[Senate Report 106-254]
[From the U.S. Government Publishing Office]





                                                       Calendar No. 299

106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-254

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



 
             CRIME VICTIMS' RIGHTS CONSTITUTIONAL AMENDMENT
                                _______
                                

                 April 4, 2000.--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. 3]

    The Committee on the Judiciary, to which was referred the 
joint resolution (S.J. Res. 3) 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........................   6
  IV. The need for specific rights in the process...................  13
   V. Section-by-section analysis...................................  27
  VI. Vote of the Committee.........................................  43
 VII. Cost estimate.................................................  43
VIII. Regulatory impact statement...................................  44
  IX. Additional views of Senators Kyl and Feinstein................  45
   X. Additional views of Senators Leahy and Kennedy................  48
  XI. Minority views of Senators Leahy, Kennedy, Kohl, and Feingold.  51
 XII. Changes in existing law.......................................  88

                               I. Purpose

    The Crime Victims' Rights Constitutional Amendment is 
intended to restore 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.
    At the birth of this Republic, victims could participate in 
the criminal justice process by initiating their own private 
prosecutions. 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: That we make it part of our highest law to 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,'' Utah L. Rev. 1373, 1381-83 (1994) 
(recounting the history of crime victims' rights). 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 32 States, in widely differing 
versions, now have State victims' rights amendments.\1\
---------------------------------------------------------------------------
    \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; Conn. Const. art. I, Sec. 8(b); 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); Kan. Const. art. 15, 
Sec. 15; La. Const. art. 1, Sec. 25; Md. Decl. of Rights art. 47; Mich. 
Const. art. I, Sec. 24; Miss. Const. art. 3, Sec. 26A; Mo. Const. art. 
I, Sec. 32; Neb. Const. art. I, Sec. 28; Nev. Const. art. I, Sec. 8; 
N.J. Const. art. I, Sec. 22; New Mex. Const. art. 2, Sec. 24; N.C. 
Const. art. I, Sec. 37; Ohio Const. art. I, Sec. 10a; Okla. Const. art. 
II, Sec. 34; R.I. Const. art. I, Sec. 23; S.C. Const. art. I, S 24; 
Tenn. Const. art. 1, Sec. 35; Tex. Const. art. 1, Sec. 30; Utah Const. 
art. I, Sec. 28; Va. Const. art. I, Sec. 8-A; Wash. Const. art. 2, 
Sec. 33; Wis. Const. art. I, Sec. 9m. These amendments passed with 
overwhelming popular support.
---------------------------------------------------------------------------
    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 its focus 
toward 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.
    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 for 
Parents of Murdered Children; and Robert E. Preston, cochairman 
of the National Constitutional Amendment Network. Two legal 
experts testified in support of the amendment: Prof. Paul 
Cassell of the University of Utah College of Law and Steve 
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: Prof. 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, AZ, 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.
    Over the course of 2 years, many changes were made to the 
original draft, many responding to concerns expressed in 
hearings and by the Department of Justice. 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 the authors, 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.
    In the 106th Congress, Seantors Kyl and Feinstein 
introduced S.J. Res. 3 on January 19, 1999, the opening day of 
the Congress. Thirty-three Senators became cosponsors of the 
resolution. On March 24, 1999, the Senate Committee on the 
Judiciary held a hearing on S.J. Res. 3. Prof. Paul Cassell and 
Steve Twist, a member of the National Victims' Constitutional 
Amendment Network and the former chief assistant attorney 
general of Arizona, testified in support of S.J. Res. 3. Beth 
Wilkinson, a partner at Latham & Watkins and a former federal 
prosecutor and Department of Justice official, testified in 
opposition.
    On May 26, 1999, the Subcommittee on the Constitution, 
Federalism, and Property Rights approved S.J. Res. 3, with an 
amendment, to the full Committee by a vote of 4 to 3. On 
September 30, 1999, the Senate Committee on the Judiciary 
approved S.J. Res. 3 with a sponsors' substitute amendment, 
with a substitute amendment, by a vote of 12 to 5. The 
following Senators voted in favor of the amendment: Hatch, 
Thurmond, Grassley, Kyl, DeWine, Ashcroft, Abraham, Sessions, 
Smith, Biden, Feinstein, and Torricelli. The following Senators 
voted against the amendment: Leahy, Kennedy, Kohl, Feingold, 
and Schumer. Senator Specter did not vote.

              III. The Need for Constitutional Protection

    After extensive testimony in hearings held over 4 different 
years, the Committee concludes that a Federal constitutional 
amendment is needed to 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 Steve Twist, at 88. In some cases 
victims are forced to view the process from literally outside 
the courtroom. Too often victims 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 the 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. 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 a 
constitutional 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 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 and 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 and 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 is 
the only way to 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 cochair 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, whose daughter Betsy was 
        murdered, waited 7 years for a murder trial. The delay 
        was caused, in part, by repeated motions that resulted 
        in delay--31 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. In those rare cases when they do so, they face a 
daunting array of obstacles, including barriers to their even 
obtaining ``standing'' to be heard to raise their claims. 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 (Apr. 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, at 96. 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 Professor 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.
    The Committee also rejects the view, offered by some 
opponents of the amendment, that the Nation should simply leave 
victims to fare as best they can under the current patchwork 
quilt of victims provisions and see how things sort themselves 
out. For example, one constitutional scholar opposing the 
amendment took the position that ``if you have struggled with a 
problem for 10, 11, 15 years at the State level and the 
statutes just don't seem to be working, fine, I understand the 
need [for a Federal constitutional amendment].'' Senate 
Judiciary Committee hearing, April 23, 1996, statement of Bruce 
Fein, at 108. However, as victims' advocates aptly pointed out 
in response, problems with the treatment of victims in the 
criminal justice system were widely recognized by at least 
1982. At that time, a Presidential task force concluded after 
comprehensive study that ``the innocent victims of crime have 
been overlooked, their pleas for justice have gone unheeded, 
and their wounds--personal, emotional, and financial--have gone 
unattended.'' President's Task Force on Victims of Crime, 
``Final Report'' (1982). In the more than 15 years since that 
report, the country has attempted to find ways to protect 
victims through less than constitutional means. Yet while 
hundreds of statutes and more than two dozen statement 
constitutional amendments have been passed in the intervening 
years, full justice for victims remains a distant goal. During 
those years, literally millions of victims have participated--
or attempted to participate--in a criminal justice system 
without full protection of their interests. Each year of delay 
is a year in which countless victims are denied their rights. 
Rather than take a wait-and-hope-things-improve approach, the 
Committee is of the view that prompt, decisive, and 
comprehensive action is needed to protect victims' basic 
rights. In that respect, the Committee simply adopts the long 
expressed view that ``Justice, though due to the accused, is 
due to the accuser also.'' Payne v. Tenneessee, 501 U.S. 808, 
827 (1991) (quoting Snyder v. Massachusetts, 291 U.S. 987, 1222 
(1934) (Cardozo, J.)). The time for justice is now, not later.

 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, a number of Governors have 
endorsed the constitutional amendment and voters in the States 
have endorsed victims' rights whenever they have had the 
chance.
    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 similar permanence to victims' rights. Constitutional 
protection for victims' rights is in no sense an ``unfunded 
mandate'' or ``arrogation of power'' by the Federal Government. 
Constitutional protection is instead the placing of a 
birthright into the Constitution--a line across which no 
government, be it Federal, State, or local, can cross. Adding 
protections into the U.S. Constitution, our fundamental law, 
will thus serve to ensure that the protection of victims rights 
will be a part of our political architecture and therefore 
fully protected. This same point was recognized by James 
Madison in considering whether to add a Bill of Rights to the 
Constitution. 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 
nine general headings should be protected in an amendment to 
the Federal Constitution. Each of these nine 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 
attend 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 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).

    Some defense attorneys suggests that allowing victims to 
attend trial might somehow lead to victims ``tailoring'' their 
testimony to match that of other witnesses. Such claims were 
not documented with any real world examples, and they seem 
implausible. As one witness reminded the Committee:

          And what of the fear of perjury? Consider the civil 
        justice system. If a lawsuit arises from a drunk 
        driving crash, both the plaintiff (the victim of the 
        drunk driver) and the defendant (the drunk driver) are 
        witnesses. Yet both have an absolute right, as parties 
        in the case, to remain in the courtroom throughout the 
        trial. Do we value truth any less in civil cases? Of 
        course not. But we recognize important societal and 
        individual interests in the need to participate in the 
        process of justice.
          This need is also present in criminal cases involving 
        victims. How can we justify saying to the parents of a 
        murdered child that they may not enter the courtroom 
        because the defense attorney has listed them as 
        witnesses. This was a routine practice in my state, 
        before our constitutional amendment. And today, it 
        still occurs throughout the country. How can we say to 
        the woman raped or beaten that she has no interest 
        sufficient to allow her the same rights to presence as 
        the defendant? Closing the doors of our courthouses to 
        America's crime victims is one of the shames of justice 
        today and it must be stopped.

Senate Judiciary Committee hearing, April 28, 1998, statement 
of Steve Twist, at 90-91.

    For these reasons, 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''). The Committee 
concludes that an alternative approach--giving victims a right 
to attend a trial unless their testimony would be ``materially 
affected'' by their attendance--would be inadequate. Congress 
has previously adopted such a standard, see 42 U.S.C. 
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 
(Public Law 105-6, codified at 18 U.S.C. 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 unequivocally 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 
general Federal constitutional right of criminal defendants to 
exclude victims from trials. See Senate Judiciary Committee 
hearing, April 23, 1996, statement of Paul Cassell, at 48-57. 
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

    The Committee concludes that victims deserve the right to 
be heard at five points in the criminal justice process: plea 
bargains, bail or release hearings, sentencing, parole 
hearings, and pardon or commutation decisions. Giving victims a 
voice not only improves the quality of the process but can also 
be expected to often provide important benefits to victims.
    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'', 464 
(1999).

    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 
stepfather 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 me.'' Senate Judiciary 
Committee hearing, April 28, 1998, statement of Paul Cassell, 
at 36 (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.
    Finally, victims deserve the right to be heard when the 
President, governors, or clemency boards consider whether to 
pardon or commute the sentence of a prisoner. Here again, 
victims can provide vital information that is useful in making 
such decisions. As the President's Task Force on Victims of 
Crime concluded, ``No one knows better than the victim how 
dangerous and ruthless the candidate was before'' the clemency 
application. President's Task Force on Victims of Crime, 
``Final Report,'' 84 (1982). Moreover, as a simple matter of 
fairness, victims deserve the opportunity to be heard, if they 
so desire. The prisoner seeking clemency, of course, has an 
opportunity to make his case. Equity demands that victims, too, 
be heard on this issue. A subcommittee of this Committee heard 
moving testimony from Anita Lawrence, whose son was murdered. 
The murderer's death sentence was later commuted without any 
notice to her. Ms. Lawrence eloquently explained why she should 
have had an opportunity to be heard: ``the decision of the 
Governor may not be changed; at least, we would be able to say 
that we tried to have justice done, rather than having to say 
we were left completely out of the process.'' Senate Judiciary 
Committee hearing, Subcommittee on Constitution, Federalism, 
and Property Rights, St. Louis field hearing, May 1, 1999. It 
may be noted that the commuting Governor in this instance later 
apologized to the family, agreeing that they should have been 
consulted.
    The Committee agrees with Ms. Lawrence that victims like 
her, Patricia Pollard, and others who have suffered greatly at 
the hands of criminals must not be left completely out of the 
process. At the appropriate time, victims deserve the right to 
heard.

4. Right to notice of and an opportunity to submit a statement 
        concerning a proposed pardon or commutation of sentence

    Victims deserve rights throughout the criminal justice 
process. The last step in that process is the decision by the 
President, a governor, or a clemency board on whether to grant 
executive clemency. Here too victims, deserve notice of any 
such action, and an opportunity to be heard before action is 
taken.
    Failure to provide notice to victims of a commutation of a 
sentence can have devastating psychological effects. A 
subcommittee of this Committee heard stark testimony about what 
it is like for a victim to be surprised to learn about a 
previously granted commutation. Anita Lawrence's son Willie 
Lawrence was murdered in 1988, along with two of his 
grandparents. Ms. Lawrence learned from watching television in 
January 1999 that the death sentence of her son's murderer had 
been commuted:

          We were visiting friends, and we sat down to watch 
        the evening news with our friends. * * * And then when 
        the news came on, the first thing on the news was Mease 
        [the convicted triple murderer] walking through in his 
        orange suit with a smile on his face. And then, they 
        showed a picture of my mother-in-law and father-in-law 
        and my son on their four-wheelers at the scene. We had 
        never seen this picture. I had never seen Willie in 
        that condition, and it was a nightmare.
          I had nightmares for a week afterwards. I would 
        actually get up and have to go to the bathroom and 
        throw up. I had to see a doctor, and take tranquilizers 
        just to get me through it. I'd walk the floor. My 
        emotions were just--I don't know how to explain it.

Senate Judiciary Committee hearing, Subcommittee on 
Constitution, Federalism, and Property Rights, St. Louis field 
hearing, May 1, 1999.

