    [House Hearing, 114 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 FOURTEENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                  H.J. Res. 45

                                   __________

                                  MAY 1, 2015

                                   __________

                               Serial No. 114-30

                                   __________

             Printed for the use of the Committee on the Judiciary

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          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
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
    DARRELL E. ISSA, California          STEVE COHEN, Tennessee
    J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
    STEVE KING, Iowa                       Georgia
    TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
    LOUIE GOHMERT, Texas                 JUDY CHU, California
    JIM JORDAN, Ohio                     TED DEUTCH, Florida
    TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
    JASON CHAFFETZ, Utah                 KAREN BASS, California
    TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
    TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
    RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

               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

                      RON DeSANTIS, Florida, Vice-Chairman

    STEVE KING, Iowa                     STEVE COHEN, Tennessee
    LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
    JIM JORDAN, Ohio                     TED DEUTCH, Florida

                         Paul B. Taylor, Chief Counsel

                        James J. Park, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  MAY 1, 2015

                                                                       Page

                                    THE BILL

    H.J. Res. 45, the ``Victims' Rights Amendment''..................     2

                               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 Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Ranking Member, Subcommittee on the
      Constitution and Civil Justice.................................    10
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................    11

                                   WITNESSES

    Paul G. Cassell, Ronald N. Boyce Presidential Professor of
      Criminal Law, S.J. Quinney College of Law at the University of
      Utah
      Oral Testimony.................................................    16
      Prepared Statement.............................................    19
    Collene Campbell, Victims' Rights Advocate
      Oral Testimony.................................................    93
      Prepared Statement.............................................    95
    Amy Baron-Evans, National Sentencing Resource Counsel, Federal
      Public and Community Defenders
      Oral Testimony.................................................    99
      Prepared Statement.............................................   101
    Steven J. Kelly, Member, Silverman, Thompson, Slutkin & White,
      LLC
      Oral Testimony.................................................   123
      Prepared Statement.............................................   125

              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 and Civil Justice...     7

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Question for the Record submitted by the Honorable Steve Cohen, a
      Representative in Congress from the State of Tennessee, and
      Ranking Member, Subcommittee on the Constitution and Civil
      Justice........................................................   138
    Letter from Stephen E. Nevas, Attorney, Nevas Law Grup LLC.......   140

                           VICTIMS' RIGHTS AMENDMENT

                                  ----------

                              FRIDAY, MAY 1, 2015

                            House of Representatives

                       Subcommittee on the Constitution
                               and Civil Justice

                           Committee on the Judiciary

                                Washington, DC.

        The Subcommittee met, pursuant to call, at 9:08 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Trent
    Franks (Chairman of the Subcommittee) presiding.
        Present: Representatives Franks, DeSantis, King, Cohen, and
    Conyers.
        Staff Present: (Majority) John Coleman, Counsel; Tricia
    White, Clerk; (Minority) James J. Park, Minority Counsel; and
    Veronica Eligan, Professional Staff Member.
        Mr. Franks. The Subcommittee on the Constitution and Civil
    Justice will come to order.
        Before Chairman Royce leaves the room, it's rather unusual
    to have a full Committee Chairman attending these hearings. But
    in Chairman Royce's circumstances, it's a very unique situation
    because he was the original sponsor of the victims' rights
    legislation in Congress many years ago and has worked very hard
    with Colleen Campbell to pass the victims' rights legislation
    in California.
        And we've had some profound advances in the victims'
    rights, getting major statutorial language in the Congress last
    time, and without Chairman Royce, none of this would have
    occurred. He has absolutely been a pioneer in this effort, and
    he'll have a lot of legacy. But there will be a lot of people
    that will be grateful that this man walked the Halls of
    Congress because he did some things related to this issue that
    will really mitigate a lot of the abuses the victims go
    through.
        And it's my hats off to you, Chairman Royce. I'm grateful
    that you're here, sir. It's so appropriate that you be with us,
    because I will say to you there is no greater champion for
    victims' rights legislation in this the United States Congress
    than Chairman Ed Royce.
        [Applause.]
        [The resolution, H.J. Res. 45, follows:]

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                        __________
        Mr. Conyers. Mr. Chairman, may I just make a comment about
    the gentleman from California? Because I, too, have been
    impressed.
        Mr. Franks. Absolutely.
        Mr. Conyers. We in the Congressional Black Caucus have
    worked on this subject continually, and Brother Royce has
    always been there for us. And I join with you fully in the
    comments and commendations that you made toward him.
        Mr. Franks. Well, thank you, sir. And I tell you, a lot of
    times we pass along a lot of plaudits around here, but there
    are some times when someone has a seminal impact on something
    that gets the train rolling and things happen and they never
    really are recognized for it.
        Chairman Royce has always been just very low-key about it,
    but he is a cosponsor of this legislation and, without him, we
    would not be anywhere in the same universe where we are.
        So again thank you, Mr. Chairman.
        Without objection, the Chair is authorized to declare
    recesses of this Committee at any time.
        And I'm going to go ahead and do an opening statement.
    We're grateful you're all here, and I'll introduce you a little
    bit better in a few moments.
        Since 1789, there have been over 11,000 measures proposed
    in the House and Senate to amend the United States
    Constitution. Last Congress alone, 84 such amendments were
    introduced. These numbers are substantial, given the fact that
    the Constitution has only been amended 27 times in the span of
    our Nation's history.
        However, one proposed amendment called the ``next
    amendment'' by some legal scholars stands out because of its
    extraordinary importance to ensuring fairness in our criminal
    justice system. This amendment is H.J. Res 45, the bipartisan
    Victims' Rights Amendment, or the VRA, for short.
        Last month America observed the National Crime Victims'
    Rights Week, which lasted from April 19 to April 25. Across the
    country victims' rights advocates challenged Americans to learn
    about and confront issues related to how victims are treated in
    our criminal justice system. Today we honor this and all the
    year-round efforts by examining this important Constitutional
    amendment before us.
        An amendment to the United States Constitution for the
    rights of victims was first proposed by President Ronald
    Reagan's Task Force on Victims' Rights in 1982. The task force
    stated, ``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 program and progress
    affirmed that an essential change must be undertaken. The
    fundamental rights of innocent citizens cannot adequately be
    preserved by any less decisive action.''
        Since that time, victims' rights legislation has 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 championed victims'
    rights in the Senate, and multiple House and Senate hearings
    have been devoted to advancing the victims' rights legislation.
        Supporters for victims' rights amendments include President
    George H.W. Bush, President Bill Clinton, President 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 for
    Victims Assistance, and, finally, the National District
    Attorneys Association, which is the voice of the Nation's
    prosecutors.
        Despite the best efforts of the State and the Federal
    Governments to bring balance through statutes or State
    constitutional amendments, they have proven inadequate whenever
    they come into conflict with bureaucratic habit, traditional
    indifference, sheer inertia, or the mere mention of an
    accused's rights, even when those rights are not genuinely
    threatened.
        At the U.S. Justice Department, they concluded that the,
    quote, ``existing haphazard patchwork of rules is not
    sufficiently consistent, comprehensive, or authoritative to
    safeguard victims' rights.'' Given these inadequate protections
    in our current laws, it's time the U.S. Constitution was
    amended to guarantee them. True justice will only be reached
    when victims have the same rights anywhere in the United
    States, regardless of the State in which they live.
        These rights, which are enumerated in the VRA, include 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 other such
    proceeding involving any right established in the amendment,
    the right to reasonable notice of the release or escape of the
    accused, the right to due consideration of the crime victim's
    safety, dignity and privacy, and the right to restitution.
    Moreover, the amendment expressly provides standing for the
    victim to defend these enumerated rights.
        I welcome our witnesses here today, and I look forward to
    hearing from them on this critical issue. And I am just
    grateful that you are all here. I know you are here for
    sometimes personal, but always noble, reasons.
        And before I yield to Ranking Member Cohen, I would like to
    ask unanimous consent to put into the record support letters
    for H.J. Res. 45 submitted to my office by the National
    Organization for Victims' Assistance, the National Organization
    of Parents of Murdered Children, and Mothers Against Drunk
    Driving.
        And so, hearing no objection, so ordered.
        [The information referred to follows:]

