. Mosteller. It could. I would hope that the reasonable 
application would avoid that problem.
    Mr. Nadler. But one doesn't know.
    Mr. Mosteller. Pardon?
    Mr. Nadler. But one doesn't know.
    Mr. Mosteller. One doesn't know.
    Mr. Nadler. Thank you. Now, Professor Beloof cites two 
cases that seem relevant to the text of the proposed amendment. 
The Antrobus this case involved a mass shooting in which the 
victims were denied victim status by the court. In the murder 
of border patrol agent Brian Terry, Professor Beloof states 
that the Terry family was similarly denied victim status. In 
both instances, Professor Beloof points out that the CVRA, that 
is the Act, the Crime Victims' Rights Act, the definition of 
victim ``depends on whether the harm was a direct and proximate 
cause of the conduct.'' That is the same language used in the 
text of the proposed amendment. Section 2 of the amendment 
reads, ``A crime victim includes any person against whom the 
criminal offense is committed or who is directly and 
proximately harmed by the commission of an act which, if 
committed by a competent adult, would constitute a crime.''
    It seems to be exactly the same. So it seems that it 
wouldn't solve the problem. Would you comment?
    Mr. Mosteller. It wouldn't solve that problem, and, in 
fact, this version added ``proximate cause.'' It did not exist 
until this version. So if you went back to the version that was 
in this chamber last year----
    Mr. Nadler. But never mind last year's version. This 
version?
    Mr. Mosteller. This version has proximate cause and it. The 
version last year did not have proximate cause in it. It makes 
it just the same, and it does not guarantee any discovery right 
or any other right that would eliminate the problem.
    Mr. Nadler. Thank you.
    My time has expired.
    Mr. Franks. Thank you, and I will now recognize the 
gentleman from Ohio for 5 minutes for questioning.
    Mr. Chabot. Thank you very much, Mr. Chairman.
    Professor Mosteller, let me start with you, if I can. In 
the United States Constitution, there are a number of rights of 
the criminal defendant which are stated very plainly, the right 
to a jury trial, the right not to have to self-incriminate 
himself or herself, and a number of other things, right in the 
U.S. Constitution. Now, the innocent victim, the victim's 
family, they may be protected by a state constitution or 
perhaps a state statute, but not in the Constitution. That is 
what the intention of this is, to put the two at least on an 
equal footing.
    We are talking about right now the criminal defendant who 
has oftentimes taken away the loved one of a family, a person 
who has done something clearly wrong, something heinous. They 
are protected. They get the best protection possible from the 
U.S. Constitution. The innocent victim, the person who hasn't 
done anything wrong, and their family, no protection whatsoever 
in the U.S. Constitution, I would argue an oversight. Great 
document, an oversight there. The only way we can change that 
is to amend it. Our founders put in there a mechanism for us to 
do that. We have been trying to do it for years, and that is 
what we are trying to do today.
    Oftentimes, if the U.S. Constitution says one thing and a 
state statute says something else, if there is a discrepancy, 
and sometimes there is, the U.S. Constitution is going to trump 
the state statute every time. A lot of us believe that is just 
not fair. That is why we want to change this.
    Would you disagree with anything I have said? And if so, 
what?
    Mr. Mosteller. I would disagree with your statement of 
equalizing. The status of the criminal defendant, when he is 
charged, and as justice Scalia said with respect to the 
confrontation clause, you don't deny confrontation because you 
think the testimony was reliable; you don't deny a fair trial, 
a jury trial, because the judge decides that the defendant is 
guilty. We do not know whether the defendant is guilty at that 
moment.
    Our framers set up a system in a situation in which the 
full power of government comes down against a charged 
defendant, suffering the possibility of his life or liberty 
being destroyed, he is given process rights that lead to 
fairness, that protect the individual----
    Mr. Chabot. Reclaiming my time, as I have a limited amount 
of time, let me turn to Professor Beloof, and also to Mr. 
Montgomery. Would you like to respond to the question that I 
asked? And perhaps, if you would like to, to the Professor's 
answer?
    Mr. Beloof. I agree with it. I agree with it, and I 
disagree with much of what my colleague, Professor Mosteller, 
says about the substantive issues of this amendment. I don't 
believe the defendant's rights will be trampled in any way. The 
idea that somehow victims attending trial will destroy 
defendant's rights I disagree with.
    First of all, there are police reports that lock down these 
witnesses statements. There are grand jury testimony that locks 
down these witness statements, leaving tremendous capacity for 
defense attorneys to destroy the credibility of witnesses. 