    Ms. Lawrence concluded her tearful appearance before the 
Subcommittee with a plea that something be done so that ``the 
next family'' would not have to suffer through the same horrors 
as hers. The Committee agrees that no family should have to 
suffer the anguish of learning for the first time about a 
pardon or commutation on a television news program. Victims 
deserve advance notice before such a decision is made.
    It has long been the practice in many States that the 
sentencing judge and prosecutor are given notice and asked to 
comment before executive clemency is granted. There is a trend 
toward greater public involvement in the process, with the 
Federal system and a number of States now providing notice to 
victims. The Federal victims bill of rights, for example, 
guarantees victims the ``right to information about the * * * 
release of the offender.'' 42 U.S.C. 10606(b)(7). In Alaska, 
the Governor may refer applications for executive clemency to 
the board of parole. If the case involves a crime of violence, 
``the board shall send notice of an application for executive 
clemency submitted by the state prisoner who was convicted of 
that crime. The victim may comment in writing to the board on 
the application for executive clemency.'' Alaska stat. 
Sec. 33.20.080. In Ohio, 3 weeks before any pardon or 
commutation can be granted, the adult parole authority sends 
notice to the prosecuting attorney, presiding judge in the 
county of conviction, and ``the victim or the victim's 
representative.'' Ohio Rev. Code Ann. Sec. 2967.12.
    While the trend toward notice is encouraging, problems 
remain both in the breadth of these provisions and, 
particularly, in their implementation. Recently, the Committee 
heard testimony that the Federal provision had not been 
effectively implemented. The surviving family members of 
victims of the FALN bombing were not notified that the 
President had granted clemency to 16 FALN prisoners, apparently 
learning about the clemency for the first time through the 
media. Their treatment, unfortunately, appears to be typical. 
Roger Adams, the U.S. Pardon Attorney for the Department of 
Justice, reported that consulting with victims during the 
Federal process ``will cause a big change in the way we 
operate.'' E-mail from Roger Adams to Jamie Orenstein, August 
23, 1999 (exhibit in the FALN hearings). If victims do not 
receive their statutorily mandated notice even in high-profile 
Federal cases, it is hard to imagine that their treatment in 
other situations is any better.
    Victims deserve this notice so that they gain the 
opportunity to provide information about the proposed clemency. 
Victims, of course, do not demand a veto over any decision--nor 
would they be accorded one in the amendment. They simply seek a 
voice in that process, to be heard before an executive clemency 
decision is made. As has been explained, victims can provide 
unique information about the seriousness of the crime.
    A constitutional amendment would unequivocally ensure that 
victims are notified and given the opportunity to be heard, 
improving disparate and haphazard treatment that victims 
currently suffer in the clemency process. Only a constitutional 
amendment can ensure this treatment. The Committee heard 
suggestions that any statutory effort to provide such 
protections at the Federal level would interfere with the 
President's pardon power, conferred by U.S. Const., art. II, 
Sec. 2. The Committee is skeptical of those suggestions. While 
the President has the constitutional power to pardon, it would 
seem that Congress has the power to specify reasonable 
procedures before the President makes the decision. In any 
event, the Committee agrees that a Federal constitutional 
amendment is the best way to definitively answer any such 
constitutional concerns.

5. 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, at 105.
    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 of 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.

6. 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, a victim's right to consideration of his or her 
interest to avoid unreasonable delay will not overcome a 
criminal defendant's due process right to a reasonable 
opportunity to prepare a defense. But the interests of a crime 
victim in a trial free from unreasonable delay must be 
protected.
    The Committee heard ample testimony about the problem of 
delay that victims face. In one case, for example, a case of 
child abuse involving a 5-year-old child spanned more than 15 
months from the arraignment to the trial. Many of the delays 
appeared to be for no good reason. For example, during the 
preliminary hearing the defense attorney asked for a recess at 
4:00 p.m. one day because he anticipated 2 more hours of 
questioning of the child's mother. Continuance of the cross-
examination was set for 10 days later. The victim's family then 
canceled a long-planned trip out of State. The day before the 
resumption of the cross-examination was to take place, the 
defense attorney reported that he now had a scheduling 
conflict. Resumption of the cross-examination was not set for 7 
weeks later. Seven weeks later, the cross-examination was 
resumed. Contrary to previous claims, the defense attorney had 
less than 10 minutes of perfunctory questions. Senate Judiciary 
Committee Hearing, April 16, 1997, statement of Paul Cassell, 
at 115-16. Victims should not be forced to endure extensive 
delays for no apparent good reason.
    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. The Committee concludes that this problem 
can be solved only by unequivocally creating a Federal 
constitutional right of victims to have a court consider their 
speedy trial interests.

7. Right to order of restitution

    Crime imposes tremendous financial burdens on victims of 
crime. The Bureau of Justice Statistics reports that each year 
approximately 2 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 at 12, Senate Judiciary Committee, Victim 
Restitution Act of 1995, 104th Cong., 1st sess. 12 (1995), 
quoting S. Rept. 97-532 at 30 (Judiciary Committee), August 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 (Public Law 97-291, codified at 18 U.S.C. 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. 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.

8. 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.

9. Notice of these rights

    Victims' rights are of little use if victims remain unaware 
of them. Since victims deserve the eight basic rights just 
enumerated, they should be informed about those rights. Not 
only does this serve to ensure that victims can exercise their 
rights, but it can even improve the functioning of the criminal 
justice process. Victims who have been informed about their 
role in the process are in a better position to cooperate with 
police, prosecutors, and courts to bring about a proper 
resolution of the case. Victims deserve appropriate notice of 
their rights in the process. 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 be construed to 
effectuate its remedial purposes: to guarantee the protection 
of and appropriate participation by crime victims in the 
criminal justice process. Courts have long experience in 
applying Federal constitutional rights for defendants in the 
criminal justice system, and the Committee believes that this 
experience can be used to effectively apply victims' rights as 
well.
    Before turning to specific language, one general issue 
deserves brief discussion. The Committee heard testimony that 
the proposed constitutional rights for victims would clash 
with, and triumph over, the preexisting constitutional rights 
of accused and convicted offenders. Typically these claims were 
advanced without specific examples. No convincing evidence was 
offered to support such a contention. This is unsurprising 
because, as the chief justice of the Texas Court of Criminal 
Appeals 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 Committee accordingly 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. 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.'' ``[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 superceding 
provisions in previously adopted ones. Such a canon of 
construction can be useful when two measures address precisely 
the same subject. See Laurence H. Tribe, ``Statement on 
Victims' Rights,'' April 15, 1997; cf. Laurence H. Tribe and 
Paul G. Cassell, ``Embed the Rights of Victims in the 
Constitution,'' L.A. Times, July 6, 1998, at B7. But no rigid 
rule of constitutional interpretation requires giving 
unblinking precedence to later enactments on separate subjects.
    Instead, the Committee intends that courts 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 3, 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.'' The phrase ``crime of violence'' should be 
considered in the context of an amendment extending rights to 
crime victims, not in other possibly narrower contexts. The 
most analogous Federal definition is Federal Rule of Criminal 
Procedure 32(f), which extends a right of allocution to victims 
of a ``crime of violence'' and defines the phrase as one that 
``involved the use or attempted or threatened use of physical 
force against the person or property of another * * *.'' 
(emphasis added). The Committee anticipates that the phrase 
``crime of violence'' will be defined in these terms of 
``involving'' violence, not a narrower ``elements of the 
offense'' approach employed in other settings. See, e.g., 18 
U.S.C. 16. Only this broad construction will serve to protect 
fully the interests of all those affected by criminal violence.
    ``Crimes of violence'' 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 similar crimes. 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 should 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 
would 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 is 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 means 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 
would not be 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, Sec. 2.1.
    In some important respects, 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, 343 (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 decisionmakers 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 pretrial or 
posttrial 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 
pretrial 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. 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 presentence 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, at 35-36, 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 penalty) 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,'' 462-88 (1999).
    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 ensure 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. This provision will extend to victims the right to 
be heard on issues relating to the sentence, including 
restitution (and modification of restitution) issues. 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 
Committee, however, intends no modification of the current law, 
with deep historical roots, allowing a crime victim's attorney 
to participate in the prosecution, to whatever extent presently 
allowed.
    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 and an opportunity to submit a 
        statement concerning any proposed pardon or commutation of a 
        sentence''

    This provision has twin aims: to ensure that a victim is 
not surprised by a pardon or commutation or a sentence and to 
allow that victim to provide information about that pardon or 
commutation. These terms are used broadly, so that a victim 
would receive notice of any alteration of a sentence by the 
executive branch, including pardons or commutations along with 
reprieves, remissions of fines or forfeitures, or other similar 
forms of executive clemency.
    The victim is entitled to notice before a pardon or 
commutation is granted, since otherwise the opportunity to 
submit a statement concerning the ``proposed'' pardon or 
commutation would be meaningless. At the same time, however, it 
is not necessary that the victim receive notice whenever a 
prisoner files an application for a pardon or commutation. Many 
such applications are filed every year, but only a relatively 
few reach the final stages of the process where favorable 
action is possible. If they so choose, the President, 
Governors, and clemency boards are free to winnow the 
applications first, giving notice only to those victims 
involved in cases in which an application has a substantial 
prospect of being granted. As with other parts of the 
amendment, the requirement is for ``reasonable'' notice, which 
can be provided in various ways.
    The President, Governors, and clemency boards are also free 
to determine the appropriate way in a victim's statement will 
be considered as part of the process. The fact that a victim 
objects to (or supports) a clemency application is not 
dispositive. Instead, the information provided by the victim 
will be considered along with other relevant information to aid 
the decisionmaker in making the difficult clemency decision.

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 for an afternoon 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 hometown.
    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 (Public Law 93-619 (amended by 
Public Law 96-43), codified at 18 U.S.C. 3152, 3161) already 
helps to protect a defendant's speedy trial right. Similar 
legislative protection could be extended to the victims' new 
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. 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.

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 pretrial or posttrial release on 
bail, personal recognizance, to the custody of a third person, 
on work release, to home detention, 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 ensuring 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 
challenge previously 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. It accordingly leaves open the possibility 
that Congress and the States, within their respective 
jurisdictions, could draft legislation providing such remedies 
in appropriate circumstances.
    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 he or 
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, providing 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, at either 
the State or Federal level.

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 ensure 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 Supreme Court review, 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.
    The amendment does not impose a straightjacket that would 
prevent the proper handling of 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 ability 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, this 
provision provides a basis for dealing with such situations.
    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. It is also important to note that the Constitution 
contains no other explicit ``exceptions'' to rights. The 
``compelling interest'' standard is appropriate in a case such 
as this in which an exception to a constitutional right can be 
made by pure legislative action.

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, 144 F. 3d 531 (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. Department 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 considered on S.J. Res. 3 on September 30, 
1999. Senator Kyl offered a substitute amendment, which was 
agreed to by unanimous consent. Senator Feingold offered an 
amendment that was defeated. The Committee agreed to favorably 
report S.J. Res. 3 to the full Senate, with an amendment in the 
nature of a substitute, on September 30, 1999.
    1. Senator Feingold offered an amendment. The amendment to 
insert the following: ``Section 3. Nothing in this article 
shall limit any right of the accused which may be provided by 
this Constitution.'' The following sections would have been 
accordingly renumbered. The amendment was defeated by a 
rollcall vote of 5 yeas to 11 nays.

        YEAS                          NAYS

Leahy                               Thurmond
Kennedy (proxy)                     Grassley (proxy)
Kohl (proxy)                        Kyl
Feingold                            DeWine (proxy)
Torricelli                          Ashcroft
                                    Abraham
                                    Smith
                                    Biden (proxy)
                                    Feinstein
                                    Schumer
                                    Hatch

    2. The Committee voted on final passage. The resolution was 
ordered favorably reported, as amended, by a rollcall vote of 
12 to 5.

        YEAS                          NAYS

Thurmond                            Leahy
Grassley (proxy)                    Kennedy (proxy)
Kyl                                 Kohl (proxy)
DeWine (proxy)                      Feingold
Ashcroft                            Schumer
Abraham
Sessions (proxy)
Smith
Biden (proxy)
Feinstein
Torricelli
Hatch

                           VII. Cost Estimate


S.J. Res. 3--Proposing an amendment to the Constitution of the United 
        States to protect the rights of crime victims

    S.J. Res. 3 would propose amending the Constitution to 
protect the rights of crime victims. The legislatures of three-
fourths of the states would be required to ratify the proposed 
amendment within seven 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, this could result in 
additional costs for the federal court system. CBO does not 
expect any additional costs would be significant because the 
amendment would apply to crimes of violence, which are rarely 
federally prosecuted. Because enactment of S.J. Res. 3 would 
not affect direct spending or receipts, pay-as-you-go 
procedures would not apply.
    S.J. Res. 3 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. 
In order for the amendment to become part of the Constitution, 
three-fourths of the state legislatures would have to ratify 
the resolution within seven years of its submission to the 
states by the Congress. However, no state is required to take 
action on the resolution, either to reject it or to approve it.
    The CBO staff contacts for this estimate are Lanette Keith 
(for federal costs) and Lisa Cash Driskill (for the state and 
local impact). This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                   VIII. Regulatory Impact Statement

    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the Committee, after due consideration, 
concludes that S.J. Res. 3 will not have direct regulatory 
impact.

           IX. ADDITIONAL VIEWS OF SENATORS KYL AND FEINSTEIN

    We would like to thank Chairman Hatch for his support of 
the Crime Victims' Rights Amendment (S.J. Res. 3) and comment, 
quite briefly, on points he has raised.