      [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Franks. I would now yield to the Ranking Member for his
    opening statement.
        Mr. Cohen. Thank you, Mr. Chairman.
        All of us can agree that our criminal justice system must
    treat crime victims with dignity and provide them with some
    measure of justice for the acts perpetrated against them. It's
    awful that people are victims of crime in our world, and
    unfortunately it happens.
        Most of those who are victims of crime disproportionately
    are just people from disadvantaged communities, and those are
    people in the majority of my district I represent.
        Oftentimes they are not given the justice they should have
    on several levels. According to the Bureau of Justice
    Statistics, between 2008 and 2012, Americans living at or below
    the Federal poverty line had more than double the rate of
    violent crime victimization as high-income people.
        According to the January 2014 report by the Violence Policy
    Center, African Americans were four times more likely to be
    homicide victims than the national average. These are
    frightening figures.
        It's hard to disagree with the belief that all crime
    victims need and deserve assistance, counseling, notification,
    protections, and respect. We all have concern for crime
    victims. However, those rights that may be extended through
    statute must be balanced with the fundamental rights guaranteed
    in our Constitution, and that is why I have concerns about a
    Constitutional amendment.
        By putting these rights in a Constitutional amendment, you
    do what the majority side often is concerned about, and that
    leaves the implementation of them to judges. And much of what
    the majority side has been trying to do this year is take power
    away from judges, not allow them to proceed on class actions as
    they see fit, but to change the statutes that legislature and
    Congress might want, not to allow them to determine if
    attorneys have filed appropriate papers in court on rule 11,
    but take that away and make it mandatory. Here they want to
    give judges the right to interpret.
        The Bill of Rights is to protect those most vulnerable from
    the tyranny of Government and protect people from the majority
    that might be, at times, in a state that is not allowing for a
    fair trial, the powerless, the controversial, the politically
    unpopular, even the despised.
        That's why our Constitution guarantees procedural rights
    for those accused of committing a crime, including the most
    heinous crimes, like murder. And I must say, concerning murder,
    the greatest victims' right ever was DNA evidence. I've been a
    great supporter of DNA evidence, passed it in the Tennessee
    General Assembly.
        And one of the greatest victims in our history have been
    people who have been unjustly convicted and been freed because
    of DNA evidence and The Innocence Project. Those are also
    victims and real victims who have been put behind bars for
    innumerable years, some 30, some lesser times. But those are
    victims who have been released because of DNA evidence and
    science. Those are really victims' rights bills, the DNA
    evidence bills and DNA restitution.
        House Joint Resolution 45 would enshrine certain rights for
    crime victims and our Constitution and they could threaten the
    rights of the accused, for instance, a crime victim with the
    right to proceedings free from unreasonable delay.
        What's that mean? Well, it could be seen that that could
    conflict with a defendant's due process rights to fully
    investigate a case and prepare a defense. The judge would, I
    guess, determine at some level whether there was unreasonable
    delay and might see the delay as being from the perspective of
    the victim rather than the perspective of the defense preparing
    a Constitutional defense.
        It also provides an absolute right for crime victims,
    quote, ``to be heard in a release, plea sentencing, or other
    proceeding involving any right established by the proposed
    amendment.'' That could be interpreted, indeed, to give a
    Constitutional right to participate at a stage as early as
    bail. That could put statements made by the victim at a hearing
    concerning bail or early pretrial release--could interfere with
    the prosecution's attempt to have a good defense. Statements
    could be used against that victim at trial, and that would be
    harmful. There are other rights that again need to be balanced.
        And this is an important area. And I agree victims should
    have rights. I don't think they should be enshrined in the
    Constitution. But there is another set of victims that we have
    in this country, which are people who are being killed by
    police and where there is not a victim in a court because the
    police are not being indicted. In South Carolina, there was an
    indictment. In many cases, there aren't.
        I would ask the Chair to consider having a hearing on these
    victims that are in the papers and the news and are causing
    urban conflict that threats, really, the economic prosperity of
    this country and the safety of citizens and their property.
        And I yield back the balance of my time.
        Mr. Franks. Well, the Chair is concerned with all victims,
    and we certainly would consider that. Let me just suggest
    that--I want to go on the record as saying that, if it weren't
    for the police departments of this country, there would be an
    awful lot more victims.
        So I would thank the gentleman.
        Without objection, the other Members' opening statements--
    well, let's see. We're going to go to the Chairman of the
    Committee, Mr. Conyers.
        How are you, sir?
        Mr. Conyers. Thank you very much. I'm the former Chairman,
    but I appreciate the compliment.
        I'd like to build on our Ranking Subcommittee--Mr. Cohen's
    remarks and speak directly to House Joint Resolution 45, which
    would amend the United States Constitution to give crime
    victims various rights enforceable in court.
        While no one disputes the goal of protecting the rights of
    crime victims, this measure is, I think, flawed for several
    reasons that I want to mention as the hearings begin.
        Number one, there's no reason to amend the Constitution of
    the United States. There already are various laws and other
    provisions that provide meaningful assistance to victims that
    protect their rights. Importantly, the Crime Victims' Rights
    Act of 2004 affords crime victims many of the very same rights
    and protections as H.J. Res. 45, and Federal courts are
    obligated to enforce those rights.
        In addition to providing for judicial enforcement of the
    rights it guarantees, the act requires the Justice Department
    to implement regulations requiring Federal prosecutors to
    enforce the rights of victims through training.
        Further, the act authorizes the disciplinary sanctions for
    employees who willfully or wantonly fail to comply with
    provisions of Federal law pertaining to the treatment of crime
    victims.
        To the extent that enforcement of the act has been uneven,
    enshrining victims' rights into the Constitution, I'm sorry to
    say, will not solve that problem. Better awareness of the
    rights provided for and the obligations imposed by the act not
    through the cumbersome process of a Constitutional amendment is
    the answer.
        Secondly, H.J. Res. 45 could undermine the Constitutional
    rights of the accused. H.J. Res. 45 is silent on the question
    of how the rights of the accused are to be treated should a
    victim's right conflict with the rights of the accused. The
    amendment only contains a conclusory statement that such rights
    are not in conflict, but simply saying this doesn't make it so.
        H.J. Res. 45 could prejudice judges and juries against an
    accused who is entitled to a presumption of innocence until
    proven guilty by giving crime victims a constitutional right to
    participate in the earliest stages of a criminal trial. This
    right includes pretrial proceedings, such as a bail hearing
    where an accused has no opportunity to cross-examine the victim
    who may make prejudicial statements against the accused.
        H.J. Res. 45 could also jeopardize the accused's right to a
    fair trial because it requires criminal proceedings to be free
    from unreasonable delay, a right that a crime victim could
    enforce in court. In determining what constitutes an
    unreasonable delay, a court could judge this issue from the
    victim's perspective. As a result, the defendant's right to
    properly prepare his or her defense would be undermined as well
    as deny the defendant the effective assistance of counsel.
        As we know, too many innocent individuals are wrongfully
    convicted of crimes they did not commit and they are exonerated
    only after spending years behind bars seeking justice.
        And so, finally, H.J. Res. 45 could undermine the ability
    of prosecutors to seek justice. The amendment would create
    numerous opportunities for interference by a crime victim with
    the exercise of prosecutorial discretion.
        For instance, the measure could empower victims to prevent
    or undo plea agreements. Beth Wilkinson, one of the prosecutors
    in the 1995 Oklahoma City bombing trial, testified before the
    Senate Judiciary Committee in 1999 in opposition to a
    substantially similar version of H.J. Res. 45 specifically for
    this reason.
        She explained that the prosecution's efforts leading to
    Timothy McVeigh's conviction could have been substantially
    impaired if the victims' right amendment had been in place
    because victims would have opposed the acceptance of a guilty
    plea from a co-defendant whose cooperation, in exchange for a
    plea deal, was critical to securing the conviction against
    McVeigh.
        For these and other reasons, H.J. Res. 45 would do little
    to help crime victims. It would undermine the constitutional
    rights of the accused, and it would hamper effective
    prosecutions. Surely we could provide more meaningful relief
    for crime victims than to engage in what most everyone knows is
    a purely symbolic gesture.