Moreover, witnesses in a trial, their attendance in a trial on 
more than one occasion has revealed the testimony on the stand 
is untrue. So barring witnesses from the courtroom actually 
encourages the lack of truth telling.
    So this is not a one-sided issue in any regard.
    As to Professor Mosteller's testimony that this has dropped 
a variety of things, this is in response to genuine and 
considered criticism in the Senate that the last version looked 
too much like a statute and not enough like a constitutional 
amendment. So we focused on the core.
    Mr. Chabot. Thank you. I am almost out of time. So, Mr. 
Montgomery, instead of going to you, if I could go to Mr. 
Gillis.
    Again, we all feel great pain for what you and your family 
have gone through, but let me ask you this. One of the great 
injustices was the fact that you were unable to go in and see 
what was going on, listen to what was going on, and your 
daughter was taken from you, and the perpetrator and the 
families in connection, gang members, were in there. You did 
not get the opportunity to speak at a number of the proceedings 
on behalf of, for example, sentencing and what you felt. What 
would you have told the court had you been given the 
opportunity to make a statement? What sort of input do you 
think your daughter and yourself should have been able to give 
the court?
    Mr. Gillis. I think we could have talked about how it had 
impacted the family. We could have also talked about what we 
knew about the defendant from the community. But let me also 
talk about us being barred from the court, having us sit in the 
hallway because they thought that we could be possibly a 
witness. It wasn't because we were a witness to anything. We 
were not percipient witnesses to anything. So we just sat in 
the hall because the defense did not want us in, and in most 
cases I find, during my experience as a law enforcement officer 
and the other experiences I have had with the criminal justice 
system, the defense usually does not want the victim in court 
because sometimes the victim has information that they can give 
to the prosecutor that will help direct the case. So it is one 
less individual that the defense has to worry about.
    But most victims want to see the right person prosecuted 
for the crime. They don't want to see somebody unjustly accused 
or unjustly convicted of a crime. So keeping victims out of the 
court, it just doesn't make sense.
    Mr. Chabot. Thank you very much.
    I yield back, Mr. Chairman.
    Mr. Franks. Thank you, Mr. Chabot.
    I would now yield to the gentleman from Virginia, Mr. 
Scott, for 5 minutes.
    Mr. Scott. Thank you.
    Mr. Montgomery, we don't need a Federal constitutional 
amendment to force you to treat people with dignity and 
respect, do we?
    Mr. Montgomery. Mr. Chairman, Mr. Scott, no, but I 
understand what my oath is, and I understand what my duty is in 
the criminal justice system. So it actually is a part of how I 
carry forward my duties. But I would still say to that point, 
the oath I took of office was to uphold the U.S. Constitution 
and our state constitution and the laws thereof, and we do have 
a victims' bill of rights in Arizona that requires me to treat 
a victim with fairness, respect, and dignity.
    But for those who didn't go through the victims' rights 
seminar I went through, who don't have the same appreciation, 
our criminal justice system does not institutionalize that kind 
of treatment as much as we institutionalize the treatment of 
defendants.
    Mr. Scott. Well, is there a difference in how victims are 
treated in states with a constitutional amendment and without a 
constitutional amendment?
    Mr. Montgomery. I believe that there is. If you are in a 
state without a constitutional amendment, when it is convenient 
to ignore a victim, when it is convenient to handle a case 
without taking into account----
    Mr. Scott. Well, exactly what happens----
    Mr. Montgomery [continuing]. Whatever it is that they 
regard, they do so.
    Mr. Scott. And I am sure when you have a constitutional 
amendment, some of the witnesses are ignored and disrespected. 
What does the victim who is disrespected then do?
    Mr. Montgomery. Well, within the State of Arizona and those 
states that do provide the ability to appeal, that information 
is brought to the attention of the court, and I can certainly 
tell you----
    Mr. Scott. Which court? The same court? This thing says any 
court. I don't know what that means, you can enforce these 
rights in any court. Does that limit it to the court that the 
case is actually pending in, or can you go to another judge?
    Mr. Montgomery. Mr. Scott, I think what you would do is you 
would follow the same process that we follow in the United 
States and in all courts where initially you bring it before 
the court in which the incident or the matter is initially to 
be heard and then follow the regular appellate process. That is 
what we do in Arizona, and it works very well.
    Mr. Scott. And is there any priority for those cases?
    Mr. Montgomery. It depends. Within the Federal Crime 
Victims' Rights Act, appellate courts, if the matter in 
question is at a district court level, have to rule on a 
mandamus quickly. In our state courts----
    Mr. Scott. Does that take precedence over other pending 
cases?