                         scope of the amendment

    Chairman Hatch has expressed his disappointment that the 
amendment has focused on victims of crimes of violence. No one 
was more disappointed than we were to conclude that we lacked 
sufficient support for an amendment extending rights more 
broadly. Yet at this juncture, our practical political choices 
are apparently between an amendment protecting some victims or 
no amendment at all. We agree with the great bulk of crime 
victims organizations that we must avoid the temptation to let 
the ``perfect'' become the enemy of the ``good,'' and should 
move forward to achieve what is possible. Indeed, it seems 
quite likely that an amendment protecting the rights of victims 
of violent crime will quickly spill over and protect victims of 
many other crimes. This has been the experience with other 
enactments in the past. For example, several years ago Congress 
amended the Federal Rules of Criminal Procedure to extend 
allocution rights at sentencing to victims of ``crimes of 
violence.'' See Fed. R. Crim. P. 32(c)(3)(E). It appears that 
this limitation has not caused other rights to be withdrawn 
but, to the contrary, has served to promote greater awareness 
of victims' rights for all victims.

                    requirement of reasonable notice

    Chairman Hatch has also raised the question about whether 
notice of rights should be provided to victims of crime, 
suggesting that this might be novel. But providing notice of 
rights is hardly novel. The sixth amendment's right to counsel, 
for example, has been conventionally understood as requiring 
that a criminal defendant be notified expressly of this right. 
See, e.g., Faretta v. California, 422 U.S. 806, 835 (1975). 
Similarly, criminal trials are, of course, scheduled with 
notice to defendants, since to do otherwise would violate basic 
constitutional due process principles. Since the Constitution 
provides such protections for defendants, it ought to provide 
similar protections for victims. The proposed amendment leaves 
ample flexibility by requiring only ``reasonable'' notice.

 right to reopen certain proceedings and invalidate certain proceedings

    Chairman Hatch has pointed out that the amendment should 
not be construed as potentially implicating the ``liberty'' 
interest of criminal defendants by allowing victims to reopen 
bail or other proceedings after a defendant has been released. 
We agree with the Chairman that defendants are entitled to due 
process before bail is revoked. For this reason, the proposed 
amendment is carefully drafted. The amendment does not give 
victims any unilateral right to revoke bail, for example, but, 
rather, simply extends to victims the right ``to consideration 
for the safety of the victim in determining any conditional 
release from custody.'' That consideration, of course, will be 
give consistently with due process for the defendant. Today, of 
course, due process permits a prosecutor to ask a court to 
reconsider a bail decision. The amendment simply follows that 
well-trodden path in affording victims a similar right.

                           Enforcement Power

    We agree with Chairman Hatch that federalism is an 
important value that must be respected. For this reason, the 
amendment that we initially introduced explicitly extended 
enforcement power to both Congress and the States. This 
language, however, did not garner the broad consensus necessary 
to survive in the current draft.
    Even without enforcement language that explicitly includes 
the States, however, there will be considerable room for State 
experimentation and flexibility. The amendment extends rights 
to ``[a] victim of a crime of violence, as these terms may be 
defined by law.'' Of course, the ``law'' that will serve to 
define these terms will typically be State law. Thus, perhaps 
to an even greater degree than defendants' rights recognized in 
the Bill of Rights, this language in the Crime Victims' Rights 
Amendment will allow flexible application adaptable to unique 
local circumstances. Flexibility is also recognized in other 
provisions for the amendment. For example, the requirement of 
notice of hearings is limited to ``reasonable'' notice. Victims 
are given a right to ``consideration'' of their interest in 
trials free from ``unreasonable'' delay, which will give state 
courts ample room to incorporate local interests.
    The bigger danger to federalism is passing no amendment. As 
our hearings on this subject have revealed, States have had 
difficulty extending rights to victims of crime through State 
statutes and constitutional amendments precisely because courts 
are used to considering, first and foremost, Federal 
constitutional rights. By extending Federal rights to victims 
throughout the States, it will then become easier for State 
criminal justice systems to protect the rights of victims. 
Perhaps for this reason the National Governor's Association, 
whose members include some of the fiercest defenders of 
federalism, endorsed the proposed amendment as long ago as 
1997.

                    ``Compelling Interest'' Standard

    Chairman Hatch has raised the possible concern that the 
standard of a ``compelling interest'' for an exceptions clause 
``may be too high a burden.'' The choice of standard here was 
very deliberate and is critical to the proper functioning of 
the amendment. The standard should not allow exceptions to 
constitutional rights be easily enacted by the legislature--
otherwise the exceptions will swallow the rule. Therefore, for 
an exceptions clause, the ``compelling interest'' standard is 
appropriate.
    At the same time, yet this burden is not ``too high'' to 
prevent the recognition of legitimate State interests. A number 
of State regulations have survived this scrutiny. The example 
of yelling ``Fire!'' in a crowded theater is widely cited, 
Schenck v. U.S., 249 U.S. 47, 52 (1919) (Holmes, J.), but 
recent cases specifically allow first amendment exceptions to 
be made for compelling reasons in a variety of circumstances. 
See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (prohibition 
of pamphleteering close to voting booth); Osborn v. Ohio, 495 
U.S. 103 (1990) (child pornography); Board of Directors of 
Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987) 
(prohibition of discrimination against women). In short, the 
``compelling interest'' standard is not the ``fatal in fact'' 
standard, but one that appropriately accommodates the competing 
concerns.
    The alternative--simply leaving the amendment silent on the 
standard of review--would be quite problematic. Doing so would 
be an unwarranted invitation to judicial activism, as courts 
would then be free to concoct a standard. It is far better that 
we spell out how the issue should be handled than to leave 
courts adrift in a sea of their own personal predilections. 
Again, the point of a high (but hardly impossible) standard is 
that, after the Congress and the people have added rights to 
the U.S. Constitution, it should be difficult to eliminate 
those rights by less than constitutional action.

                             ``Immunities''

    The final point Chairman Hatch has raised concerns the 
provision extending ``rights and immunities'' to all criminal 
proceedings. The term ``immunities'' was simply intended to 
extend the police, prosecutors, judges and other actors the 
immunity from damage actions found in section 2. This language 
was added at the specific suggestion of Department of Justice 
lawyers, and should not create difficulties in administering 
the amendment.

                               Conclusion

    The Crime Victims' Rights Amendment will bring balance to 
the system by giving victims of violent crime the rights to be 
informed, present, and heard at critical stages throughout 
their ordeal--the least the system owes to those it failed to 
protect. After more than 15 years of being tested in the States 
and more than 4 years of careful revisions, this amendment is a 
finely tuned product ready to be passed by the Congress and 
sent to the States as soon as possible.
                                   Jon Kyl.
                                   Dianne Feinstein.

           X. ADDITIONAL VIEWS OF SENATORS LEAHY AND KENNEDY

    When it comes to recognizing the rights of victims of 
crime, there is no majority, no minority and no middle ground. 
As Americans, we share the common desire to ensure that crime 
victims are given the strong and enforceable rights to which 
they should be entitled. Similarly, respect for the 
Constitution has no middle ground. We view the Constitution as 
the foundation of our Government, embodying not only the 
authority of the Government but restraints upon that authority. 
It is our fundamental charter, that is to be amended only after 
careful consideration of the necessity and the long-term 
implications of the proposed change.
    We do not view the Constitution as merely another 
legislative tool, interchangeable with statutes. The 
Constitution should not be amended when we have not exhausted 
efforts to achieve our national goal by statutory means. The 
goals of S.J. Res. 3 can be achieved by ordinary legislation, 
yet, its proponents would amend the Constitution despite the 
numerous objections of constitutional scholars, victims' rights 
groups, judges, prosecutors and even the Chief Justice of the 
U.S. Supreme Court. Before taking a red pen to our paramount 
charter, we should make every effort to achieve our common 
goals by all other means.

                The Crime Victims Assistance Act, S. 934

    We share with the majority the common desire ``to honor the 
humanity and dignity of crime victims.'' Indeed, it was the 
Senator from Vermont who first used these words in hearings on 
the proposed constitutional amendment. We also recognize the 
associated duty to shoulder the thankless and unglamorous 
responsibility of creating the framework essential to giving 
these promises substance and these rights meaning. To do any 
less would not honor the dignity of crime victims. Rather, it 
would be worse than to do nothing at all, because to do less 
would be to make empty promises and create false hopes.
    It is precisely because our strong commitment to protecting 
the rights of victims effectively that we introduced S. 934, 
the Crime Victims Assistance Act, on April 30, 1999, and its 
predecessor in the 105th Congress. Our proposed statute 
provides victims enhanced rights and protections, but does so 
without taking the drastic, unnecessary step of amending the 
Constitution, without interfering with the pardon power of the 
President, and without opening a Pandora's box of serious, 
long-term consequences. Our proposed statute clearly defines 
the protected class and the offenses implicated. By contrast, 
S.J. Res. 3 not only leaves the key terms undefined, inviting 
the same ``patchwork'' of laws that the supporters of the 
constitutional amendment say they deplore, but also creates an 
amorphous provision for exceptions which is devoid of focus or 
definition. Our proposed statute creates specific victims' 
services and authorizes funding to effect the rights and 
services created, accomplishing the core goals of S.J. Res. 3 
without burdening State and local governments with unfunded 
mandates and without jeopardizing effective law enforcement by 
forcing the diversion of scarce resources from criminal 
prosecutions. Our proposed statute allows States to retain 
their plenary power to protect victims in ways appropriate to 
meet their local concerns and unique needs, while S.J. Res. 3 
would supplant the programs already implemented by a majority 
of States according to their individual needs with a Federal 
mandate.

                                title i

    Title I of our bill reforms Federal law and the Federal 
Rules of Evidence to provide enhanced protections to victims of 
Federal crime, to assure victims a greater voice in the 
prosecution of the criminals who hurt them and their families. 
Title I gives victims certain rights, including the right to be 
notified and heard on the issue of detention, the right to a 
speedy trial and prompt disposition free from unreasonable 
delay, the right to be notified of escape or release from 
prison, the right to be notified of a plea agreement and to be 
heard on the merits of the plea agreement, and rights of 
notification and allocution at a probation revocation hearing. 
In addition, S. 934 enhances victims' rights to orders of 
restitution, to notification and an opportunity to be heard at 
sentencing, and to be present at trial. Title I also provides 
victims and witnesses additional protection by increasing the 
maximum penalties for witness tampering.
    Furthermore, and perhaps most importantly, S. 934 
establishes a mechanism for addressing violations of these 
rights.
    The rights established by title I 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. Furthermore, unlike S.J. 
Res. 3, these rights will work in tandem with the myriad 
existing State laws. They will protect the rights of victims 
without trammeling on the efforts of the States to protect 
victims in ways appropriate to each States' unique needs.

                                title ii

    Title II of our statutory proposal is designed to assist 
victims of crime and to ensure that they receive the 
counseling, information, and assistance they need to 
participate in the criminal justice process to the maximum 
extent possible. Title II authorizes appropriations for the 
Attorney General to hire 50 victim-witness advocate positions 
to assist victims of any Federal criminal offense 
investigation, and to fund grants for an additional 50 victim-
witness advocates positions to assist victims of State crimes. 
It also provides funds for increased training for State and 
local law enforcement agencies, State court personnel and 
officers of the court to enable them to respond effectively to 
the needs of victims of crime. These offices also receive 
resources to enable them to develop state-of-the-art systems to 
notify crime victims of important dates and developments.
    In addition to creating the mechanism to make victims' 
rights a reality, title II establishes ombudsman programs to 
ensure that victims are given unbiased information about 
navigating the criminal justice process and authorizes the use 
of funds to make grants to establish pilot programs that 
implement balanced and restorative justice models. It also 
provides measures to aid victims of terrorist acts or acts of 
mass violence occurring outside of the United States.
    Finally, in order to make all of these improvements 
possible, the proposed statute also provides explicitly for 
increased Federal financial support for victim assistance and 
compensation. By creating specific services for victims and 
expressly authorizing funding to implement the legislation, S. 
934 provides more than empty rhetoric.

                               Conclusion

    Our statutory proposal is clear, comprehensive, and 
responsible. It secures the core rights contained in the 
proposed amendment, provides victims' services, and authorizes 
funding for these rights and services. We should not amend our 
Constitution unnecessarily, and S.J. Res. 3 is both unnecessary 
and unwise. Supporters of the constitutional amendment have 
constructed a veritable Potemkin Village, which is all show and 
very little substance. It promises victims' rights, but 
provides no meaningful remedy for violations of those rights. 
It imposes duties on State and local prosecutors' offices, but 
fails to provide funding and, as a result, threatens to 
overburden already tight budgets and to compromise diligent and 
efficient future prosecutions.
    With a simple majority of both Houses of Congress, the 
Crime Victims Assistance Act could have been enacted 2 years 
ago. Its provisions could be making a difference in the lives 
of crime victims throughout the country. There would be no need 
to achieve super-majorities in both Houses of Congress, no need 
to wait ratification efforts among the States and no need to go 
through the ensuing process of enacting implementing 
legislation.
    We remain hopeful that the Senate will turn its attention 
first to the Leahy-Kennedy Crime Victims Assistance Act before 
embarking down the path of constitutional amendment.

                                   Patrick J. Leahy.
                                   Edward M. Kennedy.