        I thank the witnesses for appearing today, and I look
    forward to hearing their testimony.
        I thank the Chairman of this Subcommittee.
        Mr. Franks. I thank the gentleman.
        And I would just remind the gentleman that the accused has
    constitutional rights outlined specifically in the Constitution
    whereas the victim heretofore does not. And we want to try to
    address that.
        We want to try to protect everyone's constitutional rights.
    It always occurs to me sometimes that those who have been the
    victim of crime have a perspective on this that those who never
    have seem to somehow escape.
        With that, I have to announce that they've just called
    votes. It's an unusual and unfortunate situation. I don't know
    why they don't check with me on these things.
        But we're going to have to recess for approximately 1 hour
    to go and finish the votes. And I do hope you can all come back
    at that time, and we will continue forward. I'll introduce all
    the witnesses, and we will move forward with the hearing.
        So, with that, the Committee stands in recess.
        [Recess.]
        Mr. Franks. Let me thank you all for your profound
    patience. This is a little unique today. We called votes much
    earlier than we usually do, and it was just one of those
    things. And I truly do apologize.
        And I'm especially grateful for Mr. King for coming. I know
    this is a day when all Members are heading in different
    directions, and it's just unique situation.
        So let me now introduce our witnesses. And just for the
    record--it has been for the record. You know, there is a
    recording and things like that taking place. So this always
    goes far beyond just the people in this room.
        Our first witness is Paul Cassell. Paul is a professor of
    law at the University of Utah S.J. Quinney College of Law.
    Professor Cassell has written and lectured on the subjects of
    crime victims' rights as well as argued cases relating to crime
    victims' rights before numerous State and Federal courts,
    including before the United States Supreme Court.
        Thank you for being here, Paul.
        Our second witness is Collene Campbell. Collene and her
    husband, Gary Campbell--Gary--have been ardent victim advocates
    since the murder of their son, Scott, and the murder of Mrs.
    Campbell's brother, Mickey Thompson, and his wife Trudy.
        Their personal experiences have led them to try to enact
    change in criminal justice reforms to benefit victims of
    violence and violent crime. Mrs. Campbell has been honored for
    her fight against crime by numerous top officials, including
    George H.W. Bush and including me. Thank you very much.
        Our third witness, Amy Baron-Evans, National Sentencing
    Resource Counsel and Assistant Federal Public Defender for the
    Federal Public and Community Defenders in Boston,
    Massachusetts. She represents defenders' interests in
    sentencing policy matters, provides litigation support before
    the Supreme Court and Courts of Appeals, and teaches sentencing
    advocacy. She's authored numerous articles, papers, and briefs
    on Federal sentencing and other criminal law issues.
        And thank you for being here with us.
        Our fourth and final witness, Steven Kelly, a member of
    Silverman, Thompson, Slutkin & White, LLC, a litigation firm in
    the Baltimore, Washington area. Mr. Kelly is recognized
    nationally as an authority on crime victims' rights, and he
    regularly change--trains--I said change prosecutors. That might
    work better, huh?--trains prosecutors, law enforcement
    officers, and crime victims' rights on these topics.
        Mr. Kelly has achieved significant victories on behalf of
    crime victims in civil suits against criminal offenders and
    third parties. Mr. Kelly is also a crime victim. His older
    sister, Mary, was raped and murdered in 1988.
        Thank you for being here, Mr. Kelly.
        Mr. Kelly. Thank you, Mr. Chairman.
        Mr. Franks. Each of the witnesses' written statements will
    be entered into the record in its entirety. And I'd 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.
        Now, before I recognize the witness, it is the tradition of
    the Subcommittee that they be sworn. So if you'll please stand
    to be sworn.
        Do you solemnly swear that the testimony you're about to
    give will be the truth, the whole truth, and nothing but the
    truth, so help you God?
        [Witnesses sworn.]
        Mr. Franks. You may be seated. Let the record reflect that
    the witnesses answered in the affirmative.
        And so I would now recognize--I would now recognize the
    distinguished gentleman from Iowa, Mr. King, for an opening
    statement.
        Mr. King. Thank you, Mr. Chairman.
        I thank the witnesses for traveling and being here today to
    testify before this congressional hearing.
        And I wanted to just lay down a couple of things about how
    I think about this. I think it's maybe not unique, but it might
    be unique in this Congress.
        The narrative starts like this. Sometime back in 1987 I had
    my heavy equipment vandalized by a couple of people that were
    attempting to destroy my company, and we did catch them. And I
    believed it was my job to cooperate in all ways with the
    prosecution of those people that have brought out hundreds of
    thousands of dollars of damage out of the tiny little capital
    base that I had accumulated over the years in that construction
    business.
        And I recall sitting in the courtroom in Sac County, Iowa.
    When they read the case in, they said, ``This is the case of
    the State versus Jason Martin Powell.'' And I was sitting there
    and I realized at that moment I'm not in this equation. This is
    the State versus Jason Martin Powell, a now-convicted
    perpetrator of those hundreds of thousands of dollars' worth of
    damage to my life's work, and it caused me to think about crime
    and punishment in a different way.
        So I would just say take this back to Old English common
    law, the root of this, of our crime, our criminal law here in
    this country, how if you poached a deer, it was the king's
    deer. If you damaged or killed one of the serfs, it was the
    king's serf whose job it was to work and grow the economy for
    the king. The king owned everything. It was under his control.
    If you were born there, you were his subject. And so the crime
    was against the king, not against the individual.
        And so the crime victims really don't have rights under the
    origin of the Old English common law. And for a long time in
    this country, until the last couple of decades, crime victims
    have had no rights either.
        And I recall also a study that was done by Cato back in
    about 1994, and they calculated the cost to the crime victim
    due to crime. And there was a chart there on how they assigned
    it. I remember that they assigned $82,000 as the cost of a
    rape. I have never heard of anybody that wanted to submit to
    such a thing for 82,000, but that was their price.
        Also, back in the early 1990's, the Department of Justice
    did a study that quantified in numerical terms the loss to our
    society as the price paid by--not by the taxpayers, not by the
    king, not by our criminal justice system in this country, but
    the price that's paid by crime victims.
        And the reason that we haven't addressed this any better is
    because--and you know this far better than I do--the price for
    crime is paid not by the taxpayers across the board, on
    average, so that we all share in that, but it's paid in great,
    huge, whopping chunks from the victims of crimes themselves.
    And so, because their voices are few in proportion to the
    broader society, we haven't listened as much as we need to
    about the rights of the victims of crimes.
        And so, in that Cato study, their calculation was then that
    it was costing $18,000 to incarcerate a typical criminal and
    that typical criminal, on average, though, if they were loose
    on the street, would commit 444,000 dollars' worth of damage to
    society paid by maybe a single crime victim or a handful of
    crime victims.
        And it occurred to me, as I thought this through, having
    been forced into this as a crime victim myself, that we are
    subject to the criminal justice system and we are asked never
    to be vigilantes, to always accept that law enforcement will
    enforce the law, criminal prosecution will get justice, and
    then we are a bystander as crime victims.
        Well, if that's the case and if Government gets justice,
    then, that is fine. I'm good with that. But if the taxpayers
    that were funding then at $18,000 a year to incarcerate
    criminals actually had to pay the full amount of the damage due
    to crime, they would then incarcerate criminals--more of them
    and longer because it would be a better return on their
    investment.
        But they are getting off without paying the price. The
    victims are paying the price. And I'm hopeful that some of the
    things we talk about here today helps shift that balance in the
    direction more of the rights of crime victims and that we put
    that equation in place that there's a return on investment for
    prosecution, incarceration, of criminals and for everyone
    that's locked up, at least in theory, we're protecting victims
    by incarcerating criminals.
        And there's a little bit of a crime restitution fund that's
    in a good number of the States. It doesn't amount to very much.
    It's a token. But I would like us to take a good look at that
    token and find a better way to respect and honor the rights of
    the crime victims in a more objective approach.
        So that, Mr. Chairman, was a little bit out of the ordinary
    this morning, but I appreciate you recognizing me to speak. And
    I appreciate this hearing. And I appreciate our witnesses.
        Thank you. And I yield back
        Mr. Franks. Well, thank you, Mr. King, and I certainly
    appreciate you being here, sir.
        I would now like to recognize our first witness, Mr. Paul
    Cassell.
        And, sir, if you would, turn on your microphone before you
    start and maybe pull it close to you.
        Mr. Cassell. All right. There we go. How is that?
        Mr. Franks. Yes, sir.

