[Senate Report 105-409]
[From the U.S. Government Publishing Office]
Calendar No. 455
105th Congress Report
SENATE
2d Session 105-409
_______________________________________________________________________
S.J. RES. 44--PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS
_______
October 12 (legislative day, October 2), 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S.J. Res. 44]
The Committee on the Judiciary, to which was referred the
joint resolution (S.J. Res. 44) to propose an amendment to the
Constitution of the United States to protect the rights of
crime victims, having considered the same, reports favorably
thereon, with an amendment, and recommends that the joint
resolution, as amended, do pass.
CONTENTS
Page
I. Purpose..........................................................2
II. Background and legislative history...............................2
III. The need for constitutional protection...........................5
IV. The need for specific rights in the process.....................12
V. Section-by-section analysis.....................................22
VI. Vote of the Committee...........................................37
VII. Text of S.J. Res. 44............................................38
VIII.Cost estimate...................................................39
IX. Regulatory impact statement.....................................40
X. Additional views of Senator Hatch...............................41
XI. Minority views of Senator Thompson..............................47
XII. Minority views of Senators Leahy, Kennedy, and Kohl.............50
XIII.Additional views of Senators Leahy and Kennedy..................77
XIV. Additional views of Senator Biden...............................80
XV. Additional views of Senators Feingold and Durbin................84
XVI. Changes in existing law.........................................86
I. PURPOSE
The Crime Victims' Rights Constitutional Amendment is
intended to establish and preserve, as a matter of right for
the victims of violent crimes, the practice of victim
participation in the administration of criminal justice that
was the birthright of every American at the founding of our
Nation.
It was decades after the ratification of the Constitution
and the Bill of Rights that the offices of the public police
and the public prosecutor would be instituted, and decades
beyond that before the victim's role was fully reduced from
that of the moving party in every criminal prosecution, to that
of a party of interest in the proceedings, to that of mere
witness, stripped even of membership in ``the public'' under
the Constitutional meaning of ``a public trial.''
Much, of course, was gained in the transformation of
criminal justice from one of private investigation and
prosecution to an enterprise of government. The overall
community's stake in how the System operated was recognized;
the policies governing the System, the public servants hired by
the System, and the resources needed by the System all became
accountable to the democratic institutions of government. In
many ways, crime victims themselves benefited from the change.
They had the aid of public law enforcement, which was more
skilled than the average victim in investigating the crime, and
the aid of public prosecutors, who were more skilled than the
average victim in pleading their case in court. No longer would
the wealth of the violated party be a significant determinant
as to whether justice was done.
However, in the evolution of the Nation's Justice System,
something ineffable has been lost, evidenced in this plea of a
witness speaking to the 1982 President's Task Force on Victims
of Crime: ``Why didn't anyone consult me? I was the one who was
kidnaped--not the state of Virginia.''
One of the most extraordinary aspects of the several
hearings the Committee has held on this issue is the broad
consensus among proponents and opponents alike that violent
crime victims have a deep, innate, and wholly legitimate
interest in the cases that victims bring to the justice system
for resolution. It is beyond serious question that for many or
most crime victims the prosecution and punishment of their
violators are the most important public proceedings of their
lifetimes.
This, then, is the purpose of the Crime Victims' Rights
Amendment: to acknowledge and honor the humanity and dignity of
crime victims within our borders who entrust the Government to
seek justice for them. In pursuit of this purpose, the
Committee seeks to strengthen the great theme of the Bill of
Rights--to ensure the rights of citizens against the
deprecations and intrusions of government--and to advance the
great theme of the later amendments, extending the
participatory rights of American citizens in the affairs of
government.
II. BACKGROUND AND LEGISLATIVE HISTORY
For more than 15 years, a Federal Crime Victims' Rights
Amendment has been under consideration in this country. The
idea dates back to at least 1982, when the Presidential Task
Force on Victims of Crime convened by President Reagan
recommended, after hearings held around the country and careful
consideration of the issue, that the only way to fully protect
crime victims' rights was by adding such rights to the
Constitution. The President's Task Force explained the need for
a constitutional amendment in these terms:
In applying and interpreting the vital guarantees
that protect all citizens, the criminal justice system
has lost an essential balance. It should be clearly
understood that this Task Force wishes in no way to
vitiate the safeguards that shelter anyone accused of
crime; but it must be urged with equal vigor that the
system has deprived the innocent, the honest, and the
helpless of its protection.
The guiding principle that provides the focus for
constitutional liberties is that government must be
restrained from trampling the rights of the individual
citizen. The victims of crime have been transformed
into a group oppressively burdened by a system designed
to protect them. This oppression must be redressed. To
that end it is the recommendation of this Task Force
that the sixth amendment to the Constitution be
augmented.
(President's Task Force on Victims of Crime, Final Report 114
(1982).)
Following that recommendation, proponents of crime victims'
rights decided to seek constitutional protection in the states
initially before undertaking an effort to obtain a federal
constitutional amendment. See Paul G. Cassell, Balancing the
Scales of Justice: The Case for and the Effects of Utah's
Victims' Rights Amendment, 1994 Utah L. Rev. 1373, 1381-83
(recounting the history). As explained in testimony before the
Committee, ``[t]he `states-first' approach drew the support of
many victim advocates. Adopting state amendments for victim
rights would make good use of the `great laboratory of the
states,' that is, it would test whether such constitutional
provisions could truly reduce victims' alienation from their
justice system while producing no negative, unintended
consequences.'' Senate Judiciary Committee Hearing, April 23,
1996, statement of Robert E. Preston, at 40. A total of 29
states, in widely differing versions, now have state victims'
rights amendments.\1\
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\1\ See Ala. Const. Amend. 557, Alaska Const. art. I, Sec. 24;
Ariz. Const. Art. II, Sec. 2.1; Cal. Const. Art. I, Sec. Sec. 12, 28;
Colo. Const. Art. II, Sec. 16a; Fla. Const. Art. I, Sec. 16(b); Idaho
Const., Art. I, Sec. 22; Ill. Const. Art. I, Sec. 8.1; Ind. Const. Art.
I, Sec. 13(b); Kans. Const. Art. 15, Sec. 15; Md. Decl. of Rights art.
47; Mich. Const. Art. I, Sec. 24; Missouri Const. Art. I, Sec. 32; Neb.
Const. Art. I, Sec. 28; Nev. Const. Art. I, Sec. 8; N.C. Const. Art. I,
Sec. 37; N.J. Const. Art. I, Sec. 22; New Mex. Const. Art. 2, Sec. 24;
North Carolina Const. Art. I, Sec. 37; Ohio Const. Art. I, Sec. 10a;
Okla. Const. Art. II, Sec. 34; Rhode Island Const. Art. I, Sec. 23;
S.C. Const. Art. I, Sec. 24; Texas Const. Art. I, Sec. 30; Utah Const.
Art. I, Sec. 28; Va. Const. Art. I, Sec. 8-A; Wash. Const. Art. 2,
Sec. 33; Wisc. Const. Art. I, Sec. 9m. These amendments passed with
overwhelming popular support.
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With the passage of and experience with these State
constitutional amendments came increasing recognition of both
the national consensus supporting victims' rights and the
difficulties of protecting these rights with anything other
than a Federal amendment. As a result, the victims' advocates--
including most prominently the National Victim Constitutional
Amendment Network (NVCAN)--decided in 1995 to shift their focus
towards passage of a Federal amendment. In 1997, the National
Governors Association passed a resolution supporting a Federal
constitutional amendment: ``The rights of victims have always
received secondary consideration within the U.S. judicial
process, even though States and the American people by a wide
plurality consider victims' rights to be fundamental.
Protection of these basic rights is essential and can only come
from a fundamental change in our basic law: the U.S.
Constitution.'' National Governors Association, Policy 23.1
(effective winter 1997 to winter 1999).
In the 104th Congress, S.J. Res. 52, the first Federal
constitutional amendment to protect the rights of crime
victims, was introduced by Senators Jon Kyl and Dianne
Feinstein on April 22, 1996. Twenty-seven other Senators
cosponsored the resolution. A similar resolution (H.J. Res.
174) was introduced in the House by Representative Henry Hyde.
On April 23, 1996, the Senate Committee on the Judiciary held a
hearing on S.J. Res. 52. Representative Hyde testified in
support of the amendment. Victims and representatives of
victims' rights organizations also spoke in favor of the
amendment: Katherine Prescott, the president of Mothers Against
Drunk Driving (MADD); Ralph Hubbard, board member and State
Coordinator of Parents of Murdered Children of New York State;
John Walsh, the host of ``America's Most Wanted''; Collene
Campbell, a leader in the victims' rights movement in
California; Rita Goldsmith, the national spokesperson of
Parents of Murdered Children; and Robert E. Preston, co-
chairman of the National Constitutional Amendment Network. Two
legal experts testified in support of the amendment: Professor
Paul Cassell and Steven J. Twist, a member of the board of the
National Organization for Victim Assistance and the former
Chief Assistant Attorney General of Arizona. Two legal experts
testified against the amendment: Professor Jamin Raskin of
Washington College of Law at American University and noted
commentator Bruce Fein, former member of the Department of
Justice.
At the end of the 104th Congress, Senators Kyl and
Feinstein introduced a modified version of the amendment (S.J.
Res. 65). As first introduced, S.J. Res. 52 embodied eight core
principles: notice of the proceedings; presence; right to be
heard; notice of release or escape; restitution; speedy trial;
victim safety; and notice of rights. To these core values
another was added in S.J. Res. 65, the right of every victim to
have independent standing to assert these rights.
In the 105th Congress, Senators Kyl and Feinstein
introduced S.J. Res. 6 on January 21, 1997, the opening day of
the Congress. Thirty-two Senators became cosponsors of the
resolution. On April 16, 1997, the Senate Committee on the
Judiciary held a hearing on S.J. Res. 6. Representative Robert
C. Scott testified in opposition to the amendment and
Representative Deborah Pryce testified in support of the
amendment. U.S. Attorney General Janet Reno testified that
``[b]ased on our personal experiences and the extensive review
and analysis that has been conducted at our direction, the
President and I have concluded that an amendment to the U.S.
Constitution to protect victims' rights is warranted.'' (Senate
Judiciary Committee Hearing, April 16, 1997, statement of
Attorney General Reno, at 40-41.)
Others testifying in support of the amendment included John
Walsh, the host of ``America's Most Wanted''; Marsha Kight of
Oklahoma City; Wisconsin attorney general Jim Doyle; Kansas
attorney general Carla Stovall; Pima County attorney Barbara
LaWall; and Prof. Paul Cassell of the University of Utah
College of Law. The following people testified in opposition to
the amendment: Lynne Henderson of Bloomington, IN; Donna F.
Edwards, the executive director of the National Network to End
Domestic Violence; and Virginia Beach Commonwealth Attorney
Robert J. Humphreys.
S.J. Res. 44 was introduced by Senators Kyl and Feinstein
on April 1, 1998. Thirty-nine Senators joined Senators Kyl and
Feinstein as original cosponsors: Senators Biden, Lott,
Thurmond, Torricelli, Breaux, Grassley, DeWine, Ford, Reid,
Gramm, Mack, Landrieu, Cleland, Coverdell, Craig, Inouye,
Bryan, Snowe, Thomas, Warner, Lieberman, Allard, Hutchison,
D'Amato, Shelby, Campbell, Coats, Faircloth, Frist, Robert
Smith, Gregg, Hagel, Helms, Gordon Smith, Hutchinson, Inhofe,
Murkowski, Bond, and Grams. Senator Wyden subsequently joined
as a cosponsor. The amendment included the core principles
contained in the earlier versions. The scope of the amendment
as originally proposed reached to crimes of violence and other
crimes that may have been added by law. In the present text,
the amendment is limited to crimes of violence.
On April 28, 1998, the Senate Committee on the Judiciary
held a hearing on S.J. Res. 44. Raymond C. Fisher, the U.S.
Associate Attorney General testified in support of an
amendment. Additionally, the following witnesses testified in
support of S.J. Res. 44: Prof. Paul Cassell; Steve Twist, a
member of the National Victims' Constitutional Amendment
Network and the former Chief Assistant Attorney General of
Arizona; Norm Early, a former Denver district attorney and a
board member of the National Organization for Victim
Assistance; and Marlene Young, the executive director of the
National Organization for Victim Assistance. The following
witnesses testified in opposition to the amendment: Prof.
Robert Mosteller of Duke Law School and Kathleen Kreneck, the
executive director of the Wisconsin Coalition Against Domestic
Violence.
On July 7, after debate at three executive business
meetings, the Senate Committee on the Judiciary approved S.J.
Res. 44, with a substitute amendment, by a vote of 11 to 6. The
following Senators voted in favor of the amendment: Hatch,
Thurmond, Grassley, Kyl, DeWine, Ashcroft, Abraham, Sessions,
Biden, Feinstein, and Torricelli. The following Senators voted
against the amendment: Thompson, Leahy, Kennedy, Kohl,
Feingold, and Durbin. Senator Specter did not vote.
III. THE NEED FOR CONSTITUTIONAL PROTECTION
After extensive testimony in hearings held over 3 different
years, the Committee concludes that a Federal constitutional
amendment will protect victims' rights in the Nation's criminal
justice system. While a wide range of State constitutional
amendments and other State and Federal statutory protections
exist to extend rights to victims, that patchwork has not fully
succeeded in ensuring comprehensive protection of victims'
rights within the criminal justice system. A Federal amendment
can better ensure that victims' rights are respected in the
Nation's State and Federal courts.
The U.S. Supreme Court has held that ``in the
administration of criminal justice, courts may not ignore the
concerns of victims.'' Morris v. Slappy, 461 U.S. 1, 14 (1983).
Yet in today's world, without protection in our Nation's basic
charter, crime victims are in fact often ignored. As one former
prosecutor told the committee, ``the process of detecting,
prosecuting, and punishing criminals continues, in too many
places in America, to ignore the rights of victims to
fundamental justice.'' Senate Judiciary Committee Hearing,
April 23, 1996, statement of Steven J. Twist, at 88. In some
cases victims are forced to view the process from literally
outside the courtroom. Too often they are left uninformed about
critical proceedings, such as bail hearings, plea hearings, and
sentencings. Too often their safety is not considered by courts
and parole boards determining whether to release dangerous
offenders. Too often they are left with financial losses that
should be repaid by criminal offenders. Too often they are
denied any opportunity to make a statement that might provide
vital information for a judge. Time and again victims testified
before the Committee that being left out of the process of
justice was extremely painful for them. One victim even found
the process worse than the crime: ``I will never forget being
raped, kidnaped, and robbed at gunpoint. However my
disillusionment [with] the judicial system is many times more
painful.'' President's Task Force on Victims of Crime, Final
Report 5 (1982).
It should be noted at the outset that a Federal amendment
for victims' rights is intended to provide benefits to society
as a whole, and not just individual victims. As Attorney
General Reno has testified:
[T]he President and I have concluded that a victims'
rights amendment would benefit not only crime victims
but also law enforcement. To operate effectively, the
criminal justice system relies on victims to report
crimes committed against them, to cooperate with law
enforcement authorities investigating those crimes, and
to provide evidence at trial. Victims will be that much
more willing to participate in this process if they
perceive that we are striving to treat them with
respect and to recognize their central place in any
prosecution.
(Senate Judiciary Committee Hearing, April 16, 1997, statement
of Attorney General Reno, at 41.)
the constitution typically protects participatory rights
The Committee has concluded that it is appropriate that
victims' rights reform take the form of a Federal
constitutional amendment. A common thread among many of the
previous amendments to the Federal constitution is a desire to
expand participatory rights in our democratic institutions.
Indeed, the 15th amendment was added to ensure African-
Americans could participate in electoral process, the 19th
amendment to do the same for women, and the 26th amendment
expanded such rights to young citizens. Other provisions of the
Constitution guarantee the openness of civil institutions and
proceedings, including the rights of free speech and assembly,
the right to petition the Government for redress of grievances,
and perhaps most relevant in this context, the right to a
public trial. It is appropriate for this country to act to
guarantee rights for victims to participate in proceedings of
vital concern to them. These participatory rights serve an
important function in a democracy. As the Justice Brandeis once
stated, ``[s]unlight is said to be the best of disinfectants.''
Louis Brandeis, Other People's Money 62 (1933). Open
governmental institutions, and the participation of the public,
help ensure public confidence in those institutions. In the
case of trials, a public trial is intended to preserve
confidence in the judicial system, that no defendant is denied
a fair and just trial. However, it is no less vital that the
public--and victims themselves--have confidence that victims
receive a fair trial.
In a Rose Garden ceremony on June 25, 1996, endorsing the
amendment, President Clinton explained the need to
constitutionally guarantee a right for victims to participate
in the criminal justice process:
Participation in all forms of government is the
essence of democracy. Victims should be guaranteed the
right to participate in proceedings related to crimes
committed against them. People accused of crimes have
explicit constitutional rights. Ordinary citizens have
a constitutional right to participate in criminal
trials by serving on a jury. The press has a
constitutional right to attend trials. All of this is
as it should be. It is only the victims of crime who
have no constitutional right to participate, and that
is not the way it should be.
Two leading constitutional law scholars recently reached
similar conclusions:
[The proposed Crime Victims' Rights Amendment] would
protect basic rights of crime victims, including their
rights to be notified of and present at all proceedings
in their case and to be heard at appropriate stages in
the process. These are rights not to be victimized
again through the process by which government officials
prosecute, punish, and release accused or convicted
offenders. These are the very kinds of rights with
which our Constitution is typically and properly
concerned--rights of individuals to participate in all
those government process that strongly affect their
lives. (Laurence H. Tribe & Paul G. Cassell, Embed the
Rights of Victims in the Constitution, L.A. Times, July
6, 1998, at B7.)
Participation of victims is not only a value consistent
with our constitutional structure but something that can have
valuable benefits in its own right. As experts on the
psychological effects of victimization have explained, there
are valuable therapeutic reasons to ensure victim participation
in the criminal justice process:
The criminal act places the victim in an inequitable,
``one-down'' position in relationship to the criminal,
and the victims' trauma is thought to result directly
from this inequity. Therefore, it follows that the
victims' perceptions about the equity of their
treatment and that of the defendants affects their
crime-related psychological trauma. [F]ailure to * * *
offer the right of [criminal justice] participation
should result in increased feelings of inequity on the
part of the victims, with a corresponding increase in
crime-related psychological harm. (Dean G. Kilpatrick &
Randy K. Otto, Constitutionally Guaranteed
Participation in Criminal Proceedings for Victims:
Potential Effects on Psychological Functioning, 34
Wayne L. Rev. 7, 19 (1987).)
For all these reasons, it is the view of the Committee that
it is vital that victims be guaranteed an appropriate
opportunity to participate in our criminal justice process.
less than federal constitutional protection has been inadequate
Most of the witnesses testifying before the Committee
shared the view that victims' rights were inadequately
protected today and that, without a Federal amendment, they
would so remain. Attorney General Reno, for example, reported
after careful study that:
Efforts to secure victims' rights through means other
than a constitutional amendment have proved less than
fully adequate. Victims' rights advocates have sought
reforms at the State level for the past twenty years,
and many States have responded with State statutes and
constitutional provisions that seek to guarantee
victims' rights. However, these efforts have failed to
fully safeguard victims' rights. These significant
State efforts simply are not sufficiently consistent,
comprehensive, or authoritative to safeguard victims'
rights.
(Senate Judiciary Committee Hearing, April 16, 1997, statement
of Attorney General Reno, at 64.)
Similarly, a comprehensive report from those active in the
field concluded that ``[a]victims' rights constitutional
amendment is the only legal measure strong enough to rectify the
current inconsistencies in victims' rights laws that vary significantly
from jurisdiction to jurisdiction on the state and federal level.''
U.S. Department of Justice, Office for Victims of Crime, New Directions
From the Field: Victims' Rights and Services for the 21st Century 10
(1998). Indeed, Professors Tribe and Cassell have reached a similar
conclusion: ``Congress and the states already have passed a variety of
measures to protect the rights of victims. Yet the reports from the
field are that they have all too often been ineffective.'' Laurence H.
Tribe and Paul G. Cassell, Embed the Rights of Victims in the
Constitution, L.A. Times, July 6, 1998, at B7.
examples of victims denied the opportunity to participate
It is the view of the Committee that a Federal amendment
can better ensure that victims' opportunity to participate in
the criminal justice process is fully respected. The Committee
heard significant testimony about how the existing patchwork
fails to transform paper promises to victims into effective
protections in the criminal justice system. At the Committee's
1998 hearing, Marlene Young, a representative of the National
Organization for Victim Assistance (NOVA), gave some powerful
examples to the Committee:
Roberta Roper, who testified eloquently
before the Committee in her capacity as the co-chair of
the National Victims Constitutional Amendment Network,
was denied the opportunity to sit in the courtroom at
the trial of her daughter's murderer because it was
thought she might, by her presence, influence the
outcome.
Sharon Christian, 20 years old, a young
victim of rape reported the crime. After the offender
was arrested, she was victimized by the system when, 2
weeks later she was walking down the street in her
neighborhood and saw the young man hanging out on the
corner. He had been released on personal recognizance
with no notice to her and no opportunity to ask for a
restraining order or for the court to consider the
possibility of bond.
Virginia Bell, a retired civil servant, was
accosted and robbed in Washington, DC some five blocks
from the Committee's hearing room, suffering a broken
hip. Her medical expenses were over $11,000, and the
resulting debilitation required her to live with her
daughter in Texas. While her assailant pled guilty, Ms.
Bell was not informed, and the impact of her
victimization was never heard by the court. The court
ultimately ordered restitution in the entirely
arbitrary and utterly inadequate amount of $387.
Ross and Betty Parks, parents of a murdered
daughter Betsy, waited 7 years for a murder trial. The
delay was caused, in part, by repeated motions that
resulted in delay--thirty-one motions at one point.
The unfortunate and unfair treatment of these individuals
was brought to the attention of the Committee by just one
witness. But the reports from the field are that there are
countless other victims that have been mistreated in similar
ways. Yet sadly and all too often, the plight of crime victims
will never come to the attention of the public or the appellate
courts or this Committee. Few victims have the energy or
resources to challenge violations of even clearly-established
rights and, in those rare cases when they do so, they face a
daunting array of obstacles. No doubt today many frustrated
victims simply give up in despair, unable to participate
meaningfully in the process.
statistical quantification of violations of victims' rights
The statistical evidence presented to the Committee
revealed that the current regime falls well short of giving
universal respect to victims' rights. In the mid-1990's, the
National Victim Center, under a grant from the National
Institute of Justice, reviewed the implementation of victims'
rights laws in four States. Two states were chosen because they
had strong State statutory and State constitutional protection
of victims' rights, and two were chosen because they had weaker
protection. The study surveyed more than 1,300 crime victims
and was the largest of its kind ever conducted. It found that
many victims were still being denied their rights, even in
States with what appeared to be strong legal protection. The
study concluded that State protections alone are insufficient
to guarantee victims' rights:
The Victims Rights Study revealed that, while strong
state statutes and state constitutional amendments
protecting crime victims' rights are important, they
have been insufficient to guarantee the rights of crime
victims. While this sub-report focused on reports by
crime victims regarding their personal experiences, the
responses of local criminal justice and victim service
providers to similar questions in the Victims Rights
Study corroborate the victim responses. Even in states
with strong protection large numbers of victims are
being denied their legal rights.
(National Victim Center, Statutory and Constitutional
Protection of Victims' Rights: Implementation and Impact on
Crime Victims--Sub-Report: Crime Victim Responses Regarding
Victims' Rights 7 (April 15, 1997).)
Important findings of the study included:
Nearly half of the victims (44 percent) in
States with strong protections for victims and more
than half of the victims (70 percent) in States with
weak protections did not receive notice of the
sentencing hearing--notice that is essential for
victims to exercise their right to make a statement at
sentencing.
While both of the States with strong
statutes had laws requiring that victims be notified of
plea negotiations, and neither of the weak protection
States had such statutes, victims in both groups of
States were equally unlikely to be informed of such
negotiations. Laws requiring notification of plea
negotiations were not enforced in nearly half of the
violent crime cases included in the study.
Substantial numbers of victims in States
with both strong and weak protection were not notified
of various stages in the process, including bail
hearings (37 percent not notified in strong protection
states, 57 percent not notified in weak protection
states); the pretrial release of perpetrators (62
percent not notified in strong protection states, 74
percent not notified in weak protection States); and
sentencing hearings (45 percent not notified in strong
protection States, 70 percent not notified in weak
protection States).
A later report based on the same large data base found that
racial minorities are most severely affected under the existing
patchwork of victims' protections. National Victim Center,
Statutory and Constitutional Protection of Victims' Rights:
Implementation and Impact on Crime Victims--Sub-Report:
Comparison of White and Non-White Crime Victim Responses
Regarding Victims' Rights 5 (June 5, 1997). Echoing these
findings of disparate impact, another witness reported to the
Committee, ``There being no constitutional mandate to treat all
of America's victims, white and non-white, with dignity and
compassion * * * minority victims will continue to feel the
sting of their victimization much longer than their white
counterparts. Because of the large percentage of minority
victims in the system, their neglect * * * continues to create
disrespect for a process in the communities where such
disrespect can be least afforded.'' Senate Judiciary Committee
Hearing, April 28, 1998, statement of Norm S. Early. A recent
report concluded, after reviewing all of the evidence from the
field, that ``[w]hile victims' rights have been enacted in
states and at the federal level, they are by no means
consistent nationwide. All too often they are not enforced
because they have not been incorporated into the daily
functioning of all justice systems and are not practiced by all
justice professionals.'' U.S. Department of Justice, Office for
Victims of Crime, New Directions from the Field: Victims'
Rights and Services for the 21st Century 9 (1998).
In sum, as Harvard Law Prof. Laurence H. Tribe has
concluded, rules enacted to protect victims' rights ``are
likely, as experience to date sadly shows, to provide too
little real protection whenever they come into conflict with
bureaucratic habit, traditional indifference, sheer inertia, or
any mention of an accused's rights regardless of whether those
rights are genuinely threatened.'' Laurence H. Tribe, Statement
on Victims' Rights, April 15, 1997, p. 3.
a federal amendment is compatible with important federalism principles
The proposed victims' rights constitutional amendment is
fully compatible with the principles of federalism on which our
republic is based. First, of course, the constitutionally
specified process for amending the Constitution fully involves
the States, requiring approval of three-quarters of them before
any amendment will take effect. There is, moreover, substantial
evidence that the States would like to see the Congress act and
give them, through their State legislatures, the opportunity to
approve an amendment. For example, the National Governors
Association overwhelmingly endorsed a resolution calling for a
Federal constitutional amendment.
