[Senate Report 106-254]
[From the U.S. Government Publishing Office]
Calendar No. 299
106th Congress Report
SENATE
2d Session 106-254
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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\
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\1\ See Ala. Const. amend. 557; Alaska Const. art. I, Sec. 24;
Ariz. Const. art. II, Sec. 2.1; Cal. Const. art. I, Sec. Sec. 12, 28;
Colo. Const. art. II, Sec. 16a; 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.
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With the passage of and experience with these State
constitutional amendments came increasing recognition of both
the national consensus supporting victims' rights and the
difficulties of protecting these rights with anything other
than a Federal amendment. As a result, the victims' advocates--
including most prominently the National Victim Constitutional
Amendment Network (NVCAN)--decided in 1995 to shift 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''].
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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.
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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\
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\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\
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\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
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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\
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\15\ Hearing of Apr. 16, 1997, at 165. See also Hearing of Mar. 24,
1999, at 232-33.
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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\
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\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.
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\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.
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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.
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\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\
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\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.
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\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\
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\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.
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The United States is world renowned and admired for its
system of public prosecutions. It bespeaks our leadership in
the precepts of democracy that justice is mandated for all
citizens. No individual or group 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\
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\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\
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\76\ See supra note 66 and accompanying text.
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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\
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\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\
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\78\ See 146 Cong. Rec. S1859-61 (daily ed. Mar. 29, 2000) (Sen.
Robert C. Byrd).
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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.
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\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.
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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.'')
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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\
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\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\
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\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\
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\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.
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\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.
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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.
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\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.
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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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.