   XI. MINORITY VIEWS OF SENATORS LEAHY, KENNEDY, KOHL, AND FEINGOLD

                                contents

    A. Introduction.
    B. It Is Not Necessary To Amend the Constitution To Protect 
Victims' Rights
          1. Congress and the States have the power to protect 
        victims' rights without a Federal constitutional 
        amendment
          2. Statutes are preferable to amending the Federal 
        Constitution
          3. An extensive framework of victims' rights has 
        already been created
          4. The Bill of Rights does not need to be rebalanced
          5. A constitutional amendment is unnecessary to 
        provide for victim participation in the clemency 
        process
    C. The Proposed Amendment Could Have Dangerous and 
Uncertain Consequences for the Nation's Criminal Justice 
System.
          1. The amendment could impair the ability of 
        prosecutors to convict violent criminals
          2. The amendment could impose tremendous new costs on 
        the system
          3. The new constitutional rights for victims could 
        undermine bedrock constitutional protections afforded 
        to the accused by the Bill of Rights
          4. Passage of the proposed amendment could actually 
        hurt victims
    D. The Proposed Amendment Infringes Unduly on States' 
Rights
          1. The amendment would end constructive 
        experimentation by the States
          2. The amendment would impose an unfunded mandate on 
        the states
          3. The amendment would lead to extensive Federal 
        court supervision of State law enforcement operations
    E. The Wording of the Proposed Amendment Is Problematic
          1. The term ``victim'' is undefined
          2. The term ``crime of violence'' is undefined
          3. The term ``reasonable notice'' is undefined
          4. The remedial scheme is uncertain
          5. The ``exceptions'' clause is overly restrictive
    F. Conclusion

                            a. introduction

    Never before in the history of the Republic have we passed 
a constitutional amendment to guarantee rights to a politically 
popular 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 striving 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 side area of law, and with such serious implications for 
the Bill of Rights.
    The emotional engine feeding 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 the 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. 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. 3 invite Congress to delay relief for victims with a 
complex and convoluted amendment to our fundamental law that is 
nearly as long as the ten amendments that comprise the Bill of 
Rights put together--an amendment that is less a remedy than 
another Pandora's Box which, like the 18th amendment, will 
loose a host of unintended consequences.
    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.\1\
---------------------------------------------------------------------------
    \1\ See generally Robert P. Mosteller & H. Jefferson Powell, With 
Disdain for the Constitutional Craft: The Proposed Victims' Rights 
Amendment, 78 N.C.L. Rev. 371, 378 (Jan. 2000).
---------------------------------------------------------------------------
    Any interpretative value of the majority report is further 
undermined by the inconsistency of the document, which is 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). Such inconsistency may 
be politically expedient, but it leaves the final product 
unreliable as an interpretive tool. 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.

 b. 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.''

1. 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.\2\ No Victims' Rights Amendment was necessary, for 
example, to secure a role for victims at pretrial detention and 
capital sentencing hearings.\3\ Nor do we need a constitutional 
provision to entitle victims to notice of public proceedings.
---------------------------------------------------------------------------
    \2\ After listing the State constitutional amendments in footnote 
1, the majority report concedes that ``[t]hese amendments passed with 
overwhelming popular support.'' Most of the examples sprinkled 
throughout the majority report demonstrate that change toward better 
implementation of victims' rights is occurring in the States. The 
majority admits (in Part IV. 4) that ``[t]here is a trend toward 
greater public involvement in the process, with the federal system and 
a number of States now providing notice to victims.''
    \3\ 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.'' \4\ 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 rights.'' 
\5\
---------------------------------------------------------------------------
    \4\ 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''].
    \5\ A Proposed Constitutional Amendment to Protect Crime Victims, 
Hearing on S.J. Res. 3 before the Senate Comm. on the Judiciary, 106th 
Cong., 1st Sess., at 216, 218 (Mar. 24, 1999) [hereinafter ``Hearing of 
Mar. 24, 1999''].
---------------------------------------------------------------------------
    We asked Professor Paul Cassell, another leading proponent 
of S.J. Res. 3, to identify all judicial decisions that were 
not eventually reversed in which victims' rights laws or State 
constitutional amendments were not given effect because of 
defendants' rights in the Federal Constitution. He failed to 
identify any. We also asked Professor Cassell to name any cases 
in which a defendant's conviction was reversed because of 
victims' rights legislation or a State constitutional 
amendment. Again, he was aware of none.\6\ Where, then, is the 
objectionable body of law that might justify the extraordinary 
step of amending the United States Constitution? There is none. 
The Senate will search the pages of the majority report in vain 
for any such basis for this extraordinary proposal.
---------------------------------------------------------------------------
    \6\ See Hearing of Mar. 24, 1999, at 99-100.
---------------------------------------------------------------------------
    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. The majority report 
offers one explanation. Quoting Professor Tribe, the majority 
tells us (in Part III) that statutes and State constitutional 
amendments `` `are likely * * * 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.' '' \7\
---------------------------------------------------------------------------
    \7\ The amendment's principal sponsors offered the same remarkable 
rationale during the Committee markup. Transcript of Markup, Senate 
Comm. on the Judiciary, Sept. 30, 1999, at 37 (Sen. Jon L. Kyl); id. at 
59 (Sen. Dianne Feinstein).
---------------------------------------------------------------------------
    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 the hope of sending a signal that might 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 overcome such real-world influences with a 
constitutional amendment like S.J. Res. 3, which creates rights 
riddled with qualifications and exceptions and prohibits the 
award of damages for their violation.
    In a 1998 commentary, conservative constitutional scholar 
Bruce Fein discussed the problem of official indifference to 
victims' rights, noting that a Federal constitutional right 
would provide no guarantee of effectiveness:

          It is said by amendment proponents * * * that state 
        judges and prosecutors often short-change the scores of 
        existing victims' rights statutes. If so, they would 
        equally be inclined to flout the amendment. The 
        judicial oath is no less violated in the first case as 
        in the second.\8\
---------------------------------------------------------------------------
    \8\ Bruce Fein, Deforming the Constitution, Wash. Times, July 6, 
1998, at A14.

    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.\9\ We 
agree that the only way to change entrenched attitudes toward 
victims' rights is through systematic training and 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. Why 
then undertake a massive effort to amend our Constitution if 
what we really need to do is spend time and money on training 
and education?
---------------------------------------------------------------------------
    \9\ Hearing of Apr. 16, 1997, at 75-77.
---------------------------------------------------------------------------

2. 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 United States 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.'' \10\ The Conference's 
Committee on Criminal Law has identified ``a number of distinct 
advantages'' that the statutory approach has over a 
constitutional amendment:
---------------------------------------------------------------------------
    \10\ Letter from William H. Rehnquist, Chief Justice, U.S. Supreme 
Court, to Judy Clarke, President, National Assn. of Criminal Defense 
Lawyers, Apr. 23, 1997. See also Report of the proceedings of the 
Judicial Conference of the United States, Sept. 23, 1997, at 66-67 
(expressing ``a strong preference for a statutory approach to victims' 
rights over a constitutional amendment'').

          Of critical importance, such an approach is 
        significantly more flexible. It would more easily 
        accommodate a measured approach, and allow for the 
        `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.\11\
---------------------------------------------------------------------------
    \11\ Letter from George P. Kazen, Chief U.S. District Judge, Chair, 
Committee on Criminal Law of the Judicial Conference of the U.S., to 
Sen. Edward M. Kennedy, Senate Comm. on the Judiciary, Apr. 17, 1997, 
at 2.


    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.'' \12\
---------------------------------------------------------------------------
    \12\ 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). See also Hearing of Mar. 24, 1999, at 251 (The 
[Conference of Chief Justices] concurs with the recommendations of the 
U.S. Judicial conference regarding a statutory alternative to this 
issue.'').
---------------------------------------------------------------------------
    Other major organizations, including several victims 
groups, concur.
     The National Clearinghouse for the Defense of 
Battered Women ``strongly opposes'' this amendment and argues 
that statutory alternatives are ``more suitable'':

          The Federal constitution is the wrong place to try to 
        ``fix'' the complex problems facing victims of crime; 
        statutory alternatives and state remedies are more 
        suitable. Our nation's constitution should not be 
        amended unless there is a compelling need to do so and 
        there are no remedies available at the state level. 
        Instead of altering the US Constitution, we urge policy 
        makers to consider statutory alternatives and statewide 
        initiatives that would include the enforcement of 
        already existing statutes, and practices that can truly 
        assist victims of crimes, as well as increased direct 
        services to victims.\13\
---------------------------------------------------------------------------
    \13\ Hearing of Mar. 24, 1999, at 227-28 (emphasis added).


     Victim Services, the nation's largest victim 
assistance agency, also opposes S.J. Res. 3. It wrote to the 
Committee last year that the proposed amendment ``may be well 
intentioned, but good intentions do not guarantee just 
---------------------------------------------------------------------------
results'':

          We believe much progress has been made in New York 
        and other states, and that information about the 
        implementation of victims' rights has only recently 
        begun to emerge. Federal intervention is usually 
        reserved for situations where the states need to be 
        pulled along--but almost everywhere legislative 
        frameworks of rights now exist and 33 states have 
        passed state constitutional amendments. We have 
        difficulty justifying the extensive resources needed to 
        pass a Constitutional amendment when so much remains to 
        be done in terms of enforcing existing victims' rights 
        and providing the vital support services victims 
        deserve. We believe that the amendment would at best be 
        merely symbolic, at worst harmful to some of the most 
        vulnerable victims, and meaningless for the majority of 
        victims whose cases are not prosecuted.\14\
---------------------------------------------------------------------------
    \14\ Id. at 232 (emphasis added).

    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.\15\
---------------------------------------------------------------------------
    \15\ Hearing of Apr. 16, 1997, at 165. See also Hearing of Mar. 24, 
1999, at 232-33.
---------------------------------------------------------------------------
     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]''.\16\
---------------------------------------------------------------------------
    \16\ Hearing of Apr. 16, 1997, at 168.
---------------------------------------------------------------------------
     Murder Victims' Families for Reconciliation, a 
national organization of family members of murder victims, also 
opposes this joint resolution. It urges Congress to ``proceed 
carefully and cautiously when considering amending the U.S. 
Constitution,'' and adds:

          We believe the proposed amendment has flaws that 
        would create new problems and additional delay for 
        crime victims and their survivors, and that it is based 
        on a flawed understanding of the needs of crime victims 
        and their survivors * * *. Granting special rights to 
        victims--especially when these diminish other 
        constitutional rights we all share--will not prevent 
        crime, will not protect victims, and will not heal the 
        damage caused by crime.\17\
---------------------------------------------------------------------------
    \17\ Id. at 161.

     The Cato Institute, the National Sheriff's 
Association, the National Association of Criminal Defense 
Attorneys, the National Legal Aid and Defenders Association, 
the NAACP, the ACLU, the Justice Policy Institute, the Center 
on Juvenile and Criminal Justice, the Youth Law Center, the 
National Center on Institutions and Alternatives, the American 
Friends Service Committee, the Friends Committee on National 
Legislation, 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.
    The widespread support for enacting victims' rights by 
statute arises in part from evidence that statutes work--they 
can ensure that victims of crimes are accorded important rights 
in the criminal justice process. 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, the Senate should not propose to 
amend the Constitution. That is an extraordinary action of last 
restore, not undertaken as a first option.\18\
---------------------------------------------------------------------------
    \18\ Senator Robert C. Byrd made this point with characteristic 
eloquence and strength on March 29, 2000, when, in the course of debate 
on another proposed constitutional amendment, he said: 
``[Constitutional amendments] should be reserved, as Madison said, for 
compelling circumstances when alternatives are unavailable . . . It set 
a dangerous precedent, one that I have come to appreciate fully in 
recent years, to tinker with the careful checks and balances 
established by the Constitution. When it comes to our founding charter, 
history demands our utmost prudence.'' 146 Cong. Rec. S1859-61 (daily 
ed., Mar. 29, 2000). See also The Federalist No. 49 (J. Madison).
---------------------------------------------------------------------------