The important values of federalism provide no good reason
for avoiding action on the amendment. Already many aspects of
State criminal justice systems are governed by Federal
constitutional principles. For example, every State is required
under the sixth amendment to the Federal constitution as
applied to the States to provide legal counsel to indigent
defendants and a trial by jury for serious offenses. Victims'
advocates simply seek equal respect for victims' rights, to
give the same permanence to victims' rights.
Adding protections into the U.S. Constitution, our
fundamental law, will serve to ensure that victims' rights are
fully protected. This same point was recognized by James
Madison in considering whether to add to the Constitution a
Bill of Rights. He concluded the Bill of Rights would acquire,
by degrees, ``the character of fundamental maxims.'' James
Madison, The Complete Madison, ed. Saul K. Padover, p. 254
(1953).
Amending the Constitution is, of course, a significant
step--one which the Committee does not recommend lightly. But
to protect victims, it is an appropriate one. As Thomas
Jefferson once said: ``I am not an advocate for frequent
changes in laws and constitutions, but laws and institutions
must go hand in hand with the progress of the human mind. As
that becomes more developed, more enlightened, as new
discoveries are made, new truths discovered and manners and
opinions change, with the change of circumstances, institutions
must advance also to keep pace with the times.'' Thomas
Jefferson, letter to Samuel Kercheval, July 12, 1816, The
Writings of Thomas Jefferson, ed. Paul L. Ford, vol. 10, pp.
42-43 (1899). Throughout the country, there is a strong
consensus that victims' rights deserve to be protected. But at
the same time, as a country, we have failed to find a way to
fully guarantee rights for victims in criminal justice
processes of vital interest to them. It is time to extend
Federal constitutional recognition to those who are too often
forgotten by our criminal justice system--the innocent victims
of crime.
IV. THE NEED FOR SPECIFIC RIGHTS IN THE PROCESS
With this need for Federal constitutional protection of
victims' rights in mind, the Committee finds that rights under
eight general headings should be protected in an amendment to
the Federal constitution. Each of these eight rights is
discussed in turn.
1. Right to notice of proceedings
Rights for victims in the criminal justice process are of
little use if victims are not aware of when criminal justice
proceedings will be held. The Committee heard testimony about
the devastating effects on crime victims when hearings about
the crime are held without prior notice to them. For example, a
witness from Parents of Murdered Children (POMC) testified:
Each week at our national office, we receive more
than 1,000 murder-related calls. Of these calls, about
half involve homicide survivors who believe that they
have been treated unfairly by some part of the criminal
justice system. Some of our members even have as much
anger about their unfair treatment by the criminal
justice system as they do about the murder. * * *
Many of the concerns arise from not being informed
about the progress of the case. * * * [V]ictims are not
informed about when a case is going to court or whether
the defendant will receive a plea bargain. * * * [I]n
many cases, the failure to provide information arises
simply from indifference to the plight of the surviving
family members or a feeling that they have no right to
the information.
Because they do not know what is going on, victims
frequently must take it upon themselves to call * * *
the prosecutor, or the courts for information about
their case. All too often, such calls have to be made
when victims' families are in a state of shock or are
grieving from the loss of their loved ones. Victims'
family should not have to bear the added burden of
trying to obtain information. It should be their
automatic right.
(Senate Judiciary Committee Hearing, April 23, 1996, prepared
statement of Rita Goldsmith, at 35-36.)
No witness testified before the Committee that victims
should not receive notice of important proceedings. The
Committee concludes that victims deserve notice of important
criminal justice proceedings relating to the crimes committed
against them.
Based on a demonstrated need for victims to receive notice,
as long ago as 1982 the President's Task Force on Victims of
Crime recommended that legislation and policies to guarantee
that victims receive case status information, prompt notice of
scheduling changes of court proceedings, and prompt notice of a
defendant's arrest and bond status. Reviewing this status of
these recommendations, a recent Department of Justice Report
found:
Fifteen years later, many states, but not all, have
adopted laws requiring such notice. While the majority
of states mandate advance notice to crime victims of
criminal proceedings and pretrial release, many have
not implemented mechanisms to make such notice a
reality. * * *
Many states do not require notification to victims of
the filing of an appeal, the date of an appellate
proceeding, or the results of the appeal. Also, most do
not require notification of release from a mental
facility or of temporary or conditional releases such
as furloughs or work programs.
Some state laws require that notice be made
``promptly'' or within a specified period of time. * *
* Victims also complain that prosecutors do not inform
them of plea agreements, the method used for
disposition in the overwhelming majority of cases in
the United States criminal justice system. (U.S.
Department of Justice, Office for Victims of Crime, New
Directions from the Field: Victims' Rights and Services
for the 21st Century 13 (1998).)
This recent report confirms the testimony that the
Committee received that victims are too often not notified of
important criminal justice proceedings. It is time to protect
in the Constitution this fundamental interest of victims.
2. Right to attend
The Committee concludes that victims deserve the right to
intend important criminal justice proceedings related to crimes
perpetrated against them. This is no new insight. In 1982, the
President's Task Force on Victims of Crime concluded:
The crime is often one of the most significant events
in the lives of victims and their families. They, no
less than the defendant, have a legitimate interest in
the fair adjudication of the case, and should
therefore, as an exception to the general rule provided
for the exclusion of witnesses, be permitted to be
present for the entire trial.
(President's Task Force on Victims of Crime, Final Report 80
(1982).)
Allowing victims to attend court proceedings may have
important psychological benefits for victims. ``The victim's
presence during the trial may * * * facilitate healing of the
debilitating psychological wounds suffered by a crime victim.''
Ken Eikenberry, The Elevation of Victims' Rights in Washington
State: Constitutional Status, 17 Pepperdine L. Rev. 19, 41
(1989). In addition, without a right to attend trials, victims
suffer a further loss of dignity and control of their own
lives. Applying witness sequestration rules in rape cases, for
example, has proven to be harmful. See Lee Madigan and Nancy C.
Gamble, The Second Rape: Society's Continued Betrayal of the
Victim 97 (1989).
The primary barrier to victims attending trial is witness
sequestration rules that are unthinkingly extended to victims.
Not infrequently defense attorneys manipulate these rules to
exclude victims from courtrooms simply because the defendant
would like the victim excluded. The Committee heard no
convincing evidence that a general policy excluding victims
from courtrooms is necessary to ensure a fair trial. As a
Department of Justice report recently explained:
There can be no meaningful attendance rights for
victims unless they are generally exempt from [witness
sequestration rules]. Just as defendants have a right
to be present throughout the court proceedings whether
or not they testify, so too should victims of crime.
Moreover, the presence of victims in the courtroom can
be a positive force in furthering the truth-finding
process by alerting prosecutors to misrepresentations
in the testimony of other witnesses.
(U.S. Department of Justice, Office for Victims of Crime, New
Directions from the Field: Victims' Rights and Services for the
21st Century 15 (1998).)
The Committee finds persuasive the experience of the
growing number of States that have guaranteed victims an
unequivocal right to attend a trial. See, e.g., Ariz. Const.
Art. 2, Sec. 2.1(A)(3) (victim right ``[t]o be present * * * at
all criminal proceedings where the defendant has the right to
be present''); Mo. Const. Art. I, Sec. 32(1) (victim has
``[t]he right to be present at all criminal justice proceedings
at which the defendant has such right''); Idaho Const. Art. I,
Sec. 22(4) (victim has the right ``[t]o be present at all
criminal justice proceedings''). An alternative approach is to
give victims a right to attend a trial unless their testimony
would be ``materially affected'' by their attendance. Congress
has previously adopted such a standard, see 42 U.S.C.
Sec. 10606(b)(4), but the results have proven to be
unfortunate. In the Oklahoma City bombing case, for example, a
district court concluded that testimony about the impact of
their loss from family members of deceased victims of the
bombing would be materially affected if the victims attended
the trial. This perplexing ruling was the subject of
unsuccessful emergency appeals (see Cassell 1997 testimony) and
ultimately Congress was forced to act. See Victim Rights
Clarification Act of 1997 (Pub. L. 105-6, codified at 18 U.S.C.
Sec. Sec. 3510, 3481, 3593). Even this action did not fully
vindicate the victims' right to attend that trial. The
Committee heard testimony from a mother who lost her daughter
in the bombing that even this Act of Congress did not resolve
the legal issues sufficiently to give the victims the legal
assurances they need to attend all the proceedings. Senate
Judiciary Committee Hearing, April 16, 1997, statement of
Marsha Kight, at 73-74. Rather than create a possible pretext
for denying victims the right to attend a trial or extended
litigation about the speculative circumstances in victim
testimony might somehow be affected, the Committee believes
that such a victim's right to attend trial should be flatly
recognized.
While a victim's right to attend is currently protected in
some statutes or State constitutional amendments, only a
Federal constitutional amendment will fully ensure such a
right. The Committee was presented with a detailed legal
analysis that convincingly demonstrated that there is no
current federal constitutional right of criminal defendants to
exclude generally victims from trials. See Senate Judiciary
Committee Hearing, April 23, 1996, statement of Paul Cassell,
at 26-34. While this appears to be an accurate assessment of
constitutional legal principles, the fact remains that the law
has not been authoritatively settled. In the wake of this
uncertainty, State rights for victims to attend trials are not
fully effective.
Confirmation of this point came when the Committee heard
testimony that ``even in some States which supposedly protect a
victims' right to attend a trial, victims are often `strongly
advised' not to go in because of the possibility that it might
create an issue for the defendant to appeal.'' Senate Judiciary
Committee Hearing, April 23, 1996, statement of Rita Goldsmith,
at 36. Federal prosecutors in the Oklahoma City bombing case,
for example, were forced to give victims less-than-clear-cut
instructions on whether victims could attend proceedings. See
Senate Judiciary Committee Hearing, April 16, 1997, statement
of Marsh Kight, at 73-74.
Moreover, efforts to obtain clear-cut legal rulings have
been unsuccessful. In Utah, for example, despite a strongly
written amicus brief on behalf of a number of crime victims
organizations requesting a clear statement upholding the right
of victims to attend, the Utah Court of Appeals has left
unsettled the precise standards for exclusion of crime victims.
See Senate Judiciary Committee Hearing, April 16, 1997,
statement of Paul Cassell, at 114-15 (discussing State v.
Beltran-Felix, No. 95-341-CA). The result has been that, in
Utah and presumably many other States, crime victims must
struggle with the issue of whether to attend trials of those
accused perpetrating crimes against them at the expense of
creating a possible basis for the defendant to overturn his
conviction. The issue of a victim's right to attend a trial
should be authoritatively settled by Federal constitutional
protection.
3. Right to be heard
Crime victims deserve the right to be heard at appropriate
points in the criminal justice process. Giving victims a voice
not only improves the quality of the process but can also be
expected to often provide important benefits to victims. The
Committee concludes that victims deserve the right to be heard
at four points in the criminal justice process: plea bargains,
bail or release hearing, sentencing, and parole hearings.
Victims have vital interests at stake when a court decides
whether to accept a plea. One leading expert on victims' rights
recently explained that:
The victim's interest in participating in the plea
bargaining process are many. The fact that they are
consulted and listened to provides them with respect
and an acknowledgment that they are the harmed
individual. This in turn may contribute to the
psychological healing of the victim. The victim may
have financial interests in the form of restitution or
compensatory fine. * * * [B]ecause judges act in the
public interest when they decide to accept or reject a
plea bargain, the victim is an additional source of
information for the court.
(Douglas E. Beloof, Victims in Criminal Procedure: A Casebook
7-33 (forthcoming N.C. press 1998).)
Victim participation in bail hearings can also serve
valuable functions, particularly in alerting courts to the
dangers that defendants might present if released
unconditionally. Without victim participation, courts may not
be fully informed about the consequences of releasing a
defendant. ``It is difficult for a judge to evaluate the danger
that a defendant presents to the community if the judge hears
only from the defendant's counsel, who will present him in the
best possible light, and from a prosecutor who does not know of
the basis for the victim's fear. * * *The person best able to
inform the court of [threatening] statements that may have been made by
the defendant and the threat he poses is often the person he
victimized.'' President's Task Force on Victims of Crime, Final Report
65 (1982).
The Committee heard chilling testimony about the
consequences of failing to provide victims with this
opportunity from Katherine Prescott, the President of Mothers
Against Drunk Driving (MADD):
I sat with a victim of domestic violence in court one
day and she was terrified. She told me she knew her ex-
husband was going to kill her. The lawyers and the
judge went into chambers and had some discussions and
they came out and continued the case. The victim never
had the opportunity to speak to the judge, so he didn't
know how frightened she was. He might have tried to put
some restrictions on the defendant if he had known more
about her situation, but it was handled in chambers out
of the presence of the victim.
That night, as she was going to her car after her
shift was over at the hospital where she was a
registered nurse, she was murdered by her ex-husband,
leaving four young children, and then he took his own
life--four children left orphans. I will always believe
that if the judge could have heard her and seen her as
I did, maybe he could have done something to prevent
her death.
(Senate Judiciary Committee Hearing, April 23, 1996, statement
of Katherine Prescott, at 25-26.)
Victim statements at sentencing also serve valuable
purposes. As the President's Task Force on Victims of Crime
concluded:
Victims of violent crime should be allowed to provide
information at two levels. One, the victim should be
permitted to inform the person preparing the
presentence report of the circumstances and
consequences of the crime. Any recommendation on
sentencing that does not consider such information is
simply one-sided and inadequate. Two, every victim must
be allowed to speak at the time of sentencing. The
victim, no less than the defendant, comes to court
seeking justice. When the court hears, as it may, from
the defendant, his lawyer, his family and friends, his
minister, and others, simple fairness dictates that the
person who has borne the brunt of the defendant's crime
be allowed to speak.
(President's Task Force on Victims of Crime, Final Report 77
(1982).)
Courts have found victim information helpful in crafting an
appropriate sentence. For instance, in United States v.
Martinez, the District Court for the District of New Mexico
stated that it ``has welcomed such [allocution] statements and
finds them helpful in fashioning an appropriate sentence.'' 978
F. Supp. 1442, 1452 (D.N.M. 1997). Likewise in United States v.
Smith, 893 F. Supp. 187, 188 (E.D.N.Y. 1995), Judge Weinstein
explained that the ``sensible process [of victim allocution]
helps the court gauge the effects of the defendant's crime not
only on the victim but on relevant communities.'' Victim
statements can also have important cathartic effects. For
example, a daughter who spoke at the sentencing of her step-
father for abusing her and her sister: ``When I read [the
impact statement], it healed a part of me--to speak to [the
defendant] and tell him how much he hurt.'' Senate Judiciary
Committee Hearing, April 28, 1998, statement of Paul Cassell
(quoting statement of victim). The sister also explained: ``I
believe that I was helped by the victim impact statement. I got
to tell my step-father what he did to me. Now I can get on with
my life. I don't understand why victims don't have the same
rights as criminals, to say the one thing that might help heal
them.'' Id.
Victims deserve the right to be heard by parole boards
deciding whether to release prisoners. Without victim
testimony, the boards may be unaware of the true danger
presented by an inmate seeking parole. An eloquent example of
this point can be found that was provided by Patricia Pollard,
who testified before the Committee in 1996. She was abducted,
raped, brutally beaten, and had her throat slashed with the
jagged edge of a beer can, and left to die in the Arizona
desert. Miraculously she survived. In moving testimony, she
described for the Committee what happened next:
Eric Mageary, the man who attacked me, was caught and
convicted. He was sentenced to 25 years to life in the
Arizona State Prison. While he was still 10 years short
of his minimum sentence he was released on parole, but
no one ever told me or gave me a chance to say what I
thought about it. The system had silenced me, just like
Mageary did that night outside of Flagstaff * * *
But my story does not end with Eric Mageary's first
parole. Within less than a year he was back in prison,
his parole [r]evoked for drug crimes. Then in 1990, the
people of Arizona voted State constitutional rights for
crime victims. In 1993, Mageary again applied for
release from prison and, incredibly, he was again
released without any notice to me. I was again denied
any opportunity to tell the parole board about the
horrible crime or the need to protect others in that
community. They ignored my rights, but this time, I had
a remedy.
The county attorney in Flagstaff filed an action to
stop the release and the court of appeals in Arizona
forced the board, because they had denied me my
constitutional rights, to hold another hearing and to
hear from me. This time, after they heard from me
directly and heard firsthand the horrible nature of the
offense, they voted for public safety and Mageary's
release was denied.
(Senate Judiciary Committee Hearing, April 23, 1996, statement
of Patricia Pollard, at 31-32.)
Voices such as Patricia Pollard's must not be silenced by
the system. Victims deserve the right to be heard at
appropriate times in the process.
4. Right to notice of release or escape
The Committee heard testimony about Sharon Christian, 20
years old, a young victim of rape who reported the crime and
whose offender was arrested. She was doubly victimized when 2
weeks later she was walking down the street in her neighborhood
and saw the young man hanging out on the corner. He had been
released on personal recognizance with no notice to her and no
opportunity to ask for a restraining order or for the court to
consider the possibility of a bond. Senate Judiciary Committee
Hearing, April 28, 1998, statement of Marlene Young.
Defendants who are released from confinement often pose
grave dangers to those against whom they have committed crimes.
In a number of cases, notice of release has been literally a
matter of life and death. As the Justice Department recently
explained:
Around the country, there are a large number of
documented cases of women and children being killed by
defendants and convicted offenders recently released
from jail or prison. In many of these cases, the
victims were unable to take precautions to save their
lives because they had not been notified of the
release.
(U.S. Department of Justice, Office for Victims of Crime, New
Directions From the Field: Victims' Rights and Services for the
21st Century 14 (1998).)
The problem of lack of notice has been particularly
pronounced in domestic violence and other acquaintance cases,
in which the dynamics of the cycle of violence lead to tragic
consequences. For example, on December 6, 1993, Mary Byron was
shot to death as she left work. Authorities soon apprehended
Donovan Harris, her former boyfriend, for the murder. Harris
had been arrested 3 weeks earlier on charges of kidnaping Byron
and raping her at gunpoint. A relative's payment of bond money
allowed Harris to regain his freedom temporarily. No one
thought to notify Byron or the police of her release. See
Jeffrey A. Cross, Note, The Repeated Sufferings of Domestic
Violence Victims Not Notified of Their Assailant's Pre-Trial
Release from Custody: A Call for Mandatory Domestic Violence
Victim Notification Legislation, 34 J. Family L. 915 (1996)
(collecting this and other examples). The Committee concludes
that victims deserve notice before violent offenders are
released.
Recent technological changes have also simplified the
ability to provide notice to crime victims. Today some
jurisdictions use automated voice response technology to notify
victims of when offenders are released. New York City, for
example, recently implemented a system in which any victim with
access to a telephone can register for notification simply by
calling a number and providing an inmate's name, date of birth,
and date or arrest. If an inmate is released, the victim
receives periodic telephone calls for 4 days or until the
victim confirms receiving the message by entering a personal
code. Victim assistance providers and police have been trained
to explain the system to victims. Other jurisdictions have
developed other means of notification, including websites that
allow victims to track the location of inmates at all times.
While recent developments in these innovative jurisdictions are
encouraging, notification needs to be made uniformly available
for crime victims around the country.
5. Right to consideration of the victim's interest in a trial free from
unreasonable delay
Today in the United States, criminal defendants enjoy a
constitutionally protected right in the sixth amendment to a
``speedy trial.'' This is as it should be, for criminal charges
should be resolved as quickly as is reasonably possible.
Defendants, however, are not the only ones interested in a
speedy disposition of the case. Victims, too, as well as
society as a whole, have an interest in the prompt resolution
of criminal cases. ``Repeated continuances cause serious
hardships and trauma for victims as they review and relive
their victimization in preparation for trial, only to find the
case has been postponed.'' U.S. Department of Justice, Office
for Victims of Crime, New Directions From the Field: Victims'
Rights and Services for the 21st Century 21 (1998). For
victims, ``[t]he healing process cannot truly begin until the
case can be put behind them. This is especially so for children
and victims of sexual assault or any other case involving
violence.'' President's Task Force on Victims of Crime, Final
Report 75 (1982).
The Supreme Court has generally recognized such interests
in explaining that ``there is a societal interest in providing
a speedy trial which exists separate from, and at times in
opposition to, the interest of the accused.'' Barker v. Wingo,
407 U.S. 514, 519 (1972). However, as two leading scholars have
explained, while the Supreme Court has acknowledged the
``societal interest'' in a speedy trial, ``[i]t is rather
misleading to say * * * that this `societal interest' is
somehow part of the [sixth amendment] right. The fact of the
matter is that the Bill of Rights does not speak of the rights
and interests of the government.'' Wayne R. LaFave and Jerold
H. Israel, Criminal Procedure Sec. 18.1(b), at 787-88 (2d ed.
1992). Nor does the Bill of Rights currently speak, as it
should, to the rights and interests of crime victims. Of
course, victim's rights to consideration of her interest will
not overcome a criminal defendant's right to adequate
assistance of counsel.
Defendants have ample tactical reasons for seeking delays
of criminal proceedings. Witnesses may forget details of the
crime or move away, or the case may simply seem less important
given the passage of time. Delays can also be used to place
considerable pressure on victims to ask prosecutors to drop
charges, particularly in cases where parents of children who
have been sexually abused want to put matters behind them.
Given natural human tendencies, efforts by defendants to
unreasonably delay proceedings are frequently granted, even in
the face of State constitutional amendments and statutes
requiring otherwise.
6. Right to order of restitution
Crime imposes tremendous financial burdens on victims of
crime. The Bureau of Justice Statistics reports that each year
approximately two million people in America are injured as the
result of violent crime. Approximately 51 percent of the
injured will require some medical attention, with 23 percent
requiring treatment at a hospital with an average stay of 9
days. While the true cost of crime to the victims is
incalculable, the direct costs are simply staggering. In 1991,
the direct economic costs of personal and household crime was
estimated to be $19.1 billion, a figure that did not include
costs associated with homicides.
The perpetrators of these crimes need to be held
accountable to repay such costs to the extent possible. Victims
deserve restitution from offenders who have been convicted of
committing crimes against them. The Committee has twice
previously explained that:
The principle of restitution is an integral part of
virtually every formal system of criminal justice, or
every culture and every time. It holds that, whatever
else the sanctioning power of society does to punish
its wrongdoers, it should also ensure that the
wrongdoer is required to the degree possible to restore
the victim to his or her prior state of well-being.
(S. Rep. 104-179, Senate Judiciary Committee, Victim
Restitution Act of 1995, 104th Cong., 1st Sess. 12 (1995),
quoting S. Rept. 97-532 at 30 (Judiciary Committee), Aug. 19,
1982 (to accompany S. 2420).)
Consistent with this principle, Federal and State courts
have long had power to order restitution against criminal
offenders. In practice, however, restitution orders are not
entered as frequently as they should be. At the Federal level,
for example, this Committee recently investigated Federal
restitution procedures and found that restitution orders were
often entered haphazardly and that ``much progress remains to
be made in the area of victim restitution.'' S. Rep. 104-179,
at 13. Similarly, a recent report from the U.S. Department of
Justice concluded that ``[w]hile restitution has always been
available via statute or common law, it remains one of the most
underutilized means of providing crime victims with a
measurable degree of justice. Evidence of this is apparent both
in decisions to order restitution and in efforts to monitor,
collect, and disperse restitution payment to victims.'' U.S.
Department of Justice, Office for Victims of Crime, New
Directions From the Field: Rights and Services for the 21st
Century 357 (1998).
The President's Task Force on Victims of Crime long ago
recommended that ``[a] restitution order should be imposed in
every case in which a financial loss is suffered, whether or
not the defendant is incarcerated.'' President's Task Force on
Victims of Crime, Final Report 79 (1982). As a step in this
direction, in 1982 Congress passed the Victims Witness
Protection Act (Pub. L. 97-291, codified at 18 U.S.C.
Sec. Sec. 1501, 1503, 1505, 1510, 1512-1515, 3146, 3579, 3580).
More recently, to respond to the problem of inadequate
restitution at the Federal level, this Committee recently
recommended, and Congress approved, the Mandatory Victim
Restitution Act, codified at 18 U.S.C. Sec. 3663A and 3664.
Valuable though this legislation may turn out to be, it applies
only in Federal cases. To require restitution orders throughout
the country, Federal constitutional protection of the victims'
right to restitution is appropriate. Victims advocates in the
field recently recommended that ``restitution orders should be
mandatory and consistent nationwide.'' U.S. Department of
Justice, Office for Victims of Crime, New Directions From the
Field: Victims' Rights and Services for the 21st Century 364
(1998)). Of course, there will be many cases in which a
convicted offender will not be able to pay a full order of
restitution. In such cases, realistic payment schedules should
be established and victims appraised of how much restitution
can realistically be expected to be collected. But even nominal
restitution payments can have important benefits for victims.
And by having a full restitution order in place, the offender
can be held fully accountable for his crime should his
financial circumstances unexpectedly improve.
7. Right to have safety considered
Victims are often placed at risk whenever an accused or
convicted offender is released from custody. The offender may
retaliate against or harass the victim for vindictive reasons
or to eliminate the victim as a possible witness in future
proceedings. Not only are victims threatened by offenders, but
recent reports from across the country suggest that the
intimidation of victims and other witnesses is a serious
impediment to effective criminal prosecution.
Under current law, the safety of victims is not always
appropriately considered by courts and parole boards making
decisions about releasing offenders. Laws concerning whether
victim safety is a factor in such decisions varies widely. The
result, unsurprisingly, is that in too many cases offenders are
released without due regard for victims. From witness after
witness, the Committee heard testimony about the danger in
which crime victims are placed when their attackers are
released without any regard for their safety. Patricia Pollard,
Dr. Marlene Young, and others each confirmed the real-life
daily failures of the justice system.
The Committee concludes that, in considering whether to
release an accused or convicted offender, courts and parole
boards should give appropriate consideration to the safety of
victims. Of course, victim safety is not the only interest that
these entities will need to consider in making these important
decisions. But the safety of victims can be literally a life
and death matter that should be evaluated along with other
relevant factors. In evaluating the safety of victims,
decisionmakers should also take into account the full range of
measures that might be employed to protect the safety of
victims. For example, a defendant in a domestic violence case
might be released, but subject to a ``no contact'' order with
the victim. Or a prisoner might be paroled, on the condition
that he remain within a certain specified area. If directed to
consider victim safety, our Nation's courts and parole boards
are up to the task of implementing appropriate means to protect
that safety.
8. Notice of these rights
Victims will be in a better position to exercise the
foregoing rights if they are provided notice for them. As a
recent analysis concluded:
Justice system and allied professions who come into
contact with victims should provide an explanation of
their rights and provide written information describing
victims' rights and the services available to them.