    Mr. Montgomery. I believe that it does. They have to rule 
on the mandamus quickly, and that is important. What we have to 
keep in mind here is that we were talking about a criminal 
justice system where we are trying to make sure that the truth-
seeking function is honored and that at the end of it a crime 
victim, then, when communicating to other members of our 
community, when communicating with their family members the 
resolution of the case, can say, you know what, I got harmed, 
and our criminal justice system took care of me, and it worked, 
and it was good.
    Mr. Scott. I am just trying to figure out how this thing 
works, because if somebody doesn't think the prosecutor, the 
case is going quickly enough, how do you ascertain the 
reasonableness of a delay?
    Mr. Montgomery. Sure. Mr. Scott, we have a very well-
developed body of jurisprudence on speedy trial rights for 
defendants. The corollary to that, then, is in looking at 
instances in which a victim might assert an unreasonable delay, 
and I will give you a great example. I will contrast it, too.
    In an instance in which a defense attorney has not been 
able to complete interviews of witnesses and I have a victim 
asking me when is this going to go to trial, and I have 
personally prosecuted hundreds of cases, I will tell them our 
trial date was originally set for June. However, there are five 
more witnesses we need to interview, so we are going to have to 
delay it to complete that. That sets a reasonable delay.
    Mr. Scott. Well, that is reasonable in your mind. Suppose 
it is not reasonable in the victim's mind, if they say why 
don't you get to work and do the work and get it done?
    Mr. Montgomery. Sure, and the victim can certainly bring 
that to the court's attention, at which point----
    Mr. Scott. Do they have a right to a hearing on that issue?
    Mr. Montgomery. Oh, they have a right. When you are going 
to have a court hearing at which a motion to continue is going 
to be heard, because the defendant has a right to be there, a 
victim in Arizona has a right to be there, and also has a right 
to be heard on that point, and it happens all the time.
    Mr. Scott. And what could be a perfunctory motion in 
agreement with the defendant and the prosecutor now becomes a 
full-blown hearing.
    Mr. Montgomery. And there are times when search and seizure 
issues are so apparent on their face, but we still give the 
defendant their hearing. I don't think it is unreasonable at 
all to give the victim of a crime 2 minutes to be heard on an 
issue. But let me give you an example of an unreasonable delay.
    Mr. Scott. Wait a minute. Why do you limit it to 2 minutes? 
I mean----
    Mr. Montgomery. It really doesn't take that much time. 
Having practiced in court, like I said, over several hundred 
felonies, it doesn't take much time to permit a victim to be 
heard on the record. Five minutes isn't a whole lot of time, 
either.
    Mr. Scott. Do they get to bring witnesses on what's 
reasonable? I mean, you are trying to determine whether a delay 
is reasonable or not.
    Mr. Montgomery. Sure. There is no need for witnesses. You 
are talking about the conduct of the case. You have counsel for 
each side there. You have the judge, who is sitting on the case 
there. Here is an unreasonable delay, though, and I would say 
this is why we need this in the Federal Constitution. In a 
homicide case in which a young child was brutally murdered, the 
defense attorney actually asked for a continuance for 3 weeks 
so that she could go on her annual shopping trip to go buy 
shoes. The only thing more offensive than someone trying to 
delay it was the fact that the court granted it.
    Mr. Scott. Well, perhaps the court could decide maybe you 
have a problem getting your witness to court and you want to 
delay. The defendant doesn't know why you want to delay. You 
are just agreeing to a continuance. Do you have to articulate 
in court that your witness is not available, or your evidence, 
you have lost your evidence? Do you have to articulate that in 
court so that the court could rule on whether or not the 
continuance is reasonable or not?
    Mr. Montgomery. Mr. Scott, if I lost evidence and I am 
trying to delay a trial from starting, I believe I have 
committed an ethical violation when I know I can't proceed. In 
the instance of being able to try to find a witness----
    Mr. Scott. Wait a minute. You are looking for the evidence.
    Mr. Montgomery. Well, that is different than saying I lost 
it.
    Mr. Scott. Okay. Well, you don't have it, and you have to 
articulate in open report, ``Your Honor, we are not ready 
because we don't have enough evidence to proceed,'' and the 
defendant ends up objecting to a continuance, so we are still 
trying to find evidence. Do you have to articulate that in 
court? I mean, the victim is saying let's go, let's go, and you 
are in open court. They have a right to be there.
    Mr. Montgomery. And I don't have a problem with that. If I 
am going to tell the court, ``Judge, I am not ready for trial 
today''--but the other thing to keep in mind is that most 
states also have a last-day setting in which a defendant has to 
be tried. If I am asking for a continuance and I am still 
within what is known as a reasonable time, I have 150 days to 
try a defendant of a felony who is in custody in Arizona. If I 
am moving from the 120th day to the 149th day, I am still 
within the timeframe to do it, and I am going to have a 
conversation with the victim.