      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. Well, Chairman Franks and distinguished
    Members of the Committee, I appreciate you inviting me here
    today.
        When we talk about our Constitution, it enumerates certain
    rights for defendants, but it doesn't say even a single word on
    behalf of crime victims. How shocking it would be to describe a
    system in which defendants didn't have any right to notice of
    court hearings, to attend those hearings, to speak at
    appropriate points in those hearings. And, yet, that's the
    exactly the situation that crime victims in America find
    themselves today, at least under our Constitution.
        I think Representative King put it very eloquently a moment
    ago when he said victims aren't even in the equation, and
    that's the situation of our Constitution. Every year, 2 out of
    100 Americans will become victims of violent crimes and 13 out
    of 100 Americans will become victims of property crimes. And,
    yet, when they come forward to report those crimes, all too
    often they'll find that the system doesn't consider their
    interests at all.
        And we know who these victims are. I think Representative
    Cohen and Representative Conyers mentioned this morning that
    disproportionately victims are from the ranks of the poor, from
    people of color, and others who are in the worst position, in
    some ways, to protect themselves.
        In the trials, defendants will be allowed, obviously, to
    attend the hearing. And, yet, we will hear later today from the
    Campbells about how they were excluded from a trial involving a
    murder of a family member.
        We'll hear later today from Steve Kelly, who will talk
    about some of his clients. They go into court hearings and
    discover that they can't say anything about a plea bargain or
    aren't consulted about important steps in the process.
        Now, if we're talking about responding to these kinds of
    injustices, I think we need to go back to 1982, when President
    Reagan's task force on the victims of crime recommended that
    our Constitution be amended to provide protection for victims
    of crime.
        And after that recommendation, victims' rights advocates
    went to the great laboratories of the States, and now more than
    30 States have passed their own State amendments protecting
    victims' rights. And those have certainly improved the
    treatment of victims in our system, but, sadly, they haven't
    accomplished the job.
        Attorney General Janet Reno asked her Justice Department to
    survey the situation, and the Justice Department reported that
    efforts to secure victims' rights through means other than a
    Federal constitutional amendment have proved less than fully
    adequate. These significant State efforts simply are not
    sufficiently consistent, comprehensive, or authoritative to
    safeguard victims' rights.
        So the Federal amendment would draw on the experience of
    the State system, but elevate victims' rights to the level of
    Federal constitutional protection. At the core of the amendment
    is a guarantee that victims of violent and other serious crimes
    will receive notice of court hearings. They'll be able to
    attend those hearings, and they'll be able to speak at
    appropriate points in the process, such as bail hearings, plea
    hearings, and sentencing hearings. They will also have the
    right to proceedings free from unreasonable delay.
        And let me just pull that out as an illustration of how the
    amendment would work. Representative Cohen said earlier this
    morning that he thought that would interfere with a defendant's
    right to adequately investigate a case. Not at all. The
    provision in the proposed amendment is that victims would have
    rights to proceedings free from unreasonable delays. And, of
    course, giving the defendant an opportunity to prepare would
    not be unreasonable delay.
        And so I challenge those who are critics of the amendment
    to come forward with real-world examples of where these kinds
    of provisions have created these parade of horribles that they
    trot out.
        I was interested to read Ms. Baron-Evans' testimony. There
    are five States now--or, actually, more--Arizona, California,
    Illinois, Michigan, Missouri, and Wisconsin--that all have in
    their State Constitutions provisions that protect the right to
    be free from unreasonable delay. And, yet, there isn't a single
    illustration that they've been able to offer of a defendant
    being deprived of a chance to investigate his case.
        So the Federal amendment would establish a basic package of
    victims' rights, a floor below which States would not be able
    to go. This thwarts no new violence to the important principle
    of Federalism. Rightly or wrongly, our Supreme Court has
    already constitutionalized many aspects of our criminal justice
    system. And all the amendment would say is, if we're going to
    have a constitutionalized set of rights for defendants that
    applies through the country, let's do the same for victims of
    crimes.
        As you mentioned earlier today, the amendment has broad
    bipartisan support. Earlier versions of the amendment were
    endorsed by President Bill Clinton, President George Bush,
    then-Senator and now-Vice President Joe Biden. And so Congress
    should follow the bipartisan advice of these leaders and make
    this amendment the next amendment.
        It's no accident that the symbol of justice is a set of
    scales. Justice for both a defendant and a victim is a worthy
    goal to pursue, and the proposed victims' rights amendment
    would help make that lofty goal a reality.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Cassell follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   __________
        Mr. Franks. And thank you, Mr. Cassell.
        Now I would recognize our second witness, Mrs. Campbell.
    And, without objection, Mr. Campbell will assist Mrs. Campbell
    in reading her testimony. Mrs. Campbell will be available to
    answer Members' questions.
        And, Mr. Campbell, if you will pull that microphone close
    to you and turn it on, sir, that'd be great. And so we'll
    recognize you now, sir.