Furthermore, rights and services should be explained
again at a later time if the victim initially is too
traumatized to focus on the details of the information
being provided. Explanations of rights and services
should be reiterated by all justice personnel and
victim service providers who interact with the victim.
(U.S. Department of Justice, Office for Victims of Crime, New
Directions From the Field: Victims' Rights and Services for the
21st Century 14 (1998).)
In Patricia Pollard's case in Arizona, the State Court of
Appeals found that her State constitutional right to notice was
the lynchpin for her right to notice and for her right to be
heard. Victims deserve appropriate notice of their rights in
the process.
V. SECTION-BY-SECTION ANALYSIS
The Committee intends that the amendment guarantee the
protection of and participation by crime victims in the
criminal justice process.
The Committee rejected an amendment that would have
required the courts to resolve any conflict between the
constitutional rights of defendants and those of victims, in
favor of defendants rights. As the chief justice of the Texas
Court of Criminal Office has written, ``[v]ictims' rights
versus offenders'' rights is not a ``zero-sum-game.'' The
adoption of rights for the victim need not come at the expense
of the accused's rights. Chief Justice Richard Barajas and
Scott Alexander Nelson, The Proposed Crime Victims' Federal
Constitutional Amendment: Working Toward a Proper Balance, 49
Baylor L. Rev. 1, 17 (1997) (internal citation omitted). The
Crime Victims' Rights Amendment creates rights, not in
opposition to those of defendants, but in parallel to them. The
parallel goal in both instances is to erect protections from
abuse by State actors. Thus, just as defendants have a sixth
amendment right to a ``speedy trial,'' the Crime Victims'
Rights Amendment extends to victims the right to consideration
of their interest ``in a trial free from unreasonable delay.''
These rights cannot collide, since they are both designed to
bring criminal proceedings to a close within a reasonable time.
``[I]f any conflict were to emerge, courts would retain
ultimate responsibility for harmonizing the rights at stake.''
Laurence H. Tribe and Paul G. Cassell, Embed the Rights of
Victims in the Constitution, L.A. Times, July 6, 1998, at B7.
In this respect, the Committee found unpersuasive the
contention that the courts will woodenly interpret the later-
adopted Crime Victims' Rights Amendment as superceded
provisions in previously-adopted ones. Such a canon of
construction can be useful when two measures address precisely
the same subject. But no rigid rule of constitutional
interpretation requires giving unblinking precedence to later
enactments on separate subjects, and the Committee does not
believe such a rule would--or should--be applied in this
instance.
Instead, the Committee trusts the courts to harmonize the
rights of victims and defendants to ensure that both are
appropriately protected. The courts have, for example, long
experience in accommodating the rights of the press and the
public to attend a trial with the rights of a defendant to a
fair trial. The same sort of accommodations can be arrived at
to dissipate any tension between victims' and defendants'
rights.
Section 1. ``A victim of a crime of violence, as these terms may be
defined by law. * * *''
The core provision of Senate Joint Resolution 44, as
amended in Committee, is contained in section 1, which extends
various enumerated rights to ``a victim of a crime of violence,
as these terms may be defined by law.'' The ``law'' which will
define a ``victim'' (as well as ``crime of violence'') will
come from the courts interpreting the elements of criminal
statutes until definitional statutes are passed explicating the
term. In this sense, the amendment should be regarded as ``self
executing''--that is, it will take effect even without a
specific legislative definition. The Committee anticipates that
Congress will quickly pass an implementing statute defining
``victim'' for Federal proceedings. Moreover, nothing removes
from the States their plenary authority to enact definitional
laws for purposes of their own criminal system. Such
legislative definition is appropriate because criminal conduct
depends on State and Federal law. Since the legislatures define
what is criminal conduct, it makes equal sense for them to also
have the ability to further refine the definition of
``victim.''
In determining how to structure a ``victim'' definition,
ample precedents are available. To cite but one example,
Congress has previously defined a ``victim'' of a crime for
sentencing purposes as ``any individual against whom an offense
has been committed for which a sentence is to be imposed.''
Fed. R. Crim. Pro. 32(f). The Committee anticipates that a
similar definition focusing on the criminal charges that have
been filed in court will be added to the Federal implementing
legislation and, in all likelihood, in State legislation as
well.
In most cases, determining who is the victim of a crime
will be straightforward. The victims of robbery, and sexual
assault are, for example, not in doubt. The victim of a
homicide is also not in doubt, but the victim's rights in such
cases will be exercised by a surviving family member or other
appropriate representative, as will be defined by law.
Similarly, in the case of a minor or incapacitated victim, an
appropriate representative (not accused of the crime or
otherwise implicated in its commission) will exercise the
rights of victims.
The amendment extends broadly to all victims of a ``crime
of violence.'' ``Crimes of violence'' likely will include all
forms of homicide (including voluntary and involuntary
manslaughter and vehicular homicide), sexual assault,
kidnaping, robbery, assault, mayhem, battery, extortion
accompanied by threats of violence, carjacking, vehicular
offenses (including driving while intoxicated) which result in
personal injury, domestic violence, and other similarcrimes. A
``crime of violence'' can arise without regard to technical
classification of the offense as a felony or a misdemeanor. It should
also be obvious that a ``crime of violence'' can include not only acts
of consummated violence but also of intended, threatened, or implied
violence. The unlawful displaying of a firearm or firing of a bullet at
a victim constitutes a ``crime of violence'' regardless of whether the
victim is actually injured. Along the same lines, conspiracies,
attempts, solicitations and other comparable crimes to commit a crime
of violence could be considered ``crimes of violence'' for purposes of
the amendment if identifiable victims exist. Similarly, some crimes are
so inherently threatening of physical violence that they could be
``crimes of violence'' for purposes of the amendment. Burglary, for
example, is frequently understood to be a ``crime of violence'' because
of the potential for armed or other dangerous confrontation. See United
States v. Guadardo, 40 F.3d 102 (5th Cir. 1994); United States v.
Flores, 875 F.2d 1110 (5th Cir. 1989). Similarly, sexual offenses
against a child, such as child molestation, can be ``crimes of
violence'' because of the fear of the potential for force which is
inherent in the disparate status of the perpetrator and victim and also
because evidence of severe and persistent emotional trauma in its
victims gives testament to the molestation being unwanted and coercive.
See United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993). Sexual
offenses against other vulnerable persons would similarly be treated as
``crimes of violence,'' as would, for example, forcible sex offenses
against adults and sex offenses against incapacitated adults. Finally,
an act of violence exists where the victim is physically injured, is
threatened with physical injury, or reasonably believes he or she is
being physically threatened by criminal activity of the defendant. For
example, a victim who is killed or injured by a driver who is under the
influence of alcohol or drugs is the victim of a crime of violence, as
is a victim of stalking or other threats who is reasonably put in fear
of his or her safety. Also, crimes of arson involving threats to the
safety of persons could be ``crimes of violence.''
Of course, not all crimes will be ``violent'' crimes
covered by the amendment. For example, the amendment does not
confer rights on victims of larceny, fraud, and other similar
offenses. At the same time, many States have already extended
rights to victims of such offenses and the amendment in no way
restricts such rights. In other words, the amendment sets a
national ``floor'' for the protecting of victims rights, not
any sort of ``ceiling.'' Legislatures, including Congress, are
certainly free to give statutory rights to all victims of
crime, and the amendment will in all likelihood be an occasion
for victims' statutes to be re-examined and, in some cases,
expanded.
Because of the formulation used in the amendment--``a
victim of a crime of violence''--it is presumed that there must
be an identifiable victim. Some crimes, such as drug or
espionage offenses, do not ordinarily have such an identifiable
victim and therefore would not ordinarily be covered by the
amendment. However, in some unusual cases, a court or
legislature might conclude that these offenses in fact
``involved'' violence against an identifiable victim. For
example, treason or espionage against the United States
resulting in death or injury to an American government official
might produce an identifiable victim protected by the
amendment.
``To reasonable notice of * * * any public proceedings relating to the
crime''
To make victims aware of the proceedings at which their
rights can be exercised, this provision requires that victims
be notified of public proceedings relating to a crime.
``Notice'' can be provided in a variety of fashions. For
example, the Committee was informed that some States have
developed computer programs for mailing form notices to victims
while other States have developed automated telephone
notification systems. Any means that provides reasonable notice
to victims is acceptable. ``Reasonable'' notice is any means
likely to provide actual notice to a victim. Heroic measures
need not be taken to inform victims, but due diligence is
required by government actors. It would, of course, be
reasonable to require victims to provide an address and keep
that address updated in order to receive notices.
``Reasonable'' notice would be notice that permits a meaningful
opportunity for victims to exercise their rights. In rare mass
victim cases (i.e., those involving hundreds of victims),
reasonable notice could be provided to mean tailored to those
unusual circumstances, such as notification by newspaper or
television announcement.
Victims are given the right to receive notice of
``proceedings.'' Proceedings are official events that take
place before, for example, trial and appellate courts
(including magistrates and special masters) and parole boards.
They include, for example, hearings of all types such as motion
hearings, trials, and sentencings. They do not include, for
example, informal meetings between prosecutors and defense
attorneys. Thus, while victims are entitled to notice of a
court hearing on whether to accept a negotiated plea, they are
not entitled to notice of an office meeting between a
prosecutor and a defense attorney to discuss such an
arrangement.
Victims' rights under this provision are also limited to
``public'' proceedings. Some proceedings, such as grand jury
investigations, are not open to the public and accordingly
would not be open to the victim. Other proceedings, while
generally open, may be closed in some circumstances. For
example, while plea proceedings are generally open to the
public, a court might decide to close a proceeding in which an
organized crime underling would plead guilty and agree to
testify against his bosses. Another example is provided by
certain national security cases in which access to some
proceedings can be restricted. See The Classified Information
Procedures Act, 18 U.S.C. app. 3. A victim would have no
special right to attend. The amendment works no change in the
standards for closing hearings, but rather simply recognizes
that such nonpublic hearings take place. Of course, nothing in
the amendment would forbid the court, in its discretion, to
allow a victim to attend even such a nonpublic hearing.
The public proceedings are those ``relating to the crime.''
Typically these would be the criminal proceedings arising from
the filed criminal charges, although other proceedings might
also relate to the crime. Thus, the right applies not only to
initial hearings on a case, but also rehearings, hearing at an
appellate level, and any case on a subsequent remand. It also
applies to multiple hearings, such as multiple bail hearings.
In cases involving multiple defendants, notice would be given
as to proceedings involving each defendant.
``* * * not to be excluded from * * * any public proceedings relating
to the crime''
Victims are given the right ``not to be excluded'' from
public proceedings. This builds on the 1982 recommendation from
the President's Task Force on Victims of Crime that victims
``no less than the defendant, have a legitimate interest in the
fair adjudication of the case, and should therefore, as an
exception to the general rule providing for the exclusion of
witnesses, be permitted to be present for the entire trial.''
President's Task Force on Victims of Crime, Final Report 80
(1982).
The right conferred is a negative one--a right ``not to be
excluded''--to avoid the suggestion that an alternative
formulation--a right ``to attend''--might carry with it some
government obligation to provide funding, to schedule the
timing of a particular proceeding according to the victim's
wishes, or otherwise assert affirmative efforts to make it
possible for a victim to attend proceedings. Accord Ala. Code
Sec. 15-14-54 (right ``not [to] be excluded from court or
counsel table during the trial or hearing or any portion
thereof * * * which in any way pertains to such offense''). The
amendment, for example, would not entitle a prisoner who was
attacked in prison to a release from prison and plane ticket to
enable him to attend the trial of his attacker. This example is
important because there have been occasional suggestions that
transporting prisoners who are the victims of prison violence
to courthouses to exercise their rights as victims might create
security risks. These suggestions are misplaced, because the
Crime Victims' Rights Amendment does not confer on prisoners
any such rights to travel outside prison gates. Of course, as
discussed below, prisoners no less than other victims will have
a right to be ``heard, if present, and to submit a statement''
at various points in the criminal justice process. Because
prisoners ordinarily will not be ``present,'' they will
exercise their rights by submitting a ``statement.'' This
approach has been followed in the states. See, e.g., Utah Code
Ann. Sec. 77-38-5(8); Ariz. Const. Art. II, Section 2.1.
A victim's right not to be excluded will parallel the right
of a defendant to be present during criminal proceedings. See
Diaz v. United States, 223 U.S. 442, 454-55 (1912). It is
understood that defendants have no license to engage in
disruptive behavior during proceedings. See, e.g., Illinois v.
Allen, 397 U.S. 337 (1977); Foster v. Wainwright, 686 F.2d
1382, 1387 (11th Cir. 1982). Likewise, crime victims will have
no right to engage in disruptive behavior and, like defendants,
will have to follow proper court rules, such as those
forbidding excessive displays of emotion or visibly reacting to
testimony of witnesses during a jury trial.
Right ``to be heard, if present, and to submit a statement at all
public proceedings to determine a conditional release from
custody, an acceptance of a negotiated plea, or a sentence. * *
*''
The amendment confers on crime victims a right to be heard
by the relevant decision makers at three critical points in the
criminal justice process before the final decisions are made.
First, crime victims will have the right to be heard at
proceedings ``to determine a conditional release from
custody.'' Under this provision, for example, a victim of
domestic violence will have the opportunity to warn the court
about possible violence if the defendant is released on bail,
probation, or parole. A victim of gang violence will have the
opportunity to warn about the possibility of witness
intimidation. The court will then evaluate this information in
the normal fashion in determining whether to release a
defendant and, if so, under what conditions. Victims have no
right to ``veto'' any release decision by a court, simply to
provide relevant information that the court can consider in
making its determination about release.
The amendment extends the right to be heard to proceedings
determining a ``conditional release'' from custody. This phrase
encompasses, for example, hearings to determine any pre-trial
or post-trial release (including comparable releases during or
after an appeal) on bail, personal recognizance, to the custody
of a third person, or under any other conditions, including
pre-trial diversion programs. Other examples of conditional
release include work release and home detention. It also
includes parole hearings or their functional equivalent, both
because parole hearings have some discretion in releasing
offenders and because releases from prison are typically
subject to various conditions such as continued good behavior.
It would also include a release from a secure mental facility
for a criminal defendant or one acquitted on the grounds of
insanity. A victim would not have a right to speak, by virtue
of this amendment, at a hearing to determine ``unconditional''
release. For example, a victim could not claim a right to be
heard at a hearing to determine the jurisdiction of the court
or compliance with the governing statute of limitations, even
though a finding in favor of the defendant on these points
might indirectly and ultimately lead to the ``release'' of the
defendant. Similarly, there is no right to be heard when a
prisoner is released after serving the statutory maximum
penalty, or the full term of his sentence. In such
circumstances, there would be no proceeding to ``determine'' a
release in such situations and the release would also be
without condition if the court's authority over the prisoner
had expired. The victim would, however, be notified of such a
release, as explained in connection with the victims' right to
notice of a release.
Second, crime victims have the right to be heard at any
proceedings to determine ``an acceptance of a negotiated
plea.'' This gives victims the right to be heard before the
court accepts a plea bargain entered into by the prosecution
and the defense before it becomes final. The Committee expects
that each State will determine for itself at what stage this
right attaches. It may be that a State decides the right does
not attach until sentencing if the plea can still be rejected
by the court after the pre-sentence investigation is completed.
As the language makes clear, the right involves being heard
when the court holds its hearing on whether to accept a plea.
Thus, victims do not have the right to be heard by prosecutors
and defense attorneys negotiating a deal. Nonetheless, the
Committee anticipates that prosecutors may decide, in their
discretion, to consult with victims before arriving at a plea.
Such an approach is already a legal requirement in many States,
see National Victim Center, 1996 Victims' Rights Sourcebook
127-31 (1996), is followed by many prosecuting agencies, see,
e.g., Senate Judiciary Committee Hearing, April 28, 1998,
statement of Paul Cassell, and has been encouraged as sound
prosecutorial practice. See U.S. Department of Justice, Office
for Victims of Crime, New Directions from the Field: Victims'
Rights and Services for the 21st Century 15-16 (1998). This
trend has also been encouraged by the interest of some courts
in whether prosecutors have consulted with the victim before
arriving at a plea. Once again, the victim is given no right of
veto over any plea. No doubt, some victims may wish to see
nothing less than the maximum possible penalty (or minimum
possible) for a defendant. Under the amendment, the court will
receive this information, along with that provided by prosecutors and
defendants, and give it the weight it believes is appropriate deciding
whether to accept a plea. The decision to accept a plea is typically
vested in the court and therefore the victims' right extends to these
proceedings. See, e.g., Fed. R. Crim. Pro. 11(d)(3); see generally
Douglas E. Beloof, Victims in Criminal Procedure: A Casebook 7-30 to 7-
63 (forthcoming N.C. press 1998).
Third, crime victims have the right to be heard at any
proceeding to determine a ``sentence.'' This provision
guarantees that victims will have the right to ``allocute'' at
sentencing. Defendants have a constitutionally protected
interest in personally addressing the court. See Green v.
United States, 365 U.S. 301 (1961). This provision would give
the same rights to victims, for two independent reasons. First,
such a right guarantees that the sentencing court or jury will
have full information about the impact of a crime, along with
other information, in crafting an appropriate sentence. The
victim would be able to provide information about the nature of
the offense, the harm inflicted, and the attitude of the
offender. Second, the opportunity for victims to speak at
sentencing can sometimes provide a powerful catharsis. See
United States v. Smith, 893 F. Supp. 187, 188 (E.D.N.Y. 1995),
United States v. Hollman Cheung, 952 F. Supp. 148, 151
(E.D.N.Y. 1997). Because the right to speak is based on both of
these grounds, a victim will have the right to be heard even
when the judge has no discretion in imposing a mandatory prison
sentence.
State and Federal statutes already frequently provide
allocution rights to victims. See, e.g., Fed. R. Evid. 32(c),
Ill. Const. Art. 1, Sec. 8.1(a)(4). The Federal amendment would
help to insure that these rights are fully protected. The
result is to enshrine in the Constitution the Supreme Court's
decision in Payne v. Tennessee, 501 U.S. 808 (1991),
recognizing the propriety of victim testimony in capital
proceedings. At the same time, the victim's right to be heard
at sentencing will not be unlimited, just as the defendant's
right to be heard at sentencing is not unlimited today.
Congress and the States remain free to set certain limits on
what is relevant victim impact testimony. For example, a
jurisdiction might determine that a victims' views on the
desirability or undesirability of a capital sentence is not
relevant in a capital proceeding. Cf. Robison v. Maynard, 943
F.2d 1216 (10th Cir. 1991) (concluding that victim opinion on
death penalty not admissible). The Committee does not intend to
alter or comment on laws existing in some States allowing for
victim opinion as to the proper sentence. Also, a right to have
victim impact testimony heard at sentencing does not confer any
right to have such testimony heard by a jury at trial. See
Sager v. Maass, 907 F. Supp. 1412, 1420 (D. Or. 1995) (citing
cases). The victim's right to be heard does not extend to the
guilt determination phase of trials, although victims may, of
course, be called as a witness by either party. Cf. George P.
Fletcher, With Justice for Some: Victims' Rights in Criminal
Trials 248-50 (1995).
The victim's right is one to ``be heard, if present, and to
submit a statement.'' The right to make an oral statement is
conditioned on the victim's presence in the courtroom. As
discussed above, it does not confer on victims a right to have
the Government transport them to the relevant proceeding. Nor
does it give victims any right to ``filibuster'' any hearing.
As with defendants' existing rights to be heard, a court may
set reasonable limits on the length and content of statements.
At the same time, victims should always be given the power to
determine the form of the statement. Simply because a
decisionmaking body, such as the court or parole board, has a
prior statement of some sort on file does not mean that the
victim should not again be offered the opportunity to make a
further statement.
Even if not present, the victim is entitled to submit a
``statement'' at the specified hearings for the consideration
of the court. The Committee has not limited the word statement
to ``written'' statements, because the victim may wish to
communicate in other appropriate ways. For example, a victim
might desire to present an impact statement through a videotape
or via an Internet message over a system established by the
courts. The term ``statement'' is sufficiently flexible to
encompass such communications.
The right to be heard is also limited to ``such
proceedings,'' that is, to ``such [public] proceedings.'' As
discussed previously at greater length, a victim has no right
to be heard at a proceeding that the court has properly closed
under the existing standards governing court closures.
Right to ``the foregoing rights at a parole proceeding that is not
public, to the extent those rights are afforded to the
convicted offender
The right to be heard at public proceedings to determine a
conditional release confers on victims the right to be heard at
public parole proceedings. In some jurisdictions, however,
parole decisions are not made in public proceedings, but rather
in other ways. For such jurisdictions, the amendment places
victims on equal footing with defendants. If defendants have
the right to provide communications with the paroling or
releasing authority, then victims do as well. For example, in
some jurisdictions the parole board might review various
folders on prisoners in making a parole decision. If the
defendant is given an opportunity to provide information for
inclusion in those folders, so will the victim. The phrase
``the foregoing rights'' encompasses all of the previously
listed rights in the amendment, including the right to notice,
to not be excluded, and to be heard, if present, and to submit
a statement.
The term ``parole'' is intended to be interpreted broadly.
Many jurisdictions are moving away from ``parole'' but still
have a form of conditional release. The term also encompasses
comparable hearings on conditional release from secure mental
facilities.
Right to ``reasonable notice of a release or escape from custody
relating to the crime''
To ensure that the victim is not surprised or threatened by
an escaped or released prisoner, the amendment gives victims a
right to reasonable notice of such escape or release. As with
other notice rights in the amendment, the requirement is not
one of extraordinary measures, but instead of ``reasonable''
notice. As with the phrase used earlier in the amendment,
``reasonable'' notice is one likely to provide actual notice.
New technologies are becoming more widely available that will
simplify the process of providing this notice. For example,
automated voice response technology exists that can be
programmed to place repeated telephone calls to victims whenever a
prisoner is released, which would be reasonable notice of the release.
As technology improves in this area, what is ``reasonable'' may change
as well. ``Reasonable'' notice would also need to be considered in
light of the circumstances surrounding the case. While mailing a letter
would be ``reasonable'' notice of an upcoming parole release date, it
would not be reasonable notice of the escape of a dangerous prisoner
bent on taking revenge on his accuser.
The requirement of notice is limited to a ``release from
custody.'' Thus, victims are not entitled to notice under this
amendment if, for example, a prisoner is simply moved from one
custodial facility to another, reclassified in terms of his
security level, or allowed to participate in a supervised work
detail outside the prison walls. Victims are, however, entitled
to notice of any government decision to finally or
conditionally release a prisoner, such as allowing a prisoner
to enter a noncustodial work release program or to take a
weekend furlough in his old home town.
The release must be one ``relating to the crime.'' This
includes not only a release after a criminal conviction but
also, for example, a release of a defendant found not guilty of
a crime by reason of insanity and then hospitalized in custody
for further treatment, or a release pursuant to a habitual sex
offender statute.
Right to ``consideration of the interest of the victim that any trial
be free from unreasonable delay''
Just as defendants currently have a right to a ``speedy
trial,'' this provision will give victims a protected right in
having their interests to a reasonably prompt conclusion of a
trial considered. The right here requires courts to give
``consideration'' to the victims' interest along with other
relevant factors at all hearings involving the trial date,
including the initial setting of a trial date and any
subsequent motions or proceedings that result in delaying that
date. This right also will allow the victim to ask the court
to, for instance, set a trial date if the failure to do so is
unreasonable. Of course, the victims' interests are not the
only interests that the court will consider. Again, while a
victim will have a right to be heard on the issue, the victim
will have no right to force an immediate trial before the
parties have had an opportunity to prepare. Similarly, in some
complicated cases either prosecutors or defendants may have
unforeseen and legitimate reasons for continuing a previously
set trial or for delaying trial proceedings that have already
commenced. But the Committee has heard ample testimony about
delays that, by any measure, were ``unreasonable.'' See, e.g.,
Senate Judiciary Committee Hearing, April 16, 1997, statement
of Paul Cassell, at 115-16. This right will give courts the
clear constitutional mandate to avoid such delays.
In determining what delay is ``unreasonable,'' the courts
can look to the precedents that exist interpreting a
defendant's right to a speedy trial. These cases focus on such
issues as the length of the delay, the reason for the delay,
any assertion of a right to a speedy trial, and any prejudice
to the defendant. See Barker v. Wingo, 407 U.S. 514, 530-33
(1972). Courts will no doubt develop a similar approach for
evaluating victims' claims. In developing such an approach,
courts will undoubtably recognize the purposes that the
victim's right is designed to serve. Cf. Barker v. Wingo, 407
U.S. 514, 532 (1972) (defendant's right to a speedy trial must
be ``assessed in the light of the interest of defendant which
the speedy trial right was designed to protect''). The
Committee intends for this right to allow victims to have the
trial of the accused completed as quickly as is reasonable
under all of the circumstances of the case, giving both the
prosecution and the defense a reasonable period of time to
prepare. The right would not require or permit a judge to
proceed to trial if a criminal defendant is not adequately
represented by counsel.
The Committee also anticipates that more content may be
given to this right in implementing legislation. For example,
the Speedy Trial Act of 1974 (Pub. L. 93-619 (amended by Pub.
L. 96-43), codified at 18 U.S.C. Sec. Sec. 3152, 3161) already
helps to protect a defendant's speedy trial right. Similar
legislative protection could be extended to the victims' new
parallel right.
Right to ``an order of restitution from the convicted offender''
This provision recognizes that an offender should be held
responsible for the harm his crime caused, through an order of
restitution at sentencing. The Committee has previously
explained this philosophy in some detail in connection with the
Mandatory Victim Restitution Act, codified at 18 U.S.C.
Sec. Sec. 3663A and 3664, and intends that this right operate
in a similar fashion. The relevant details will be spelled out
under the resulting case law or, more likely, statutes to
implement the amendment. However, this amendment does not
confer on victims any rights to a specific amount of
restitution, leaving the court free to order nominal
restitution if there is no hope of satisfying the order nor any
rights with regard to a particular payment schedule.
The right conferred on victims is one to an ``order'' of
restitution. With the order in hand, questions of enforcement
of the order and its priority as against other judgments are
left to the applicable Federal or State law. No doubt in a
number of cases the defendant will lack the resources to
satisfy the full order. In others, however, the defendant may
have sufficient assets to do so and this right will place such
an order in the victim's hands. The right is, of course,
limited to ``convicted'' defendants, that is, those who pled
guilty, are found guilty, or enter a plea of no contest. Even
before a conviction, however, courts remain free to take
appropriate steps to prevent a defendant's deliberate
dissipation of his assets for the purpose of defeating a
restitution order, as prescribed by current law.