    The victim in Arizona has the right to confer with the 
prosecutor before the case gets resolved. I am talking to them. 
I am letting them know what is going on. I am also talking to 
the defense attorney.
    Mr. Scott. And if they are not satisfied, do they have the 
right to an appeal?
    Mr. Montgomery. Yes, they can. They can assert their rights 
in trial court and they can special action in Arizona those 
rights to an appellate court, and this does happen on occasion. 
There are times when I, as the elected prosecutor in Maricopa 
County, will file an appeal on behalf of a crime victim to an 
appellate court to advocate for their rights. I am no more able 
to violate their constitutional rights in Arizona than I can a 
defendant's constitutional rights, and we do it every day.
    Mr. Franks. Without objection, the gentleman from New York 
is granted 1 minute for questions.
    Mr. Nadler. Thank you. I would like to ask Mr. Montgomery, 
and ask Professor Mosteller to comment also. The amendment says 
the crime victim shall have the right to various things and to 
restitution. That is a very open concept. So my question is, 
how would this work? What are the limits of it, if any? Who 
enforces it? How do you measure the restitution? Who is 
responsible for it? Let's assume that the culprit, the 
defendant, is adjudged guilty, is destitute. And finally, let's 
assume that the culprit goes to jail for 30 years or a long 
period of time, and when he comes out, does he then owe $30,000 
even though he has no money? I mean, how does this work?
    Mr. Montgomery. Sure. I can offer our experience in 
Arizona, where we do have a constitutional right to 
restitution. At the conclusion of the case, the judge can enter 
a criminal restitution order against the defendant, ordering 
restitution for economic loss caused by the criminal conduct.
    Mr. Nadler. Only economic loss?
    Mr. Montgomery. It is economic loss, correct. So you look 
at whether or not the victim lost work because they had to come 
to court. Let's use an easy example of, say, an instance in 
which maybe someone stole a victim's car and then crashed it. 
They can get the replacement cost for that vehicle.
    Mr. Nadler. We know how to measure economic loss.
    Mr. Scott. Who pays it?
    Mr. Nadler. Who pays it?
    Mr. Montgomery. The person responsible. And in terms of 
holding a defendant fully----
    Mr. Nadler. Let's assume he doesn't have the means. Then 
what?
    Mr. Montgomery. Get to work.
    Mr. Nadler. And if he goes to jail?
    Mr. Montgomery. You should not be able to avoid 
responsibility for your criminal conduct because you say you 
don't have money. You had better get out there and work.
    Mr. Nadler. And in a serious crime, you go to jail for 30 
years. So do you delay the restitution for 30 years?
    Mr. Montgomery. No. They get to work in prison, and from 
their earnings, restitution is forwarded to the victim of 
crime.
    Mr. Franks. The gentleman's time has expired, but if he 
wants to ask Professor Mosteller a question, then he can.
    Mr. Mosteller. We don't know what it would mean in the 
Federal Constitution. Words like this are unprecedented. ``To 
restitution'' is different than it was in the previous version. 
It used to be in one version ``to an order of restitution from 
the convicted defendant.'' Is this a right to monetarily be 
made whole by someone? And you have a constitutional right that 
says ``to restitution.'' Eighty percent of the people are 
indigent. What will it mean down the road? We don't have these 
kinds of rights in our United States Constitution. They do 
exist in some state constitutions, but it is unprecedented.
    Mr. Nadler. It doesn't say just economic.
    Mr. Franks. The gentleman's time has expired.
    Mr. Mosteller. It does not say economic, and it does not 
say from whom.
    Mr. Franks. The gentleman's time has expired.
    Mr. Nadler. Thank you.
    Mr. Franks. I might make the observation that if someone is 
to be held liable for economic loss, it probably should be the 
convicted offender rather than the victim.
    With that, this concludes today's hearing. I want to thank 
all of the witnesses for attending. You have been very 
responsive and very insightful.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    I thank the witnesses, and I thank the Members, and I thank 
the audience for their attendance today.
    And with that, this hearing is adjourned.
    [Whereupon, at 12:43 p.m., the Subcommittee was adjourned.]




                            A P P E N D I X

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               Material Submitted for the Hearing Record

 Material submitted by the Honorable Trent Franks, a Representative in 
 Congress from the State of Arizona, and Chairman, Subcommittee on the 
                     Constitution and Civil Justice


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