                    TESTIMONY OF COLLENE CAMPBELL,
                        VICTIMS' RIGHTS ADVOCATE

        Mr. Gary Campbell. Thank you, Mr. Chairman, and honorable
    Subcommittee Members.
        I'm going to try to relate our family's life as victims of
    crime. Our experience, education, on-the-job training confirm
    the need for victims' rights in the Constitution. Our family
    has endured more than 33 years of murders, delays, exclusions
    from court, death threats, and lack of notice from hearings and
    appeals.
        In 1982, our lives were turned upside down when our only
    son Scott was murdered followed only 6 years later by the
    unrelated assassination murders of Collene's auto racing legend
    brother and my best man at our wedding, Mickey Thompson, and
    his wife, Trudy. Yes, sadly, we have a real life education in
    crime.
        We received our first lesson in 1982, the same year
    President Reagan's task force on crime recommended the
    Constitution be amended to establish rights for victims. Our
    son Scott went missing. We searched for him for 11 months
    before we learned the horrible truth. He had been strangled and
    thrown out of an airplane into the Pacific Ocean to steal his
    car.
        We're just a small example of thousands of Americans who
    become victims of repeat predators that should have been in
    prison. Instead, they were released early and committed murder.
    One of our son's killers had previously been given three
    indeterminate life sentences, but was released early after only
    4 years.
        The other was out on a work furlough a year after killing
    his passenger in an auto crash while he was under the influence
    of drugs and alcohol. Like so many, our son is dead because of
    a weak and forgiving justice system. Had his killers remained
    in prison, he'd be alive today.
        And in 1988, while we were still in trial from our son's
    killers, Mickey and Trudy Thompson were also murdered. Their
    deaths were arranged to avoid paying back court-ordered money
    that his killer had stolen from Mickey.
        We've endured this system for 33 years. So we know it all
    too well. Please consider our family's experience and grasp
    this fact. What happened to our family continues to occur to
    good people all across the country and will until the victims
    have rights in our Constitution. Example: In the trials of our
    son's killers, we were excluded from the courtroom at all three
    trials. We were not allowed to be heard. We were not notified
    of the convicted killer's appeal hearing. His family was. The
    guilty verdict of one of the killers was overturned. We were
    not notified. We had no rights. This killer was released, and
    again we were not notified.
        No, we did not have the right to be notified or heard or to
    protect ourselves. We did not have the right to a speedy trial.
    The trials took nearly 8 years before 20 judges with dozens of
    hearings. None of these did we have the right to be heard.
        In the trial of the killer of Mickey and Trudy, it took 18
    years after the murders just to get it started. That trial
    included 65 hearings with the defense delaying with every
    tactic possible. Again, we had no rights to a speedy trial. And
    this is only a small part of the list. It is tremendously
    important that you recognize what can be lost when justice is
    denied.
        If our justice system worked properly, Mickey and Trudy and
    Scott and thousands of others would be alive today. If Mickey
    were here with us today, he'd be telling you, ``Stand on the
    gas. Get this job done, and get to the finish line.''
        Well, it's time you do the right thing. Make certain our
    Nation has justice for all citizens, including victims of
    crime. Please move this amendment forward now. Thousands of
    lives depend on you.
        It's really amazing. I don't know if you're aware, but in
    the last 50 years, more people were murdered right here in our
    country than have been killed in all of our wars. Please, we
    need you to bring balance to our justice system.
        Thank you.
        [The prepared statement of Mrs. Collene Campbell follows:]

      [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      __________
        Mr. Franks. And thank you both for being here.
        I would now recognize Ms. Baron-Evans.
        And, Ms. Evans, if you would, turn on your microphone
    there, too. I'm sorry.
        Ms. Baron-Evans. I've got it.
        Mr. Franks. We have people always forget that. So we say
    that just as a matter of course.

      TESTIMONY OF AMY BARON-EVANS, NATIONAL SENTENCING RESOURCE
            COUNSEL, FEDERAL PUBLIC AND COMMUNITY DEFENDERS

        Ms. Baron-Evans. I thank you for the opportunity to comment
    on the Victims' Rights Amendment on behalf of the Federal
    Public and Community Defenders. We serve 91 of 94 Federal
    judicial districts. Over 80 percent of Federal defendants are
    indigent, and we represent most of them.
        You know, I have read the Campbells' and Steve's testimony.
    And, you know, it's heartbreaking what happened to them, and I
    in no way mean to say it isn't. But the system that they
    describe is not the system in Federal court. It is not that
    system.
        There's no way that there would ever be an 8-year or an 18-
    year delay, not today, anyway, or that victims would not be
    notified or not allowed to be heard. I can only speak for the
    Federal system, but, you know, that's what I'm going to do.
        Federal Defenders do have lots of experience under the
    Crime Victims' Rights Act, which is similar to, you know, the
    proposed constitutional amendment, except that it has certain
    procedures and limitations.
        And it also--you know, if there's a conflict between the
    defendant's rights and the victim's rights, the judge can
    resolve the conflict in the proper way, which is in favor of
    the defendant's rights.
        Because, you know, if you've got both of them with
    constitutional rights, it's going to be impossible for judges
    to resolve things fairly or, you know--we don't even have a way
    of knowing what the correct way would be. This is a whole new
    sort of--you know, this would be a whole new animal that has
    never been used in the United States.
        So we have experience with victim rights under the CVRA,
    the act, in fraud cases, child pornography possession cases,
    Indian reservation cases, and a few other kinds of cases, and
    it is being implemented in Federal court.
        When judges--you know, not in every case, but when judges
    hear from a victim at sentencing, if they want to speak, they
    are allowed to speak, and it is increase--you know, it can
    increase the sentence. It can result in a higher sentence if
    the defendant is truly a bad actor. It has an impact on judges.
        Professor Cassell has said that there really is no conflict
    between defendants' and victims' rights or there wouldn't be if
    they both had constitutional rights. There have been numerous
    conflicts under the--you know, right now under the existing
    structure where defendants have constitutional rights and
    victims have statutory rights. And judges are able to resolve
    them, you know. If it's one or the other, they have to go with
    the constitutional right of the defendant.
        There are many examples. I'll just give a couple right
    here. But a defendant has a due process right to be sentenced
    on the basis of accurate information. And to that end, the
    defendant also has a right to notice if a witness is going to
    testify against him at his sentencing hearing and to be able
    to--to challenge anything that that--that the witness says
    through cross-examination or contrary information.
        So there is a case--in the Endsley case in my written
    testimony, this is a case where the Government and the
    prosecutor--Government and the probation officer told the--
    argued to--well, the victim had a victim impact statement in
    the PSR, and he said that his behavioral problems were caused
    by the 19-year-old defendant's assault on him.
        And when the defendant tried to put in evidence that the
    behavioral problems of the victim started long before he ever
    met the defendant, the Government and the probation officer
    said, ``No. No. You can't--defendant has no right to challenge
    this under the new statute because it would violate his dignity
    and privacy.''
        The judge knew exactly what to do. ``No. The defendant's
    constitutional right trumps. So he will be able to put in that
    evidence, and he will be able to cross-examine.'' Doesn't
    always go this way, but that's the proper way.
        And what would happen in that same case if the victim had a
    constitutional right to dignity and privacy against--you know,
    versus the defendant's right to basically offer information
    that offends his dignity and privacy? Very difficult for
    judges.
        I think I am already way over time, but there are other
    examples in my written testimony. I want to point out a few
    other things.
        The burden of us having to defend against two adversaries
    would be astoundingly heavy. We would have to hire more people.
    The courts would have to hire more people. We are already
    shorthanded. You may know our position or not. I don't know. It
    would be chaotic. I think Judge Posner is correct that there
    would be sort of this three-pronged thing going on in the
    courtroom and, you know, it would be confusing, at best.
        I want to make clear that the way this--where this is going
    is also to a constitutional right to counsel for victims. You
    can't really give somebody constitutional rights and then say,
    ``But you can't have a lawyer to enforce them.'' That's the way
    it goes.
        So if Congress--or if this amendment were adopted, you
    know, Congress, of course, can choose to, you know, pay that
    cost or--but, you know, to, you know, impose that cost on the
    States would be an entirely different thing.
        As I said, we don't--we don't believe there is a need for
    this. The Rules Committee just added eight rules to buttress
    the Crime Victims' Rights Act. The attorney general issued now
    guidelines to his employees in 2011.
        And I'll leave it at that. Thanks.
        [The prepared statement of Ms. Baron-Evans follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 __________
        Mr. Franks. Thank you.
        And I would now recognize Mr. Kelly.
        Mr. Kelly, you've got that microphone. Yes, sir.