A right to ``consideration for the safety of the victim in determining
any conditional release from custody relating to the crime''
This right requires judges, magistrates, parole boards, and
other such officials to consider the safety of the victim in
determining any conditional release. As with the right to be
heard on conditional releases, this right will extend to
hearings to determine any pre-trial or post-trial release on
bail, personal recognizance, to the custody of a third person,
on work release, to homedetention, or under any other
conditions as well as parole hearings or their functional equivalent.
At such hearings, the decisionmaker must give consideration to the
safety of the victim in determining whether to release a defendant and,
if so, whether to impose various conditions on that release to help
protect the victims' safety, such as requiring the posting of higher
bail or forbidding the defendant to have contact with the victim. These
conditions can then be enforced through the judicial processes
currently in place.
This right does not require the decisionmaker to agree with
any conditions that the victim might propose (or, for that
matter, to agree with a victim that defendant should be
released unconditionally). Nor does this right alter the eight
amendment's prohibition of ``excessive bail'' or any other due
process guarantees to which a defendant or prisoner is entitled
in having his release considered. The Supreme Court, however,
has already rejected constitutional challenges to pretrial
detention, in appropriate circumstances, to protect community
safety, including the safety of victims. See United States v.
Salerno, 481 U.S. 739 (1987). This right simply guarantees
victim input into a process that has been constitutionally
validated. -
Custody here includes mental health facilities. This is
especially important as sex offenders are frequently placed in
treatment facilities, following or in lieu of prison.
Right to ``reasonable notice of the rights established by this
article.''
In the special context of the criminal justice system,
victims particularly need knowledge of their rights. Victims
are thrust into the vortex of complicated legal proceedings.
Accordingly, the final right guaranteed by the amendment is the
right to notice of victims rights. Various means have been
devised for providing such notice in the States, and the
Committee trusts that these means can be applied to the Federal
amendment with little difficulty.
Once again, ``reasonable'' notice is one likely to provide
actual notice. In cases involving victims with special needs,
such as those who are hearing impaired or illiterate, officials
may have to make special efforts in order for notice to be
reasonable. Notice, whether of rights, proceedings, or events,
should be given as soon as practicable to allow victims the
greatest opportunity to exercise their rights.
Section 2. Only the victim or the victim's lawful representative shall
have standing to assert the rights established by this article
This provision confers on victims and their lawful
representatives standing to assert their rights. The term
``standing'' is used here in its conventional legal sense as
giving victims the opportunity to be heard about their
treatment, that is, to have the merits of their claims
considered. For example, under this provision victims have the
right to challenge their exclusion from the trial of the
accused perpetrators of the crime. This overrules the approach
adopted by some courts of denying victims an opportunity to
raise claims about their treatment. See, e.g., United States v.
McVeigh, 106 F.3d 325, 334-35 (10th Cir. 1997) (finding
victims of the Oklahoma City bombing lacked standing to
challenge their exclusion from certain proceedings). The
provision is phrased in exclusive terms--``Only the victim or
the victim's lawful representatives''--to avoid any suggestion
that other, potentially intermeddling, persons have the right
to be heard in criminal proceedings, and to avoid the
suggestion that the accused or convicted offender has standing
to assert the rights of the victim.
There will be circumstances in which victims find it
desirable to have a representative assert their rights or make
statements on their behalf. This provision recognizes the right
of a competent victim to choose a representative to exercise
his or her rights, as provided by law. Typically victims'
rights statutes have provided a means through which victims can
select their representatives without great difficulty.
Other ``lawful representatives'' will exist in the context
of victims who are deceased, are children, or are otherwise
incapacitated. In homicide cases, victim's rights can be
asserted by surviving family members or other persons found to
be appropriate by the court. This is the approach that has
uniformly been adopted in victims' rights statutes applicable
in homicide cases, thus insuring that in this most serious of
crimes a voice for a victim continues to be heard. Of course,
in such cases the ``lawful representative'' would not
necessarily be someone who was the executor of the estate, but
rather someone involved in issues pertaining to the criminal
justice process. In cases involving child victims, a parent,
guardian or other appropriate representative can do the same.
For victims who are physically or mentally unable to assert
their rights, an appropriate representative can assert the
rights.
In all circumstances involving a ``representative,'' care
must be taken to ensure that the ``representative'' truly
reflects the interests--and only the interests--of the victim.
In particular, in no circumstances should the representative be
criminally involved in the crime against the victim. The
mechanics for dealing with such issues and, more generally, for
the designation of ``lawful'' representatives will be provided
by law--that is, by statute in relevant jurisdiction, or in its
absence by court rule or decision.
``Nothing in this article shall provide grounds to stay or continue any
trial, reopen any proceeding or invalidate any ruling, except
with respect to conditional release or restitution or to
provide rights guaranteed by this article in future
proceedings, without staying or continuing a trial.''
This provision is designed to protect completed criminal
proceedings against judicially-created remedies that might
interfere with finality. At the same time, the provision leaves
open appropriate avenues for victims to challenge violations of
their rights as well as the ability of Congress and the States
to provide additional remedies.
In drafting the amendment, the Committee was faced with
balancing the competing concerns of giving victims an effective
means of enforcing their rights and of ensuring that court
decisions retain a reasonable degree of finality. The Committee
was concerned that, if victims could challenge and overturn all
criminal justice proceedings at which their rights were
violated, the goal of finality, and conceivably other goals,
could be seriously frustrated. On the other hand, the Committee
recognized that if victims were never given an opportunity to
challengepreviously-taken judicial actions, victims rights
might remain routinely ignored. The Committee's solution to the dilemma
was to leave the issue of the most controversial remedies to the
legislative branches. These branches have superior fact finding
capabilities, as well as abilities to craft necessary exceptions and
compromises. Thus, the provision provides that ``Nothing in this
article'' shall provide grounds for victims to challenge and overturn
certain previously taken judicial actions.
The provision prevents judicially-created remedies ``to
stay or continue any trial'' because of the concern that a
broad judicial remedy might allow victims to inappropriately
interfere with trials already underway. The provision also
prevents judicially-created remedies to ``reopen any proceeding
or invalidate any ruling'' because of similar finality
concerns. At the same time, however, the provision recognizes
that victims can reopen earlier rulings ``with respect to
conditional release or restitution.'' In these particular
areas, judicially created rules will allow victims to
challenge, for example, a decision made to release a defendant
on bail without consideration of the victim's safety.
Similarly, victims are specifically allowed to challenge a
ruling ``to provide rights guaranteed by this article in future
proceedings, without staying or continuing a trial.'' For
example, in what will presumably be the rare case of a victim
improperly excluded from a trial, a victim could seek an
immediate expedited review of the decision under the existing
rules allowing for expedited review, seeking admission to
``future proceedings,'' that is, to upcoming days of the trial.
Similarly, a victim who wishes to challenge a ruling that she
is not entitled to notice of a release or escape of a prisoner
can challenge that ruling until the release or escape takes
place. Of course, limits on the ability of victims to
``invalidate'' a court ruling do not forbid a victim from
asking a court to reconsider its own ruling or restrict a court
from changing its own ruling.
``Nothing in this article shall give rise to or authorize the creation
of a claim for damages against the United States, a State, a
political subdivision, or a public officer or employee.''
This provision imposes the conventional limitations on
victims' rights, providinsg that the amendment does not give
rise to any claim for money damages against governmental
entities or their employees or agents. While some existing
victims' rights provisions provide for the possibility of
damage actions or fines as an enforcement mechanism in limited
circumstances, see, e.g., Ariz. Rev. Stat. Ann. Sec. 13-4437(B)
(authorizing suit for ``intentional, knowing, or grossly
negligent violation'' of victims rights), the Committee does
not believe that consensus exists in support of such a
provision in a Federal amendment. Similar limiting language
barring damages actions is found in many state victims' rights
amendments. See, e.g., Kan. Const. Art. 15, Sec. 15(b)
(``Nothing in this section shall be construed as creating a
cause of action for money damages against the state. * * *'');
Mo Const. Art. 1, Sec. 32(3), (5) (similar); Tex. Const. Art.
I, Sec. 30(e) (``The legislature may enact laws to provide that
a judge, attorney for the State, peace officer, or law
enforcement agency is not liable for a failure or inability to
provide a right enumerated in this section''). The limiting
language in the provision also prevents the possibility that
the amendment might be construed by courts as requiring the
appointment of counsel at State expense to assist victims. Cf.
Gideon v. Wainwright, 372 U.S. 335 (1963) (requiring counsel
for indigent criminal defendants).
This provision in no way affects--by way of enlargement or
contraction--any existing rights that may exist now or be
created in the future independent of the amendment.
The Congress shall have the power to enforce this article by
appropriate legislation
This provision is similar to existing language found in
section 5 of the 14th amendment to the Constitution. This
provision will be interpreted in similar fashion to allow
Congress to ``enforce'' the rights, that is, to insure that the
rights conveyed by the amendment are in fact respected. At the
same time, consistent with the plain language of the provision,
the Federal Government and the States will retain their power
to implement the amendment. For example, the States will,
subject to the Supremacy Clause, flesh out the contours of the
amendment by providing definitions of ``victims'' of crime and
``crimes of violence.''
Exceptions to the rights established by this article may be created
only when necessary to achieve a compelling interest
Constitutional rights are not absolute. There is no first
amendment right, for example, to yell ``Fire!'' in a crowded
theater. Courts interpreting the Crime Victims' Rights
Amendment will no doubt give a similar, commonsense
construction to its provisions.
To assist in providing necessary flexibility for handling
unusual situations, the exceptions language in the amendment
explicitly recognizes that in certain rare circumstances
exceptions may need to be created to victims rights. By way of
example, the Committee expects the language will encompass the
following situations.
First, in mass victim cases, there may be a need to provide
certain limited exceptions to victims rights. For instance, for
a crime perpetrated against hundreds of victims, it may be
impractical or even impossible to give all victims the right to
be physically present in the courtroom. In such circumstances,
an exception to the right to be present may be made, while at
the same time providing reasonable accommodation for the
interest of victims. Congress, for example, has specified a
close-circuit broadcasting arrangement that may be applicable
to some such cases. Similar restrictions on the number of
persons allowed to present oral statements might be appropriate
in rare cases involving large numbers of victims.
Second, in some cases of domestic violence, the dynamics of
victim-offender relationships may require some modification of
otherwise typical victims' rights provisions. This provision
offers the flexibility to do just that.
Third, situations may arise involving intergang violence,
where notifying the member of a rival gang of an offenders'
impending release may spawn retaliatory violence. Again,
thisprovision provides flexibility for dealing with such situations.
While this exceptions clause adds some flexibility, the
Committee-reported amendment provides that exceptions are
permitted only for a ``compelling'' interest. In choosing this
standard, formulated by the U.S. Supreme Court, the Committee
seeks to ensure that the exception does not swallow the rights.
The Committee rejected proposed language that would have
lowered the required justification for an exception from the
settled standard of ``compelling interest'' to the novel
standard of ``significant interest.''
This article shall take effect on the 180th day after the ratification
of this article. The right to an order of restitution
established by this article shall not apply to crimes committed
before the effective date of this article
The Committee has included a 180 day ``grace period'' for
the amendment to allow all affected jurisdictions ample
opportunity to prepare to implement the amendment. After the
period has elapsed, the amendment will apply to all crimes and
proceedings thereafter. The one exception that the Committee
made was for orders of restitution. A few courts have held that
retroactive application of changes in standards governing
restitution violates the Constitution's prohibition of ex post
facto laws. See, e.g., United States v. Williams, 128 F.3d
1239 (8th Cir. 1997). The Committee agrees with those courts
that have taken the contrary view that, because restitution is
not intended to punish offenders but to compensate victims, ex
post facto considerations are misplaced. See, e.g., United
States v. Newman, No. 97-3246 (7th Cir. 1998). However, to
avoid slowing down the conclusion of cases pending at the time
of the amendment's ratification, the language on restitution
orders was added.
The rights and immunities established by this article shall apply in
Federal and State proceedings, including military proceedings
to the extent that the Congress may provide by law, juvenile
justice proceedings, and proceedings in the District of
Columbia and any commonwealth, territory, or possession of the
United States
This provision extends the amendment to all State and
Federal criminal justice proceedings. Because of the
complicated nature of military justice proceedings, including
proceedings held in times of war, the extension of victims
rights to the military was left to Congress. The Committee
intends to protect victims' rights in military justice
proceedings while not adversely affecting military operations.
This provision also extends victims' rights to all juvenile
justice proceedings that are comparable to criminal
proceedings, even though these proceedings might be given a
noncriminal label. On this point, the Committee believes that
``[t]he rights of victims of juvenile offenders should mirror
the rights of victims of adult offenders.'' U.S. Deppartment of
Justice, Office for Victims of Crime, New Directions From the
Field: Victims' Rights and Services for the 21st Century 22
(1998).
VI. VOTE OF THE COMMITTEE
The committee met on five occasions to consider S.J. Res.
44, on June 18, 24, 25, 1998 and twice on July 7, 1998. On July
7, 1998, Senator Kyl offered a substitute amendment, which was
agreed to by unanimous consent. Two additional amendments were
offered, but were defeated by rollcall votes. The Committee
agreed to favorably report the S.J. Res. 44 to the full Senate,
with an amendment in the nature of a substitute, on July 7,
1998, by a rollcall vote of 11 yeas to 6 nays.
1. Senator Durbin offered an amendment to: on page 2, line
12, strike ``compelling'' and insert ``significant''. The
amendment was defeated by a rollcall vote of 5 yeas to 10 nays.
Yeas Nays
Leahy Thurmond
Kennedy (by proxy) Grassley
Kohl (by proxy) Thompson
Feingold Kyl
Durbin DeWine
Ashcroft (by proxy)
Abraham (by proxy)
Sessions
Feinstein
Hatch
2. Senator Durbin offered an amendment to: on page 2, line
21, insert the following: ``Section 6. Nothing in this article
shall be construed to deny or diminish the rights of an accused
as guaranteed by this Constitution.'' The amendment was
defeated by a rollcall vote of 6 yeas to 10 nays.
Yeas Nays
Leahy Thurmond
Kennedy (by proxy) Grassley
Kohl (by proxy) Thompson
Feingold Kyl
Durbin DeWine
Torricelli (by proxy) Ashcroft (by proxy)
Abraham (by proxy)
Sessions
Feinstein
Hatch
3. The Committee voted on final passage. The resolution was
ordered favorably reported, as amended, by a rollcall vote of
11 yeas to 6 nays.
Yeas Nays
Thurmond Thompson
Grassley Leahy
Kyl Kennedy (by proxy)
DeWine Kohl (by proxy)
Ashcroft (by proxy) Feingold
Abraham (by proxy) Durbin
Sessions
Biden
Feinstein
Torricelli (by proxy)
Hatch
VII. TEXT OF S.J. RES. 44
joint resolution proposing an amendment to the constitution of the
united states to protect the rights of crime victims.
Resolved by the Senate and the House of Representatives of
the United States of America in Congress assembled (two-thirds
of each House concurring therein), That the following article
is proposed as an amendment to the Constitution of the United
States, which shall be valid for all intents and purposes as
part of the Constitution when ratified by the legislatures of
three-fourths of the several States within seven years from the
date of its submission by the Congress:
Article --
``Section 1. A victim of a crime of violence, as these
terms may be defined by law, shall have the rights:
``to reasonable notice of, and not to be excluded
from, any public proceedings relating to the crime;
``to be heard, if present, and to submit a statement
at all such proceedings to determine a conditional
release from custody, an acceptance of a negotiated
plea, or a sentence;
``to the foregoing rights at a parole proceeding that
is not public, to the extent those rights are afforded
to the convicted offender;
``to reasonable notice of a release or escape from
custody relating to the crime;
``to consideration of the interest of the victim that
any trial be free from unreasonable delay;
``to an order of restitution from the convicted
offender;
``to consideration for the safety of the victim in
determining any conditional release from custody
relating to the crime; and
``to reasonable notice of the rights established by
this article.
``Section 2. Only the victim or the victim's lawful
representative shall have standing to assert the rights
established by this article. Nothing in this article shall
provide grounds to stay or continue any trial, reopen any
proceeding or invalidate any ruling, except with respect to
conditional release or restitution or to provide rights
guaranteed by this article in future proceedings, without
staying or continuing a trial. Nothing in this article shall
give rise to or authorize the creation of a claim for damages
against the United States, a State, a political subdivision, or
a public officer or employee.
``Section 3. The Congress shall have the power to enforce
this article by appropriate legislation. Exceptions to the
rights established by this article may be created only when
necessary to achieve a compelling interest.
``Section 4. This article shall take effect on the 180th
day after the ratification of this article. The right to an
order of restitution established by this article shall not
apply to crimes committed before the effective date of this
article.
``Section 5. The rights and immunities established by this
article shall apply in Federal and State proceedings, including
military proceedings to the extent that the Congress may
provide by law, juvenile justice proceedings, and proceedings
in the District of Columbia and any commonwealth, territory, or
possession of the United States.
VIII. COST ESTIMATE
The Congressional Budget Office has supplied the Committee
with the following report estimating the proposed amendment's
potential costs.
S.J. Res. 44 would propose amending the Constitution
to protect the rights of crime victims. This proposed
amendment would provide certain rights to all victims
of crimes of violence, including the right to be heard
at any proceeding for sentencing or conditional release
from custody. The legislatures of three-fourths of the
States would be required to ratify the proposed
amendment within 7 years for the amendment to become
effective.
By itself, this resolution would have no impact on
the Federal budget. If the proposed amendment to the
Constitution is approved by the States, then any future
Federal cases involving crimes of violence and the new
constitutional rights could impose additional costs on
the Federal courts and the Federal prison system to the
extent that such cases are pursued and prosecuted.
However, CBO does not expect any resulting costs to be
significant. Because enactment of S.J. Res. 44 would
not affect direct spending or receipts, pay-as-you-go
procedures would not apply.
S.J. Res. 44 contains no intergovernmental or
private-sector mandates as defined in the Unfunded
Mandates Reform Act and would impose no costs on State,
local, or tribal governments. No State would be
required to take action on the resolution.
(Congressional Budget Office, Cost Estimate, S.J. Res. 44, as
reported by the Senate Committee on the Judiciary on July 7,
1998, letter dated July 17, 1998.)
IX. REGULATORY IMPACT STATEMENT
Pursuant to paragraph 11(b), rule XXVI of the Standing
Rules of the Senate, the Committee, after due consideration,
concludes that Senate Joint Resolution 44 will not have direct
regulatory impact.
X. ADDITIONAL VIEWS OF SENATOR HATCH
I support consideration of a constitutional amendment to
establish a guarantee of rights for victims of crime. I am
providing these additional views to supplement the Committee's
report in order to clarify several concerns I have with the
text of S.J. Res. 44 as adopted by the Committee.
As an initial matter, I note that I have long been an
active supporter of efforts to provide victims of crime with
meaningful participation in the judicial system. For example,
as the principal author of the Federal Mandatory Victims
Restitution Act, I have worked hard to make criminals pay for
the damage their behavior causes. For years, I fought for
comprehensive habeas corpus reform to provide finality of
criminal convictions, an effort which was finally successful in
1996 with the passage of the Antiterrorism and Effective Death
Penalty Act of 1996.
The Antiterrorism and Effective Death Penalty Act also
included provisions I sponsored to provide the victims of mass
crimes like the Oklahoma City bombing the opportunity to
observe criminal trials through closed circuit television. That
law also included a provision ensuring that the American
victims of foreign terrorists could sue the State sponsors of
terrorist acts. I take the issue of victims' rights seriously,
as does all of Congress. This is evidenced by the speed at
which correcting legislation was enacted in the 105th Congress,
when two of the 1996 enactments proved inadequate to safeguard
victim's participation.\1\
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\1\ H.R. 924, the Victim Rights Clarification Act of 1997 (Pub. L.
105-6, codified at 18 U.S.C. Sec. Sec. 3510, 3481, 3593) was introduced
on March 5, 1997 and was signed by the President on March 19, 1997;
H.R. 1225, a bill to make a technical correction to title 28, U.S.
Code, relating to jurisdiction for lawsuits against terrorist states,
(Pub. L. 105-11) was introduced on April 8, 1997, and was signed by the
President on April 25, 1997.
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However, there are few tasks undertaken by Congress more
serious than the consideration of resolutions proposing
amendments to our national charter. With a constitutional
amendment, every word and phrase must be scrutinized carefully.
A poor choice of words or of drafting could significantly alter
the meaning of the amendment, lead to years of unnecessary
litigation, or even cause the amendment to fail in its intended
purpose. We must remember that, unlike a statute which Congress
can amend fairly easily, there is no such easy remedy to
correct a mistake in drafting a constitutional amendment. It is
with these thoughts in mind that I provide these additional
comments on specific concerns I continue to have with the text
of S. J. Res. 44.
Scope of the Amendment
S.J. Res. 44 includes in its text an important
distinction--not reflected in the amendment's title--from
earlier drafts of the proposed amendment. Previous versions of
the amendment covered all victims of crime, but under S.J. Res
44, only victims of violent crimes, as defined by law, would
receive constitutional protection. This distinction, according
to advocacy groups, might remove as many as 30 million victims
ofnon-violent crimes from the amendment's safeguards.
I believe we must tread carefully when assigning
constitutional rights on the arbitrary basis of whether the
legislature has classified a particular crime as ``violent'' or
``non-violent.'' Consider, for example, the relative losses of
two victims. First, consider the plight of an elderly woman who
is victimized by a fraudulent investment scheme and loses her
life's savings. Second, think of a college student who happens
to take a punch during a bar fight which leaves him with a
black eye for a couple days. I do not believe it to be clear
that one of these victims is more deserving of constitutional
protection than the other. While such distinctions are commonly
made in criminal statutes, the implications for placing such a
disparity into the text of the Constitution are far greater.
I would hope, for example, that courts would not use
Congress' decision to exclude victims of non-violent crimes
from the amendment as evidence that such victims deserve less
protection under State amendments or statutes. The decision by
the amendment's sponsors to exclude victims such as the elderly
woman in my example has led important segments of the victims'
rights community to oppose the current version of this proposed
amendment.
On the other hand, in one important respect, the scope of
the proposed amendment may be too broad, as well. It is
important to note that the proposed amendment does not specify
at what point the rights attach, or in other words, at what
point a person becomes a ``victim,'' particularly in the
absence of legislation. Is one a victim at the time of the
crime, at the time an arrest is made, when charges are filed
against a suspect, when an indictment or information is issued,
or at some later point in the process? This is particularly
important to the issue of dropped or uncharged counts against a
defendant who has committed multiple wrongs.
Frequently, criminal defendants are suspected to have
committed crimes for which they are never charged or for which
charges are later dropped, even though significant evidence may
exist that the defendant did indeed commit the crime. Do the
victims of these crimes have rights under the proposed
amendment? If so, are they the same as the rights of the
victims of charged counts, and how will their exercise affect
the rights of victims of charged counts or of the defendant?
Such victims, of course, would have the same rights of notice
and allocution relating to conditional release, the acceptance
of negotiated pleas (perhaps substantially complicating plea
bargains), and sentencing. While the exercise of these rights
is unlikely to collide with any defendant's rights,\2\ the
exercise of the right to an order of restitution for the victim
of an uncharged count may indeed collide with the rights of the
defendant.\3\ At a minimum, I believe that deeper consideration
ought to be given these matters before this amendment is sent
to the States for ratification.
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\2\ For instance, evidence admissible at a sentencing hearing or
conditional release hearing is not limited in the same manner as
evidence admissible at the guilt phase, and evidence of uncharged
counts or acquitted conduct may be used. The Supreme Court has made
clear for more than four decades that, as a matter of federal
constitutional law, a sentencing court is, and should be, free to
consider all relevant and reliable evidence. See, e.g., Witte v. United
States, 115 S. Ct. 2199, 2205 (1995); United States v. Tucker, 404 U.S.
443, 446 (1972); Williams v. New York, 337 U.S. 241, 247 (1949).
Evidence that a defendant has committed other crimes, even if they have
not been proved beyond a reasonable doubt, surely is relevant and is
not inherently unreliable. Unconvicted and even uncharged conduct may
also be admitted at sentencing. The Supreme Court long has approved use
of such evidence at sentencing. To identify just one area, the Supreme
Court twice has held--most recently, in a unanimous opinion--that a
district court may enhance a defendant's sentence if the court finds
that the defendant committed perjury on the stand when the defendant
testified. United States v. Dunnigan, 507 U.S. 87, 92-94 (1993); United
States v. Grayson, 438 U.S. 41 at 50-51 (1978). Moreover, 18 U.S.C.
Sec. 3661 provides that ``No limitation shall be placed on the
information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
sentence.''
\3\ The Committee wrestled with this very issue during
consideration of the Mandatory Victims Restitution Act of 1996 (MVRA).
In the Committee report describing what would become section 209 of the
MVRA (Pub. L. 104-132, 110 Stat. 1240, 18 U.S.C. 3551 note), directing
the Attorney General to formulate guidelines to obtain restitution
agreements for uncharged counts in plea agreements, the Committee
noted:
---------------------------------------------------------------------------
This provision requires the Attorney General promulgate
guidelines for U.S. Attorneys to ensure that, in plea
agreements negotiated by the United States, consideration
is given to requesting the defendant to provide full
restitution to all victims of all charges contained in the
indictment or information.
H.R. 665 * * * includes a provision authorizing the
courts to order restitution to parties other than the
direct victim of the offense. The House provision is
intended to provide restitution to victims of so-called
dropped or uncharged counts. For example, if a defendant is
known to have committed three assaults, but is charged
with, or pleads to, only two of these offenses, the House
bill would permit the court to order the defendant to pay
restitution to the victims of the remaining offense as
well.
The Committee had grave concerns about the
constitutionality of the House provision. It is the
Committee's view that permitting the court to order
restitution for offenses for which the defendant has
neither been convicted nor pleaded guilty may violate the
due process clause of the fifth amendment.
However, the Committee shares the concern underlying the
House provision that all an offender's victims receive
restitution for their losses. * * * The Committee believes
the victim's losses deserve recognition and compensation.
This provision is intended to address this problem by
providing guidance to U.S. Attorneys to guarantee that the
concerns of these victims are considered. The Committee is
sensitive to the discretion inherent in the prosecutorial
function. * * * However, it is the Committee's intent that
this provision be implemented in a manner that ensures the
greatest practicable restitution to crime victims. S. Rept.
104-179, at 23.