3. 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 already been created through Federal and 
State legislation and amendments to State constitutions. 
Moreover, 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.
            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. Among the first such legislation 
was the Victim and Witness Protection Act of 1982,\19\ 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,\20\ 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 up to 40 
percent of the money paid by States for victim compensation 
awards.
---------------------------------------------------------------------------
    \19\ P.L. 97-291, Oct. 12, 1982, 96 Stat. 1248.
    \20\ P.L. 98-473, Title I, ch. XIV, Oct. 12, 1984, 99 Stat. 1837.
---------------------------------------------------------------------------
    In 1990, Congress enacted the Victims' Rights and 
Restitution Act.\21\ 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.
---------------------------------------------------------------------------
    \21\ P.L. 101-647, Title V, Nov. 29, 1990, 104 Stat. 4789.
---------------------------------------------------------------------------
    The Violence Against Women Act of 1994 (VAWA)\22\ 
authorized over $1.6 billion over six years to assist victims 
of violence and prevent violence against women and children. 
Programs authorized under VAWA include the National Domestic 
Violence Hotline, S.T.O.P. grants for training police and 
prosecutors to respond more effectively to violent crimes 
against women, and funding for battered women's shelters and 
rape crisis centers, as well as other crucial services for 
victims of domestic and sexual violence. That Act has produced 
dramatic results: hundreds of thousands of women have been 
provided shelter to protect themselves and their children; a 
new national domestic violence hotline has answered hundreds of 
thousands of calls for help; and there has been a fundamental 
change in the way victims of violence are treated by the legal 
system.\23\
---------------------------------------------------------------------------
    \22\ P.L. 103-322, Title IV, Sept. 13, 1994, 108 Stat. 1796.
    \23\ VAWA's authority runs out this year. If we are serious about 
helping victims, our efforts and attention would be better spent in 
reauthorizing this vital legislation without delay.
---------------------------------------------------------------------------
    The Mandatory Victims Restitution Act of 1996 \24\ 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 \25\ 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.
---------------------------------------------------------------------------
    \24\ P.L. 104-132, Title IIA, Apr. 24, 1996, 110 Stat. 1214.
    \25\ P.L. 104-132, Title IIC, Apr. 24, 1996, 110 Stat. 1214.
---------------------------------------------------------------------------
    The Victim Rights Clarification Act of 1997 \26\ 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 trials of Timothy McVeigh and Terry 
Nichols and to provide victim impact testimony.
---------------------------------------------------------------------------
    \26\ P.L. 105-6, Sec. 2(a), Mar. 19, 1997, 111 Stat. 12.
---------------------------------------------------------------------------
    In October 1998, Congress passed the Crime Victims With 
Disabilities Awareness Act \27\ which focused attention on the 
too-often overlooked needs of crime victims with disabilities. 
It directed the National Academy of Sciences to 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.
---------------------------------------------------------------------------
    \27\ P.L. 105-301, Oct. 17, 1998, 112 Stat. 2838.
---------------------------------------------------------------------------
    The same month, Congress passed the Identity Theft and 
Assumption Deterrence Act,\28\ which (among other things) 
created a centralized complaint and consumer education service 
for victims of identity theft. Under the Act, the Federal Trade 
Commission is responsible for establishing procedures to (1) 
log and acknowledge the receipt of complaints by victims of 
identity theft; (2) provide informational materials to victims; 
and (3) refer victim complaints to the appropriate entities, 
including national consumer reporting agencies and law 
enforcement agencies.
---------------------------------------------------------------------------
    \28\ P.L. 105-318, Sec. 5 Oct. 30, 1998, 112 Stat. 3007.
---------------------------------------------------------------------------
    Also in October 1998, the Torture Victims Relief Act \29\ 
amended the Foreign Assistance Act of 1961, authorizing the 
President to provide grants to programs in foreign countries 
that are carrying out projects or activities specifically 
designed to treat victims of torture. In addition, this 
legislation provided grants for U.S. rehabilitation programs, 
social and legal services for victims, and training of foreign 
service officers with respect to torture victims, including 
gender-specific training on the subject of interacting with 
women and men who are victims of torture by rape or any other 
form of sexual violence.
---------------------------------------------------------------------------
    \29\ P.L. 105-320, Oct. 30, 1998, 112 Stat. 3016.
---------------------------------------------------------------------------
    Most recently, on March 10, 2000, the Child Abuse 
Prevention and Enforcement Act \30\ was signed into law 
amending the Victims of Crime Act of 1984 to provide for a 
conditional adjustment in the set aside for child abuse 
victims. This bill directs that such adjustment be implemented 
so that any increase in funding provided shall operate 
notwithstanding any dollar limitation on the availability of 
the Crime Victims Fund.
---------------------------------------------------------------------------
    \30\ P.L. 106-177, Sec. 104, Mar. 10, 2000, 114 Stat. 35.
---------------------------------------------------------------------------
    Despite the gains that have been made through Federal 
statutes, some members of Congress and some constitutional 
amendment advocates continue to assert that statutes do not 
work to provide victims with participatory rights. For 
instance, the two principal sponsors of this proposed amendment 
and its chief academic supporter, Professor Paul Cassell, have 
cited the Victim Rights Clarification Act of 1997 as evidence 
that statutes cannot adequately protect a victim's rights.\31\ 
The majority report echoes this view, stating (in Part IV.2) 
that the Act ``did not fully vindicate the victims' right to 
attend the trial.''
---------------------------------------------------------------------------
    \31\ In particular, Senator Feinstein has 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.'' Transcript of Markup, Senate 
Comm. on the Judiciary, June 25, 1998, at 16. Senator Kyl has made 
similar statements suggesting that Judge Matsch had refused to enforce 
the Act. Id. at 25. In April 1997--less than one month after President 
Clinton signed the Victim Rights Clarification Act into law--Professor 
Cassell told the Committee at its hearing on the proposed 
constitutional amendment that ``the promises in [that Act] * * * have 
been broken.'' Hearing of Apr. 16, 1997, at 112. When later asked to 
explain what the proposed amendment would provide that the Victim 
Rights Clarification Act did not, Professor Cassell's response was that 
the amendment would give victims ``standing.'' Hearing of Mar. 24, 
1999, at 69. Of course, issues of standing are readily addressed 
through ordinary legislation.
---------------------------------------------------------------------------
    Given such assertions, we believe it important to look at 
how the Victim Rights 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.\32\ In other words, Judge Matsch did what the 
statute told him to do. In fact, 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.
---------------------------------------------------------------------------
    \32\ United States v. McVeigh, 958 F. Supp. 512, 515 (1997).
---------------------------------------------------------------------------
    Beth Wilkinson, a member of the Government team that 
successfully prosecuted Timothy McVeigh and Terry Nichols for 
the Oklahoma City bombing, discussed the efficacy of the Victim 
Rights Clarification Act in her testimony before the Committee:

          What happened in [the McVeigh] case was once you all 
        passed the statute, the judge said that the victims 
        could sit in, but they may have to undergo a voir dire 
        process to determine under rule 402 [of the Federal 
        Rules of Evidence] whether their testimony would have 
        been impacted and could be more prejudicial. * * * I am 
        proud to report to you that every single one of the 
        those witnesses who decided to sit through the trial * 
        * * survived the voir dire, and not only survived, but 
        I think changed the judge's opinion on the idea that 
        any victim impact testimony would be changed by sitting 
        through the trial. * * * [T]he witnesses underwent the 
        voir dire and testified during the penalty phase for 
        Mr. McVeigh.
          It worked in that case, but it worked even better in 
        the next case. Just 3 months later when we tried the 
        case against Terry Nichols, every single victim who 
        wanted to watch the trial either in Denver or through 
        closed-circuit television proceedings that were 
        provided also by statute by this Congress, were 
        permitted to sit and watch the trial and testify 
        against Mr. Nichols in the penalty phase.\33\
---------------------------------------------------------------------------
    \33\ Hearing of Mar. 24, 1999, at 65.

Ms. Wilkinson's testimony on this point was uncontested.
    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.\34\ We are 
certain that additional clarifications would find judges 
equally receptive and willing to grant victims the rights 
Congress intends.
---------------------------------------------------------------------------
    \34\ Although he now chooses to disavow the bill, Professor Paul 
Cassell was an advisor to interested Senators in connection with its 
formulation. Accordingly, we again acknowledge his contribution to that 
measure, and regret his more recent efforts to criticize the good 
results it achieved.
---------------------------------------------------------------------------
            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. 3, as well as 
others. In addition, some 32 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.'' \35\
---------------------------------------------------------------------------
    \35\ Susan W. Hillenbrand & Barbara E. Smith, Victims Rights 
Legislation: An Assessment of its Impact on Criminal Justice 
Practitioners and Victims 26 (May 1989).
---------------------------------------------------------------------------
    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.'' \36\ 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.'' \37\
---------------------------------------------------------------------------
    \36\ Victims Rights Compliance Efforts: Experiences in Three States 
(1997). This publication is available on the Internet at .
    \37\ 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 relies heavily on two reports that found past 
protections for victims to be inadequate.\38\ The first report 
was conducted by the National Victim Center (``NVC''), now 
known as the National Center for Victims of Crime--a member of 
the National Victims Constitutional Amendment Network and a 
leading advocate for a Victims' Rights Amendment. The 
remarkable point about this report is that it provides so 
little support for a Federal constitutional amendment. Instead, 
it suggests that it is money and additional State law 
provisions that are needed, not a Federal constitutional 
amendment. The ``violations'' discussed in the study are 
failures of enforcement, not instances of defendants' rights 
trumping the rights of victims. When local officials were 
surveyed and asked for suggestions to improve treatment of 
victims of crime, the leading proposal was for increased 
funding.
---------------------------------------------------------------------------
    \38\ See National Victim Center, Statutory and Constitutional 
Protection of Victims' Rights: Implementation and Impact on Crime 
Victims--Subreport: Crime Victim Responses Regarding Victims' Rights 
(Apr. 15, 1997); Office for Victims of Crime, New Directions from the 
Field: Victims' Rights and Services for the 21st Century vii (May 
1998).
---------------------------------------------------------------------------
    Another unsurprising conclusion of the NVC report: States 
with stronger legal protections for victims provide stronger 
enforcement of victims' rights. It should be obvious to all 
that a State that does not mandate the provision of a 
particular right will not enforce that right. Moreover, as the 
NVC researchers themselves acknowledged, ``it is reasonable to 
assume that States with stronger legal mandates for the 
provisions of victims' rights tend to provide more funds for 
implementation than States with weaker mandates.'' \39\ Before 
we conclude that State laws are inadequate to protect victims, 
there should at least be such laws, and be sustained efforts to 
fund adequately, implement and enforce such laws. The NVC 
report suggests that we should do more to encourage States to 
adopt and enforce victims' rights, not that we should amend the 
Constitution.
---------------------------------------------------------------------------
    \39\ Hearing of Mar. 24, 1999, at 160 (Dec. 1998 summary of NVC 
report).
---------------------------------------------------------------------------
    The NVC report also fails to provide a clear picture of the 
impact of State victims' rights laws because its methodology 
was so seriously flawed. Indeed, 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.'' \40\
---------------------------------------------------------------------------
    \40\ Letter from Kathryn M. Turman, Acting Director, OVC, to Robert 
P. Monsteller, 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). For a detailed critique of the NVC report 
and its flawed methodology, see Robert P. Mosteller, The Unnecessary 
Victims' Rights Amendment, 1999 Utah L. Rev. 443, 447-49 n. 13.
---------------------------------------------------------------------------
    The second report cited by the majority 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.'' \41\ Once again, however, 
the deficiencies identified in the report--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.
---------------------------------------------------------------------------
    \41\ New Directions from the Field, supra note 38, at vii.
---------------------------------------------------------------------------
    There has been no impartial, comprehensive analysis done to 
indicate that victims' rights cannot adequately be protected by 
State and Federal laws. Certainly, not a single appellate 
decision supports such a conclusion. Before we take the 
fundamental 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 statutes and constitutional 
provisions are not doing the job, and that they cannot. Further 
study, we believe, will show that solutions short of a Federal 
constitutional amendment can provide effective and meaningful 
relief to crime victims.

4. The Bill of Rights does not need to be rebalanced

    Proponents of a Federal constitutional amendment for crime 
victims contend that it is necessary 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, of the 
victim. The argument is wide of the mark, both in its 
conception of the criminal justice system, and in its notion of 
what warrants constitutional change.
    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 directly served by the 
right to bring a civil suit against the accused, by court-
ordered restitution if the accused is convicted, and by victim 
compensation programs. In contemporary prosecutions, however, 
we follow the well-considered tradition of the public 
prosecutor.\42\
---------------------------------------------------------------------------
    \42\ The majority report is premised on ``restoring'' the victim to 
the prosecutor role as it was in colonial times, before the creation of 
governmental prosecutors and permanent prosecutors' offices. See supra 
Part I. By contrast, when the majority report returns to this issue, it 
asserts that it ``intends no modification of the current law, with deep 
historical roots, allowing a crime victim's attorney to participate in 
the prosecution, to whatever extent presently allowed.'' See supra Part 
V (emphasis added).
---------------------------------------------------------------------------
    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 justice based on 
wealth or social status or the communication skills of victims 
or their survivors. We have historically and proudly eschewed 
private criminal prosecutions based on our common sense of 
democracy.
    If this amendment were adopted, what would happen in cases 
where the victim either does not support--or is not effective 
at articulating--prosecution strategy? What about cases where 
victims of the same offender disagree on sentencing or release 
issues? The principle that the prosecutor's duty is to do 
justice for all and not individual justice 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 prosecutor to pursue what is in the 
broader public interest.
    The majority report itself recognizes (in Part III) 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 public our sense that justice is being served.
    Moreover, while rhetorically pleasing, the concept of 
``balance'' often makes little sense in the context of a 
criminal proceeding. It assumes that we can identify the 
``victim'' at the outset of every case, but this may not be 
possible. In some cases--as where the defendant claims that she 
acted in self-defense--identifying the ``victim'' is what the 
trial is all about.
    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, not to protect 
individuals from each other.\43\ When the government unleashes 
its prosecutorial power against an accused, the accused 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 could sacrifice a fair trial 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.
---------------------------------------------------------------------------
    \43\ 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, 
        Georgia.\44\
---------------------------------------------------------------------------
    \44\ 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). See 
also Bruce Fein, Deforming the Constitution, Wash. Times, July 6, 1998, 
at A14 (Crime victims ``command virtual universal sympathy, a fail-safe 
formula for legislative success'' and ``need no constitutional 
protection from political overreaching'').

---------------------------------------------------------------------------
    Similarly, Professor Lynne Henderson wrote the Committee:

          Victims of crime are hardly an insular minority, nor 
        are they the victims of prejudice and hostility. 
        Rather, it is those charged with or convicted of crimes 
        who are disliked and denied access to the political 
        process. They have no organized lobbying group, felons 
        in a number of states have no right to vote, and so on. 
        Special treatment of victims under the constitution is 
        not necessary to insure that their interests be 
        preserved or recognized.\45\
---------------------------------------------------------------------------
    \45\ Hearing of Mar. 24, 1999, at 248.

    The Bill of Rights is not askew. We do not need to double 
the length of the Bill of Rights in order to set it straight.

5. A constitutional amendment is unnecessary to provide for victim 
        participation in the clemency process

    According to the majority report (in Part IV.4), only a 
Federal constitutional amendment can insure that victims are 
notified and given an opportunity to be heard before any action 
is taken concerning a pardon or commutation of sentence. While 
we agree that the views of victims should be considered in 
clemency reviews at both the State and Federal levels, a 
constitutional amendment is unnecessary to accomplish this 
goal.
    The Pardon Attorney Reform and Integrity Act, S. 2042, 
which was voted out of this Committee on February 24, 2000 
would create a detailed framework under which the Office of the 
Pardon Attorney of the Department of Justice would be required, 
inter alia, to notify victims about applications for clemency 
and solicit their written opinions for presentation to the 
President. Despite concerns raised by the Justice Department, 
the majority has maintained that this bill passes 
constitutional muster.
    Furthermore, in an effort to supplement current statutory 
requirements and internal guidelines, the Justice Department is 
in the process of crafting amended regulations, for approval by 
the President, that would enhance victim consultation and 
notification in clemency reviews. These efforts are ongoing and 
should be encouraged.
    Given this posture, it is hard to conceive why a 
constitutional amendment is necessary to secure victim 
participation at the Federal level. Moreover, the majority 
itself recognizes (in Part IV.4), a ``trend'' at both the 
Federal and State levels ``toward greater public involvement in 
the process,'' and that ``a number of States now provid[e] 
notice to victims.'' We should permit States to continue 
weighing the manner in which to include victims in their own 
clemency procedures and process and refrain from infringing on 
their right to do so.

     c. the proposed amendment could 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. 3 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.