      TESTIMONY OF STEVEN J. KELLY, MEMBER, SILVERMAN, THOMPSON,
                          SLUTKIN & WHITE, LLC

        Mr. Kelly. Thank you, Mr. Chairman.
        Mr. Chairman, Members of the Committee, on April 22, 1988,
    my older sister, Mary, walked out of her home after putting her
    4- and 5-year-old daughters to bed, went to the convenience
    store a mile from her home and not far from the place where my
    family has been for generations, and she never came back. She
    was missing for over 6 months. Her skeletal remains were
    recovered in a woods not far from the farm our family has owned
    for generations.
        We later learned that the monster--and I call him that
    intentionally--who took her life pushed aside my nieces' car
    seats to rape and later kill my sister in the backseat of her
    family's car.
        Police and prosecutors treated my family as outsiders.
    There were no victim services in 1988. We had no meaningful
    rights, no recourse. Another survivor, an angel, really--many
    people here know her--Roberta Roper, whose daughter was killed
    in the early 1980's in Prince George's County, Maryland, was a
    godsend to my family.
        And, eventually, Roberta Roper convinced me to get involved
    in the movement for crime victim rights. And under Roberta's
    leadership in 1994, the Maryland legislature and then the
    Maryland people later passed overwhelmingly a constitutional
    amendment to the Maryland Constitution, very similar to the
    Constitution amendment that's being considered here.
        I went to law school at the behest of Ms. Roper and
    inspired by Professor Cassell and others to fight for the
    rights that were guaranteed under that Constitution, and I'm
    sad to say I've been sadly disappointed.
        Even though I've dedicated my practice to enforcing crime
    victim rights under the Maryland Constitution, what I found is
    that a constitutional amendment in the State is no match for
    the defendant's constitutional rights or even the whisper of
    the defendant's constitutional rights and for the bureaucratic
    ineptitude.
        If any Member of this Committee walked into the circuit
    court of Baltimore City this morning, as I do on many mornings,
    and went into the criminal docket, you would see what I'm
    talking about. Prosecutors and defense attorneys in Baltimore
    City routinely reach plea deals at the arraignment stage where
    the victim is rarely present and where the--if the victim knows
    about it, the victim is told don't worry about it, don't come
    there.
        These deals are made with no consent of the victim, no
    opportunity to contact the victim. The victim's critical
    interests are traded away without as much as a phone call on a
    regular basis. Maryland victims are routinely excluded from the
    life-or-death determination of pretrial release.
        So you're talking about people who have gone to the trouble
    and put their life on the line to accuse somebody of a crime
    and they are not notified of the fact that that person is going
    to be released on bond. That puts their life in danger.
        Prosecutors routinely in Maryland agree to release private
    victim information to defendants who may use that information
    to either humiliate them or, much worse, to harm or kill them.
        Particularly infuriating to me is that victims are
    routinely shut out of the sentencing and offered no opportunity
    to address the court or ask for restitution. The contest there
    is between convicted criminals and innocent victims. And even
    in that context, victims mostly lose.
        In my experience, the people who are treated the worst in
    the system are the ones who need the help the most. There's a
    saying in Baltimore City that the color of justice is green.
        The same kind of classism, racism, sexism, homophobia that
    affects defendants applies more so to victims. Victims are more
    likely to be shut out of the process if they're marginalized.
    In one Maryland jurisdiction, prosecutors have a saying. They
    call cases NHBI, no human being involved, to refer to
    individuals that they don't want to fight for. Prosecutors
    shouldn't have that kind of discretion.
        Treating victims this way helps foster the kind of distrust
    that produced the civil unrest in my City of Baltimore this
    week. Shutting victims out reinforces the wall between
    communities and criminal justice system and breeds the kind of
    frustration and cynicism that boiled over in Baltimore this
    week.
        Including victims in the process leads to better outcomes.
    I've seen it. It's Trial Advocacy 101. When you have, as Mr.
    King said, on the one side a cold dead State and on the other
    side a real live human being, appropriately injecting that
    human being makes a difference for trial outcomes. Juries and
    judges respond better to flesh-and-blood human beings who
    actually bleed and who lose money and who suffer and who
    experience emotional distress. It's a matter of trial advocacy.
        Treating victims with dignity also inspires confidence in
    the system and helps victims at the margins get back on their
    feet again and thereby prevents crime. We crime victims are an
    unusual constituency. We didn't ask to be in the situation that
    we're in, and most of us--I know I probably speak for the
    Campbells here--would trade the world not to be in this
    situation. Every day in every court throughout this country
    victims are pushed aside, marginalized and treated much worse
    than the criminals who made the choice to harm us.
        This Congress cannot prevent criminals from harming their
    fellow citizens, nor can you erase the unbearable pain that has
    already been wrought on families like mine, but what you can
    certainly do is help us honor loved ones like my sister, Mary,
    by enshrining victims' rights in the U.S. Constitution.
        As a lawyer, as a victim advocate for more than almost 30
    years now, I can tell you to my core that this is never going
    to change. Victims are never going to be recognized absent what
    you're trying to do here today.
        It's for these reasons, Mr. Chairman and Members of the
    Committee, I would urge you to vote to pass the victims' right
    constitutional amendment. Thank you so much.
        [The prepared statement of Mr. Kelly follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                     __________
        Mr. Franks. Thank you, Mr. Kelly.
        Thank all of you very much for your very compelling
    testimony. And I will begin now under the 5-minute rule with
    questions and comments. And I'll begin by recognizing myself
    for 5 minutes. Indeed, I was touched by much of the testimony
    from all of you.
        Mr. Cassell, I guess I'll start with you. You know, judges
    are oftentimes put in the position of having to weigh between
    constitutional rights. That's a reality all the time. Sometimes
    we have to subordinate one constitutional right to the more
    fundamental constitutional right. The right to freedom
    sometimes has to give way to the right to live. The right to
    property has to give way to the right to live in many cases.
    It's a balancing act.
        So I was indeed struck by Ms. Baron-Evans' testimony where
    she said, you know, the defendant has constitutional rights
    whereas the victim has only statutorial rights. And, of course,
    that's--you know, the victim indeed has constitutional rights,
    and judges are all the time having to choose between those.
        What we're discussing today is to make sure that those
    items that, again, Ms. Baron-Evans suggested are a matter of
    course for Federal courts, which there is some question about
    that. But, I mean, if it's true, then, why do they not have the
    ability to enshrine those as constitutional rights as well?
        I think that the notion that you have both of those, you
    know, two people, an accused and a victim, with constitutional
    rights, both of them certainly should have constitutional
    rights and certainly do as a matter of course.
        In fact, I can't think of a circumstance where they
    wouldn't both have some constitutional rights in a circumstance
    like that. And, again, it's the judge's responsibility in
    justice and fairness and balance to find the right and just
    center point--or not center point--but the right and just place
    there.
        So my question to you, sir. In your testimony, you provide
    a description about a Federal case in New York in which you
    suggest the U.S. Attorney's Office, under the direction of
    Loretta Lynch, violated Federal statutes protecting victims'
    rights.
        Now, can you provide your assessment of what the U.S.
    Attorney's Office did wrong in that case and elaborate and help
    us understand it.
        Mr. Cassell. Yes. Thank you.
        Mr. Franks. And would you turn that microphone on, sir.
        Mr. Cassell. All right. Yeah. We heard from Ms. Baron-Evans
    a few moments ago, ``Well, these violations, that's just
    happening in the State system. It's not happening in the
    Federal system.''
        Well, here's a very concrete illustration. This is a case,
    United States v. John Doe. The case number is 98-CR-1101. And
    the victims weren't notified. They weren't given restitution.
    It's a very disturbing case that I hope the Committee will look