Requirement of Reasonable Notice of the Rights:
I have significant concerns about the necessity and wisdom
of the last clause of Section 1 of the amendment proposed by
S.J. Res. 44, providing that covered victims shall have the
right ``to reasonable notice of the rights established'' by the
amendment. No other constitutional provision mandates that
citizens be provided notice of the rights vested by the
Constitution--not even the court-created Miranda warnings are
constitutionally required. In an analogous context, Justice
O'Connor noted that ``the free exercise clause is written in
terms of what the Government cannot do to the individual, not
in terms of what the individual can exact from the
Government.'' \4\ This clause in the proposed victims' rights
amendment would create an affirmative duty on the Government to
provide notice of what rights the Constitution provides,
turning this formulation on its head.
---------------------------------------------------------------------------
\4\ Lyng v. Northwest Indian Cemetery Protective Association, 485
U.S. 439 (1988), at 451 (quoting Sherbert v. Verner, 374 U.S. 398
(1963) at 412 (Douglas, J., concurring).
---------------------------------------------------------------------------
Moreover, I do not believe that sufficient consideration
has been given to the practical aspects of this requirement.
Which governmental entity would be required to provide the
notice? Would it be the police, when taking a crime report? The
prosecutor, prior to seeking an indictment or filing an
information? Or perhaps the court, at some other stage in the
process? At what point would the right attach--when the crime
is committed? When an arrest is made? And, what is
``reasonable'' notice? Does the term presume that the
governmental entity providing notice must have assimilated the
Supreme Court's latest jurisprudence interpreting victims'
rights when giving notice? I fear that this provision might
generate a body of law which will make fourth amendment
jurisprudence simple by comparison.
Finally, Congress will be empowered by section 3 of the
proposed amendment to enforce its provisions, presumably
including the question of how governmental entities must
provide victims notice. Will this permit Congress to micro
manage the policies and procedures of our State and local law
enforcement agencies, prosecutors, and courts? I believe
greater consideration must be given to these questions before a
right to notice of the rights guaranteed by the amendment is
included in the Constitution.
Right to Reopen Certain Proceedings and Invalidate Certain Proceedings:
The language of section 2, which grants victims grounds to
move to reopen proceedings or invalidate rulings related to,
inter alia, the conditional release of defendants or convicts,
ought to be given serious scrutiny. This provision in
particular has perhaps the greatest potential to collide with
the legitimate rights of defendants. All defendants and
convicts have a constitutionally protected liberty interest in
conditional release, once such release is granted. Permitting
victims to move to reopen such proceedings or invalidate such
rulings, would, of course, necessitate the re-arrest and
detention of released defendants or convicts, likely
implicating their liberty interest. This is not to say, of
course, that the safety and views of victims ought not be
considered in determining conditional releases, as provided for
in the proposed amendment. However, serious reconsideration
should be given to whether it is wise to include in the
amendment the right of victims to unilaterally seek to overturn
release decisions after the fact.
Enforcement Powers
Unlike previous versions of the proposed amendment, which
permitted States to enforce the amendment in their
jurisdictions, S.J. Res. 44 gives Congress exclusive power to
``enforce this article by appropriate legislation.'' I believe
that granting Congress sole power to enforce the provisions of
the victims' rights amendment, and thus, inter alia, to define
terms such as ``victim'' and ``violent crime'' and to enforce
the guarantees of ``reasonable notice'' of public proceedings
and of the rights established by the amendment, will be a
significant and troubling step toward federalization of crime
and the nationalization of our criminal justice system.
Most criminal justice questions are rightly left by the
tenth amendment to be decided by the States and the People
through their local governments. The Founders rightly
determined that such questions are best left to those levels of
government closest to the people. Even the bedrock defendants'
rights included in the Constitution and incorporated in the
14th amendment permit flexible application adaptable to unique
local circumstances. It is possible that the victims' rights
constitutional amendment will lack this flexibility that is the
hallmark of our Federal system, and perhaps in the process
invalidate many State victims rights provisions. Such a
prospect should give us pause.
Establishment of a ``Compelling Interest'' Standard to Enact Exceptions
I am also concerned that the proposed amendment
inappropriately establishes a particular standard of review to
enact inevitable exceptions to the amendment. First, I share
the view of others on the Committee, and that of the Department
of Justice, that the standard of a ``compelling'' interest for
any exceptions to rights enumerated by the proposed article may
be too high a burden.
The compelling interest test is itself derived from
existing constitutional jurisprudence, and is the highest level
of scrutiny given to a government act alleged to infringe on a
constitutional right. The compelling interest test and its
twin, strict scrutiny, are sometimes described as ``strict in
theory but fatal in fact.'' \5\ I truly question whether it is
wise to command through constitutional text the application of
such a high standard to all future facts and circumstances.
---------------------------------------------------------------------------
\5\ See, e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980).
---------------------------------------------------------------------------
I do not believe that suggestions of utilizing another
standard in place of the ``compelling interest'' test offer a
solution, however, for such suggestions would replace one
inflexible standard with another. Moreover, the ``significant
interest'' test that some have proposed is uncharted waters. By
adopting such a standard, we would be imbedding into the
Constitution a new and untried term, ensuring years of
litigation to resolve its meaning.
My view is that it is far better to leave the article
silent on the standard of review, rather than enshrine any
particular level of scrutiny in the text of the Constitution.
Moreover, I believe it may not be necessary to provide a clause
permitting the enactment of exceptions at all. It is axiomatic
that no right is absolute, even though no other right
guaranteed by the Constitution explicitly permits the enactment
of exceptions. By way of example, the first amendment free
speech guarantee has been interpreted to allow reasonable time,
place and manner restrictions.\6\ The courts have generally
utilized a pragmatic review in establishing whether a
particular government act was a valid exception to a guaranteed
right, establishing standards of review appropriate to the
right and the circumstances. It may be best to follow this
course again, leaving exceptions to be developed in the natural
evolution of the law, rather than to attempt with one hand to
empower Congress (and only Congress) to provide exceptions, and
with the other hand constrain that power with a too-rigid
standard.
---------------------------------------------------------------------------
\6\ See, e.g., Clark v. Community for Creative Non-Violence, 468
U.S. 288 (1984). See also Walz v. Tax Commissioner of New York, 397
U.S. 664, 668-9 (1970) (*The Court has struggled to find a neutral
course between the two religion clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical extreme,
would tend to clash with the other.'')
---------------------------------------------------------------------------
Reference to ``Immunities''
Section 5 of the proposed amendment provides for the cases
in which the ``rights and immunities'' established by the
amendment will apply. In my view, a significant problem with
this section is the use of the term ``immunities,'' which is
new to this version of the amendment and does not refer to any
specific ``immunity'' named in the article. Indeed, the rest of
the article refers only to ``rights,'' and refers nowhere to
``immunities''. It is unclear to what this term is intended to
refer. Considering the problems courts have had in defining and
applying this term elsewhere in the Constitution, its use here
is problematic, and deserves further consideration.
In conclusion, I am strongly in favor of victims' rights,
and believe a Federal constitutional amendment to be an
appropriate national response. ``Appropriate,'' however, does
not, in my view, mean ``necessary.'' I believe that many of the
objectives of the proposed amendment could in fact be
accomplished through a Federal statute, State statutes, or
State constitutional amendments. Indeed, our experience with
State constitutional amendments is comparatively young. It may
well be better to allow the jurisprudence to develop on these
before we take the momentous step of amending the Federal
Constitution.
Finally, I note that a statutory approach would carry less
peril of upsetting established State constitutional amendments
now taking root to guarantee the rights of crime victims. A
statute would also be more readily amendable should experience
dictate that changes are needed, and, of course, would not
preclude the later adoption of a constitutional amendment if
the statute indeed proved insufficient or unable to protect the
rights of victims. Indeed, this is the same course we have
taken with the protection of the flag from desecration--we
first enacted a Federal statute, and, when the Supreme Court
held it unconstitutional, and thus clearly inadequate to the
purpose, have proposed amending the Constitution.
However, if an amendment is to be considered, we must be
sure that its wording is clear, exact, and unambiguous. The
concerns I have outlined here are but the most serious concerns
I have with specific provisions of S.J. Res. 44. They are,
however, emblematic of the textual problems I feel must be
addressed before this amendment is approved by Congress and
submitted to the States for ratification.
Orrin G. Hatch.
XI. MINORITY VIEWS OF SENATOR THOMPSON
Amending our Constitution is a very serious matter. Without
question, the Framers intended that we would take such
momentous steps from time to time, as Article V provides. But
just as surely, those provisions are to be used only when
clearly warranted. I believe we must be able to satisfy two
fundamental questions before we take that step. First, is there
a problem unaddressed that should be redressed at Federal
level? Second, if so, is a constitutional amendment the
appropriate solution? Because I believe that the answer to
those questions is no, I am compelled to oppose this proposal.
At the outset, I want to make clear that I fully support
the essential goal of S.J. Res. 44--to protect the countless
victims of crime in America. On a daily basis, we see heart-
breaking stories about violent crime on television and in the
newspapers. Sometimes, crime cuts closer to home in the lives
of our friends or our families. It is all the more troubling
when crime victims are then forgotten by prosecutors, judges,
and others in our criminal justice system. Victims of crime
deserve much better.
As much as I agree with the intent of this proposal, for
constitutional and practical reasons, I believe that this
constitutional amendment is not the best course to take. I am
concerned that this amendment could have serious unintended
consequences, including hampering prosecutions; interfering
with the State's interest in punishment; imposing large costs
on law enforcement agencies; tying up the courts in litigation;
undermining defendants' rights; and unintentionally harming
victims' interests under some circumstances.\1\ I explained
many of these concerns at the Committee markup,\2\ and they are
discussed at length in the Minority Views. Therefore, I will
not rehash them here. Rather, I will focus my comments on the
serious implications of this proposal for our federalist system
of government.
---------------------------------------------------------------------------
\1\ See, e.g., Letter from Thomas W. Hillier, II, Federal Public
Defender, W. Dist. of Wash., to Sen. Orrin Hatch, Chairman, Senate
Comm. on the Judiciary (June 10, 1998); Letter from William L. Murphy,
President, National District Attorneys Association, to Sen. Fred
Thompson (May 27, 1998); Letter from Fred E. Scoralick, President,
National Sheriffs' Association, to Sen. Orrin Hatch, Chairman, Senate
Comm. on the Judiciary (June 17, 1998); Letter from Philip B. Heyman,
Professor of Law, Harvard Law School, to Sen. Edward Kennedy (Sept. 4,
1996).
\2\ Executive Comm. Meeting, Senate Comm. on the Judiciary, at 22-
37 (July 7, 1998) (statement of Sen. Fred Thompson).
---------------------------------------------------------------------------
Federalism lies at the heart of our Democracy. It is the
principle that limiting the powers of the national government
preserves liberty and that government close to the people works
best. Ironically, this proposed constitutional amendment is
ascendant at the very time that our federalist system of
government is working as the Founding Fathers intended. The
States--the laboratories of democracy--are busy conducting
experiments to solve the complex problem of protecting crime
victims. Every State has passed victims' rights legislation,
including my home State of Tennessee.\3\ Twenty-nine States
have amended their constitutions to protect crime victims.
---------------------------------------------------------------------------
\3\ See ``Victims' Bill of Rights,'' 40 Tenn. Code Ann. Sec. 40-38-
101 et seq. (1997); ``Victims' Impact Statement Act,'' 40 Tenn. Code
Ann. Sec. 40-38-201 et seq. (1997).
---------------------------------------------------------------------------
Our federalist system is not only faster and more effective
than amending the Constitution, but it also offers the great
benefit of flexibility. The victims' rights movement is
challenging us to fundamentally rethink our approach to
criminal justice. Traditionally, our criminal justice system
has focused on the State's interest in punishment versus the
rights of the accused. Now we are being asked to graft into
this adversarial system constitutional rights of crime victims.
It may well be time to rethink our criminal justice system.
But, if so, the experimentation and flexibility that the States
offer are all the more important. If the current balance
between the interests of the State and the accused is complex--
and it surely is--then our adversarial system will be vastly
complicated by a three-way relationship among the State, the
accused, and victims. Each crime is different, and balancing
these three interests on a case-by-case basis would be no small
task. It is critical we learn from the experience of the States
before deciding to add new victims' rights to the
Constitution.\4\
---------------------------------------------------------------------------
\4\ See Letter from Chris Whipple, Acting Executive Director,
Victim Services, to Sen. Orrin Hatch, Chairman, Senate Comm. on the
Judiciary (June 9, 1998).
---------------------------------------------------------------------------
Constitutional amendments are not only hard to enact; they
are hard to change. S.J. Res. 44 assumes that the Congress can
discern the one ``correct'' answer to this complex problem. The
many diverse State approaches to this problem, and the
countless redrafts of this proposal, belie the notion that we
have discerned such a single correct answer.
Beyond these practical problems, I believe that the
structure and intent of the Constitution dictates that the
States should take the leading role on victims' rights. The
Framers' limited view of the Federal Government is reflected in
the text of the Constitution. It authorizes only certain
enumerated powers for the Federal Government, and it limits the
exercise of those powers. Those limitations, reflected in the
Bill of Rights, include the preservation of the rights of the
criminally accused and State sovereignty.
The Framers' view of a limited Federal Government is
underscored by the 10th amendment, which provides, ``The powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.'' The Framers left the police
power with the States, which they viewed as closer to the
people and less likely to abuse such a vast power. There is no
general Federal police power. See Lopez v. United States, 514
U.S. 549 (1995). Accordingly, it seems incongruous to have a
Federal constitutional amendment addressing victims' rights
when the Constitution itself left only a relatively small role
for the Federal Government to address the issue of crime.\5\
---------------------------------------------------------------------------
\5\ See Testimony of Roger Pilon, Senior Fellow and Director,
Center for Constitutional Studies, Cato Institute, before the Senate
Comm. on the Judiciary (Apr. 28, 1998).
---------------------------------------------------------------------------
It is all the more troubling that this proposal co-opts the
States by directing them how to run their criminal justice
systems. In doing so, this proposal would constitutionalize
numerous unfunded mandates. These affirmative obligations of
the States resemble entitlements that are not consistent with
the Framers' view of a limited Federal Government.
S.J. Res. 44 also could open a Pandora's box of Federal
court interference in State criminal proceedings.\6\ While S.J.
Res. 44 does not offer victims the opportunity to sue for
damages to vindicate their rights, it does allow them to seek
injunctive or declaratory relief, and perhaps writs of
mandamus. There also could be large class actions against State
authorities. This could lead to disruptive and costly Federal
court intrusion into State criminal justice systems.
---------------------------------------------------------------------------
\6\ See Letter from Judge George P. Kazen, Chair, Committee on
Criminal Law, Judicial Conference of the United States, to Sen. Patrick
Leahy, Ranking Member, Senate Comm. on the Judiciary (Apr. 17, 1997).
---------------------------------------------------------------------------
Indeed, this proposal so seriously interferes with State
sovereignty that I do not think that it would pass muster as a
Federal statute because such a statute would violate the Tenth
Amendment. See Printz v. United States, 117 S. Ct. 2365 (1997)
(Congress may not command State officers to administer or
enforce a Federal regulatory program); New York v. United
States, 505 U.S. 144 (1992) (the Federal Government may not
compel the States to enact or enforce a Federal regulatory
program). I cannot help but see in this proposal a dramatic
arrogation of Federal power. We are confronted with the
unnerving question of whether we effectively will amend the
10th amendment and carve away State sovereignty. I cannot
support that.
As Justice Brandeis once stated, ``Denial of the right to
experiment may be fraught with serious consequences to the
Nation. It is one of the happy incidents of the Federal system
that a single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.'' \7\ I do
not take lightly the genuine motivations for this proposal. But
amending the Constitution would have far-reaching impacts, and
we must not lose sight of the potential consequences of our
action. In the end, we must not lose sight of the limits on our
power, nor the proper respect the States so richly deserve.
---------------------------------------------------------------------------
\7\ New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting).
---------------------------------------------------------------------------
Fred Thompson.
XII. MINORITY VIEWS OF SENATORS LEAHY, KENNEDY, AND KOHL
I. Introduction
Never before in the history of the Republic have we passed
a constitutional amendment to guarantee rights to one group of
citizens at the expense of a powerless minority. Never before
in the history of the Republic have we passed a constitutional
amendment to guarantee rights that every State is already
scrambling to protect. Never before in the history of the
Republic have we passed a constitutional amendment to guarantee
rights that intrude so technically into such a wide area of
law, and with such serious implications for the Bill of Rights.
This amendment is not, however, without precedent. There
has been one instance in our history in which we amended the
Constitution without carefully thinking through the
consequences. Andrew Volstead led the Congress to passage of
the 18th amendment, and opened a Pandora's box of unintended
consequences. The 18th amendment was appealing and entirely
well meaning. It also was an utter failure that the American
people were required to undo with the 21st amendment.
The disaster of Prohibition should remind us that
constitutional amendments based on sentiment are a dangerous
business. It would be well for Congress to heed the words of
James Madison, when he urged that amendments be reserved for
``certain great and extraordinary occasions,'' and to heed the
text of Article V, which reserves amendments for things that
are ``necessary.''
The treatment of crime victims certainly is of central
importance to a civilized society, and we must never simply
``pass by on the other side.'' The question is not whether we
should help victims, but how. It long has been and is now open
to Congress immediately to pass a statute that would provide
full victims' right throughout the Federal system, and at the
same time provide the resources necessary to assist the States
in giving force to their own, locally-tailored statutes and
constitutional provisions. Instead, the proponents of S.J. Res.
44 invite Congress to delay relief for victims with a complex
and convoluted amendment to our fundamental law that is less a
remedy than another Pandora's box which, like the 18th
amendment, will loose a host of unintended consequences and
ultimately force the American people to elect a Congress to
undo this mischief with another constitutional amendment.
The majority appears to believe that it can control some of
the inevitable damage through explications in the Committee
report about how the amendment will operate. We doubt that the
courts will care much for such efforts. They will look first to
the plain meaning of the text of the amendment. They will seek
guidance in Supreme Court precedents interpreting provisions
using similar language. They will not resort to the majority
report to interpret wording that is clearly understood in
current legal and political circles.
Any interpretative value of the majority report is further
undermined by the inconsistency of the document, which in some
situations narrows the impact of the amendment (e.g., by
construing away the unpopular consequences for battered women
and incarcerated victims) and in other circumstances expands
the impact of the amendment (e.g., by devising a role for
States in implementing the amendment and conjuring up a way for
victims to sue for damages). Such inconsistency renders the
majority report politically expedient, but legally meaningless.
Weaknesses in the text of the amendment cannot with any
confidence be cured by the majority's views, especially not
when the majority's analysis is so directly at odds with the
amendment's plain language and with settled constitutional
doctrine.
II. It Is Not Necessary To Amend The Constitution To Protect Victims'
Rights
Every proposal to amend our Federal Constitution bears a
very heavy burden. Amendment is appropriate only when there is
a pressing need that cannot be addressed by other means. No
such need exists in order to protect the rights of crime
victims. The proposed amendment therefore fails the standard
contained in Article V of the Constitution: it is not
``necessary.''
a. congress and the states have the power to protect victims' rights
without a federal constitutional amendment
Nothing in our current Constitution inhibits the enactment
of State or Federal laws that protect crime victims. On the
contrary, the Constitution is generally supportive of efforts
to give victims a greater voice in the criminal justice system.
No Victims' Rights Amendment was necessary, for example, to
secure a role for victims at pretrial detention and capital
sentencing hearings.\1\
---------------------------------------------------------------------------
\1\ United States v. Salerno, 481 U.S. 739 (1987) (due process and
excessive bail clauses do not prohibit courts from considering safety
of victims in making pretrial detention decision); Payne v. Tennessee,
501 U.S. 808 (1991) (Eighth Amendment does not prohibit jury from
considering victim impact statement at sentencing phase of capital
trial).
---------------------------------------------------------------------------
A letter sent to Chairman Hatch by over 450 professors of
constitutional and criminal law states that ``[v]irtually every
right contained in the proposed victims rights amendment can be
safeguarded in federal and state laws.'' \2\ Even Professor
Laurence Tribe, an outspoken supporter of a Victims' Rights
Amendment, has acknowledged that ``the states and Congress,
within their respective jurisdictions, already have ample
affirmative authority to enact rules protecting these
[victims'] rights.'' \3\
---------------------------------------------------------------------------
\2\ Letter from Law Professors, reprinted in A Proposed
Constitutional Amendment to Protect Victims of Crime, Hearing on S.J.
Res. 6 before the Senate Comm. on the Judiciary, 105th Cong., 1st
Sess., at 140 (Apr. 16, 1997) [hereinafter ``Hearing of Apr. 16,
1997''].
\3\ Id. at 12 (statement of Laurence H. Tribe).
---------------------------------------------------------------------------
We asked Professor Paul Cassell, another leading proponent
of S.J. Res. 44, to list all the appellate cases in which a
defendant's rights under the Federal Constitution were held to
supersede a victim's rights under a Federal or State victims'
rights provision. He failed to identify any. More recently,
Professor Robert Mosteller challenged the pro-amendment
participants in a symposium on victims' rights, including
Professor Cassell, to provide such cases. They referred him to
a single decision by an intermediate appellate court that would
not be affected by passage of S.J. Res. 44.\4\ Where is the
objectionable body of law that might justify the extraordinary
step of amending the United States Constitution?
---------------------------------------------------------------------------
\4\ See Arizona ex rel. Romley v. Superior Court, 836 P.2d 445
(Ariz. Ct. App. 1992). Romley holds that a victim's right under the
Arizona Constitution to refuse discovery requests by the defendant must
yield to the defendant's due process right. Far from advancing the
cause of constitutional amendment, however, the case illustrates the
danger of empowering certain self-proclaimed victims at the expense of
the unconvicted accused. See infra Part V.A.
---------------------------------------------------------------------------
Given our ability to proceed without amending the
Constitution, one might reasonably wonder why so much time and
effort has been expended on the project. We heard one
explanation during the Committee markup. Quoting Professor
Tribe, one of the amendment's sponsors told us that the ``real
problem'' with existing statutes and State constitutional
amendments is that they ``provide too little real protection
whenever they come into conflict with * * * bureaucratic habit,
traditional indifference, sheer inertia, or any mention of an
accused's rights, regardless of whether those rights are
genuinely threatened.'' \5\ The majority report offers the same
remarkable rationale.
---------------------------------------------------------------------------
\5\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th
Cong., 2d Sess., at 23-24 (Jun. 25, 1998) (statement of Sen. Jon L.
Kyl).
---------------------------------------------------------------------------
Have we so lost confidence in our ability to govern and to
regulate the conduct of public officials sworn to follow the
law that we now insist on amending our basic charter of
government in order to overcome habit, indifference and
inertia? Do we really believe that a constitutional amendment
will accomplish this objective? Habit, indifference, inertia--
none is automatically extinguished by the existence of a
constitutional amendment. We are especially unlikely to defeat
them with a constitutional amendment like S.J. Res. 44, which
creates rights riddled with qualifications and exceptions and
prohibits the award of damages for their violation.
Professor Lynne Henderson, herself a victim of a violent
crime, told the Committee that what is needed are good training
programs with adequate funding, not more empty promises.\6\ We
agree that the only way to change entrenched attitudes toward
victims' rights is through systematic re-training and re-
education of everyone who works with victims' prosecutors and
law enforcement officers, judges and court personnel, victim's
rights advocates, trauma psychologists and social workers. But
when we get to this end, why undertake a massive effort to
amend our Constitution if what we really need to do is spend
time and money on training and education?
---------------------------------------------------------------------------
\6\ Statement of Lynne Henderson regarding S.J. Res. 6, prepared
for the Senate Comm. on the Judiciary (Apr. 14, 1997).
---------------------------------------------------------------------------
B. STATUTES ARE PREFERABLE TO AMENDING THE FEDERAL CONSTITUTION
We believe that ordinary legislation not only is sufficient
to correct any deficiencies in the provision of victims rights
that currently exist, but also is vastly preferable to amending
the Constitution. Indeed, the statutory approach is favored by
a broad cross-section of the participants in the criminal
justice system.
The U.S. Judicial Conference favors the statutory approach
because it ``would have the virtue of making any provisions in
the bill which appeared mistaken by hindsight to be amended by
a simple act of Congress.'' \7\ The Conference's Committee on
Criminal Law has identified ``a number of distinct advantages''
that the statutory approach has over a constitutional
amendment:
---------------------------------------------------------------------------
\7\ Letter from William H. Rehnquist, Chief Justice, U.S. Supreme
Court, to Judy Clarke, President, National Assn. of Criminal Defense
Lawyers (Apr. 23, 1997).
Of critical importance, such an approach is
significantly more flexible. It would more easily
accommodate a measured approach, and allow for ``fine
tuning'' if deemed necessary or desirable by Congress
after the various concepts in the Act are applied in
actual cases across the country. At that point,
Congress would have a much clearer picture of which
concepts are effective, which are not, and which might
actually be counterproductive.\8\
---------------------------------------------------------------------------
\8\ Letter from George P. Kazen, Chief U.S. District Judge, Chair,
Committee on Criminal Law of the Judicial Conference of the United
States, to Sen. Edward M. Kennedy, Senate Comm. on the Judiciary, at 2
(Apr. 17, 1997).
The State courts also favor a statutory approach to
protecting victims' rights. The Conference of Chief Justices
has underscored ``[t]he inherent prudence of a statutory
approach,'' which could be refined as appropriate and ``holds a
more immediate advantage to victims who, under the proposed
amendment approach, may wait years for relief during the
lengthy and uncertain ratification process.'' \9\
---------------------------------------------------------------------------
\9\ Statement of the Conference of Chief Justices regarding H.J.
Res. 71 and H.R. 1322, prepared for the House Comm. on the Judiciary
(June 25, 1997).
---------------------------------------------------------------------------
Other major organizations, including several victims
groups, concur. For example, the National Clearinghouse for the
Defense of Battered Women says that statutory alternatives are
``more suitable'' to addressing the complex problems facing
crime victims.\10\ The National Network to End Domestic
Violence concludes that ``a constitutional amendment is not the
most effective or appropriate legislative vehicle by which the
government may eradicate the real problems that victims
experience when seeking justice,'' and urges policymakers to
explore less drastic alternatives.\11\ The National
Organization for Women Legal Defense and Education Fund writes
that the proposed constitutional amendment ``raises concerns
that outweigh its benefits,'' but ``fully endorse[s] * * *
enactment and enforcement of additional statutory reform that
provide important protections for [victims].''\12\ The Cato
Institute, the National Sheriffs' Association, the National
Association of Criminal Defense Attorneys, the National Legal
Aid and Defenders Association, Victim Services, Murder Victims
Families for Reconciliation, the NAACP, the ACLU, the Youth Law
Center, and over 450 law professors--all believe that the
treatment and role of victims in the criminal justice process
can and should be enhanced, but not by amending the Federal
Constitution.