1. The amendment could 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.
            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.\46\ 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.
---------------------------------------------------------------------------
    \46\ 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.
---------------------------------------------------------------------------
    Prosecutorial discretion over plea bargaining is 
particularly at risk if S.J. Res. 3 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; may need to protect the identity of an 
informant-witness; may think that the evidence against the 
defendant will not convince a jury beyond a reasonable doubt; 
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 basic 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.\47\ 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.\48\
---------------------------------------------------------------------------
    \47\ Robert Fichenberg, The Controversial Victims' Rights 
Amendment, 30-OCT Prosecutor 38 (1996).
    \48\ 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 pleased no contest to voluntary 
manslaughter, with the understanding that he would be sentenced to no 
more than six years in prison. The victim's family opposed the plea 
agreement by gathering more than 200 signatures denouncing the proposed 
settlement as too lenient.
---------------------------------------------------------------------------
    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 the constitutional rights that this amendment would 
create for victims.
    The Committee heard the thoughtful testimony of Beth 
Wilkinson, a member of the prosecution team on the Oklahoma 
City bombing case. With insight and compassion, Ms. Wilkinson 
shared with us her experience in dealing with the victims and 
family members who suffered losses as a result of that tragedy. 
She came to understand firsthand their grief and frustration 
during the two and a half years she worked as part of the 
Federal Government team that successfully prosecuted Timothy 
McVeigh and Terry Nichols. She is a true victims' advocate. And 
she opposes S.J. Res. 3.
    Ms. Wilkinson cautioned this Committee that S.J. Res. 3 has 
the dangerous potential to undermine prosecutorial strategy in 
criminal cases. She described how the prosecution of McVeigh 
and Nichols could have been substantially impaired if the 
proposed constitutional amendment had been in place:

          [J]ust months after the bombing, the prosecution 
        team, which was responsible for determining the most 
        effective strategy for convicting those most culpable, 
        McVeigh and Nichols, determined that it would be in the 
        best interest of the case to accept a guilty plea from 
        Michael Fortier. While not a participant in the 
        conspiracy to bomb the building and the people inside 
        of it, Fortier knew of McVeigh and Nichols' plans and 
        he failed to prevent the bombing.
          If the victims had had a constitutional right to 
        address the Court at the time of the plea, I have no 
        doubt that many would have vigorously and emotionally 
        opposed any plea bargain between the Government and 
        Fortier. From their perspective, their opposition would 
        have been reasonable. Due to the secrecy rules of the 
        grand jury, we could not explain to the victims why 
        Fortier's plea and cooperation was important to the 
        prosecution of Timothy McVeigh and Terry Nichols.
          What if the judge had rejected the plea based on the 
        victims' opposition or at least forced the government 
        to detail why Fortier's testimony was essential to the 
        Government's case? Timothy McVeigh's trial could have 
        turned out differently. Significant prosecutorial 
        resources would have been diverted from the 
        investigation and prosecution of McVeigh and Nichols to 
        pursue the case against Fortier and we would have 
        risked losing the evidence against McVeigh and Nichols 
        that only Fortier could have provided. In the end, the 
        victims would have been much more disappointed if 
        Timothy McVeigh had been acquitted than they were when 
        Michael Fortier was permitted to plead guilty.\49\
---------------------------------------------------------------------------
    \49\ Hearing of Mar. 24, 1999, at 21. See also Beth A. Wilkinson, 
Victims' Rights: A Better Way: The proposed constitutional amendment 
could have let McVeigh go free, Washington Post (Aug. 6, 1999).

    Ms. Wilkinson also described how another major terrorism 
case that she handled could have been put at risk if the 
proposed constitutional amendment were adopted. That case 
involved a Colombian narco-terrorist who sabotaged a civilian 
airliner which exploded over Bogota, Colombia, in 1989, killing 
more than 100 people.\50\
---------------------------------------------------------------------------
    \50\ Hearing of Mar. 24, 1999, at 97.
---------------------------------------------------------------------------
    The rights of victims must be recognized and respected 
throughout the criminal process, but as Ms. Wilkinson 
emphasized, the victim's most important right--the right to the 
fair and just conviction of the guilty--must remain paramount. 
This right is far too important to jeopardize by adopting this 
unnecessary proposal to amend the Constitution.
    Prosecutors make difficult decisions during the course of 
any criminal case. But those decisions are made with an eye 
toward justice and consideration of victims' needs. A Victims' 
Rights Amendment could tie the hands of dedicated prosecutors 
and prevent them from using their valuable discretion as 
experts in the law.
    There can be no doubt that prosecutors would feel 
personally constrained by the proposed amendment. The proposed 
amendment's express prohibition on claims for damages only 
increases the likelihood that courts would find other ways to 
vindicate its newly-minted rights. In 1997, the United States 
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.\51\ At a minimum, prosecutors who made choices 
unpopular with victims would expose themselves to disciplinary 
action. Meanwhile, prosecutors who became 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.
---------------------------------------------------------------------------
    \51\ United States v. Lanier, 520 U.S. 259 (1997).
---------------------------------------------------------------------------
    The Department of Justice, which supports amendment 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.'' \52\ We must not create 
entitlements for victims that will tie prosecutors' hands and 
cripple law enforcement.
---------------------------------------------------------------------------
    \52\ Hearing of Apr. 16, 1997, at 48, 132.
---------------------------------------------------------------------------
            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.
    According to the majority report (in Part IV.2), it seems 
``implausible'' that a victim-witness, having heard other 
witnesses testify, would modify her testimony to comport with 
that of the earlier witnesses. Just last month, however, the 
Supreme Court found it ``natural and irresistible''--and 
permissible--for a jury to infer that a defendant tailored his 
testimony from the fact that he heard the testimony of all 
those who preceded him.\53\
---------------------------------------------------------------------------
    \53\ Portuondo v. Agard, 120 S. Ct. 1119, 1121 (2000). The Court 
concluded: ``Allowing [prosecutors to] comment upon the fact that a 
defendant's presence in the courtroom provides him a unique opportunity 
to tailor his testimony is appropriate--and indeed, given the inability 
to sequester the defendant, sometimes essential--to the central 
function of the trial, which is to discover the truth.'' Id. at 1127.
---------------------------------------------------------------------------
    If the tailoring of testimony is so `implausible,'' then we 
are at a loss to explain the sequestration rules that are in 
effect in every jurisdiction in the country. The commentary to 
the Federal sequestration rule, Fed. R. Evid. 615, explains 
that ``[t]he efficacy of excluding or sequestering witnesses 
has long been recognized as a means of discouraging and 
exposing fabrication, inaccuracy, and collusion.'' Indeed, 
witness sequestration has been described as ``one of the 
greatest engines that the skill of man has ever invented for 
the detection of liars in a court of justice.'' \54\
---------------------------------------------------------------------------
    \54\ Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628-29 (4th 
Cir. 1996) (quoting 6 John H. Wigmore, Wigmore on Evidence Sec. 1838, 
at 463 (James H. Chadbourn ed., 1976). The same court observed that the 
practice of sequestering witnesses has been recognized since at least 
biblical times. The Apocrypha relates how Daniel vindicated Susanna of 
adultery by sequestering the two elders who had accused her and asking 
each of them under which tree her alleged adulterous act took place. 
When they gave different answers, they were convicted of falsely 
testifying. Id. at 628.
---------------------------------------------------------------------------
    Apart from the obvious fairness concerns implicated by a 
procedure that 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. At least one proponent of the amendment, formerly a 
public defender, has acknowledged that the proposed amendment 
could inure to the benefit of defendants.\55\
---------------------------------------------------------------------------
    \55\ Transcript of Markup, Senate Comm. on the Judiciary, July 7, 
1998, at 58 (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 compromise courtroom closure laws designed to 
protect child witnesses.\56\ Similarly, it could cause 
disruption in the context of juvenile justice proceedings, 
which are often closed to the public, and to which the proposed 
amendment expressly applies. 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.\57\
---------------------------------------------------------------------------
    \56\ See, e.g., 18 U.S.C. Sec. 3509(e).
    \57\ Far from ``settling'' the matter authoritatively (majority 
report, Part IV.2), a generally worded constitutional amendment is 
likely to lead to more litigation activity--not less--on the issue 
whether the victim-witness has a right to attend each stage of the 
criminal process. Nor will such general language make advising victim-
witnesses any easier or more certain.
---------------------------------------------------------------------------
    Finally, S.J. Res. 3's creation of a victim's right to 
trial ``free from unreasonable delay'' raises another set of 
concerns for prosecutors. The majority report ignores the fact 
that defendants are not the only parties who seek continuances 
in criminal cases. Prosecutors, too, often seek additional time 
to prepare for trial. The proposed constitutional amendment 
would appear to give victims standing to demand immediate 
commencement of trial. But 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.

2. The amendment could impose tremendous new costs on the system

    The proposed constitutional amendment 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 and clemency determinations. As the majority report 
confirms (in Part V), the amendment's broadly-worded mandate 
covers court proceedings of all types, even the most 
insignificant scheduling conferences (of which there may be 
dozen sin the course of a single case). 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.\58\
---------------------------------------------------------------------------
    \58\ Hearing of Apr. 16, 1997, at 131-32.
---------------------------------------------------------------------------
    The Congressional Budget Office (``CBO'') estimates that 
ratification of S.J. Res. 3 would not result in significant 
costs for the federal court system because ``the amendment 
would apply to crimes of violence, which are rarely federally 
prosecuted.'' In fact, thousands of violent offenses are 
prosecuted federally each year,\59\ and the number continues to 
rise with every indiscriminate passage of new Federal crimes 
that duplicate existing State crimes. More importantly, the 
CBO's estimate does not include any of the costs that would be 
borne by State and local law enforcement and prosecutors, State 
and local court systems, and the providers of legal services to 
indigent defendants. Noting these costs, the Attorney General 
urged the Committee in 1997 to ``reach out to all interested 
parties to explore the serious resource implications of a 
constitutional amendment.'' \60\ Three years later, the 
Committee still has not done this.
---------------------------------------------------------------------------
    \59\ See Bureau of Justice Statistics, Federal Criminal Case 
Processing, 1998 (Sept. 1999).
    \60\ Hearing of Apr. 16, 1997, at 132.
---------------------------------------------------------------------------
    The potential costs of S.J. Res. 3's constitutionally-
mandated notice requirements alone are staggering, without 
regard to the many hidden costs that may flow from the vague 
promises that this amendment 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 weight judges 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. Most 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. 3 were interpreted to provide this sort 
of protection to indigent victims--as the sixth amendment has 
been interpreted with respect to indigent defedants--then we 
would be confronted with a funding problem of enormous 
proportion.
    Cognizant of this problem, the majority report (in Part V) 
purports to find a solution in the amendments' prohibition on 
claims for damages. Section 2 of the amendment states in part,

          Noting 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.

According to the majority report (in Part V), this language 
``prevents the possibility'' that courts might construe the 
amendment as requiring the appointment of counsel at State 
expense to assist victims. We disagree. In particular, we fail 
to see 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. This is 
especially so in light of the majority report's acknowledgment 
(in Part III) that ``every State is required under the sixth 
amendment * * * to provide legal counsel to indigent 
defendants'' and that victims are entitled to equal treatment.
    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 (in Part V) 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.''
    Regardless, courts will pay little attention to the 
majority's commentary when interpreting the comparatively clear 
language of S.J. Res. 3. Under established principles of 
constitutional law, a court could easily 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.\61\
---------------------------------------------------------------------------
    \61\ 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 beyond 
estimation.
    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 the case overload and judicial vacancies that 
already significantly impair the efficacy of civil and criminal 
justice in America.

3. The new constitutional rights for victims could 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.\62\ Eleanor Acheson, Assistant Attorney 
General for the Office of Policy Development, recently reminded 
a House Subcommittee of the Administration's position:
---------------------------------------------------------------------------
    \62\ See, e.g., 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 (attaching resolution approved by ABA House of Delegates, 
Aug. 1997). 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. 1053, 1064-65 (1998) 
(concluding that a constitutional amendment supporting victims' rights 
should expressly guarantee that it will not diminish existing rights of 
the accused).

          We believe that to ensure the protection of existing 
        constitutional guarantees, the Victims' Rights 
        Amendment should contain language that expressly 
        preserves the rights of the accused. By this, we do not 
        mean to suggest that defendants will always prevail if 
        they challenge the victims' right to participate in the 
        process. * * * However, on those rare occasions where, 
        after a serious and searching analysis of the claim, it 
        is clear that the vindication of a victim's rights will 
        indeed violate a defendant's right to a fair trial, the 
        Attorney General has stated that ``we must as a society 
        ensure that [the right to a] fair trial is not 
        jeopardized.'' \63\
---------------------------------------------------------------------------
    \63\ Statement of Eleanor D. Acheson, Assistant Attorney General, 
before the House Subcomm. on the Constitution, concerning H.J. Res. 64, 
Feb. 10, 2000, at 4 (emphasis added).