    into more.
        In 2009, Felix Sater was sentenced for racketeering, for
    stealing more than $40 million from a number of victims, along
    with his criminal associates. And, remarkably, the U.S.
    Attorney's Office there ignored two Federal statutes. The first
    is the mandatory Victim Restitution Act, which made restitution
    mandatory in these kinds of cases.
        Well, the U.S. Attorney's Office figured a way around that.
    They didn't give the list of victims to the probation officer.
    So there was no way for the probation office to provide
    restitution. So this man who had stolen millions of dollars
    from victims was allowed to just keep the victims' money.
        And on top of that, there was another violation of a
    Federal statute. Representative Conyers earlier this morning
    mentioned the 2004 Crime Victims' Rights Act. Well, that act
    requires notice to victims and a chance to confer with
    prosecutors, but the prosecutors kept this whole case secret.
    So the victims were never notified and were never told what was
    going on.
        And the U.S. Attorney's Office has since contrived to keep
    this whole thing under wraps. And in my testimony I show you
    some questions I sent to the Justice Department that they have
    refused to answer about this case. So maybe you'll have more
    luck in getting answers and figuring out what's going on, and I
    certainly hope you'll look into it.
        Mr. Franks. Well, I hope we do.
        Mrs. Campbell, I have to tell you, you know, you have such
    a profoundly powerful story. In full disclosure, you've been in
    my office, and I've heard your story on a regular basis or
    several times, and I'm just always moved by it.
        And you have used that story to reach out to untold numbers
    of people across the Nation who are struggling or have
    struggled with the criminal justice system as victims of crime,
    and I just wish you could share a little bit more about your
    experience as an advocate and any of the stories that you've
    come across personally.
        And I know that you can deal with these directly. Mr.
    Campbell's helped with the testimony, but I'll direct the
    question to you personally.
        Mrs. Collene Campbell. I work with actually thousands of
    victims out of my home, and the story that we tell is not
    different. Sadly, it's hard to tell our story. And we're not
    here to tell our story. We're here to save lives. We pay our
    own way to be here because we don't want others to deal with
    what we've had to deal with.
        Our family would be alive if there was constitutional
    rights and we had a system that worked. But all across the
    Nation there are so many people that are going through the same
    thing we are, and it's very hard to get up and fight and try to
    do something after you've had somebody murdered. And we need to
    fix the justice system to put the good people up front and stop
    putting the bad people in a good position.
        And I thank you so much for giving us the opportunity to be
    here. My family in heaven I know really appreciates it because
    they're looking down and saying, ``Go get them.''
        And my dad was a chief of detectives on the Alhambra Police
    Department, and I came up in a law enforcement family. And he
    always said, ``Just get a bigger stick, but always do what's
    right. Never settle for what's wrong.'' And that's what we're
    trying to do.
        Mr. Franks. Well, I appreciate that.
        And I'm going to yield to my friend Mr. King here just
    momentarily. I wanted to let him know and the others know that
    we're going to do a second round of questions here. So I'll
    have a chance to follow up with you more. So hang in here with
    us. I don't want to take advantage of you, but your testimony
    is so compelling.
        Mr. King from Iowa.
        Mr. King. Thank you, Mr. Chairman.
        Again, I thank the witnesses for your testimony.
        I want to explore something here. And, you know, we have a
    criminal justice system that I referenced in my opening
    statement that's rooted at least back to Old English common
    law, perhaps to Roman law, perhaps to Mosaic law, and as this
    all flows through, cultures evolve in a way and we get settled
    into habits and practices and often don't stop and examine how
    did we get where we are.
        I was listening to Mr. Kelly's testimony and your remarks
    about how the victim is routinely cut out of the process, and I
    would expect that the prosecutors and the defenders that are
    standing there doing plea bargaining and are lining up to do
    plea bargaining in Baltimore often will go through case after
    case or maybe even hours or days without consideration of the
    victim because there's not an advocate there for the victim.
        And so let's take a look at this system that we have today
    that's been described here and just erase that out of our minds
    for a minute and say, ``What if we were just put here on earth
    without prior experience, but had all the wisdom that we share?
    Would we create a criminal justice system like this? Would you
    start from scratch and decide that the victims aren't going to
    have a say and that they're not going to be heard and they're
    not going to have specific rights and that we're going to
    incarcerate people up to the limits of the room we have in our
    prisons and the budget we have to incarcerate them and the
    resources we have, as Ms. Baron-Evans said, to prosecute them
    and adjudicate and go through this process or would we look at
    this and say, ``What would fix this problem? Could we design a
    system that would better fix the problem that we have and that
    we've heard about here this morning?''
        And I'd suggest that, if we erased all the things that are
    out there now and started from a blank sheet of paper, that we
    would put victims into that equation and we would try to bring
    about an equation that was as fiscally responsible as possible,
    that would provide as much a deterrent as possible, that would
    protect victims as much as possible.
        And so I would just pose this, that the equation that I
    used was old data, 20 years old or a little more, $18,000 a
    year to incarcerate a typical criminal and 444,000 dollars'
    worth of damage committed to individual crime--against
    individual crime victims if you turn that same typical criminal
    loose. That's about a 25 multiplier a return on investment. One
    incarceration dollar saves 25 dollars' worth of damage to a
    criminal victim.
        So you haven't said a lot. None of the witnesses have said
    very much about restitution of this. But I'd just ask, in
    theory--and I'm going to go first, I think, to Mr. Kelly
    because I suspect you may have thought about it in this
    fashion--that if we gave the crime victim or the family of the
    crime victim standing to go back and bring suit against the
    State if the State had turned loose a criminal that should have
    been incarcerated, that this exuberance of mercy, which has
    brought about so much crime in this country, I believe
    referenced by Mr. Campbell, as a weak and forgiven criminal
    justice system.
        What if we had it the other way? What if the crime victim
    had standing to go to court to recover their loss, their damage
    from the State for the State failing to protect the individual?
    How much would this change the system that we have today? And
    do you believe there's any merit to starting down that path
    perhaps incrementally?
        Mr. Kelly. Mr. King, I think that's a brilliant suggestion,
    and I think that--you know, going back to your point about the
    way the criminal justice system has evolved, you know, from the
    ancient times, restitution is a critical building block.
        But I can't tell you how many times I've been in court
    where a defendant has a privately retained lawyer that charges
    $100,000 retainer and the judge makes a finding that the
    defendant lacks the ability to pay restitution. So what the
    courts are doing there is they are imposing the cost of crime
    on the innocent victim as opposed to the person who made the
    choice.
        So I think it's, you know, absolutely critical that
    restitution, you know, be a cornerstone. And I think that
    giving crime victims recourse, you know, would wake a lot of
    people up because restitution--I call it, you know, the bastard
    stepchild of the criminal justice system. It's the most hated
    right. Prosecutors hate it. Defenders hate it. Judges hate it.
        The only person that doesn't hate it is the victim because,
    you know, it may be onerous and it may be difficult to get
    money out of a defendant, but it's fundamentally fair. It's
    only fair that that victim should be repaid for their basic
    financial out-of-pocket losses. And it never ceases to amaze
    me, but it happens on a regular basis, once a week at least,
    where we make a reasonable request for restitution and it's
    denied.
        So I think it's a great suggestion. I would be all for it.
        Mr. King. I would like to quickly go to Mr. Cassell for his
    response to that question. And I'm going to be out of time at
    the point.
        Mr. Cassell. Right. I think the real problem here is that
    the system----
        Mr. King. Mr. Cassell.
        Mr. Cassell. I'm sorry.