---------------------------------------------------------------------------
\10\ Hearing of Apr. 16, 1997, at 161, 162 (statement of National
Clearinghouse for the Defense of Battered Women).
\11\ Id. at 165 (statement of National Network to End Domestic
Violence).
\12\ Id. at 168 (statement of NOW Legal Defense and Education
Fund).
---------------------------------------------------------------------------
The widespread support for enacting victims' rights by
statute arises in part from evidence that statutes work--they
can adequately ensure that victims of crimes are accorded
important rights in the criminal justice process. We should not
diminish the majesty of the Constitution of the United States
when ordinary legislation is more easily enacted, more easily
corrected or clarified, more directly applied and implemented,
and more able to provide specific, effective remedies.
C. AN EXTENSIVE FRAMEWORK OF VICTIMS' RIGHTS HAS ALREADY BEEN CREATED
In the past two decades, the victims' movement has made
historic gains in addressing the needs of crime victims, on
both the national and local level. An extensive framework of
victims' rights has been created through Federal and State
legislation and amendments to State constitutions. The majority
report asserts, based on scant authority, that existing laws
have not ``fully succeeded'' in ensuring ``comprehensive''
protection of victims' rights. But given the extraordinary
political popularity of the victims' movement, there is every
reason to believe that the legislative process will continue to
be responsive to enhancing victims' interests, so that there is
simply no need to amend the Constitution to accomplish this.
1. Federal crime victims initiatives
At the Federal level, Congress has enacted several major
laws to grant broader protections and provide more extensive
services for victims of crime. The first such legislation was
the Victim and Witness Protection Act of 1982,\13\ which
provided for victim restitution and the use of victim impact
statements at sentencing in Federal cases, and the Victims of
Crime Act of 1984,\14\ which encouraged the States to maintain
programs that serve victims of crime. The Victims of Crime Act
also established a Crime Victims' Fund, which matches 35
percent of the money paid by States for victim compensation
awards.
---------------------------------------------------------------------------
\13\ P.L. 97-291, Oct. 12, 1982, 96 Stat. 1248.
\14\ P.L. 98-473, Title I, ch. XIV, Oct. 12, 1984, 99 Stat. 1837.
---------------------------------------------------------------------------
In 1990, Congress enacted the Victims' Rights and
Restitution Act.\15\ This Act increased funding for victim
compensation and assistance, and codified a victims' Bill of
Rights in the Federal justice system. Federal law enforcement
agencies must make their best efforts to accord crime victims
with the following rights: (1) to be treated with fairness and
respect; (2) to be protected from their accused offenders; (3)
to be notified of court proceedings; (4) to be present at
public court proceedings related to the offense under certain
conditions; (5) to confer with the government attorney assigned
to the case; (6) to receive restitution; and (7) to receive
information about the conviction, sentencing, imprisonment, and
release of the offender.
---------------------------------------------------------------------------
\15\ P.L. 101-647, Title V, Nov. 29, 1990, 104 Stat. 4789.
---------------------------------------------------------------------------
The Violence Against Women Act of 1994\16\ made tens of
millions of dollars available to the States through STOP
(Services, Training, Officers, Prosecutors) grants for law
enforcement, prosecution and victims services to prevent and
respond to violence against women, including domestic violence.
A recent study shows that STOP funds are being used for
training of police and prosecutors, resulting in improved
police handling of domestic violence incidents, interagency
coordination, establishment of multi-disciplinary response
teams, and higher conviction rates. Funds are also providing
direct services to victims, resulting in increased victim
cooperation and satisfaction.\17\
---------------------------------------------------------------------------
\16\ P.L. 103-322, Title IV, Sept. 13, 1994, 108 Stat. 1796.
\17\ See 1998 Annual Report: Evaluation of the S.T.O.P. Formula
Grants Under the Violence Against Women Act of 1994 (June 12, 1998).
---------------------------------------------------------------------------
The Mandatory Victims Restitution Act of 1996 \18\ required
courts to order restitution when sentencing defendants for
certain offenses. As part of the same crime bill, the Justice
for Victims of Terrorism Act of 1996\19\ appropriated funds to
assist and compensate victims of terrorism and mass violence.
The Act also filled a gap in our law for residents of the
United States who are victims of terrorism and mass violence
that occur outside the borders of the United States. In
addition, Congress provided greater flexibility to our State
and local victims' assistance programs and some greater
certainty so they can know that our commitment to victims'
programs will not wax and wane with current events. And we were
able to raise the assessments on those convicted of Federal
crimes in order to fund the needs of crime victims.
---------------------------------------------------------------------------
\18\ P.L. 104-132, Title IIA, Apr. 24, 1996, 110 Stat. 1214.
\19\ P.L. 104-132, Title IIC, Apr. 24, 1996, 110 Stat. 1214.
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The Victim Rights Clarification Act of 1997 \20\ reversed a
presumption against crime victims observing any part of the
trial proceedings if they were likely to testify during the
sentencing hearing. Specifically, this legislation prohibited
courts from excluding victims from the trial on the ground that
they might be called to provide a victim impact statement at
the sentencing, and from excluding a victim impact statement on
the ground that the victim had observed the trial. As a result
of this legislation, victims of the Oklahoma City bombing were
allowed both to observe the trial of Timothy McVeigh and to
provide victim impact testimony.
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\20\ P.L. 105-6, Sec. 2(a), Mar. 19, 1997, 111 Stat. 12.
---------------------------------------------------------------------------
Most recently, in this session, Congress passed the Crime
Victims With Disabilities Awareness Act (S. 1976). This
legislation will focus attention on the presently overlooked
needs of crime victims with disabilities. It proposes to have
the National Academy of Sciences conduct research so as to
increase public awareness of victims of crimes with
disabilities, to understand the nature and extent of such
crimes, and to develop strategies to address the safety and
needs of these peculiarly vulnerable victims.
Despite the gains that have been made through Federal
statutes, some Members of Congress and some victims' rights
groups continue to assert that statutes do not work to provide
victims with certain participatory rights. For instance, during
Committee deliberations on S.J. Res. 44 on June 25, 1998, two
sponsors of the bill cited the Victim Rights Clarification Act
as evidence that statutes cannot adequately protect a victim's
rights. In particular, Senator Feinstein stated that the trial
judge in the Oklahoma City bombing case ``chose to ignore [the
Act], just ignored it. * * * If the victim was present, the
victim didn't have the right to make a statement.\21\ Senator
Kyl made similar statements suggesting that Judge Matsch had
refused to enforce the Act.\22\
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\21\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th
Cong., 2d Sess., at 16 (Jun. 25, 1998).
\22\ Id. at 25.
---------------------------------------------------------------------------
Given such assertions, we believe it important to look at
how the Victim Right Clarification Act was actually applied in
the Oklahoma City case. On June 26, 1996, Judge Matsch held
that potential witnesses at any penalty hearing were excluded
from pretrial proceedings and the trial to avoid any influence
from that experience on their testimony. Congress proceeded to
pass the Victim Rights Clarification Act, which the President
signed into law on March 19, 1997. One week later, Judge Matsch
reversed his exclusionary order and permitted observation of
the trial proceedings by potential penalty phase victim impact
witnesses.\23\ In other words, Judge Matsch did exactly what
the statute told him to do. Not one victim was prevented from
testifying at Timothy McVeigh's sentencing hearing on the
ground that he or she had observed part of the trial.
---------------------------------------------------------------------------
\23\ United States v. McVeigh, 958 F. Supp. 512, 515 (1997).
---------------------------------------------------------------------------
So it is not accurate to assert that the Victim Rights
Clarification Act did not work, or that statutes in general
cannot adequately protect victims' rights. In fact, the Victim
Rights Clarification Act is a paradigmatic example of how
statutes, when properly crafted, can and do work. We are
certain that additional clarifications would find judges
equally receptive and willing to grant victims the rights
Congress intends.
2. State crime victims initiatives
The individual States have also done their part in
enhancing the role and protection of crime victims. Every State
and the District of Columbia has some type of statutory
provision providing for increased victims' rights, including
some or all of the rights enumerated in S.J. Res. 44, as well
as others. In addition, some 29 States have amended their State
constitutions to provide a variety of protections and rights
for crime victims.
While there may be room for improvement in the States'
administration of their existing victims' rights laws, in
general, victims and criminal justice personnel believe that
these laws are sufficient to ensure victims' rights. For
example, in 1989, the American Bar Association's Victim Witness
Project analyzed the impact of State victims' rights laws on
criminal justice practitioners and victims. The researchers
found that prosecutors, judges, probation officers, and victim/
witness advocates were almost universally satisfied with the
State laws. They also found that those practitioners who had
concerns about existing victims' rights provisions were
generally dissatisfied with levels of funding for victims'
services. With regard to victim satisfaction, the researchers
concluded that ``many victims in States with victims rights
legislation believe the criminal justice system is doing a
satisfactory job of keeping them informed, providing them an
opportunity to have a say in certain decisions and notifying
them about case outcomes.'' \24\
---------------------------------------------------------------------------
\24\ Susan W. Hillenbrand & Barbara E. Smith, Victims Rights
Legislation: An Assessment of its Impact on Criminal Justice
Practitioners and Victims, American Bar Assn. Criminal Justice Section
Victim Witness Program, at 26 (May 1989).
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Since 1989, States have continued to strengthen their
victims' rights provisions and services. According to a 1997
report prepared by the National Criminal Justice Association
with support from the Justice Department's Office for Victims
of Crime (``OVC''): ``It appears evident that the trend to
expand the statutory rights of victims on the State level is
continuing.'' \25\ A 1995 report by the State of Arizona's
auditor general found that in the four counties studied, ``many
agencies are offering victim services above and beyond those
mandated by the [Arizona Victims' Rights Implementation] Act,
primarily at their own expense.'' \26\
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\25\ National Criminal Justice Assn., Victims Rights Compliance
Efforts: Experiences in Three States (no date).
\26\ Victims' Rights Compensation and Victim-Witness Programs in
Maricopa, Pima, Coconino, and Cochise Counties, Report to the Arizona
State Legislature by the auditor general (Dec. 1994).
---------------------------------------------------------------------------
The majority report relies heavily on two recent studies
that found current victims' rights laws inadequate. The first
study was conducted by the National Victim Center (``NVC'')--a
strong proponent of a Victims' Rights Amendment.\27\ Insofar as
the NVC study can be read to have meaning, it suggests that it
is money and additional State law provisions that are needed,
not a Federal constitutional amendment. The ``violations'' it
discusses are failures of enforcement, not instances of
defendants' rights trumping the rights of victims.
---------------------------------------------------------------------------
\27\ NVC, Statutory and Constitutional Protection of Victims'
Rights: Implementation and Impact on Crime Victims--Subreport: Crime
Victim Responses Regarding Victims' Rights (Apr. 15, 1997).
---------------------------------------------------------------------------
The NVC study does not provide a clear picture of the
impact of State victims' rights laws, however, because its
methodology is seriously flawed. First, the researchers relied
exclusively on uncorroborated reports by crime victims
regarding their personal experiences; there was no attempt to
verify that victims who claimed that they had been denied
rights had, in fact, been denied rights. Second, the
researchers surveyed victims in only four States--and they do
not reveal which four States. Third, the researchers selected
the four States based on a ranking of State statutory and
constitutional victims rights provisions--but, again, they do
not reveal what criteria they used for ranking the States.
Fourth, the researchers concluded that State provisions are not
enough because victims are not universally satisfied with the
quality of treatment they receive. Yet the researchers did not
appear to take into consideration important factors such as the
structure of the various bureaucracies or the availability of
financial resources or the levels of training among State
criminal justice personnel, all of which may have a dramatic
impact on the treatment of victims from State to State and may
be significantly related to victim dissatisfaction. Such
manifest flaws in the NVC's methodology led the OVC to conclude
that ``more research would be needed before any policy
recommendations could be made based on the data.'' \28\
---------------------------------------------------------------------------
\28\ Letter from Kathryn M. Turman, Acting Director, OVC, to Robert
P. Mosteller, Professor, Duke University School of Law (Sept. 18,
1998). An earlier intra-office memorandum memorializes the Justice
Department`s wish that the complete report not be published at all.
Memorandum from Sam McQuade, Program Manager, National Institute of
Justice, to Jeremy Travis, Director, National Institute of Justice (May
16, 1997) (``OVC has requested that the complete report NOT be
published because, in its view, the report contains contradictory
information. * * *'') (emphasis in original).
---------------------------------------------------------------------------
The second study cited in the majority report was compiled
by the OVC based on anecdotal information from ``the field''--
that is, ``crime victims themselves and representatives of the
agencies and organizations that serve them.'' \29\ Once again,
however, the deficiencies identified in the study--deficiencies
in the implementation of State victims' rights laws and in the
scope of some States' provisions--can be corrected without a
Federal constitutional amendment.
---------------------------------------------------------------------------
\29\ OVC, New Directions from the Field: Victims' Rights and
Services for the 21st Century vii (May 1998).
---------------------------------------------------------------------------
There has been no impartial, comprehensive analysis done to
indicate that victims' rights cannot adequately be protected by
State and Federal laws. Before we take the grave step of
amending the Constitution, we should know precisely how the
Constitution fails to protect victims' rights. We should be
certain that Federal statutes are not working and can not work,
no matter how carefully crafted. We should have evidence that
State constitutional provisions and statutes are not and can
not do the job. Further study, we believe, will show that
solutions short of amendment can provide effective and
meaningful relief to crime victims.
D. THE CRIMINAL JUSTICE SYSTEM DOES NOT NEED TO BE ``BALANCED''
The majority report subscribes to the popular canard that
we need a Victims' Rights Amendment to correct an ``imbalance''
in our constitutional structure. According to this argument,
the criminal justice system is improperly tilted in favor of
criminal defendants and against victims' interests, as
evidenced by the fact that the Constitution enumerates several
rights for the accused and none, specifically, for the victim.
While aesthetically pleasing, however, the concept of
``balance'' makes little sense in this context. The paramount
purpose of a criminal trial is to determine the guilt or
innocence of the accused, not to make victims whole. The
interests of the victim are protected by the right to bring a
civil suit against the accused, by court-ordered restitution if
the accused is convicted, by victim compensation programs, and,
most importantly, by our well-considered tradition of the
public prosecutor.
Of course, the public prosecutors of the United States
represent ``the people,'' not just the individual crime victim;
they are required to seek justice for all, not individual
justice or revenge. We have historically and proudly eschewed
private criminal prosecutions based on our common sense of
democracy. That the prosecutor's duty is to do justice may make
the system appear unequal, but it is fundamentally sound: the
interests of the people and the interests of the victim are
often identical, but when they diverge, it is appropriate for
the public prosector to pursue the interests of the people.
One crime victim who testified before the Committee against
the proposed amendment made this point eloquently:
Victims are citizens and people first. Unless one is
defined solely and for all time by one's status as a
victim, one has an interest in a free and democratic
society that honors individual rights, including the
rights of criminal defendants. We all, therefore, have
an interest in the fairness of the criminal justice
system and the manner in which the State treats its
most disfavored citizens.\30\
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\30\ Statement of Lynne Henderson regarding S.J. Res. 6, prepared
for the Senate Comm. on the Judiciary, at 19 (Apr. 14, 1997) (emphases
in original).
The majority report itself recognizes that ``a public trial
is intended to preserve confidence in the judicial system, that
no defendant is denied a fair and just trial.'' This is as it
should be. Victims' voices should be heard, but they should not
be able to make judgments that would take from the rest of us
our sense that justice is being served.
Beyond this, the ``balance'' argument mistakes the
fundamental reason for elevating rights to the constitutional
level. The rights enshrined in the United States Constitution
are designed to protect politically weak and insular minorities
against governmental overreaching or abuse,\31\ not to protect
individuals from each other. When the government unleashes its
prosecutorial power against an accused, it is the accused, not
the victim, who faces the specter of losing his liberty,
property, or even his life. The few and limited rights of the
accused in the Constitution are there precisely because it will
often be unpopular to enforce them so that even when we are
afraid of a rising tide of crime, we will be protected against
our own impulse to take shortcuts that will violate the
essential dignity of the accused and increase the risk of
wrongful conviction. In contrast, there is no need to grant
constitutional protections to a class of citizens that commands
virtually universal sympathy and substantial political power.
---------------------------------------------------------------------------
\31\ Cf. United States v. Carolene Products Co., 304 U.S. 144, 152
n.4 (1938).
---------------------------------------------------------------------------
In the words of Bruce Fein, Deputy Attorney General during
the Reagan Administration:
[C]rime victims have no difficulty in making their
voices heard in the corridors of power; they do not
need protection from the majoritarian political
process, in contrast to criminal defendants whose
popularity characteristically ranks with that of
General William Tecumseh Sherman in Atlanta, GA.\32\
---------------------------------------------------------------------------
\32\ A Proposed Constitutional Amendment to Establish a Bill of
Rights for Crime Victims, Hearing on S.J. Res. 52 before the Senate
Comm. on the Judiciary, 104th Cong., 2d Sess. 100 (Apr. 23, 1996).
---------------------------------------------------------------------------
III. The Proposed Amendment Would Have Dangerous and Uncertain
Consequences for the Nation's Criminal Justice System
While the proposed amendment is at best unnecessary, at
worst, it could help criminals more than it helps victims and
cause the conviction of some who are innocent and wrongly
accused. Passage of S.J. Res. 44 would enshrine new rights in
the Constitution that would fundamentally realign this Nation's
criminal justice system, opening a Pandora's box of dangerous
unintended consequences.
a. the amendment would impair the ability of prosecutors to convict
violent criminals
Since we first began holding hearings on a victims' rights
amendment, prosecutors and other law enforcement authorities
all across the country have cautioned that creating special
constitutional rights for crime victims would have the perverse
effect of impeding the effective prosecution of crime.
1.-Restricting prosecutorial discretion
Most egregiously, the proposed amendment could compromise
prosecutorial discretion and independence by allowing crime
victims to second-guess and effectively dictate policy
decisions made by prosecutors accountable to the public. As the
National District Attorneys Association cautioned, it could
afford victims the ability to place unknowing, and
unacceptable, restrictions on prosecutors while strategic and
tactical decisions are being made about how to proceed with a
case.\33\ A constitutionally-empowered crime victim could
override the professional judgment of the prosecutor concerning
the investigation of the case, the timing of the proceedings,
the disposition of the charges, and the recommendation as to
sentence.
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\33\ Letter from William L. Murphy, President, National District
Attorneys Assn., to Sen. Patrick J. Leahy, Ranking Member, Senate Comm.
on the Judiciary (May 27, 1998).
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Prosecutorial discretion over plea bargaining is
particularly at risk if S.J. Res. 44 passes, for it is here
that the interests of the victim and the broader interests of
the public most often diverge. Prosecutors enter into plea
agreements for many reasons. A prosecutor may need to obtain
the cooperation of a defendant who can bring down an entire
organized crime ring; she may need to protect the identity of
an informant-witness; she may think that the evidence against
the defendant will not convince a jury beyond a reasonable
doubt; she may just want to speed the processes of
adjudication. In each instance, the prosecutor may be acting
contrary to the wishes of the victim, or causing resentment on
the part of one set of victims in order to do rough justice or
provide immediate security to another set of victims.
How will this play out in the courts? A Miami defense
lawyer tells of representing a murder defendant who accepted a
plea offer from the prosecution. The judge refused to accept
the offer after the victim's mother spoke out against it. His
client went to trial and was acquitted.\34\ In California,
relatives of a homicide victim complained to a judge that a
plea bargain struck with the accused shooter was too lenient.
They got what they wanted: withdrawal of the plea and
prosecution of the man on murder charges. But at the close of
the trial, the defendant was acquitted.\35\
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\34\ Robert Fichenberg, The Controversial Victims' Rights
Amendment, 30-OCT Prosecutor 38 (1996).
\35\ See Wayne Wilson, Man acquitted in killing after protest by
victim's kin torpedoed plea deal, The Sacramento Bee (July 2, 1997).
Defendant Loren Joost originally pleaded no contest to voluntary
manslaughter, with the understanding that he would be sentenced to no
more than 6 years in prison. The victim's family sabotaged the plea
agreement by gathering more than 200 signatures denouncing the proposed
settlement as too lenient.
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Under the proposed amendment, well-meaning victims could
obstruct plea proceedings, scuttling plea bargains, as in the
Florida and California cases, or forcing prosecutors to
disclose investigative strategies or weaknesses in their cases
in order to persuade courts to accept victim-contested pleas.
In this and other stages of the criminal process, prosecutors
could be induced to make bad choices, or even to disregard
their professional and ethical obligations, rather than risk
violating a victim's constitutional rights.
There can be no doubt that prosecutors would feel
personally constrained by the proposed amendment. S.J. Res.
44's express prohibition on claims for damages only increases
the likelihood that courts would find other ways to vindicate
its newly-minted rights. Just last year, the U.S. Supreme Court
confirmed that the Federal civil rights laws permit criminal
prosecutions in Federal court of any State official who
willfully and under color of law deprived any person of any
rights secured or protected under the Federal Constitution.\36\
At a minimum, prosecutors who made choices unpopular with
victims would expose themselves to disciplinary action.
Meanwhile, prosecutors who become adversaries to victims
because of judicially-contested conflicts over a case could be
required to recuse themselves from the case in order to defend
themselves in the ancillary proceeding--another unintended
consequence that could have significant adverse effects on the
Nation's criminal justice system.
---------------------------------------------------------------------------
\36\ United States v. Lanier, 520 U.S. 259 (1997).
---------------------------------------------------------------------------
Even the Department of Justice, which supports amending the
Constitution to provide for enhanced victims' rights, has
acknowledged that in at least some situations, affording
special constitutional rights to victims will ``impact on the
prosecutor's discretion and judgment'' and ``adversely affect
the administration of justice.'' \37\ We must not create
entitlements for victims that will tie prosecutors' hands and
cripple law enforcement.
---------------------------------------------------------------------------
\37\ Hearing of Apr. 16, 1997, at 48, 132 (responses of Attorney
General Janet Reno to questions from Sen. Patrick J. Leahy).
---------------------------------------------------------------------------
2. Other adverse consequences
Creating an absolute right for crime victims to attend and
participate in criminal proceedings could raise other serious
problems for law enforcement. Consider the problem of the
victim-witness. In many cases, the victim is the Government's
key witness. If she insists on exercising her constitutional
right to sit through the entire trial, there is a substantial
danger that her testimony will be influenced by hearing and
seeing other evidence concerning the same set of facts. Whether
consciously or unconsciously, she could tailor her testimony to
fit the other evidence.
Apart from the obvious fairness concerns implicated by this
procedure, which facilitates and even encourages collusive and
inaccurate testimony, there is also the danger that the
victim's presence in the courtroom during the presentation of
other evidence will cast doubt on her credibility as a witness.
Defense attorneys will cross-examine victims at length on this
point and argue, credibly, that the victims' testimony was
irretrievably tainted. Inevitably, in some cases, this tactic
will succeed: the jury will discredit or discount the victim's
testimony. Whole cases, or important counts, may be lost in
this way. Indeed, one proponent of the amendment, formerly a
public defender, admitted during the Committee markup that the
proposed amendment could inure to the benefit of
defendants.\38\
---------------------------------------------------------------------------
\38\ Executive Comm. Meeting, Senate Comm. on the Judiciary, at 58
(July 7, 1998) (statement of Sen. Joseph R. Biden, Jr.).
---------------------------------------------------------------------------
As a practical matter, prosecutors may be able to shield
victim testimony from the appearance of taint by putting the
victim on the stand first. But what happens in the event that
the victim is recalled for additional testimony? What happens
in cases involving more than one victim-witness? A forced
reshuffling of the witness list might not help, and could well
compromise the coherence and effectiveness of the prosecution's
presentation to the jury.
Constitutionalizing the right not to be excluded from
public criminal proceedings could also give rise to actions by
victims against decisions to conduct certain proceedings under
seal. This could cause particular disruption in the context of
juvenile justice proceedings, which are often closed to the
public, and to which the proposed amendment expressly applies.
Similarly, it could compromise courtroom closure laws designed
to protect child witnesses.\39\ A no-exclusion rule could also
make it more difficult for prosecutors to do their jobs when,
for example, they need secrecy at some stage of a proceeding in
order to assure the safety of a witness.
---------------------------------------------------------------------------
\39\ See, e.g., 18 U.S.C. Sec. 3509(e).
---------------------------------------------------------------------------
Finally, S.J. Res. 44's creation of a victim's right to
trial ``free from unreasonable delay'' raises another set of
concerns for prosecutors. Suppose a prosecutor in a complex
case needs more time to interview witnesses and prepare for
trial. Could a victim sue to require the immediate commencement
of trial? Forcing prosecutors to try cases before they are
fully prepared plays into the hands of the defense and would
undoubtedly result in many cases being dropped or lost.
b. the amendment could impose tremendous new costs on the system
S.J. Res. 44 could impose a tremendous new administrative
burden on State and Federal law enforcement agencies. These
agencies would be constitutionally required to make reasonable
efforts to identify, locate and notify crime victims in advance
of any public proceeding relating to the crime, as well as most
non-public parole proceedings. The proposed amendment's
broadly-worded mandate covers even the most insignificant
scheduling conference. It extends to parole hearings, appellate
arguments, and habeas corpus proceedings held long after the
trial is concluded, generating additional expenses in re-
locating all the victims. The Attorney General has acknowledged
that instituting a system that would integrate the necessary
investigative information, prosecutive information, court
information, and corrections information would be a complex
undertaking, and costly.\40\
---------------------------------------------------------------------------
\40\ Hearing of Apr. 16, 1997, at 131-32 (responses of Attorney
General Janet Reno to questions from Sen. Strom Thurmond).
---------------------------------------------------------------------------
The potential costs of S.J. Res. 44's constitutionally-
mandated notice requirements alone are staggering, without
regard to the many hidden costs that may flow from the vague
promises that this legislation proposes. Consider as an example
the right of crime victims ``to be heard * * * and to submit a
statement * * * to determine * * * an acceptance of a
negotiated plea.'' The vast majority of all criminal cases are
now resolved by plea bargaining. Although it is unclear how
much weightjudges would be required to give to a victim's
objection to a plea bargain, even a small increase in the number of
cases going to trial would seriously burden prosecutors' offices.
The proliferation of victim participatory rights at all
accusatory and trial stages could give rise to even greater
hidden costs. The right not to be excluded could create a duty
for the Government to provide travel and accommodation costs
for victims who could not otherwise afford to attend. More
significantly, the right to be heard and to submit written
statements could be read to entitle indigent victims to court-
appointed counsel (and, if necessary, a translator or
interpreter) so that they can exercise the right fully and
equally. Indeed, some States that have provided victims' rights
in their constitutions have employed advocates to represent
victims and also created special offices of oversight. If S.J.
