[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
         
         
         
         
         
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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:]
    
    
    
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    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:]
    
    
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               __________
    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:]
    
    
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                  __________
    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:]
    
    
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    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:]
    
    
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    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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    Note: The Subcommittee did not receive a response from this witness 
at the time this hearing record was finalized on August 18, 2015.



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