        When you talk about the system historically, it's really
    interesting. In this country, originally, we had a system of
    private prosecution where a victim of crime, as you were
    describing about yourself, might have initially filed the
    criminal case to begin with and the real focus, as Mr. Kelly
    was suggesting, was on restitution, getting the victim back
    where they should be.
        Over time, like many things in this country, we've moved to
    a more bureaucratic system where big government has kind of
    bumped out, I think, some of the other interests that really
    ought to be considered.
        So, in some ways, this might take us back a little more to
    our roots and put private citizens involved in the process and
    get them the opportunity to overcome these financial effects of
    crime that can be so devastating.
        Mr. King. Thank you, Mr. Cassell.
        I am out of time, but I want to encourage the Chairman to
    continue this dialogue. I think there's much to be gained from
    these types of hearings, and I appreciate it.
        And I yield back.
        Mr. Franks. And I thank the gentleman and invite him to
    stay 5 more minutes, if he'd like to, for a second round. I
    mean, if he has to go, I'll certainly understand. Thank you,
    Mr. King.
        All right. Mr. Kelly, I'd like to direct a question to you.
    You know, the claim is often made that the VRA would create
    such burdensome duties for the prosecutors and, of course, it
    would be untenable, even though it's done on a State level,
    many times Federal.
        Can you express how jurisdictions that apply strong
    victims' rights processes deal with the administrative burdens
    the law imposes on prosecutors in courts. I mean, what's been
    your experience?
        Mr. Kelly. Well, the short answer is they use the money
    that you give them, as Congress, for what it's supposed to be
    used for. And this Congress is already giving out millions of
    dollars both Federally and for States under the Victims of
    Crime Act for, you know, the purpose of creating robust systems
    of victim notification, for providing for victim witness
    coordinators within the prosecutors' offices.
        Almost every prosecutors' office, I think, in the country
    has them. The Federal Government certainly has them. And the
    problem is that the money doesn't always get used for that
    purpose, and I think using the money for what it's meant to do
    would allow prosecutors to beef up these systems.
        The systems already exist at the Federal level and the
    State level. The difference between a robust application and a
    non-robust application is priorities and how the policymakers
    in a given jurisdiction are going to prioritize victims' rights
    and victim notification and the like or not. And so the answer
    is just use the money that you are providing with for the right
    purpose.
        Mr. Franks. Well, thank you, sir.
        Mrs. Campbell, I would like to return to you, then, for a
    moment. You know, I've heard on a number of occasions you say
    that, if victims' rights legislation had been in place prior to
    the loss that your family incurred, that your family might
    still be alive.
        Can you elaborate a little bit and tell me the rationale.
        Mrs. Collene Campbell. Sure. I can go on both of them.
        Scotty, our son, was murdered by somebody that just 1 year
    before had killed somebody in a drunk driving accident. He was
    out on bail. He has a long history of crime. And I might add he
    came from a very good family. This was not somebody that was
    destitute or anything. If he would have been in prison where he
    should have been, our son would be alive.
        And with Mickey's and Trudy's case, the fellow that killed
    Mickey and Trudy, if he would have been in Federal prison for
    bank fraud like he should have been, Mickey and Trudy would be
    alive.
        By giving the criminals, the bad people, too many rights,
    many of us are losing good family members. And I hear this all
    the time, all the people I talk to, all the victims.
        You know, a good person doesn't go out and just commit a
    murder. A person works up to it, it seems to me, and----
        Mr. Franks. And you're suggesting that, if their victims
    had had the right to be heard in some of these circumstances,
    that they might not have been let out as early as they were?
        Mrs. Collene Campbell. Well, in our particular cases, the
    people were let out from being victims of other people's
    crimes, yes.
        And if you will give me just one moment to tell you how
    being excluded from the courtroom--we were excluded from the
    courtroom during three trials of our son's murder. We happen to
    know more about our son than anybody else. You know, they used
    the excuse we were going to be used as a witness. We were not
    being used as a witness.
        When the defendant was going to come up on the witness
    stand, I went to a telephone and called the widow of another
    person he had killed and asked if she would come and sit in the
    courtroom so she could see what lies were being told. And she
    said, ``You're doggone right I will be there. He should be in
    prison.''
        She came and sat in the courtroom, and when he got up on
    the witness stand, she immediately caught him lying. She went
    to the prosecutor and said, ``I've got the paperwork at home.
    He's lying on the witness stand.'' So the next day the
    prosecutor went up and said, ``Well, Mr. Cowell, were you lying
    the last time you were before a jury or were you lying
    yesterday before this jury?''
        Long story short, the jury said, had they not caught all
    that information, they would have not been able to convict him.
    So the small things like taking somebody out of the courtroom
    doesn't sound huge to somebody else, but it could be huge in a
    trial and a conviction, and people would be alive if victims
    had rights.
        And for crying out loud, we go back to a great President
    that said, ``Let's give victims rights in our Constitution,''
    and we've done nothing. And, yet, here we sit with all of us
    having people killed. And with the thousands of people I work
    with, it's just sad that it's not moving forward.
        I just wish so much that people could really get into the
    real truth of what's going on and not having somebody come and,
    you know, make it strange. It is so important that we have
    rights so we can save lives.
        I can't bring my family back. But, by God, I sure hope that
    the Lord is looking down and saying, ``Let's save other people.
    Let's not let this continue on. Let's let this Administration
    move forward and start saving lives.'' It needs to be done.
        Mr. Franks. Well, thank you. And I appreciate so much,
    again, your testimony. And certainly that is one of the deepest
    commitments of this Committee and certainly myself, that we
    want to try to do everything that we can to give everyone a
    chance to live and be free and pursue their dreams.
        And, to that end, Mr. Cassell, I would offer my last
    question. If a Federal constitutional amendment were enacted,
    can you give us some sense of the protection of crime victims'
    rights and how that would improve. Give us some idea of what
    would actually change if we were able to do that.
        Mr. Cassell. Well, I think what would happen if this
    amendment passed is immediately all over the country, in State
    courtrooms, Federal courtrooms, city courtrooms, wherever it
    is, judges would know that victims have rights.
        And let's be clear. This isn't about taking away rights
    from defendants. The amendment itself says right in its first
    sentence that both victims and defendants can have rights
    together.
        And so now judges, judges that are confirmed by the
    Congress, by the Senate, in the Federal system, judges that
    come through the State system, are going to find those
    solutions that protect both defendants' rights and victims'
    rights.
        And some of the terrible situations that your Committee has
    heard described today would no longer occur. Victims would be
    notified of court hearings. They would have the right to attend
    those hearings. They would have the right to speak at
    appropriate points in the process. That's the difference that
    this amendment would make.
        Mr. Franks. Yeah. Well, this concludes today's hearing.
        And I want to thank all of the witnesses here. Mr. Cassell,
    Mr. and Mrs. Campbell, Ms. Baron-Evans, and Mr. Kelly, thank
    you all very, very much. I am grateful to you for taking the
    time to be here.
        And we continue down this path. As you know, we've actually
    had some pretty profound success in the last year and a half in
    the area of victims' rights, and we are going to continue to go
    forward there.
        So, without objection, all Members will have 5 legislative
    days to submit additional written questions for the witnesses
    or additional materials for the record.
        And, again, I want to thank the witnesses again, thank the
    Members, and, of course, anyone in the audience.
        And this hearing is adjourned.
        [Whereupon, at 12:17 p.m., the Subcommittee was adjourned.]
                                A P P E N D I X

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