Res. 44 were interpreted to provide this sort of protection to
indigent victims--as the sixth amendment has been interpreted
with respect to indigent defendants--then we would be
confronted with a funding problem of enormous proportion.
Cognizant of this problem, the majority report purports to
find a solution in the amendment's prohibition on claims for
damages (``Nothing in this article shall give rise to or
authorize the creation of a claim for damages against [a
governmental entity]''). The report assures us that this
language will ``prevent[] the possibility'' that courts will
construe the amendment to require the appointment of counsel
for indigent victims. However, the report fails to explain how
a limitation on the remedies available for government
violations of victims' rights could even remotely affect a
court's determination regarding the Government's duty to assist
indigent victims in exercising those rights.
Incarcerated victims are another cause for concern. What
happens when one inmate commits a crime of violence against
another inmate? With a constitutional guarantee, as opposed to
a more flexible statutory approach, prison authorities could be
required to transport the victim inmate to all relevant
proceedings. The majority report contradicts itself on this
point. It promises that the proposed amendment ``does not
confer on prisoners any * * * rights to travel outside prison
gates,'' yet asserts, in the very next paragraph: ``A victim's
right not to be excluded will parallel the right of a defendant
to be present during criminal proceedings.'' Which is it?
Regardless, courts will pay little attention to the
majority's commentary when interpreting the comparatively clear
language of S.J. Res. 44. Under established principles of
constitutional law, the court could be compelled to conclude
that the costs involved in transporting prisoners to court to
exercise their constitutional rights as victims are not
sufficiently ``compelling'' to justify an exception under
section 3 of the amendment. The National Sheriffs' Association
has told us that such costs would be difficult to bear:
Under a constitutional amendment, a sheriff would be
required to provide access to all court proceedings and
hearings for the victim inmate. Additionally, the
sheriff would be responsible for the significant costs
of personnel, transportation, and security for the
victim inmate. Sheriffs would find it difficult to meet
the mandates of a victims' rights amendment to the
Constitution involving incarcerated victim inmates.\41\
---------------------------------------------------------------------------
\41\ Letter from National Sheriffs' Assn. to Sen. Orrin G. Hatch,
Chairman, Senate Comm. on the Judiciary (June 17, 1998).
The amendment would also impose a costly, time-consuming
drain on the Nation's courts. In addition to giving an
unspecified class of ``victims'' a right to be heard at
virtually every stage of the criminal process, the amendment is
so vague and rife with ambiguity that it is certain to generate
a host of knotty legal questions requiring decades of
litigation to resolve. Moreover, these questions will be
litigated at every stage of every proceeding, causing the time
for processing what would otherwise be a simple case to
skyrocket. The potential cost to taxpayers is extravagant.
How would all these new costs be funded? Unless funding
adequate to implement the amendment on a nationwide basis
accompanies its passage, resources would, of necessity, be
diverted from other law enforcement and judicial efforts. There
would be less money spent fighting crime and prosecuting
criminals. There would be less court time available for
individual and business users of the courts, including crime
victims. In the Federal system, the increased litigation would
exacerbate a case overload that already threatens to bring
justice in America to a grinding halt.
c. the new constitutional rights for victims would undermine bedrock
constitutional protections afforded to the accused by the bill of
rights
The Department of Justice, the National District Attorneys
Association, and the American Bar Association, among others,
have underscored the urgent need to preserve the fundamental
protections of those accused of crimes while giving appropriate
protection to victims.\42\
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\42\ Letter from L. Anthony Sutin, Acting Assistant Attorney
General, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the
Judiciary (June 2, 1998); National District Attorneys Association,
Resolution: Federal Constitutional Victim Rights Amendment (Mar. 9,
1997); Letter from Michael T. Johnson on behalf of the American Bar
Assn. to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the Judiciary
(June 24, 1998). See also Robert P. Mosteller, Victims' Rights and the
Constitution: Moving from Guaranteeing Participatory Rights to
Benefiting the Prosecution, 29 St. Mary's L.J. ------ (forthcoming
1998) (concluding that a constitutional amendment supporting victims'
rights should expressly guarantee that it will not diminish existing
rights of the accused).
---------------------------------------------------------------------------
During the markup, we considered a proposed amendment to
S.J. Res. 44 stating, ``Nothing in this article shall be
construed to deny or diminish the rights of the accused as
guaranteed by this Constitution.'' The Committee rejected this
amendment by a vote of 10 to 6.\43\ Courts may therefore
conclude that S.J. Res. 44 was intended to override earlier-
ratified provisions securing the accused's right to a fair
trial. This would make it more likely that innocent people are
convicted in cases involving irreconcilable conflict, where
accommodation cannot protect the rights of both the victim and
the accused.
---------------------------------------------------------------------------
\43\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th
Cong., 2d Sess., at 109-11 (July 7, 1998).
---------------------------------------------------------------------------
Conflicts between the victims' rights created by S.J. Res.
44 and the protections accorded defendants by the Bill of
Rights likely would be infrequent, but they would occur.
Indeed, as currently drafted, S.J. Res. 44 practically invites
conflict in several important areas.
1. Giving victims rights at the accusatory stage of criminal
proceedings undercuts the presumption of innocence
Not all who claim to be victims are indeed victims and,
more significantly, not all those charged are the actual
perpetrators of the injuries that victims have suffered. By
naming and protecting the victim as such before the accused's
guilt has been determined, the proposed amendment would
undercut one of the most basic components of a fair trial, the
presumption of innocence.
Consider a simple assault case in which the accused claims
that he was acting in self-defense. Absent some sort of
corroborating evidence, the jury's verdict will likely turn on
who it believes, the accused or his accuser. The amendment
treats the accuser as a ``victim,'' granting him broad
participatory and other rights, before a criminal or even a
crime has been established. Once charges have been brought--and
the charges may be based on little more than the accuser's
allegations--the accuser is entitled to attend all public
proceedings and to have a say as to whether the accused should
be released on bond, making it more likely that the accused
will be imprisoned until the conclusion of the trial. While
society certainly has an interest in preserving the safety of
the victim, this fact alone cannot be said to overcome a
defendant's liberty interest as afforded to him under the due
process and excessive bail clauses.
2. A victim's right not to be excluded could undermine the accused's
right to a fair trial
The proposed amendment gives victims a constitutional right
not to be excluded from public proceedings. Establishing such a
preference for victims does not require a constitutional
amendment, unless it is intended to create an absolute right
that would be used to overcome a right currently afforded
defendants. That is precisely what this provision would
accomplish. But while crime victims have a legitimate interest
in attending public proceedings involving matters that impacted
their lives, this is not a limitless interest. At the point
where the victims' presence threatens or interferes with the
accuracy and fairness of the trial, restrictions should be
imposed.
Accuracy and fairness concerns may arise, as we have
already discussed, where the victim is a fact witness whose
testimony may be influenced by the testimony of others. Another
example is the case in which the victim or her family acts
emotionally or disruptively in front of the jury. Whether done
purposefully or unintentionally, a victim exhibiting such
behavior may unfairly prejudice the defendant.
Indeed, by making the right of victims to be present very
difficult, if not impossible, to forfeit, S.J. Res. 44 may
encourage disruptive displays by victims--a manifestly
illegitimate purpose for a constitutional amendment.\44\ Our
Nation's jurisprudence explicitly warns against determinations
of guilt and punishment based upon passion, prejudice or
emotion, rather than reason or evidence.\45\
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\44\ See Robert P. Mosteller, Victims' Rights and the United States
Constitution: An Effort to Recast the Battle in Criminal Litigation, 85
Geo. L.J. 1691, 1703-04 (1997).
\45\ See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).
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Proponents of S.J. Res. 44 dismiss such concerns out-of-
hand. The majority report declares that crime victims would
have ``no right'' to engage in either disruptive behavior or
excessive displays of emotion. The Attorney General claims that
``common sense flexibility'' would preserve judges' authority
to keep courtrooms free from disruptive observers, even when
those observers are victims.\46\ But it is not at all clear how
``common sense flexibility'' could prevail over an inflexible
constitutional right ``not to be excluded''.
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\46\ Hearing of Apr. 16, 1997, at 133 (responses of Attorney
General Janet Reno to questions from Sen. Patrick J. Leahy).
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3. A victim's right to be heard could undermine the accused's right to
a fair trial
The proposed amendment gives victims a constitutional right
to be heard, if present, and to submit a statement at all
stages of the criminal proceeding. What happens when a victim's
testimony is irrelevant, unduly or unnecessarily prolongs the
proceedings, or is so inflammatory that justice would be
undermined? Passage of the proposed amendment would make it
much more difficult for judges to limit testimony by victims at
trial and capital sentencing proceedings.
4. A victim's right to expedite trial proceedings could undermine the
accused's sixth amendment rights
S.J. Res. 44 gives victims of violent crimes a right to
``trial free from unreasonable delay.'' Just as this provision
risks forcing prosecutors to trial before they are fully
prepared, it risks forcing defendants to do the same.
Defendants may also seek to postpone the trial to let
prejudicial publicity about the case dissipate. Under the
proposed amendment, the defendant's need for more time could be
outweighed by the victim's assertion of his right to have the
matter expedited, seriously compromising the defendant's right
to effective assistance of counsel and his ability to receive a
fair trial.
5. Constitutionalizing victims' rights raises equal protection concerns
We should consider the question of equal protection and
equality of treatment of our defendants. During one hearing,
Representative Robert C. Scott asked what happens when a
prosecutor routinely recommends a 1-year sentence for first-
offense burglary, but the victim is unusually emotional or
articulate: should that defendant get more time than a
defendant whose victim is inarticulate or even absent? \47\ By
the same token, should the amount of time that a defendant
spends in jail turn on the effectiveness of the victim's
attorney?
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\47\ Hearing of Apr. 16, 1997, at 34, 35 (statement of Rep. Robert
C. Scott).
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The United States is world renowned and admired for its
system of public prosecutions. It bespeaks our leadership in
the precepts of democracy that justice is mandated for all
citizens. No individual or group is favored. Wealth does not
determine whose case gets prosecuted, or how well. Crime
victims themselves benefit from this system, as the majority
report acknowledges. We should think long and hard before we
revert to a system of private prosecutions based on wealth,
power, and campaign contributions.
6. Construed to avoid any conflicts with defendants rights, the
proposed amendment becomes purely hortatory
Attempting to divert attention from the foreseeable
consequences of this proposal, some supporters of S.J. Res. 44
maintain that it would not, and was never intended to,
denigrate the rights of the accused in any way. Indeed, one
cosponsor has flatly asserted:
There is no inconsistency between the rights of the
accused and recognizing in a formal sense the victim's
rights. * * * [T]here is not even a hypothetical case
that has been put forward where there is a conflict
between the rights guaranteed to the accused under our
Constitution and the rights we are proposing * * * be
enshrined in the Constitution for victims. There is no
denigration, there is no choice required. This is not a
matter of requiring anyone to say, in order to give a
victim a right, we have to take away any right of the
accused. If that were the case * * * I would not
support this amendment.\48\
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\48\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th
Cong., 2d Sess., at 19-20 (June 25, 1998) (statement of Sen. Joseph R.
Biden, Jr.).
The problem with this position, however, is that it proves too
much. For if it were always possible to accommodate the
constitutional rights of both the accused and the victim--a
prospect that we, like the Department of Justice, find
unlikely--then the proposed amendment would become purely
hortatory. Professor Philip Heymann, a former Associate Deputy
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Attorney General, stated the matter succinctly:
If it is not intended to free the States and Federal
Government from restrictions found in the Bill of
Rights--which would be a reckless tampering with
provisions that have served us very well for more than
200 years--it is unclear what purpose the amendment
serves.\49\
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\49\ Philip B. Heymann, A Proposed Victims' Rights Constitutional
Amendment: Against an Amendment, State-Federal Judicial Observer, No.
14, at 1 (Apr. 1997).
The Constitution of the United States is no place for symbolic
decorations that fail to define real rights or to give real
remedies.
D. PASSAGE OF THE PROPOSED AMENDMENT COULD ACTUALLY HURT THE VICTIMS OF
CRIME
For all the reasons discussed above, passage of this well-
meaning amendment could well prove counter-productive,
accomplishing little while making the lives of crime victims
more difficult. ``We should never lose sight of the fact that
the very best way that [we] * * * can serve victims of crime is
to bring those responsible for crime to justice.'' \50\ Crime
victims would be the first to suffer--and criminals the first
to benefit--from a constitutional amendment that hindered
prosecutors, forced law enforcement agencies to divert scarce
resources from actual crime-fighting efforts, and clogged the
courts with time-consuming, justice-delaying litigation.
Moreover, few benefit if, in the end, the proposed amendment
undermines core constitutional guarantees designed to protect
all of us from wrongful convictions.
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\50\ Hearing of Apr. 16, 1997, at 42 (statement of Attorney General
Janet Reno).
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IV. The Proposed Amendment Infringes on States' Rights
The proposed amendment constitutes a significant intrusion
of Federal authority into a province traditionally left to
State and local authorities. Many of our colleagues, in making
their arguments in support of S.J. Res. 44, point out that
nearly 95 percent of all crimes are prosecuted by the States.
It is precisely that rationale that leads us to conclude that
grants of rights to crime victims are--whenever possible--best
left to the States to provide.
If the Federal Government had the general police power,
then mandating a companion power to protect the rights of
victims of crime would at least be consistent. But the Federal
Government does not have this power. As the Supreme Court
recently reminded us in United States v. Lopez,\51\ there is no
general Federal police power. ``Under our Federal system, the
States possess primary authority for defining and enforcing the
criminal law.'' \52\ S.J. Res. 44 would dramatically alter this
framework by locking States into an absolutist national pattern
regarding the participation of victims in the criminal justice
system.
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\51\ 514 U.S. 549 (1995).
\52\ Id. at 561 n.3 (internal quotation marks omitted). See also
Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion)
(``Our national government is one of delegated powers alone. Under our
federal system the administration of criminal justice rests with the
States except as Congress, acting within the scope of those delegated
powers, has created offenses against the United States.'')
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The majority report attempts to deflect the federalism
concerns raised by S.J. Res. 44 by suggesting that the States
will retain ``plenary authority'' to implement the amendment
within their own criminal systems. We find this suggestion
surprising given the plain language of theamendment's
implementation clause (in section 3): ``The Congress shall have the
power to enforce this article by appropriate legislation.'' Identical
language in earlier constitutional amendments has been read to vest
enforcement authority exclusively in the Congress.
In the case of S.J. Res. 44, moreover, the text is
illuminated by the legislative history. Earlier drafts of the
amendment expressly extended enforcement authority to the
states.\53\ These drafts drew fire from constitutional
scholars, who expressed doubt that constitutionally-authorized
State laws could be supreme over State constitutions or even
over Federal laws, and concern that, for the first time, rights
secured by the Federal Constitution would mean different things
in different parts of the country. The Committee then amended
the text to its current formulation. Faced with this history
and text, courts will surely conclude that S.J. Res. 44
deprives States of any authority to legislate in the area of
victims' rights.
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\53\ For example, S.J. Res. 52, introduced in the second session of
the 104th Congress, provided: ``The several States, with respect to a
proceeding in a State forum, and the Congress, with respect to a
proceeding in a United States forum, shall have the power to implement
further this article by appropriate legislation.'' Similarly, S.J. Res.
6, introduced in the first session of this Congress, provided: ``The
Congress and the States shall have the power to enforce this article
within their respective jurisdictions by appropriate legislation,
including the power to enact exceptions * * *''
---------------------------------------------------------------------------
This is troubling in three regards. First, S.J. Res. 44
would have an adverse effect on the many State and local
governments which are already experimenting with a variety of
innovative victims' rights initiatives. Second, it would create
an enormous unfunded burden for State courts, prosecutors, law
enforcement personnel, and corrections officials. Third, it
would lead inevitably to Federal court supervision and micro-
management of noncomplying State and local authorities.
A. THE STATES AS LABORATORIES
In the words of Supreme Court Justice Louis D. Brandeis,
writing in New State Ice Co. v. Liebmann: ``It is one of the
happy incidents of the Federal system that a single courageous
state may, if its citizens choose, serve as a laboratory; and
try novel social and economic experiments without risk to the
rest of the country.'' \54\ The victims' movement has induced
all 50 States to serve as laboratories. Through statutes and
State constitutional amendments, the States are experimenting
with varied approaches to blending the competing interests of
victims, prosecutors, and defendants in search of an
enlightened formula.
---------------------------------------------------------------------------
\54\ 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
---------------------------------------------------------------------------
State experimentation with victims' rights initiatives is
relatively new and untested; the laboratory evidence is as yet
inconclusive. S.J. Res. 44 creates a national standard for
victims' rights and gives Congress exclusive power to enforce
that standard by appropriate legislation. It thus forecloses
the States from experimenting and exercising their judgment in
an area to which the States lay claim by right of history and
expertise.
That's why the States' top jurists oppose it. The
Conference of Chief Justices has expressed ``deep concerns''
with the federalism issues presented by the amendment; it has
taken the position that the States' efforts on behalf of crime
victims ``provide a significantly more prudent and flexible
approach for testing and refining novel legal concepts.'' \55\
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\55\ Letter from Joseph R. Weisberger, Chief Justice, Supreme Court
of Rhode Island, Chairperson, Conference of Chief Justices Task Force
on Victim Rights, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the
Judiciary, at 1 (May 16, 1997).
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That's why the largest victim assistance agency in the
country opposes it: Victim Services calls S.J. Res. 44
``premature'' and points out the need for more research.\56\
---------------------------------------------------------------------------
\56\ Letter from Chris Whipple, Acting Executive Director, Victim
Services, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the
Judiciary 1 (June 9, 1998).
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At a minimum, we should explore the effectiveness of the
state efforts and the nuances of their various approaches
before grafting a rigid, untested standard onto the U.S.
Constitution. We should have more information about what the
states are failing to do before the Federal Government shuts
down their research.
Example: The States' experimentation has not yet led to a
consensus on the appropriate scope of the victim's right to
attend trial proceedings at which they are going to be called
as witnesses. A few States, including Alabama and Arkansas,
have specifically provided that the rule regarding exclusion of
witnesses does not apply to victims.\57\ Other States have
taken a hybrid approach, whereby the victim has the right to
attend only after the victim has testified, as in Louisiana,
Michigan, New Jersey, and Washington.\58\ Washington's law also
specifies that while a victim may be excluded until after
testifying, the victim has the right to be scheduled as early
in the proceedings as possible. Overall, a majority of States
give the trial judge discretion to exclude the victim, either
as a witness or to preserve the defendant's right to a fair
trial generally. A categorical Federal constitutional rule that
victims must never be excluded would nullify these State
judgments about the appropriate way to balance the competing
interests involved.
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\57\ Ala. Stat. Sec. 15-14-55; Ark. R. Evid. 616.
\58\ La. Code Evid. Art. 615(A)(4); Mich. Comp. Laws Ann.
Sec. 780.761(11); N.J. Const. Art. 1, para. 22; Wash. Rev. Code Ann.
Sec. 7.69.030(11).
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The States' overall approaches to victims' rights are also
markedly different. California amended its constitution in June
1982 to include a modest ``Victim's Bill of Rights.'' The
rights enumerated include the right to ``truth-in-evidence''
and the ``basic expectation that persons who commit felonious
acts causing injury to innocent victims will be appropriately
detained in custody, tried by the courts, and sufficiently
punished so that the public safety is protected and encouraged
as a goal of highest importance.'' \59\ According to Senator
Feinstein, the California approach is working; it has been
protecting the victim's right to be treated with dignity and
respect within the criminal justice system.\60\
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\59\ Ca. Const. Art. I, Sec. 28.
\60\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th
Cong., 2d Sess., at 12 (Jul. 7, 1998).
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Arizona is another State with a constitutional amendment
declaring a ``Victims' Bill of Rights,'' but it has ventured
substantially further than California. Approved in November
1990, Arizona's amendment guarantees victims a series of
rights, including the right (1) to be informed when an accused
or convicted person is to be released from custody or has
escaped; (2) to be present at and, upon request, to be informed
of all upcoming proceedings; (3) to be heard at any proceeding
involving a post-arrest or post-conviction release decision, a
negotiated plea, or sentencing; (4) to refuse an interview,
deposition, or other discovery request by the defendant; (5) to
confer with the prosecution and to be informed of the
disposition; (6) to read pre-sentence reports; (7) to receive
prompt restitution; (8) to a speedy trial or disposition and
prompt and final conclusion of the case after the conviction
and sentence; and (9) to be informed of their rights as
victims.\61\ Will this detailed enumeration of rights work
better than California's system? It is too soon to tell. Yet
S.J. Res. 44 could preempt the field, sweeping away all laws,
ordinances, precedents, and decisions, compatible and
incompatible alike, or any matter touching upon the same
subject.
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\61\ Az. Const. Art. II, Sec. 2.1(A).
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In response to our questions from the April 28, 1998
hearing, the Department of Justice made clear that the only
reason to adopt an amendment as opposed to a statute is to
provide a uniform national rule rather than allow States to
adopt provisions that the State legislatures and voters think
will best suit their local needs. The Department's recent
report on victims' rights, quoted in the majority report, also
emphasizes the need ``to rectify the current inconsistencies in
victims' rights laws that vary significantly from jurisdiction
to jurisdiction.'' \62\
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\62\ OVC, New Directions from the Field: Victims Rights and
Services for the 21st Century 10 (May 1998).
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Do we need to correct some outrage that Arizona is
perpetrating? Is there something that California simply refuses
to do for victims? We are assuming that there is one and only
one way to do this, and that we here in Washington D.C. know
the way and the States do not, even though most of the
experience has been in the States. That is arrogant, to say the
least.
Victim Services said it best: ``Before undertaking the
momentous step of amending the U.S. Constitution, the right
course is surely to examine the existing legislative and
regulatory schemes and ascertain what is working best in
practice.'' \63\
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\63\ Letter from Chris Whipple, Acting Executive Director, Victim
Services, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the
Judiciary 1 (June 9, 1998).
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B. UNFUNDED MANDATE
We have already discussed the potentially staggering costs
that S.J. Res. 44 could impose on the 50 States. Congress has a
responsibility to investigate these costs thoroughly and to
explore the drastic shift in resources that could result if the
amendment were ratified. Congress has not yet undertaken this
important task. We need more information from the States about
how much it costs to implement these programs, and what sort of
resources are needed to be successful before we rush to
validate a series of rights that could overwhelm the Nation's
criminal justice system.
Largely for this reason there is growing opposition to the
proposed amendment among some of the very people who most
strongly support victims' rights--prosecutors and law
enforcement officers. They are sympathetic to victims, and
would welcome the resources to enable them to provide victims
with notice and other assistance. They do not, however, want
another unfunded mandate that will have the Federal courts and
special masters directing the activities of their under-funded
offices. Instead of unfunded mandates, we need to encourage
States to provide the support and services that many victims of
crimes need and deserve.
C. FEDERAL COURT SUPERVISION
Under S.J. Res. 44, a victim does not have the ability to
sue for damages. A victim may, however, ask a Federal court for
injunctive or declaratory relief against State officials, and
possibly a writ of mandamus. The resulting interference with
State criminal proceedings would be unprecedented and ill-
advised.
Even more alarming is the specter of Federal class actions
against noncomplying State authorities. When we asked the
Department of Justice what sort of relief there might be when
district attorney offices failed, as many now are failing, to
provide full notice for victims, they said that the relief
would be court orders like those in prison reform litigation.
There is the potential for big costs to States, enormous
expenditure of judicial resources, and undignified hauling into
court of local prosecutors, judges, and corrections officers.
The States chief justices have expressed grave concerns
that the proposed constitutional amendment would lead to
``extensive lower Federal court surveillance of the day to day
operations of State law enforcement operations.'' \64\ We share
these concerns. The laudable goal of making State and local law
enforcement personnel more responsive to victims should not be
achieved by establishing Federal court oversight of the
criminal justice and correctional systems of the 50 States.
---------------------------------------------------------------------------
\64\ See Letter from the Joseph R. Weisberger, Chief Justice,
Supreme Court of Rhode Island, Chairperson, Conference of Chief
Justices Task Force on Victim Rights, to Sen. Orrin G. Hatch, Chairman,
Senate Comm. on the Judiciary, at 1 (May 16, 1997).
---------------------------------------------------------------------------
``[F]ederalism was the unique contribution of the Framers
to political science and political theory,'' \65\ and it has
served this country well for over 200 years. We do not need a
constitutional amendment to turn this system on its head. We
have no pressing reason to thwart the States' experimentation
with innovative victims' rights initiatives and to displace
State laws in an area of traditional State concern. We have no
compelling evidence pointing to the need for another unfunded
mandate. And we certainly do not need more Federal court
supervision and micro-management of State and local affairs.
---------------------------------------------------------------------------
\65\ Lopez, 514 U.S. at 575 (Kennedy, J., concurring).
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V. The Wording of the Proposed Amendment Is Problematic
As the preceding analysis has shown, any amendment to the
Constitution to provide for victims rights would be fraught
with problems, ranging from resource and training issues to a
plethora of unintended consequences. But in addition to the
general problems associated with a constitutional amendment,
the specific language of S.J. Res. 44 is problematic.
Now in its 62nd draft, the proposed amendment remains
decidedly vague, its key terms undefined. Far more work is
needed before we can even debate its merits intelligently. As
it stands, years of litigation would be necessary to flesh out
the amendment's actual scope, enforcement mechanisms, and
remedial nature.
A. THE TERM ``VICTIM'' IS UNDEFINED
Most conspicuous in its absence from S.J. Res. 44 is any
definition or explanation of the critical term ``victim.'' Is
the proposed amendment intended to give victim status only to
those individuals who suffer personal injury as the result of a
crime? Or is the intent to ensure that members of the immediate
family are given victim status? What about cousins, close
friends, neighbors? The list of potential victims is lengthy.
In cases like the Oklahoma City bombing, where 168 people were
killed and hundreds more were injured, would the State and
Federal courts be required to hear statements from possibly
thousands of people claiming victim status?
The failure to define ``victim'' raises another set of
problems with respect to crimes committed, or allegedly
committed, in self defense. For example, victims of domestic
violence may respond to repeated attacks by striking back at
their abusive spouses. In these cases, the victim of repeated
abuse becomes the defendant, and the abusive spouse becomes the
victim. If the proposed amendment is enacted, the abusive
spouse might have a constitutional guarantee of access to
information that includes when the defendant is released from
custody, which might leave her vulnerable to violent
retaliation. The National Clearinghouse for the Defense of
Battered Women, the National Network to End Domestic Violence,
and several State and local domestic violence support
organizations--including organizations from Louisiana, Iowa,
North Dakota, Wisconsin, Pennsylvania, and Wyoming--all oppose
S.J. Res. 44 for this reason.