    During the markup, the Committee considered an amendment to 
S.J. Res. 3, proposed by Senator Feingold, that stated: 
``Nothing in this article shall limit any right of the accused 
which may be provided by this Constitution.'' The Committee 
rejected this amendment by a vote of 11 to 5.\64\ Courts might 
therefore conclude that S.J. Res. 3 was intended to override 
earlier-ratified provisions securing the accused's right to a 
fair trial. This could make it more likely that innocent people 
are convicted.
---------------------------------------------------------------------------
    \64\ Transcript of Markup, Senate Comm. on the Judiciary, Sept. 30, 
1999, at 92-93.
---------------------------------------------------------------------------
    The sponsors of S.J. Res. 3 have never cogently explained 
their opposition to the Feingold amendment. On the one hand, 
they maintain that the Feingold amendment ``effectively guts'' 
and ``would eviscerate'' the proposed constitutional 
amendment.\65\ On the other hand--sometimes in the same 
breath--they assure us that ``No actual constitutional rights 
of the accused, or of anyone else, would be violated by 
respecting the rights of victims in the manner requested [by 
the proposed constitutional amendment].'' \66\ They cannot have 
it both ways. If, as the majority report states (in Part V), 
``The adoption of rights for the victim need not come at the 
expense of the accused's rights,'' then why does the majority 
so strongly oppose the incorporation of this precept in the 
proposed constitutional amendment?
---------------------------------------------------------------------------
    \65\ Id. at 88 (Sen. Dianne Feinstein); Transcript of Markup, 
Senate Subcomm. on the Constitution, Federalism, and Property Rights, 
May 26, 1999, at 21 (Sen. Jon L. Kyl).
    \66\ Transcript of Markup, Senate Subcomm. on the Constitution, 
Federalism, and Property Rights, May 26, 1999, at 21 (Sen. Jon L. Kyl, 
quoting Professor Laurence Tribe).
---------------------------------------------------------------------------
    Conflicts between the victims' rights created by S.J. Res. 
3 and the protections accorded defendants by the Bill of Rights 
likely would be infrequent, but they could occur. Indeed, as 
currently drafted, S.J. Res. 3 practically invites conflict in 
several important areas.
            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 or the facts have 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 she 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 her 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.
            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--the majority report (in Part IV.2.) confirms the 
intention of giving victims an ``unequivocal'' right to attend 
proceedings. 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,\67\ 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, more likely, unintentionally, a victim 
exhibiting such behavior may unfairly prejudice the defendant.
---------------------------------------------------------------------------
    \67\ See supra notes 53-54 and accompanying text.
---------------------------------------------------------------------------
    Indeed, by making the right of victims to be present very 
difficult, if not impossible, to forfeit, this amendment may 
unintentionally encourage disruptive displays by victims.\68\ 
Our nation's jurisprudence explicitly warns against 
determinations of guilt and punishment based upon passion, 
prejudice or emotion, rather than reason or evidence.\69\
---------------------------------------------------------------------------
    \68\ 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).
    \69\ See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).
---------------------------------------------------------------------------
    Proponents of S.J. Res. 3 dismiss such concerns out-of-
hand. The majority report declares (in Part V) that crime 
victims would have ``no right'' to engage in either disruptive 
behavior or excessive displays of emotion. The Attorney General 
has claimed that ``common sense flexibility'' would preserve 
judges' authority to keep courtrooms free from disruptive 
observers, even when those observers are victims.\70\ But it is 
not at all clear how ``common sense flexibility'' could prevail 
over an ``unequivocal'' constitutional right not to be 
excluded. So either the amendment will amount to nothing in 
this context that could not be achieved by statute or rule, or 
it may provide too much, and undercut the courts' ability to 
protect the fairness of criminal trials.
---------------------------------------------------------------------------
    \70\ Hearing of Apr. 16, 1997, at 133.
---------------------------------------------------------------------------
            A victim's right to be heard could undermine the accused's 
                    right to due process
    The proposed amendment gives victims a constitutional right 
to be heard, if present, and to submit a statement at many 
stages in the criminal proceeding, including guilty pleas and 
sentencing. What happens when a victim's testimony is 
irrelevant, unduly or unnecessarily prolongs the proceedings, 
or is so inflammatory that justice would be undermind? For 
instance, passage of the proposed amendment could make it more 
difficult for judges to limit testimony by victims at capital 
sentencing proceedings.\71\
---------------------------------------------------------------------------
    \71\ See Wayne A. Logan, Through the Past Darkly: A Survey of the 
Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Ariz. 
L. Rev. 143 (Spring 1999) (discussing need for meaningful controls in 
the areas of what impact evidence should be admitted, what form it 
should take, and what uses can and should be made of it by capital 
jurors).
---------------------------------------------------------------------------
    This point was poignantly made by Bud Welch, who lost his 
daughter in the Oklahoma City bombing. Mr. Welch wrote to the 
Committee that after the bombing, he was so angry that he 
``wanted McVeigh and Nichols killed without a trial'':

          I consider that I was in a state of temporary 
        insanity immediately after [my daughter's] death. It is 
        because I was so crazy with grief that I oppose the 
        Victims' Rights Amendment. It would give victims the 
        right to give input at each public hearing. I do not 
        think crime victims should be involved in every stage 
        of a criminal trial. I think they are too emotionally 
        involved in the case and will not make the best 
        decisions about how to handle the case.\72\
---------------------------------------------------------------------------
    \72\ Letter from Bud Welch to Sen. Orrin Hatch, Chairman, Senate 
Comm. on the Judiciary, Sept. 22, 1999.

We share Mr. Welch's concern that injecting too much emotion 
into criminal proceedings will increase the chance of unfair 
and wrongful results.
            A victim's right to expedite trial proceedings could 
                    undermine the accused's sixth amendment rights
    The proposed amendment gives victims of violent crimes a 
right to ``trial free from unreasonably 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.
    The majority report (in Part IV.6) is characteristically 
muddled on this point. On the one hand, it asserts that ``the 
interests of a crime victim in a trial free from unreasonable 
delay must be protected.'' On the other hand, it assures us 
that, ``[o]f course, a victim's right to consideration of his 
or her interest to avoid unreasonable delay will not overcome a 
criminal defendant's due process right to a reasonable 
opportunity to prepare a defense.'' Is rights language proposed 
to be added to the Constitution only to be reduced to hortatory 
sentiment?\73\
---------------------------------------------------------------------------
    \73\ See infra notes 75-78 and accompanying text.
---------------------------------------------------------------------------
            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. (``Bobby'') Scott of Virginia asked 
what happens when a prosecutor routinely recommends a one-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?\74\ By the same token, should the amount of time that a 
defendant spends in jail turn on the effectiveness of the 
victim's attorney?
---------------------------------------------------------------------------
    \74\ Hearing of Apr. 1b, 1997, at 34, 35.
---------------------------------------------------------------------------
    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 should be favored. Wealth 
should not determine whose case gets prosecuted, or how well. 
Crime victims themselves benefit form this system, as the 
majority report acknowledges. We should think long and hard 
before we accept the majority's invitation to create a system 
in which the dangers of private prosecutions might resurface.
            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. 3 
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 consistency between the rights of the 
        accused and recognizing in a formal sense the victim's 
        rights. * * * there 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.\75\
---------------------------------------------------------------------------
    \75\ Transcript of Markup, Senate Comm. on the Judiciary, June 25, 
1998, at 19-20 (Sen. Joseph R. Biden, Jr.).

Other sponsors have taken a similar position when resisting the 
proposal to include in S.J. Res. 3 an explicit guarantee 
against any diminishment of the rights of the accused.\76\
---------------------------------------------------------------------------
    \76\ See supra note 66 and accompanying text.
---------------------------------------------------------------------------
    The problem with this position, however, is that it proves 
too much. For if it were always possible to accommodate the 
victim's interests without diminishing the constitutional 
rights of the accused in the same proceeding--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 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.\77\
---------------------------------------------------------------------------
    \77\ 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 
ornaments that fail to define real rights or to give real 
remedies.\78\
---------------------------------------------------------------------------
    \78\ See 146 Cong. Rec. S1859-61 (daily ed. Mar. 29, 2000) (Sen. 
Robert C. Byrd).
---------------------------------------------------------------------------

4. Passage of the Proposed Amendment Could Actually Hurt Victims

    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. Attorney General Reno correctly emphasized that 
``the very best way that [we] * * * can serve victims of crime 
is to bring those responsible for crime to justice.'' \79\ The 
National District Attorneys Association has also observed that 
a Federal Victims' Rights Amendment ``cannot truly be of help 
to a victim if it, in any way, assists a criminal defendant in 
escaping justice.'' \80\ 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.
---------------------------------------------------------------------------
    \79\ Hearing of Apr. 16, 1997, at 42. See also Hearing of Mar. 24, 
1999, at 18, 20 (statement of Beth A. Wilkinson) (``most important 
right'' of crime victim is ``the fair and just conviction of the 
guilty'').
    \80\ 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.
---------------------------------------------------------------------------

      d. the proposed amendment infringes unduly 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 the proposed constitutional 
amendment, 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. The Federal 
Government does not have the general police power. As the 
Supreme Court reminded us in United States v. Lopez, ``Under 
our federal system, the States posses primary authority for 
defining and enforcing the criminal law.'' \81\ The proposed 
amendment would dramatically alter this framework by locking 
States into an absolutist national pattern regarding the 
participation of victims in the criminal justice system.
---------------------------------------------------------------------------
    \81\ 514 U.S. 549, 561 n.3 (1995) (internal quotation marks 
omitted; emphasis added). 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.'')
---------------------------------------------------------------------------
    The majority report attempts to deflect the federalism 
concerns raised by S.J. Res. 3 by declaring (in Part V) that 
the States will retain ``plenary authority'' to implement the 
amendment within their own criminal systems. ``For example,'' 
we are told, ``the States will, subject to Supreme Court 
review, flesh out the contours of the amendment by providing 
definitions of `victims' of crime and `crimes of violence.' '' 
If this interpretation were correct, it would undermine the 
majority's own rationale for the amendment (in Part III), which 
is to repair the existing ``patchwork'' of victims' protections 
and establish a uniform national baseline. That is, it would 
simply replace one patchwork with another.\82\
---------------------------------------------------------------------------
    \82\ Robert P. Mosteller & H. Jefferson Powell, With Disdain for 
the Constitutional Craft, supra note 1, at 378.
---------------------------------------------------------------------------
    More likely, however, is that the majority's 
interpretation, while politically expedient, is legally 
untenable. The notion that S.J. Res. 3 empowers States to pass 
implementing legislation is flatly inconsistent with the plain 
language of the proposed amendment. It states, ``The Congress 
shall have the power to enforce this article by appropriate 
legislation'' (emphasis added). Identical language in earlier 
constitutional amendments has been read to vest enforcement 
authority exclusively in the Congress.
    In the case of S.J. Res. 3, moreover, the text is 
illuminated by the legislative history. Earlier drafts of the 
amendment expressly extended enforcement authority to the 
States.\83\ 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. 3 deprives 
States of authority to legislate in the area of victims' 
rights. Indeed, both Chairman Hatch and the States' Chief 
Justices have already interpreted the proposed amendment in 
precisely this way.\84\
---------------------------------------------------------------------------
    \83\ 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 the 105th 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.''
    \84\ See S. Rep. 409, 105th Cong., 2d Sess., at 44 (Additional 
Views of Sen. Hatch); Hearing of Mar. 24, 1999, at 252 (Letter from 
Conference of State Justices to Sen. John Ashcroft, urging amendment to 
S.J. Res. 3 that would allow State legislatures to implement it with 
respect to State proceedings).
---------------------------------------------------------------------------
    This is troubling in three regards. First, S.J. Res. 3 
would have an adverse effect on the many State and local 
governments that already are 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.

1. The amendment would end constructive experimentation by the States

    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.'' \85\ 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.
---------------------------------------------------------------------------
    \85\ 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. Indeed, in the short time since the Committee 
last reported out a Victims' Rights Amendment, three more 
States have amended their Constitutions to protect victims. The 
proposed amendment 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 is why the States' top jurists oppose it. The 
Conference of Chief Justices has expressed serious concerns 
with the federalism issues presented by the amendment:

          Preempting each State's existing laws in favor of a 
        broad Federal law will create additional complexities 
        and unpredictability for litigation in both State and 
        Federal courts for years to come. We believe that the 
        existing extensive state efforts provide a 
        significantly more prudent and flexible approach for 
        testing and refining the evolving legal concepts 
        concerning victims rights.\86\
---------------------------------------------------------------------------
    \86\ Hearing of Mar. 24, 1999, at 251.

    Senator Fred Thompson, a former member of this Committee, 
---------------------------------------------------------------------------
echoed these same concerns in 1998:

          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 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 compex--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.\87\
---------------------------------------------------------------------------
    \87\ S. Rep. 409, 105th Cong., 2d Sess., at 48 (Minority Views of 
Sen. Thompson; emphasis added.)

    The National Network to Domestic Violence, a membership 
organization of State domestic violence coalitions from around 
---------------------------------------------------------------------------
the country, told the Committee last year:

          [T]he majority of existing * * * state statutes and 
        constitutional amendments have been on the books fewer 
        than 10 years. Thus, giving our very limited experience 
        with their implementation, it will be many years before 
        we have sufficient knowledge to craft a federal 
        amendment that will maintain the delicate balance of 
        constitutional rights that ensure fairness in our 
        judicial process. Without benefiting from the state 
        experience, we run the risk of harming victims. We must 
        explore adequately the effectiveness of such laws and 
        the nuances of the various provisions before changing 
        the federal constitution. State constitutions are 
        different--they are more fluid, more amendable to 
        adjustments if we need to ``fix'' things. A change in 
        the federal constitution would allow no such 
        flexibility, thus potentially harming victims by 
        leaving no way to turn back.\88\
---------------------------------------------------------------------------
    \88\ Hearing of Mar. 24, 1999, at 233 (emphasis added).