Illustrative of the peculiar problems raised by domestic
violence cases is State ex rel. Romley v. Superior Court, 836
P.2d 445 (Ariz. Ct. App. 1992). Defendant Ann Roper was charged
with stabbing her husband. She claimed that she had been the
victim of horrendous emotional and physical abuse by her
husband during their marriage; that the husband was a violent
and psychotic individual who had been treated for multiple
personality disorder for over a decade; that he was manifesting
one of his violent personalities at the time of the assault;
and that she had acted in self-defense. It was undisputed that
the husband was mentally ill; that he had three prior arrests
and one conviction for domestic violence toward the defendant;
and that the defendant, not the husband, made the 911 call to
the police, asking for help because her husband was beating her
and threatening her with a knife. Under these circumstances,
the Arizona Court of Appeals came to the sensible conclusion
that the defendant's due process rights superseded the State
law right of the husband/``victim'' to refuse to disclose his
medical records.
While nothing in S.J. Res. 44 would directly compromise the
holding in Romley, the case does expose the risk in creating
blanket constitutional protections for ``victims'' without
first considering and resolving who these ``victims'' may be.
In a world where the rights of the accused must yield to the
rights of the accuser, we must define our terms carefully. The
sponsors of S.J. Res. 44 want to shelve the difficult
definitional debate until such time as Congress is called upon
to implement the amendment. But it is premature to pass this
proposal on to the States for ratification without providing
clear guidance on this basic issue. -
B. THE TERM ``CRIME OF VIOLENCE'' IS UNDEFINED
The scope of the proposed amendment also turns on a second
undefined term, ``crime of violence.'' Ordinarily, crimes of
violence are those involving some use of physical force against
a person. Thus, the term may be limited to crimes that produce
physical injury (e.g., murder, assault, and rape). In some
contexts, however, the term ``crime of violence'' has been
defined or interpreted to include crimes involving some use of
force against another's property (e.g., arson) and crimes that
merely threaten physical injury or property damage (e.g.,
extortion, robbery, and burglary). Existing Federal law already
provides several different definitions of ``crime of
violence,'' including one that covers statutory rape, abusive
sexual contact, and sexual exploitation of minors.\66\
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\66\ See, e.g., 18 U.S.C. Sec. Sec. 16, 924(c)(3), 3156(a)(4); 28
U.S.C. Sec. 2901. Section 3156(a)(4)(C) incorporates felonies under
chapter 109A and chapter 110, relating to sexual abuse and sexual
exploitation of children.
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Again, the sponsors of this bill promise to define the term
``crime of violence'' in the implementing legislation. Again,
we believe it is imprudent to ask States to ratify a
constitutional amendment before they know the full scope and
scale of its effects.
C. THE TERM ``REASONABLE NOTICE'' IS UNDEFINED
S.J. Res. 44 requires that victims be given ``reasonable
notice'' of developments in their cases. But, again, the term
is undefined within the text of the proposed amendment. Just
what constitutes``reasonable notice?'' For example, in cases
where an inmate is released from custody, what is a reasonable amount
of time to wait before notifying the crime victim? Is it 30 minutes?
Two hours? Twenty-four hours? Does it depend on where the inmate was
imprisoned, or the distance of the inmate from the victim at the time
of release?
Besides the ambiguity of the timing requirement, the term
``reasonable notice'' gives no indication as to what manner of
notice a victim is entitled. Must the Government invariably
provide direct written notice to victims? May the government
simply publish notice in a local newspaper, as it may sometimes
do to perfect the forfeiture of a person's property.\67\ Is it
enough that the court publishes its calendar? Until we have
some idea what notice is ``reasonable,'' we cannot begin to
assess what the proposed amendment will actually mean in terms
of administrative time and cost.
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\67\ See, e.g., 21 U.S.C. Sec. 853(n)(1).
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D. THE REMEDIAL SCHEME IS UNCERTAIN
The proposed amendment appears to offer a rather limited
scope of possible remedies for those victims who believe their
rights were violated. Section 2 provides, in part: ``Nothing in
this article shall provide grounds to stay or continue any
trial, reopen any proceeding or invalidate any ruling, except
with respect to conditional release or restitution or to
provide rights guaranteed by this article in future
proceedings, without staying or continuing a trial.'' If a
remedy is contemplated by this provision, its lack of
definition will lead to more costly and time consuming
litigation. In particular, courts will struggle to give meaning
to the exception for ``future proceedings.''
Section 2 also prohibits claims for damages against
governmental entities. It states: ``Nothing in this article
shall give rise to or authorize the creation of a claim for
damages against the United States, a State, a political
subdivision, or a public officer or employee.'' The majority
report attempts to assuage victims' groups by suggesting that
this prohibition may not be as absolute as it sounds. According
to the Report, while section 2 does not itself ``give rise to''
a cause of action against the Government, nor does it preclude
such a cause of action under other legislation--and it cites as
an example 42 U.S.C. Sec. 1983. This strained reading of the
phrase ``give rise to'' ignores the separate proviso that
nothing in the amendment shall ``authorize the creation of''
claims for damages against the government. If the amendment
were meant to authorize such claims, it would not use the
language of prohibition.
Roger Pilon, director of the Cato Institute's Center for
Constitutional Studies, compares the proposed amendment to the
generous legacy in a pauper's will: It promises much but
delivers little.\68\ To the extent that the proposed amendment
creates rights without remedies, it is worse than useless.
Rights without remedies are empty promises that in time
undermine confidence in the very document that contains them--
in this case, the U.S. Constitution.
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\68\ Statement of Roger Pilon regarding S.J. Res. 6, prepared for
the Senate Comm. on the Judiciary, at 6 (Apr. 16, 1997).
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E. THE ``EXCEPTIONS'' CLAUSE IS OVERLY RESTRICTIVE
In an attempt to address some of the concerns raised by the
potential sweep of the proposed amendment, its sponsors have
included an exceptions clause (in section 3) to allow for
exceptions to be created ``when necessary to achieve a
compelling interest.'' However, a ``compelling interest''
standard may be too strict to deal appropriately and
effectively with the variety of difficult circumstances that
arise in the course of criminal proceedings.
The term ``compelling interest'' has a relatively settled
meaning. Indeed, there is hardly a term in contemporary legal
usage that is clearer or more restrictive. Interpreting this
term, the Justice Department has told us that it may not permit
the creation of various exceptions, including exceptions that
may be appropriate for cases involving crimes with mass
victims, culpable victims, cooperating defendants, and
incarcerated victims.\69\ To make matters worse, we have no way
of knowing in advance, before it is too late, whether courts
will consider any particular problem sufficiently compelling to
justify an exception.
---------------------------------------------------------------------------
\69\ A Proposed Constitutional Amendment to Protect Crime Victims,
Transcript of Proceedings on S.J. Res. 44 before the Senate Comm. on
the Judiciary, 105th Cong., 2d Sess., at 23 (Apr. 28, 1998) (statement
of Raymond C. Fisher, Associate Attorney General); Letter from L.
Anthony Sutin, Acting Assistant Attorney General, to Sen. Orrin G.
Hatch, Chairman, Senate Comm. on the Judiciary (June 17, 1998).
---------------------------------------------------------------------------
The majority report's discussion of the exceptions clause
is yet another exercise in political expediency. As previously
discussed, one of the major problems with the amendment is how
it will affect the treatment of battered women who may be
either victim or defendant depending upon whether they are
being beaten or whether they react to their beatings by self-
help violence that may be legally justified but nonetheless
prosecuted. The majority report states that the exceptions
clause ``offers the flexibility'' to modify victims' rights
provisions ``in some cases of domestic violence [where] the
dynamics of victim-offender relationships may require [it].''
To say that the restrictive ``compelling interest'' test
``offers * * * flexibility'' is a ridiculous statement
obviously meant to manipulate words beyond any recognizable
meaning. What the majority is attempting to say, apparently, is
that the words of the amendment mean whatever is politically
popular to say they mean in order to achieve adoption by the
Senate and ratification by the States.
Beyond all this, the exceptions clause is also problematic
because it does not identify who may create exceptions to the
amendment's requirements. Does the power to create exceptions,
like the general enforcement power, fall exclusively to
Congress? This would further weaken State and local control
over law enforcement operations and criminal proceedings. Could
exceptions be crafted by State judges in individual cases? This
runs the risk that Federal constitutional rights would, for the
first time, mean different things in different States.
These concerns are just a sampling of the possible problems
that will be confronted by law enforcement officers,
prosecutors, and judges as they grapple with the implementation
and enforcement of the provisions of the proposed amendment. As
the Federal Public Defenders aptly concluded, ``the proposed
amendment is a litigator's dream and a victim's nightmare.''
\70\
---------------------------------------------------------------------------
\70\ Letter from Thomas W. Hillier on behalf of the Federal Public
and Community Defenders, to Sen. Orrin G. Hatch, Chairman, Senate Comm.
on the Judiciary (June 10, 1998).
---------------------------------------------------------------------------
VI. Conclusion
We must not hamstring our prosecutors and sacrifice core
protections guaranteed by the Bill of Rights to enact this
unnecessary and problematic constitutional amendment on
victims' rights.
Patrick Leahy.
Ted Kennedy.
Herb Kohl.
XIII. ADDITIONAL VIEWS OF SENATORS LEAHY AND KENNEDY
We are committed to providing rights for victims of crime,
and we share the desire of our colleagues to ensure that
victims are given strong and enforceable rights in the criminal
justice process. But we believe that all possible solutions
should be carefully considered. One issue that has remained
unexplored in any comprehensive way is the possibility of
enacting all of the rights proposed in S.J. Res. 44 by Federal
statute.
The Crime Victims Assistance Act, S. 1081
It is because of our strong belief in protecting the rights
of victims that we introduced S. 1081, The Crime Victims
Assistance Act, in July 1997. However, despite our repeated
requests for a hearing on our bill, no serious consideration
has been given to our statutory alternative. This is
unfortunate, since our bill provides the very same rights to
victims as the proposed constitutional amendment and, in fact,
addresses many of the concerns raised by our colleagues during
debate over S.J. Res. 44.
Title I of our bill reforms Federal law and the Federal
rules of evidence to provide enhanced protections to victims of
Federal crime, from the time of the defendant's arrest through
sentencing, including post-sentencing hearings. S. 1081 assures
victims a greater voice in the prosecution of the criminals
that hurt them and their families. It gives them the right to
be present and to be heard at all public proceedings, including
sentencing, detention, probation revocation, and negotiated
plea hearings. It provides the right to reasonable notice of
release or escape from custody, and ensures a speedy trial in
the interest of the victim. In short, our statutory proposal is
very similar to S.J. Res. 44.
But, our statutory proposal goes much further than the
proposed amendment. First, our bill provides additional
penalties for witness tampering--so in cases where a defendant
or person acting in concert with the defendant attempts to
intimidate a victim, that person will be subject to stiffer
penalties. Our bill creates a wide range of victims' services
outside the courtroom. It increases victims' assistance
personnel to serve as victim-witness advocates to victims of
any criminal offense investigated by Federal authorities. And,
it creates ombudsman programs to ensure that victims are given
unbiased information about navigating the criminal justice
process from a trained professional.
Our bill also addresses several of the concerns raised by
our colleagues about the ability of the Federal Government to
create exceptions to granting the rights of victims. S. 1081
creates explicit exceptions in cases where the defendant has
cooperated with the Government or when a judge believes that
there is a significant expectation of physical violence or
other retaliation by the victim against the defendant. This
will particularly help victims of domestic violence, but could
be used in other self-defense cases and also in racketeering
cases. In general, these exceptions are essential to ensuring
that all victims are protected while ensuring that the ability
of prosecutors to put criminals behind bars is left intact.
In response to concerns raised by the National Victim
Center and other victims service organizations, our statute
directs the Attorney General to promulgate regulations that
will extend the implementation and enforcement of our bill to
victims of fraud, provided that such victims are natural
persons and not corporate entities. We direct the Attorney
General to do this within 180 days of the date of enactment of
our statutory alternative. We believe this is a necessary and
important step toward ensuring that victims of telemarketing
schemes and other pecuniary fraud are also granted key rights
in the criminal justice process. Each year, con artists steal
nearly $40 billion from unsuspecting consumers, according to
the National Consumers League's National Fraud Information
Center. And, the American Association of Retired Persons
estimates that more than half of telemarketing fraud victims
are age 50 or older.
Elderly individuals whose life savings are swindled by con
artists, or individuals who lose large sums of money in
telemarketing or pyramid schemes are just as much victims as
are individuals who are mugged--and in some cases may suffer
longer-lasting financial and emotional trauma. Yet S.J. Res. 44
does not address this important--and growing--class of victims.
Our statute does, and we believe that alone makes it a more
attractive victims' rights proposal than S.J. Res. 44.
The rights established by title I of our statutory proposal
will fill existing gaps in Federal criminal law and will be a
major step toward ensuring that the rights of victims of
Federal crimes receive appropriate and sensitive treatment.
These new rights will work in tandem with the myriad existing
State laws to protect the rights of victims without trammeling
on States' rights to protect victims in ways appropriate to
States' unique needs.
Title II of our statutory proposal aims to assist victims
of State crime and to ensure that victims receive the
counseling, information, and assistance they need to
participate in the criminal justice process to the maximum
extent possible. First, title II authorizes appropriations for
the Attorney General to provide grants to fund 50 victim-
witness advocate positions to assist victims of State crimes.
It also authorizes 50 new victim-witness advocates to provide
assistance to victims of any Federal criminal offense
investigation. Title II of our bill also provides increased
training for state and local law enforcement, State court
personnel, and officers of the court to respond effectively to
the needs of victims of crime. It also provides resources for
these offices to develop state-of-the-art systems for notifying
victims of crime of important dates and developments.
In general, our proposed statute addresses the concerns of
Senator Thompson and others about states' rights, because it
would not impinge upon the rights of the States to implement
and enforce their own victims' rights proposals in ways that
are appropriate to address their local concerns. This is also
significant because--unlike the proposed constitutional
amendment--our statutory proposal is not an unfunded mandate
that will impose tremendous new burdens on the States. In fact,
our statutory proposal explicitly authorizes funding to
implement the new rights created. It resolves within the text
the question of how the new rights it creates will be funded.
Conclusion
S.J. Res. 44 is not the panacea that its proponents claim.
The constitutional amendment passed by this Committee amounts
to a lot of symbolism and very little substance. It does not
specify who will pay for the new rights it accords victims. It
does not clearly define who is a victim and which crimes will
result in enhanced victims rights. It does not specify how new
programs and constitutional requirements will be funded. It
will not cover the thousands of victims of devastating
pecuniary crimes. And, because it requires an increased burden
on the already tight budgets of State and local prosecutors'
offices, the proposed amendment will sacrifice diligent and
efficient prosecutions on the altar of victims' rights. In
short, the language of S.J. Res. 44 amounts to a lot of empty
promises. Our statutory substitute is clearly written,
comprehensive, and timely. We should not amend our Constitution
lightly, and we should not amend it with empty promises to
victims. Instead, we remain hopeful that this Committee will
consider the Leahy-Kennedy Crime Victims Assistance Act.
Patrick Leahy.
Ted Kennedy.
XIV. ADDITIONAL VIEWS OF SENATOR BIDEN
I have long been devoted to both the plight of crime
victims and the preservation of our constitutional liberties. I
wrote and supported many legislative victims' protections. The
1994 Biden Crime Law gave victims of violent crimes and sexual
abuse the right to be heard at the sentencing of their
assailants. The Violence Against Women Act provided sweeping
assistance to victims of family violence and sexual assault,
the Anti-Terrorism Act included Hatch-Biden provisions
guaranteeing mandatory restitution to all victims of violent
Federal crimes, and now I am pleased to support a
constitutional victims' rights amendment.
Since more than 95 percent of all crimes are handled at the
State level, our Federal statutory rights simply do not reach
most crime victims. Therefore, I have concluded that it is time
to write a basic charter of victims' rights into our
Constitution setting a national, uniform baseline of rights for
all victims of violent crimes. My three key specific principles
for drafting the actual language of the amendment were:
Principle number one: The amendment sets out the specific
rights accorded constitutional status. Victims will be entitled
to the following rights of participation: The right to be
informed and be present at all public proceedings involving the
crime; the right to make a statement to the court about bail,
the acceptance of a plea, and sentencing; and the right to be
informed of an escape or release.
Principle number two: The amendment will not
unintentionally hamstring criminal prosecutions. We cannot
forget that the best thing for victims is to catch and convict
criminals. We have to make sure that nothing in the amendment
will make that job more difficult.
Principle number three: The amendment will not deprive the
rights of the accused. We must preserve the protections in our
Constitution for the accused, such as the right to counsel, the
right to a jury of one's peers, and the right against self-
incrimination. Defendants' rights are there, above all, so that
our system does not convict an innocent person. Locking up an
innocent person benefits no one, except the guilty.
A constitutional amendment is needed to set a national,
uniform baseline of rights for all victims of violent crimes.
In every State, and in the Federal system, the doors of the
criminal justice system must be opened to victims to make sure
that they are meaningful participants, and not just spectators,
in a system that has for too long kept them on the outside
looking in. The Committee heard testimony about how judges,
time and again, have kept victims out of the courtroom, or have
refused to let them speak at sentencing, because judges
perceive a conflict between a defendant's constitutional right
and victims' statutory rights. That is not as it should be.
Both the defendant and the victim can have the chance to
participate.
With a victims' constitutional amendment, we will be
telling prosecutors and judges, loud and clear, victims must be
respected and included. They have constitutional rights that
must be taken into account during the entire case. However, a
constitutional amendment for victims does not mean that
victims' rights will take precedence over defendants' rights. I
believe that the contradiction that many people see between the
rights of defendants and the rights of victims is false. Our
Constitution is not a zero sum game. We do not diminish the
rights of defendants by recognizing the rights of victims. I
agree with the intent of the amendment Senator Durbin offered
inCommittee. Victims' rights must not diminish the rights of
the accused.
In fact, it is precisely because I agree that defendants'
rights must be protected, and sought to protect defendants'
rights throughout the process of drafting this amendment, that
I believe the language Senator Durbin proposed is unnecessary
to achieve our joint goal. Earlier drafts of the amendment
arguably raised concerns that victims' rights might conflict
with the fair trial rights of the accused, but because I
insisted on several specific changes to ensure that defendants
will be protected, I am confident that, in the words of
Professor Tribe, ``no actual constitutional rights of the
accused or of anyone else [will] be violated by respecting the
rights of victims in the manner requested'' by the supporters
of S.J. Res. 44.\1\
---------------------------------------------------------------------------
\1\ S.J. Res. 6, a Proposed Constitutional Amendment to Protect
Crime Victims: Hearings before the Senate Comm. on the Judiciary, 105th
Cong., 1st Sess. 11 (1997) (prepared statement of Laurence H. Tribe).
---------------------------------------------------------------------------
To give an example of the changes we have made: I was
concerned that by giving victims' an absolute right to a speedy
trial an earlier version of the amendment created the risk that
a defendant's lawyer might be forced to proceed to trial
without sufficient time to prepare a defense. We want to make
sure, above all, that we get the right criminal, and that we do
not convict an innocent person. We also want to make sure that
the great police power of the Government is not exercised in
heavy-handed, overreaching ways that threaten the
constitutional liberties of all of us. Accordingly, the
sponsors of earlier versions of the amendment agreed that we
would draft S.J. Res. 44 to protect against the possibility
that defendants, or prosecutors for that matter, would be
forced to trial before they were ready.
Rather than providing an absolute speedy trial right for
victims, therefore, the new version of the amendment provides
for ``consideration'' of the victim's interest ``that any trial
be free from unreasonable delay.'' What this means in plain
English is that before granting a third, fourth or fifth
continuance, judges in every state, from Delaware to Utah to
California, must take into account inconvenience and hardship
to the victim, and must proceed with the trial unless there is
a good reason to wait. This does not mean, however, that judges
must push lawyers to try cases before they are ready, which
could violate defendants' right to counsel and backfire on
victims by causing guilty defendants to go free and innocent
defendants to go to jail.
To give another example of the concerns I raised with the
amendment: We have heard testimony about how judges, time and
again, have kept victims out of the courtroom, or have refused
to let them speak at sentencing, because victims' rights were
inadequate in the jurisdiction holding the trial. Though early
drafts of the amendment gave victims the right to submit a
statement at sentencing, along with standing to enforce the
right, I was concerned that including even a limited right of
allocution could diminish the defendant's constitutional rights
in some cases. But I reviewed the case law and found that the
contradiction that many people see between a defendant's fair
trial rights and a victim's interest in speaking at sentencing
is false. The courts that have excluded victim-impact witnesses
from trials have generally done so based on a Federal or State
rule of evidence, despite Congress' recognition that the policy
of the Federal witness sequestration rule to discourage
collusion of trial witnesses is ``not at issue'' in the context
of a post-conviction sentencing hearing.\2\
---------------------------------------------------------------------------
\2\ H.R. Rep. No. 28, 105th Cong., 1st Sess.
---------------------------------------------------------------------------
The crucial point is this: In my view, the witness
sequestration rule is a prophylactic measure rather than a
constitutional imperative. The purpose of the rule can be
accomplished through defense cross-examination of fact
witnesses and jury instructions, without categorically
excluding victims from the trial. Furthermore, if the policy of
the rule applies at all to victim-witnesses testifying at
sentencing, and I believe it does not, the proper remedy is not
to exclude victim-impact testimony, but to allow the judge or
jury charged with sentencing the convicted defendant to
consider the victims' presence at trial as a factor in
determining her credibility. This conclusion that the
Constitution does not require exclusion of a victim from the
trial proceedings solely based on her intention to testify at
sentencing was implicit in our decision last year to reverse
the order in the Oklahoma City bombing case. Both the
defendant's right and the victim's right can, and must, be
respected.
Having performed a similar analysis of numerous
hypothetical situations, I am now convinced that no potential
conflict exists between the victims' rights enumerated in S.J.
Res. 44 and any existing constitutional right afforded to
defendants and that these rights ``can coexist side by side
with defendants' rights.'' \3\
---------------------------------------------------------------------------
\3\ Laurence H. Tribe and Paul G. Cassell, Embed the Rights of
Victims in the Constitution, Los Angeles Times Washington Edition, July
6, 1998, at A11.
---------------------------------------------------------------------------
Again, with a victims' constitutional amendment, we will be
telling prosecutors and judges, loud and clear, that victims
must be respected and included in both State and Federal courts
throughout the Nation. Victims will have a uniform baseline of
constitutional rights that must be taken into account during
the entire case that cannot be ignored on the basis of vague
assertions that they may be perceived as ``diminishing'' the
rights of the accused. But let me repeat that the victims'
rights constitutional amendment does not mean that victims'
rights will take precedence over defendants' rights. The
specific victims' rights secured in the amendment do not
conflict with any existing constitutional rights of the
accused.
It is a pleasure to support a victims' rights amendment
that will ensure victims of crime a voice and a measure of
dignity and respect in the criminal justice process. All of us,
I'm sure, wish that we could give them more. Certainly, they
should have nothing less.
Joseph R. Biden, Jr.
XV. ADDITIONAL VIEWS OF SENATORS RUSSELL D. FEINGOLD AND RICHARD J.
DURBIN
The circumstances that created the perceived need for S.J.
Res. 44, ``[t]he Victims' Rights Amendment,'' are quite
disturbing and unfortunate. We are forced to consider this
constitutional amendment because far too many people are
victims of crime. And these victims rightfully want the ability
to be heard and to participate in the process that is designed
to redress the injuries they have suffered. They are concerned
that our criminal justice system does not and will not
recognize that they, as the victims, are directly affected by
the process; that they have a real and tangible interest in the
criminal justice process.
Innocent victims have endured needless and unjustified
physical and emotional suffering, and they do not want
themselves or others to endure additional similar pain.
Unfortunately, these same victims are sometimes wronged for a
second time by the criminal justice system. These crime victims
came to us with the very reasonable request that Congress
ensure that other victims of crime have the right to be active
and meaningful participants in the criminal justice system.
While we recognize the significance of this issue and want
victims to be treated with fairness, dignity, and respect, our
concern is that amending the Constitution may hamper justice
and not serve victims' best interests.
The rights afforded to these crime victims should be
concrete and enforceable, but S.J. Res. 44 has several
provisions which are undefined and unworkable; provisions which
must be later defined by legislatures or interpreted by the
courts. As a result, a number of prosecutors and victims'
rights advocates--many of whom have spent their careers
fighting for crime victims--now have voiced their opposition to
the proposed amendment. More specifically, many victims' rights
advocates now oppose this amendment, because they believe that
the rights afforded crime victims under the amendment's
proposed language ``prohibits remedies necessary to adequately
protect victims' rights.'' In other words, even if the proposed
amendment enumerates certain rights for victims, in many
instances, these victims will have no meaningful manner in
which to enforce their rights. How can we as Members of
Congress amend the U.S. Constitution to provide rights which in
practice may only be illusory?
A dispute arises, therefore, as to how victims' rights
should be protected. There is an alternative to this
constitutional amendment--an alternative that would provided
crime victims with real, enforceable rights. The alternative is
the statutory measure, S. 1081, ``[t]he Crime Victims
Assistance Act,'' introduced by Senators Leahy and Kennedy and
of which we are cosponsors.
Congress has the duty to approach any effort to amend the
U.S. Constitution with great trepidation. Should we not,
therefore, at least attempt the less radical act of passing a
comprehensive piece of Federal legislation before we start
amending the Constitution?
We must also note that we are deeply troubled by the trend
that has developed in the last couple of Congresses of using
proposed constitutional amendments as the first and only
solution to society's problems; or perhaps more accurately
stated, the use of proposed constitutional amendments as
political tools which make for great rhetoric and campaign
speeches, but which do little or nothing to actually help the
American public.
Over the past two Congresses we have seen a proliferation
of constitutional amendments introduced and voted on. In fact,
the 104th Congress' seven votes cast on six proposed amendments
holds the record for this measure of congressional activity
since 1889. Moreover, there were 149 constitutional amendments
introduced in the 104th and well over a 100 so far in the
105th.
In conclusion, we want to emphasize this point: We, along
with all my colleagues on the Committee, support victims'
rights and understand that these rights must be provided for
and protected. We also, however, have great respect for the
U.S. Constitution and the legislative process. We, thus, urge
our colleagues to consider other alternatives before amending
the Constitution. The gravity of such an act cannot be
exaggerated.
For these reasons we cannot support this constitutional
amendment.
-Russell D. Feingold.
Richard J. Durbin.
XVI. CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds no changes in
existing law caused by passage of Senate Joint Resolution 44.