    The majority report urges us (in Part III) to dispense with 
further experimentation on the ground that ``Each year of delay 
is a year in which countless victims are denied their rights.'' 
But the process of amending the United States Constitution is 
not a sprint to a popular goal. It should be reserved for 
fundamental changes in that charter that are necessary to 
achieve goals unachievable by other means. The proponents of 
constitutional change must first establish that there is no 
alternative path to that goal by less drastic means. With the 
experimentation that is ongoing in the States, they have not 
come close.
    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 United 
States 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 
trial proceedings at which they are going to be called as 
witnesses. A few States, including Alabama, Arkansas, and 
Louisiana, have specifically provided that the rule regarding 
exclusion of witnesses does not apply to victims.\89\ Other 
States have taken a hybrid approach, whereby the victim has the 
right to attend only after the victim has testified, as in 
Michigan, New Jersey, and Washington.\90\ 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.
---------------------------------------------------------------------------
    \89\ Ala. Stat. Sec. 15-14-55; Ark. R. Evid. 616; La. Code Evid. 
Art. 615(A)(4).
    \90\ Mich. Comp. Laws Ann. Sec. 780.761(11); N.J. Const. Art. 1, 
para. 22; Wash. Rev. Code Ann. Sec. 7.69.030(11). Louisiana took this 
approach until 1999, when it amended its sequestration rule to follow 
the Alabama/Arkansas model.
---------------------------------------------------------------------------
    The argument that we need to achieve ``uniformity'' in 
protecting the rights of crime victims is unconvincing.\91\ 
First, as Professor Robert Mosteller has pointed out, 
``specific aid and guidance in implementing victims' rights is 
likely more important to their full enjoyment than is uniform 
national recognition of a minimal set of rights.'' \92\ Second, 
it assumes that there is one and only one way to do this, and 
that only the Federal Government can discern the best approach, 
even though most of the experience has been in the States.
---------------------------------------------------------------------------
    \91\ The Department of Justice has suggested that the reason to 
adopt a constitutional 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. See A Proposed Constitutional Amendment to Protect Crime 
Victims, Hearing on S.J. Res. 44 before the Senate Comm. on the 
Judiciary, 105th Cong., 2d Sess., at 119 (Apr. 28, 1998) [hereinafter 
``Hearing of Apr. 28, 1998'']; New Directions from the Field, supra 
note 38, at 10 (victims' constitutional amendment is necessary ``to 
rectify the current inconsistencies in victims' rights laws that vary 
significantly from jurisdiction''; quoted in Part III of the majority 
report).
    \92\ Robert P. Mosteller, The Unnecessary Victims' Rights 
Amendment, supra note 40, at 445.
---------------------------------------------------------------------------
    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.'' \93\
---------------------------------------------------------------------------
    \93\ Hearing of Apr. 28, 1998, at 172.
---------------------------------------------------------------------------

2. The amendment would impose an unfunded mandate on the States

    We have already discussed the potentially staggering costs 
that S.J. Res. 3 could impose on the 50 States.\94\ Congress 
has a responsibility to investigate these costs thoroughly and 
to explore the 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.
---------------------------------------------------------------------------
    \94\ See supra notes 58-61 and accompanying text.
---------------------------------------------------------------------------
    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 underfunded 
offices. Instead of unfunded mandates, we need to encourage 
States to provide the support and services that many victims of 
crimes need and deserve.

3. The amendment would lead to extensive Federal Court Supervision of 
        State Law Enforcement Operations

    Under S.J. Res. 3, 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 local prosecutors' 
offices fail, as some now are failing, to provide full notice 
for victims, the only effective 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.'' \95\ Senator 
Fred Thompson has characterized the proposal as ``a dramatic 
arrogation of Federal power'' that would ``effectively * * * 
amend the 10th amendment and carve away State sovereignty.'' 
\96\ 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.
---------------------------------------------------------------------------
    \95\ Hearing of Mar. 24, 1999, at 251.
    \96\ S. Rep. 409, 105th Cong., 2d Sess., at 49 (Minority Views of 
Sen. Thompson).
---------------------------------------------------------------------------
    ``[F]ederalism was the unique contribution of the Framers 
to political science and political theory,'' \97\ 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 micromanagement of State and local affairs, 
when every State is working hard to address the issue in ways 
that are best suited to its own citizens and its own criminal 
justice system.
---------------------------------------------------------------------------
    \97\ Lopez, 514 U.S. at 575 (Kennedy, J., concurring).
---------------------------------------------------------------------------

        e. 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. 3 is problematic.
    There have been some 63 drafts of this proposed 
amendment,\98\ but it remains both excessively detailed and 
decidedly vague. We continue to believe that the level of 
detail provided in this amendment is inconsistent with the 
structure and style of our country's great governing document. 
Indeed, S.J. Res. 3, and the majority report, read like a 
statute, which suggests that is, in fact, how the problem of 
protecting the rights of crime victims should be addressed. The 
kind of legislative fine-tuning that this important subject 
requires simply cannot be done in the context of a 
constitutional amendment that can only be modified, once it is 
ratified, through another constitutional amendment.
---------------------------------------------------------------------------
    \98\ The text has changed--another 20 words have been added--since 
the Committee last reported the proposed amendment, in October 1998. 
The fact that this proposal continues to evolve does not inspire 
confidence that we have discerned the correct formulation, nor does the 
fact that some of our colleagues who voted to report S.J. Res. 3--
including the Committee and Subcommittee Chairmen--have indicated 
dissatisfaction with the current text. See Transcript of Markup, Senate 
Subcomm. on the Constitution, Federalism, and Property Rights, May 26, 
1999, at 3 (Sen. John Ashcroft: ``I have two concerns about S.J. Res. 3 
in its current form''); id. at 14 (Sen. Orrin G. Hatch: ``I continue * 
* * to have some concerns with the text of the proposed amendment'').
---------------------------------------------------------------------------
    Nevertheless, leaving that more general objection aside for 
the moment and taking the amendment on its own terms, we have 
grave concern about the lack of specificity in some key areas. 
In particular, many of the amendment's key words remain 
undefined. We do not even know whether these words would have 
one meaning (if Congress alone could define them) or more than 
50 (if, as the majority claims in Part V, the States also 
enjoyed ``plenary authority to enact definitional laws for 
purposes of their own criminal system.''). Years of litigation 
would be necessary to flesh out the amendment's actual scope, 
enforcement mechanisms, and remedial nature.

1. The term ``Victim'' is undefined

    Most conspicuous in its absence from S.J. Res. 3 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. 3 for this reason.
    Illustrative of the peculiar problems raised by domestic 
violence cases is State ex rel. Romley v. Superior Court.\99\ 
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.
---------------------------------------------------------------------------
    \99\ 836 P.2d 445 (Ariz. Ct. App. 1992).
---------------------------------------------------------------------------
    While nothing in S.J. Res. 3 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. 3 want to shelve the difficult 
definitional debate until such time as Congress is called upon 
to implement the amendment.\100\ But it is premature to pass 
this proposal on to the States for ratification without 
providing clear guidance on this basic issue.\101\
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    \100\ The swifter process to providing victims' rights is, of 
course, by statute rather than implementing legislation delayed while a 
constitutional amendment is debated in Congress and ratification is 
debated in the States. Years, even decades, could ensue before real 
change is seen by means of such a top-down path.
    \101\ The American Bar Association has urged that any measure to 
recognize victims' rights in the criminal justice system do so 
consistent with various principles, including the sixth principle, 
``The class of protected `victims' should be defined.'' 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 
(attaching resolution approved by ABA House of Delegates, Aug. 1997).
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2. 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.\102\
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    \102\ 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 and leave 
it to the courts to sort out while suggesting (in Part V) that 
``implied violence'' might suffice. 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.

3. The term ``Reasonable Notice'' is undefined

    The proposed amendment 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 thirty 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? 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.

4. 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.'' The Justice 
Department has also expressed concern that Section 2 would 
``unduly disrupt the finality of sentences'' by inviting 
victims to reopen completed criminal cases to revisit the issue 
of restitution.\103\
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    \103\ Statement of Eleanor D. Acheson, Assistant Attorney General, 
before the House Subcomm. on the Constitution, concerning H.J. Res. 64, 
Feb. 10, 2000, at 8.
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    The next clause of Section 2 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 (in Part V), 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. 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, has compared the proposed amendment to 
the generous legacy in a pauper's will: it promises much but 
delivers little.\104\ 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 United States Constitution.
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    \104\ Hearing of Apr. 16, 1997, at 47.
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5. The ``Exceptions'' clause is overly restrictive

    In an attempt to address some of the concerns 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 this ``most 
rigorous test of government action under the Constitution'' may 
not afford the appropriate degree of flexibility for law 
enforcement purposes, including flexibility to deal with 
circumstances involving culpable victims, potentially violent 
victims, cooperating defendants, and incarcerated victims.\105\ 
To make matters worse, we have no way of knowing in advance, 
before it is too later, whether courts will consider any 
particular problem sufficiently compelling to justify an 
exception.
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    \105\ See, e.g., Statement of Eleanor D. Acheson, Assistant 
Attorney General, before the House Subcomm. on the Constitution, 
concerning H.J. Res. 64, Feb. 10, 2000, at 6-7. The Justice Department 
urges that the authority to create exceptions should exist where 
necessary to promote a ``significant'' government interest, rather than 
the ``compelling'' interest required by the current resolution. Id. at 
6.
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    The majority's discussion of the exceptions clause is yet 
another exercise in political expediency. As we previously 
discussed,\106\ 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 maintains (in Part V) that in 
such cases, the exceptions clause ``offers the ability'' to 
modify victims' rights provisions.\107\ It is not so easy. 
Ample legal precedent supports the Justice Department's 
conclusion that the ``compelling interest'' test is not 
sufficiently flexible. Without a more flexible exceptions 
clause, the amendment will have unintended consequences, both 
for victims and for law enforcement.
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    \106\ See supra notes 99-101 and accompanying text.
    \107\ The majority has retreated from its earlier assertion that 
the very same exceptions clause provides ``flexibility'' for handling 
such cases. S. Rep. 409, 105th Cong., 2d Sess., 35-36. To say that the 
restrictive ``compelling interest'' test provides ``flexibility'' is a 
ridiculous statement obviously meant to manipulate words beyond any 
recognizable meaning. The majority's current formulation, however, is 
not much better.
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    At the same time, more flexibility is not the answer. If we 
really need a constitutional amendment, it should be to bind 
the hands of government. The fact that this amendment, unlike 
any other, requires a built-in exceptions clause, and the 
majority's efforts to infuse this clause with flexibility, 
proves that a constitutional amendment is not the device that 
is needed.
    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.
    Victim Services has expressed serious concerns about the 
exceptions clause and, in particular, whether it would protect 
the victims of domestic violence:

          [I]t remains totally unclear how * * * exceptions 
        would be made, by whom, and according to what criteria. 
        Numerous questions arise. Does the provision allow or 
        require the creation of exceptions? At what point in 
        the trial process would there be a ruling about this? 
        How and when would domestic violence victims assert 
        their status? Would they be able to do so without 
        compromising their Fifth Amendment rights? What 
        evidence would be sufficient to persuade a court that 
        the defendant is a victim of domestic violence--
        particularly if there are no police records or orders 
        of protection, as is often the case. These unanswered 
        questions illustrate the difficulty of knowing, from 
        the brief, general wording of S.J. Res. 3, whether the 
        proposed rights would be meaningful and practicable or 
        whether they would result in harm to some victims.\108\
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    \108\ Hearing of Mar. 24, 1999, at 232.

    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.'' 
\109\
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    \109\ Hearing of Apr. 28, 1998, at 170.
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                             F. CONCLUSION

    We who oppose this constitutional amendment are supporters 
of victims' rights. We have no less concern for the pain of 
victims of violent crime, or any crime, than those who support 
this amendment, and no less desire to promote their 
participation in the criminal justice system.
    We regret that the time and energy that could have led to 
increased improvements in the implementation of real 
protections for victims, better training for courts and 
prosecutors, better notification systems, and more consistent 
recognition of victims' rightful place in the criminal justice 
system, have, instead, been focused on this constitutional 
amendment process. That focus has been to the detriment of 
efforts toward Federal statutory change, both comprehensive and 
incremental. Much to our regret, victim assistance programs 
have suffered, the Crime Victims Fund has been capped, and the 
pace of victims' rights legislation has slowed over the last 
four years. Fortunately, the States are continuing to move 
ahead.
    It is not victims' rights but this well-intentioned yet 
controversial constitutional amendment that we oppose. We must 
not hamstring our prosecutors and sacrifice core protections 
guaranteed by the Bill of Rights to enact this unnecessary and 
problematic constitutional amendment, which promises much, but 
may deliver very little. For all these reasons--it is not 
necessary to amend the Constitution to protect victims' rights; 
the proposed amendment could have dangerous and uncertain 
consequences for the Nation's criminal justice system; the 
proposed amendment infringes unduly on States' rights; and the 
wording of the proposed amendment is problematic--the proposed 
constitutional amendment should not pass.
                                   Patrick J. Leahy.
                                   Edward M. Kennedy.
                                   Herb H. Kohl.
                                   Russ Feingold.

                      XII. 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 S.J. Res. 3.

                                

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